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291 F.2d 22
In the Matter of GIBRALTOR AMUSEMENTS, LTD., Bankrupt-Appellant, andThe Wurlitzer Company and Wurlitzer Acceptance Corporation, Petitioning Creditors, Appellees.
No. 319.
Docket 26812.
United States Court of Appeals Second Circuit.
Argued March 22, 1961.
Decided May 24, 1961.
George Becker, New York City, for bankrupt-appellant.
Edward R. Neaher, New York City (Chadbourne, Parke, Whiteside & Wolff, New York City and Charles J. Prentiss, New York City, on the brief), for Wurlitzer Co. and Wurlitzer Acceptance Corp., appellees.
Before MOORE, FRIENDLY and SMITH, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge.
1
Gibraltor Amusements, Ltd., the alleged bankrupt, is the operator of numerous "Juke Box" routes on Long Island. The Wurlitzer Company, principal creditor of the alleged bankrupt for a sum exceeding $1,000,000, filed an involuntary petition in bankruptcy against Gibraltor in March of 1960. The petition alleged insolvency, numerous acts of bankruptcy and that the debtor had fewer than twelve creditors. Gibraltor's answer denied the claimed indebtedness, challenged Wurlitzer's standing on the ground that it had been the recipient of preferential payments and denied there were fewer than a dozen creditors. Bankruptcy Act, § 59, subs. b, d, 11 U.S. C.A. § 95, subs. b, d. In support of its last cited contention, Gibraltor submitted a list of its creditors on the date of the petition. To counter this, Wurlitzer subsequently moved to amend its petition — which motion was granted. The bankruptcy court also granted leave to Wurlitzer Acceptance Corporation (WAC), William F. Wadsworth and Joseph Rae to file as intervening creditors.
2
After a hearing, Referee Castellano decided all of the issues against the bankrupt. He held that the alleged debts and acts of bankruptcy had been amply proven, that Wurlitzer's petition was not a sham or a fraud on the court and that Wurlitzer, although secured for the larger portion of its claims, was an unsecured creditor for a sum far in excess of $500. Without deciding that certain installment payments made to Wurlitzer were preferential, the referee ruled that a preferred creditor has a "provable" claim so as to satisfy the requirements of § 59 sub. b, even though the claim is not "allowable" unless the preference is surrendered. Winkleman v. Ogami, 9 Cir., 1941, 123 F.2d 78. Cf. In re Automatic Typewriter & Service Co., 2 Cir., 1921, 271 F. 1. Finally, Referee Castellano found that Rae, Wadsworth and WAC all qualified as petitioning creditors and duly adjudged Gibraltor a bankrupt. On a Petition for Review to the District Court for the Eastern District of New York, Judge Bartels upheld the referee's findings in all particulars save the Rae petition. As to that, the court held that Rae's claim was "contingent as to liability," [187 F.Supp. 937] thereby disqualifying him as a petitioner. Because three petitioning creditors still remained, however, the court confirmed the adjudication of bankruptcy.
3
On appeal to this court, appellant has renewed all of his contentions below. There is absolutely no merit in most of them. The referee's various factual findings as to Gibraltor's insolvency, Wurlitzer's partially unsecured status and the existence of the Wadsworth debt are amply supported by the record; they surely are not "clearly erroneous" as they must be to warrant reversal. Margolis v. Nazareth Fair Grounds & Farmers Market, Inc., 2 Cir., 1957, 249 F.2d 221; Stim v. Simon, 2 Cir., 1960, 284 F.2d 58; In re Tabibian, 2 Cir., 289 F.2d 793. The only substantial question raised is the standing of WAC as a separate petitioning creditor.
4
Wurlitzer Acceptance Corporation is a wholly owned subsidiary of the Wurlitzer Company. It was incorporated in 1957 and its business has been the financing of sales of the parent's products. Although WAC appears to have dealt solely in the commercial paper of Wurlitzer, it has obtained its own bank financing — on the strength of its own credit. It has been a separate corporate taxpayer for the purposes of the Federal income tax. The evidence indicates that both parent and subsidiary have scrupulously honored the separate corporate form of the latter. WAC's claim is for almost $17,000 on two notes guaranteed by Gibraltor. The notes had been purchased from Wurlitzer long before the filing of the petition; there is absolutely no evidence of attempted subversion of the Bankruptcy Act.
5
For most purposes, the law deals with a corporation as an entity distinct from its shareholders. Traditionally courts will pierce the corporate veil "when the notion of legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime." United States v. Milwaukee Refrigerator Transit Co., C.C.E.D.Wis.1905, 142 F. 247, 255; In re Belt-Modes, Inc., D.C. S.D.N.Y.1950, 88 F.Supp. 141; Rapid Transit Subway Construction Co. v. City of New York, 1932, 259 N.Y. 472, 182 N.E. 145. Although courts will sometimes disregard the separate entity where it has been used as a "front" or a "mere conduit" — the so-called alter ego doctrine — the present case with its complete absence of fraud and strict honoring of the corporate form as to assets and inter-corporate transactions1 is not a proper one for the invocation of that rule. See In re Belt-Modes, Inc., supra, 88 F.Supp. at page 144; Shamrock Oil & Gas Co. v. Ethridge, D.C.D.Colo.1958, 159 F.Supp. 693, 697; Western Electric Co. v. Cinema Supplies, 8 Cir., 1935, 80 F.2d 106, 108; 1 Fletcher Cyc. Corp., Perm.Ed. §§ 41, 43.2
6
Since ordinary principles of the law of corporations do not warrant the disregard of WAC's corporate identity here, it remains only to ascertain whether anything in the language or policy of the Bankruptcy Act demands such a result. Section 59, sub. b, 11 U.S.C.A. § 95, sub. b provides simply that "Three or more creditors who have provable claims liquidated as to amount and not contingent as to liability against any person * * * may file a petition to have him adjudged a bankrupt." "Creditor" is defined in § 1(11), 11 U.S.C.A. § 1(11) as follows: "`Creditor' shall include anyone who owns a debt, demand, or claim provable in bankruptcy * * *"
7
The aforecited language, far from being restrictive in its definition of the scope of permissible petitioners, is virtually all encompassing. The emergence of the wholly owned corporate subsidiary as a common business instrumentality is not a brand new phenomenon. While Congress has repeatedly added to and amended the Federal taxing laws to deal with problems posed by the multiple corporation means of doing business, it has not seen fit similarly to tinker with the Bankruptcy Act. The detailed ground rules for "counting creditors" laid down by § 59, sub. e, 11 U.S.C.A. § 95, sub. e indicate that the principal Congressional fear of abuse was not that a debtor would be too easily petitioned into bankruptcy — rather that through connivance with friendly creditors the insolvent debtor might be able unfairly to hamstring one or two large creditors. The courts have long evinced a disposition to honor the separate corporate entity in bankruptcy matters; Comstock v. Group of Institutional Investors, 1948, 335 U.S. 211, 68 S.Ct. 1454, 92 L.Ed. 1911; In re Belt-Modes, Inc., supra. If Congress meant to alter ordinary judicial rules governing corporations, it should have so provided specifically.
8
Whether the policy of the Act calls for a more narrow construction of qualified "creditors" is a closer question. The present requirement of three petitioning creditors, inserted in the Act of 1898, is a compromise between the quite liberal provision of the Act of 1841 and the restrictive requirements of the 1867 Act. 3 Collier on Bankruptcy 548. In the process of "counting to three," the courts have perhaps been overly liberal in allowing the holders of assigned claims to qualify as practitioners. See In re Bevins, 2 Cir., 1908, 165 F. 434, where the court allowed the petitions of two assignees who had taken claims for the specific purpose of making up the required statutory number. General Order 5(2), 11 U.S.C.A. following section 53, while recognizing assignees as petitioners, sets up a check against abuse of the assignment device by requiring an affidavit setting forth the particulars of the transfer.3
9
It may be conceded to be highly questionable whether Congress meant to sanction traffic in claims merely for the purpose of creating a sufficient number of petitioning creditors. While such was the case in Bevins, and was there approved, no such machinations have been presented in the instant case. Even though WAC took the notes in the due course of business, without reference to any future bankruptcy proceeding, it is urged that the mere fact of "control" by Wurlitzer disqualifies the subsidiary's claim. This argument merely raises, in a slightly different guise, the question of the disregard of the subsidiary's separate entity. There has been no showing, however, that Wurlitzer has abused the distinct corporate form nor that it has used it fraudulently to subvert the Bankruptcy Act. Lacking such a showing, WAC's claim should be honored. Such an approach to this question is not a purely conceptual one; it must be kept in mind that protection of the separate creditors of WAC, who cannot reach the assets of Wurlitzer, can only be accomplished by the recognition of the subsidiary as an independent legal entity.
10
Affirmed.
Notes:
1
Apparently Wurlitzer handled most of WAC's collections for it while it collected on its own notes. Such an arrangement was undoubtedly cheaper and more efficient and is not enough from which to infer an internal disregard of WAC's separate entity
2
"One corporation may be disregarded where the two are identical or indistinguishable in fact. Unless it is a mere instrumentality or agency or adjunct in that sense, or as a sham or is used in fraud, by the dominant corporation, it will not be disregarded; and it will not be disregarded unjustly." 1 Fletcher Cyc. Corp. 155
3
General Order 5(2) provides: "Petitioners in involuntary proceedings for adjudication, whose claims rest upon assignment or transfer from other persons, shall annex to one of the triplicate petitions all instruments of assignment or transfer, and an affidavit setting forth the true consideration paid for the assignment or transfer of such claims and stating that the petitioners are the bona fide holders and legal and beneficial owners thereof and whether or not they were purchased for the purpose of instituting bankruptcy proceedings."
11
FRIENDLY, Circuit Judge (dissenting).
12
With some regret as regards this particular bankrupt, I respectfully dissent from the conclusion that Wurlitzer and its wholly owned subsidiary, Wurlitzer Acceptance Corporation (WAC), may be regarded as two separate creditors for the purpose of § 59, sub. b of the Bankruptcy Act, 11 U.S.C.A. § 95, sub. b.
13
Assuming as I do that WAC had sufficient independence of its parent to be regarded as a separate corporation under state law in contract or tort litigation, Bartle v. Home Owners Co-Op, Inc., 1955, 309 N.Y. 103, 127 N.E.2d 832, or under federal law for income tax purposes, it does not follow that it is a creditor separate from its parent under § 59, sub. b. It is too often forgotten that whether a subsidiary corporation is to be deemed a separate entity "cannot be asked, or answered, in vacuo," Latty, The Corporate Entity as a Solvent of Legal Problems, 34 Mich.L.Rev. 597, 603 (1936); the issue in each case must be resolved by reference to the policy of the applicable statutory or common law rule. See, e. g., Hart Steel Co. v. Railroad Supply Co., 1917, 244 U.S. 294, 37 S.Ct. 506, 61 L.Ed. 1148; Chicago, etc., Ry. Co. v. Minneapolis Civic & Commerce Ass'n, 1918, 247 U.S. 490, 38 S.Ct. 553, 62 L.Ed. 1229. Although my brothers recognize that the requirement of three petitioning creditors in the Bankruptcy Act of 1898 (save where the bankrupt had less than twelve creditors) was a compromise by Congress between the divergent provisions of earlier statutes, that bland statement scarcely conveys the flavor. "In law also the emphasis makes the song," Bethlehem Steel Co. v. New York State Labor Relations Board, 1947, 330 U.S. 767, 780, 67 S.Ct. 1026, 1033, 91 L.Ed. 1234.
14
The first three bankruptcy acts, all repealed after relatively short periods, permitted a single creditor to initiate involuntary proceedings if his claim met the prescribed minimum.1 Widespread sentiment against the 1867 Act, which not only allowed a single creditor to institute involuntary proceedings but provided for numerous acts of bankruptcy and, in the absence of creditor consent, denied a discharge from debts to a bankrupt who could not pay fifty cents on the dollar, MacLachlan, Bankruptcy (1956), p. 11, caused Congress to amend it in 1874, 18 Stat. 178, 181. In addition to making discharges less difficult to obtain and narrowing the acts of bankruptcy, the amendment provided that an involuntary petition could be filed only by one fourth of the total number of creditors with aggregate claims amounting to one third of the dollar amount of the total debts. Still the statute was too harsh for debtor sentiment, and it was repealed in 1878, see 3 Collier on Bankruptcy, p. 548.
15
The impulse for a new bankruptcy law came from the 200,000 business failures in the United States between the 1878 repeal of the 1867 Bankruptcy Act and 1898. Hardship had been particularly acute in the West, where a great land boom had raged from 1883 to 1889, followed by a sharp collapse. Southern and Western Populists began a crusade for at least a temporary voluntary bankruptcy law to relieve the large numbers of honest debtors from oppressive burdens and give them a fresh start in life. See Representative Sparkman of Florida, 31 Cong.Rec. 1850.
16
Although Eastern congressmen were willing to concede that voluntary bankruptcy was a good idea see Representative Parker (N.J.), 31 Cong.Rec. 1852, many of them were unwilling to enact a voluntary bill without accompanying involuntary features designed to insure an equitable distribution of a bankrupt's assets among his creditors, and, to that end, to abolish preferences. This the Populists opposed. They argued there was no need to infringe on state rights by creating a federal remedy for the collection of debts: state laws were adequate for the purpose. Bankruptcy was viewed as a stigma difficult to erase; it was one thing to allow a hopelessly burdened debtor to choose this disagreeable alternative as preferable to eternal debt but quite another to permit blood-thirsty creditors, with only their own interests at heart, to plunge an unwilling debtor into disgrace — the more so since in many cases the debtor reasonably might hope that the upturn in his fortunes was just around the corner, and bankruptcy would deprive him of the right to keep his business alive in the meantime. See 31 Cong. Rec. 1793 (Underwood, Ala.), 1838 (Settle, Ky.), 1863 (Linney, N. C.), 2313 (Sen. Stewart, Nev.). This position was summed up by Representative Lewis of Georgia, 31 Cong.Rec. 1908: "Voluntary bankruptcy is the means of the redemption of the unsuccessful and fallen debtor. Involuntary bankruptcy is a weapon in the hands of the creditor to press collections of debt harshly, to intimidate, and to destroy."2 Thus the Populists denounced the bankruptcy bill as an "engine of oppression" (Sparkman, Fla., 31 Cong.Rec. 1851), "intended to bind hand and foot the debtors of this country and place them in the vise-like grip of the greedy cormorants of the country" (Henry, Tex., 31 Cong.Rec. 1803), and even tied the issue to the silver question, haranguing the "conspiracy of gold and monopoly" (Sen. Stewart, Nev., 31 Cong. Rec. 2359-60).3 Easterners countered that a properly restricted involuntary bankruptcy law was a benefit not only to creditors but to debtors as well. In the absence of such a law creditors become nervous; whenever the debtor's assets seem less than his liabilities, they are likely to grab them precipitously, thereby forcing the debtor to the wall, lest other creditors beat them to the draw and they get nothing. 31 Cong.Rec. 1789 (Henderson, Iowa), 1852 (Parker, N. J.).
17
The provisions of the statute with respect to involuntary bankruptcy were the resulting vector of these opposing forces, an attempt to make involuntary bankruptcy less unpalatable to the Populists by surrounding such proceedings with careful safeguards for the debtor. The original bill in the 55th Congress, S. 1035, provided for three petitioning creditors if the total were twelve, just as in the present law. But in other respects the bill was too harsh toward debtors to suit the Senate. Although the substituted bill passed by that body, which reduced the number of criminal offenses, the acts of bankruptcy, and the causes for denying a discharge, permitted an involuntary petition to be filed by "a creditor or creditors having debts against such a bankrupt to the amount of $500 or more," as in the acts prior to 1874, the House Judiciary Committee substituted a bill more like that originally introduced in the Senate. This bill was bitterly debated in the House for more than 100 pages in the Record. Its proponents attempted to sugar-coat the pill by repeated reference to a number of safeguards inserted to protect debtors from oppressive use of the weapon of involuntary bankruptcy: to be insolvent one must have assets insufficient to pay his debts, not merely insufficient liquid funds to meet debts as they fall due; oppressive costs of proceedings under the 1867 act had been drastically pruned; petitioning creditors were required to post bonds to cover not only the costs of the proceedings but any damages that might result from a wrongful filing; widows, minors and the insane were protected; the bankrupt could be taken into custody only if he showed signs of departing to avoid examination; he might not be required to travel over 100 miles to testify; criminal offenses and acts of bankruptcy were reduced; and three creditors must join if there were twelve or more in all. H.R.Rep. No. 65, 55th Cong., 2d Sess., 25-27 (1897). An attempt was made by Representative Livingston of Georgia to require "that no man can be placed in bankruptcy except on a petition signed by two-thirds of his creditors representing two-thirds of the indebtedness," 31 Cong.Rec. 1791. But Representative Henderson, chairman of the Judiciary Committee, which reported the substitute bill, responded that the present bill "goes far enough, if not too far, in restraining creditors from moving, having to give bonds with sureties." Ibid. The House passed this version; a conference committee toned it down in several respects to make it more favorable to the debtor; and both houses enacted the conference bill.
18
Thus, the entire process that resulted in the enactment of the Act of 1898 was a pitched battle between those who wanted to give the creditor an effective remedy to assure equal distribution of a bankrupt's assets and those who were determined to protect the debtor from the harassment of ill-considered or oppressive involuntary petitions, including those by a single creditor interest. The requirement of three creditors was one of many provisions reflecting a compromise between the two opposing positions. It is not doing justice to this history to suggest that if Congress had meant to prevent a wholly owned subsidiary from being counted as a petitioning creditor separate from its parent, it should have explicitly said so.4 We must "remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." Cabell v. Markham, 2 Cir., 1945, 148 F.2d 737, 739, affirmed 1945, 326 U.S. 404, 66 S. Ct. 193, 190 L.Ed. 165. Here the purpose to require three separate creditor interests, separate in reality and not merely in legal form, is not difficult to discern. With the temper of the 55th Congress on this subject, it would have required a bold man to arise on the floor of the House of Representatives and ask that the bill be clarified to insure that a corporation with a financing subsidiary could be counted as two creditors if each unit held a claim against the debtor; it is hard to suppose the House managers would have imperiled the bill by sanctioning any such proposal and quite impossible to believe it would have been enacted. Yet, where the words permit either interpretation, our duty is to determine "which choice is it the more likely that Congress would have made." Burnet v. Guggenheim, 1933, 288 U.S. 280, 285, 53 S.Ct. 369, 370, 77 L.Ed. 748.
19
Comstock v. Group of Institutional Investors, 1948, 335 U.S. 211, 68 S.Ct. 1454, 92 L.Ed. 1911, especially when read in the light of Taylor v. Standard Gas & Electric Co., 1939, 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669, does not support any view that a court of bankruptcy will regard parent and subsidiary as different entities semper et ubique; rather it held that on the facts the particular policy there applicable did not require that they be regarded as the same, as in the Taylor case to some extent the same policy had. Here we deal with a different policy — that only three distinct creditors may precipitate an involuntary bankruptcy of a debtor having more than twelve.5 I cannot believe it consistent with that policy to hold that a single creditor corporation may insure its ability to initiate an involuntary bankruptcy by the simple expedient of organizing two financing subsidiaries — perhaps with independent creditors — and seeing to it that claims against each debtor are parceled out in advance of bankruptcy.6 See In re Supreme Tool & Mfg. Co., D.C.E.D.Wis. 1956, 147 F.Supp. 158. Whether a wholly owned subsidiary with independent creditors might be deemed separate from its parent in a case where, as a result of its own financial difficulties, the subsidiary was in effect acting for its creditors rather than its stockholders, need not be now determined; no such case is presented here.
Notes:
1
In the Act of 1800, 2 Stat. 19, the amount was $1,000; in the 1841 act, 5 Stat. 440, it was $500; in the 1867 act, 14 Stat. 517, 536, $250
2
Seventy years earlier, in 1827, Martin Van Buren, denouncing an attempt to provide for voluntary and involuntary bankruptcy in a single statute, had said "It is an erroneous idea * * * that this bill can be made to serve God and mammon by combining two things totally at variance." 3 Cong.Deb. 279
3
Some idea of the intensity of the feeling is conveyed by the remarks of Senator Stewart of Nevada against "this diabolical bill," 31 Cong.Rec. 2312; "This bill comes from the class of men who are grinding the face of the poor * * * (2362). This is a bill which belongs to the Dark Ages. It belongs to the age of the Inquisition; it belongs to the age of witchcraft * * *. It is dictated by the same spirit that hung and killed and drew and quartered women for witchery" (2408)
4
It should also be remembered that at common law a corporation could not hold stock in other corporations unless the power was expressly conferred; the extensive development of the use of subsidiaries apparently began with the New Jersey Act of 1888, pp. 385, 445, conferring the power in general terms. See 1 Hornstein, Corporate Law and Practice, § 111
5
If my brothers' reference to In re Bevins, 2 Cir., 1908, 165 F. 434 indicates a view that the decision in that case ought be reexamined, I wholeheartedly agree. However, it can stand without requiring an affirmance here
6
It could be said in such a case also that there was no evidence of abuse of the corporate form with a purpose fraudulently to subvert the Bankruptcy Act; bankruptcy of the debtor might have been the furthest thing from contemplation when the claims were placed and there may have been good business reasons for doing so
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0564n.06
No. 13-6464
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 25, 2014
RICKY EDWARDS, ) DEBORAH S. HUNT, Clerk
)
Plaintiff - Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
CSX TRANSPORTATION, INC., ) DISTRICT OF TENNESSEE
)
Defendant - Appellee. )
BEFORE: WHITE, DONALD, and O’MALLEY,Circuit Judges.
HELENE N. WHITE, Circuit Judge. CSX locomotive engineer Ricky Edwards
brought this action under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq.,
and the Locomotive Inspection Act (LIA), 49 U.S.C. § 20701, after sustaining severe injuries on
the job. The Magistrate Judge determined that Edwards’s negligence was the sole cause of his
injuries and granted CSX’s motion for summary judgment. We REVERSE and REMAND for
further proceedings.
I.
The parties consented to have a magistrate judge (MJ) decide all matters. The MJ’s
opinion granting CSX’s motion sets forth most of the pertinent background:
On May 28, 2012, . . . [plaintiff] was assigned the task of operating a train
consisting of two locomotives and perhaps 30 cars from Bostic, North Carolina to
Erwin, Tennessee. When he reported for work, he already was nauseated.
The Honorable Kathleen M. O’Malley, Circuit Judge for the United States Court of Appeals for the Federal Circuit,
sitting by designation.
No. 13-6464
Edwards v. CSX Transportation, Inc.
The lead locomotive, i.e., the one in front from which the engineer
operated the train, was No. 823. The train . . . had left Hamlet, North Carolina
earlier that day, manned by another crew. It was plaintiff’s responsibility, along
with the conductor, Mr. McClain, to bring the train from Bostic, North Carolina to
Erwin, Tennessee.
Locomotive No. 823 had been inspected the day before as required by 49
CFR § 229.21.[1] That report indicated that the toilet on No. 823 had no defects.
As required by 49 CFR 229.137,[2] railroad locomotives are required to be
equipped with a “sanitation compartment,” which is nothing but a closet toilet.
These toilet compartments are somewhat similar to a portable toilet often seen at
outdoor events. Waste is flushed from the toilet with a blue-colored disinfectant
liquid, all of which flows into a holding tank which is emptied later. Part 229 of
49 CFR defines “sanitary” and “unsanitary.” The definitions are complimentary,
and referring to the definition for “unsanitary” will suffice for purposes of this
opinion:
Unsanitary means having any condition in which any significant
amount of filth, trash, or human waste is present in such a manner that a
reasonable person would believe that the condition might constitute a
health hazard; or strong, persistent, chemical or human waste odors
sufficient to deter use of the facility, or give rise to a reasonable concern
with respect to exposure to hazardous fumes. Such conditions include,
but are not limited to, a toilet bowl filled with human waste, soiled toilet
paper, or other products used in the toilet compartment, that are present
due to a defective toilet facility that will not flush or otherwise remove
waste; visible human waste residue on the floor or toilet seat that is
present due to a toilet that overflowed; an accumulation of soiled paper
towels or soiled toilet paper on the floor, toilet facility, or sink; an
accumulation of visible dirt or human waste on the floor, toilet facility,
or sink; and strong persistent chemical or human waste odors in the
compartment.
§ 229.5
1
49 C.F.R. § 229.21 is titled “Daily inspection” and provides:
(a) . . . each locomotive in use shall be inspected at least once during each calendar day. A written report
of the inspection shall be made. The report shall contain the name of the carrier; the initials and
number of the locomotive; the place, date and time of the inspection; a description of the non-
complying conditions disclosed by the inspection; and the signature of the employee making the
inspection. Except as provided in §§ 229.9, 229.137, and 229.139, any conditions that constitute non-
compliance with any requirement of this part shall be repaired before the locomotive is used . . . .
2
49 C.F.R. § 229.137 provides in pertinent part: “all lead locomotives in use shall be equipped with a sanitation
compartment.”
-2-
No. 13-6464
Edwards v. CSX Transportation, Inc.
As plaintiff climbed aboard No. 823 to begin his work day, he had to walk
by the toilet compartment. The door was open, and he noticed a strong odor of
human waste and chemicals. He looked into the compartment and saw that the
bowl contained human waste, and the seat and back were splattered with urine
and blue chemical. It was so nasty, so he testified during his deposition, that he
did not want to flush the toilet without wearing rubber gloves. Other than
spraying disinfectant into the compartment, plaintiff did not do anything else, nor
did he say anything about the compartment to any other representative of the
Railroad.
Plaintiff took his seat in the cab of the locomotive and commenced his run.
Approximately half-way to Erwin[, Tennessee], he stopped his train near Poplar,
North Carolina to await the passing of another train. While waiting, plaintiff’s
nausea suddenly grew worse, and he realized he was going to quickly vomit. He
got up from his seat and went outside to the catwalk in order to vomit, disdaining
the toilet because of its nasty condition. [T]he second time he vomited he pitched
over the railing and was badly hurt.
PID 522-24. Additional pertinent background is that Locomotive 823 was inspected at 2:00 p.m.
on May 27, 2012, after which the crew that preceded Edwards and McClain took the train from
Hamlet to Bostic. The following day, Edwards and McClain reported to the Bostic yard around
10:00 a.m., and the train left Bostic around 12:15. Edwards was struck with the urge to vomit
about eight hours into his shift, around 6:00 p.m. on May 28, 2012.
Edwards’s accident resulted in an extended hospitalization and his injuries ended his
railroad career. On July 3, 2012, CSX trainmaster Buchanan visited Edwards at his home and
asked him to complete an “employee report of personal injury while on the job,” form PI-1A.
Edwards described the incident on the form as follows:
Was sitting on engine and started feeling bad, got up and went outside to throw
up. Was standing at hand rail throwing up and that is the last I remember. Fell
off the side of the engine hurting my face & back. Don’t remember nothing about
the fall.
The form asked, “Was anyone at fault?” Edwards checked “yes” and wrote, “CSX bathrm. not
cleaned.” The form asked, “Did defective tool or equipment cause accident?” Edwards checked
“yes” and wrote, “Bathrm. Not usable. Dirty. Reason for being outside.” Finally, the form
-3-
No. 13-6464
Edwards v. CSX Transportation, Inc.
asked, “Did employee have a safe place in which to work?” Edwards checked “no” and wrote,
“Bath rm. was not usable.” PID 297. Both Buchanan and Edwards signed the form. Buchanan
later testified that his investigation of the accident led him to conclude that Edwards had not
violated any rules or regulations.
II. FELA and LIA
“[A]n avowed departure from the rules of the common law, [FELA] was a response to the
special needs of railroad workers who are daily exposed to the risks inherent in railroad work.”
Sinkler v. Missouri Pac. R.R. Co., 356 U.S. 326, 329 (1958) (citation omitted). FELA provides
that:
Every common carrier by railroad . . . shall be liable in damages to any person
suffering injury while he is employed by such carrier . . . for such injury or death
resulting in whole or in part from the negligence of any of the officers, agents, or
employees of such carrier, or by reason of any defect or insufficiency, due to its
negligence, in its cars, engines, appliances, machinery, track, roadbed, . . . or
other equipment.
45 U.S.C. § 51 (emphasis added). The Supreme Court recently reiterated FELA’s lessened
negligence and causation standard:
Under [FELA] the test of a jury case is simply whether the proofs justify with
reason the conclusion that employer negligence played any part, even the
slightest, in producing the injury . . . for which damages are sought.
CSX Transp., Inc. v. McBride, 131 S. Ct. 2630, 2636 (2011) (citation and quotation marks
omitted, emphasis added). So, too, has this court. See Szekeres v. CSX Transp., Inc. (Szekeres
II), 731 F.3d 592, 597 (6th Cir. 2013) (“McBride simply reaffirmed Rogers [v. Missouri Pacific
R.R. Co., 352 U.S. 500, 506 (1957),] and the causation standard that has governed FELA cases
for over 50 years.”); see also Szekeres I, 617 F.3d 424, 429 (6th Cir. 2010); Richards v. Consol.
Rail Corp., 330 F.3d 428, 437 (6th Cir. 2003) (“Rogers [, 352 U.S. at 506,] makes clear that
-4-
No. 13-6464
Edwards v. CSX Transportation, Inc.
where the evidence allows more than one outcome on the issue of causation, the issue should be
decided by a jury, not a judge”).
To supplement FELA and facilitate employee recovery, Congress enacted the LIA
(formerly the Boiler Inspection Act), which imposes an absolute duty on railroad carriers to
ensure their locomotives are properly maintained and safe to operate. LIA claims are actionable
under the FELA, Szekeres I, 617 F.3d at 427; that is, LIA does not confer a right of action on
injured employees, but rather, has been construed as a supplement to FELA such that proof of a
violation under LIA establishes negligence as a matter of law under FELA, Urie v. Thompson,
337 U.S. 163, 188 (1949).
The LIA provides in pertinent part:
A railroad carrier may use or allow to be used a locomotive . . . on its railroad line
only when the locomotive . . . and its parts and appurtenances –
(1) are in proper condition and safe to operate without unnecessary danger of
personal injury;
(2) have been inspected as required under this chapter and regulations prescribed
by the Secretary of Transportation under this chapter; and
(3) can withstand every test prescribed by the Secretary under this chapter.
49 U.S.C. § 20701. A rail carrier can violate the LIA either by breaching the broad duty to keep
all parts and appurtenances of its locomotives in proper condition and safe to operate without
unnecessary danger of personal injury, or by failing to comply with the regulations issued by the
Federal Railroad Administration and promulgated under the LIA. See 65 Am. Jur. 2d Railroads
§ 130, Federal regulation – Locomotive Inspection Act. An employee’s contributory negligence
does not bar his recovery.3
3
See Szekeres, 617 F.3d at 427; Mickler v. Nimishillen & Tuscarawas Ry. Co., 13 F.3d 184, 188 (6th Cir. 1993)
(citing Urie v. Thompson, 337 U.S. 163, 188-89 (1949)).
-5-
No. 13-6464
Edwards v. CSX Transportation, Inc.
III.
During Edwards’s deposition, CSX’s counsel did not ask Edwards whether he would
have used the locomotive’s toilet facility had it been sanitary when he became ill. Following
discovery, CSX moved for summary judgment, asserting that there was no causal connection
between the alleged unsanitary locomotive toilet and Edwards’s injuries; that the sole cause of
his injuries was “his own bodily maneuver,” that is, “falling overboard [from the upper platform
of the catwalk after vomiting] on a stationary locomotive”; and that Edwards himself was
responsible for the condition of the toilet as a matter of law. In response, Edwards reiterated in
an affidavit what he previously stated on the CSX form Buchanan asked him to complete in July
2012:
As my PI-1A Form shows, the reason I went outside rather than to the indoor
toilet compartment of the locomotive on May 28, 2012 was because of the dirty
unusable, unsanitary condition of the toilet. I specifically described the condition
in my deposition. I would much rather be sick to my stomach and vomiting in a
contained inside area where I could safely bend over or get onto my knees or get
my rear end onto the floor as one would normally do at home or anywhere else
when vomiting. Also, if I became dizzy or was ill for a while, I would be able to
sit on the floor or the nearby steps and not have a risk of falling.
As I testified in my deposition, it is true that the feeling of needing to vomit came
over me quickly, but I did have time to get to the toilet if it had been sanitary and
usable and time to decide not to go to the toilet compartment given its condition
that I had seen at the start of my trip and to go out the door behind me instead.
....
If the toilet compartment had been sanitary, I would have simply gotten out of my
seat, walked quickly down three or four steps and gone to the toilet compartment
in order to get on my knees or sit down. The condition of the toilet caused and
was the reason for me to go outside instead as I told CSX on my personal injury
report form.
PID 294-95.
The MJ concluded that Edwards’s own negligence was the sole cause of his injuries:
The toilet in No. 823 was unsanitary to the point of being nasty, a
condition noted by the plaintiff when he reported to work the day of his accident.
-6-
No. 13-6464
Edwards v. CSX Transportation, Inc.
He could have requested that the toilet be cleaned; he did not. He could have
requested that the two locomotives in his train be switched, so that he would no
longer be required to operate No. 823. He could have refused to move the train at
all; indeed, the regulations required that he not move the train until the non-
complying condition of the toilet had been remedied. Nevertheless, plaintiff
chose to keep No. 823 as the lead engine. His failure to either switch locomotives
or to keep the engine stationary until the dirty toilet compartment was cleaned
constituted negligence as a matter of law since he violated a number of the
regulations just quoted [49 C.F.R. §§ 229.5, 229.9(a), 229.29, 229.137(c)].
....
He knew about the condition a considerable amount of time before he was
overtaken by nausea, and that condition had been allowed to persist because of his
negligence.
PID 52-29/Dist. Ct. Mem. Op. 10/11/13.
IV.
We review de novo the MJ’s grant of summary judgment, viewing the facts and
inferences therefrom in a light most favorable to Edwards. Zomba Enters., Inc. v. Panorama
Records, Inc., 491 F.3d 574, 581 (6th Cir. 2007).
The MJ correctly observed that an unsanitary toilet facility constitutes negligence per se
under LIA and that an employee’s contributory negligence is not a bar to recovery, but
improperly applied the law and usurped the jury’s function by ruling that Edwards’s own
negligence was the sole cause of his injuries. First, the MJ read into LIA a notice requirement
where none exists.4 Second, the MJ’s determination that Edwards’s “failure to either switch
locomotives or to keep the engine stationary until the dirty toilet compartment was cleaned
constituted negligence as a matter of law since he violated several regulations,” finds no support
in LIA/FELA cases; the MJ cited no authority and CSX provided none on point. The inapposite
authority CSX relied upon below included Toth v. Grand Trunk R.R., 306 F.3d 335, 351 (6th Cir.
4
Edwards so argued below. See PID 568-69 (Hrg. Tr 10/10/13); PID 427, 431, 446 (CSX Response to Edwards’
Statement of Undisputed Facts). CSX admitted below that Edwards violated no safety rules, but argued that
Edwards’s failure to report the condition of the toilet violated “common sense” and Edwards “certainly violated
CSX rules.” CSX gave no explanation of what rules Edwards violated. PID 426 (CSX Reply to Pl.’s Resp. to Mo.
for Summ. J.); PID 446 (CSX Response to Pl.’s Additional Facts).
-7-
No. 13-6464
Edwards v. CSX Transportation, Inc.
2002), modified on other grounds in Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d
776 (6th Cir. 2003). We held in Toth that sufficient evidence warranted the district court’s sole-
proximate-cause jury instruction:
We conclude that the defendant introduced sufficient evidence to warrant the
sole-proximate-cause instruction. The defense argues, based in part upon
plaintiff’s conflicting answers during cross-examination, that the accident could
have resulted from the plaintiff’s negligence in improperly gripping the operating
lever. GTW also cites safety rules . . . which require an employee to grip the
extreme end of an operating lever handle at arm’s length. GTW claims that the
accident could not have occurred as plaintiff describes if he had been observing
this rule.
Toth, 306 F.3d at 351 (emphasis added). Toth is distinguishable from the instant case because
CSX does not claim that Edwards caused the unsanitary toilet condition or that cleaning the toilet
was among his job duties, and CSX admitted that Edwards did not violate any safety rules. See
supra n.4.
More on point are cases addressing the effect an employee’s knowledge of the defective
condition has on causation; those cases hold that the employee’s contributory negligence and the
railroad’s violation of a regulation are concurring proximate causes. See Spokane & Inland
Empire R. Co. v. Campbell, 241 U.S. 497, 510 (1916) (“It is too plain for argument that under
this legislation the violation of the safety appliance act need not be the sole efficient cause, in
order that an action may lie. . . . where, as in this case, plaintiff’s contributory negligence and
defendant’s violation of a provision of the safety appliance are concurring proximate causes, it is
plain that the employers’ liability act requires the former to be disregarded”); McCarthy v. Penn.
R. Co., 156 F.2d 877, 881 (7th Cir. 1946) (disapproving the district court’s sole-proximate-cause
jury instruction where “there was no evidence of any independent acts of negligence by the
decedent that were the sole cause of the accident and his death. . . . This [sole-proximate-cause
jury instruction] was bound to confuse and mislead the jury into believing that that concurring
-8-
No. 13-6464
Edwards v. CSX Transportation, Inc.
acts of the decedent in continuing to use the defective locomotive after he knew it was defective,
and not reporting it, might be considered as acts of negligence, for which the decedent might be
charged with sole liability for the accident. The giving of such instruction under such
circumstances was error.”); Yentzer v. Penn. R. Co., 239 F.2d 785 (3d Cir. 1957) (upholding jury
verdict in the plaintiff’s favor where malfunction in cab signal system caused failure to warn of
another train ahead, rejecting the railroad’s contention that the plaintiff could not recover
because, on observing inconsistent signals, he failed to stop the train in accordance with railroad
regulations).
The MJ’s determination that Edwards’s knowledge of the unsanitary condition of the
toilet and his failure to report it barred his recovery was a misapplication of the LIA/FELA; the
determination whether the unsanitary toilet played any part in producing Edwards’s injuries was
for the factfinder.
CSX argued in Szekeres I, as it does here, that even if the plaintiff had established a
defect with the toilet facility, the causal connection between the alleged defect and his injury was
too tenuous to impose absolute liability on CSX. 617 F.3d at 429. This court rejected that
argument:
CSX maintains that although Szekeres could have urinated anywhere in the rural
area and admitted that his job duties did not require that he walk up the incline, he
chose to walk up a ‘real soft’ muddy incline to get to a more private area.
On the question of causation, courts ‘focus on whether a reasonable jury
could conclude that the defective appliance played any part, even the slightest, in
bringing about the plaintiff’s injury.’ Richards, 330 F.3d at 437 (emphasis in
original). Although this is a close question, we conclude that there is a sufficient
factual basis for a reasonable jury to conclude that Szekeres’s injury ‘was within
the risk created by’ the unsanitary toilet facility. With the toilet facility being
‘unusable,’ Szekeres had no available indoor facility and was left to relieve
himself outside. As . . . Szekeres’s expert stated in his affidavit, railroad
employees typically ‘walk [] up the incline to seek privacy to relieve
[themselves]’ when other ‘toilet facilities are unavailable.’ Szekeres testified that
-9-
No. 13-6464
Edwards v. CSX Transportation, Inc.
he slipped from accumulated mud on his boots from both the area behind the
switch and from climbing the embankment, so there is a direct tie between his
inability to use the onboard toilet facility and his accident.
We thus conclude that the district court improperly granted summary
judgment on Szekeres’s LIA and C.F.R. claim.
Szekeres I, 617 F.3d at 430. As in Szekeres I, the MJ here usurped the jury’s role by ruling on
causation as a matter of law: “if as a result of a defective appliance a plaintiff is required to take
certain actions and he . . . is injured while taking those actions, the issue of causation generally
should be submitted to a jury.” 617 F.3d at 429.
As this court observed in Keith v. Wheeling & L.E. Ry Co., “the authority of courts by
direction of a verdict, to withdraw from consideration of a jury matter bearing upon the question
of the defendant’s negligence and its proximate relation to the injury is now very restricted
indeed.” 160 F.2d 654, 658 (6th Cir. 1947). This is not a case where causation is so attenuated
that taking the issue from the jury is warranted.
Admittedly[,] scenarios will arise where the connection between the defective
appliance and the plaintiff’s injuries become[s] too attenuated to conclude that the
defect caused the injury. Take for example the following scenario: a train goes
into an emergency stop due to defective air brakes; and an employee, who has
exited the train and is standing next to it merely waiting for the brakes to be
repaired, is attacked by a rabid dog. Or the same employee waiting for the defect
to be repaired decides to stretch his or her legs, goes for a walk, falls, and is
injured. A court reasonably could find no causation as a matter of law in these
situations.
Richards, 330 F.3d at 437 n.5. Here, the unsanitary condition of the toilet facility made it
necessary for Edwards to find an alternative accommodation that placed him in greater danger of
injury. The MJ improperly determined that Edwards’s negligence was the sole proximate cause
of his injuries and barred recovery.
For these reasons, we REVERSE the grant of summary judgment to CSX and REMAND
for proceedings consistent with this opinion.
-10-
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646 F.Supp. 118 (1986)
SATELLITE FINANCIAL PLANNING CORPORATION, et al., Plaintiffs,
v.
FIRST NATIONAL BANK OF WILMINGTON, et al., Defendants.
Civ. A. No. 85-463 CMW.
United States District Court, D. Delaware.
October 6, 1986.
*119 James F. Harker of Herlihy & Wier, Wilmington, Del., for plaintiffs; Robert W. Steele, Roger C. Simmons, James R. Myers and W. James McKay of Steele, Simmons & Fornaciari, Washington, D.C., and William F. Jones of Jones & Mack, Annapolis, Md., and Edward J. Glusing, Jr., Baltimore, Md., of counsel.
Walter L. Pepperman, II, William H. Sudell, Jr. and David A. Jenkins of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for defendant First Nat. Bank of Wilmington.
E. Norman Veasey and Robert W. Whetzel of Richards, Layton & Finger, Wilmington, Del., for defendants, Commercial Credit Corp. and Control Data Corp.; James R. Eyler, Jefferson V. Wright and J. Steven Lovejoy of Miles & Stockbridge, Baltimore, Md., of counsel.
CALEB M. WRIGHT, Senior District Judge.
Plaintiffs Satellite Financial Planning Corporation ("Satellite Financial") and Satellite Earth Station Protection Company move, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, to amend their complaint. Plaintiffs seek to restate their claims for relief under their theories of breach of fiduciary relationship, tortious interference with actual and prospective business relations, fraud, and the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. (1985). This Court dismissed these claims in Satellite Financial Planning v. First National Bank, 633 F.Supp. 386 (D.Del.1986).
Defendants First National Bank, Commercial Credit Corporation, and Control Data Corporation contest the motion to amend the RICO count.[1] The parties differ on whether or not defendants' alleged acts constituted the pattern of racketeering activity necessary to state a cause of action under RICO. The Court holds that the proposed amended complaint still fails to state a viable RICO claim. Accordingly, *120 the plaintiffs may amend in the manner set out in the proposed amended complaint except for the proposed amendments to the RICO count. Plaintiffs are denied leave to amend the RICO count.
On a motion to amend, a court can deny the motion if the proposed amendment is futile. In determining whether a proposed amendment is futile, the Court should apply the same standards as are applied to Rule 12(b)(6) motions to dismiss. Halliburton & Assoc. v. Henderson, Few & Co., 774 F.2d 441, 444 (11th Cir.1985); Vibrant Sales, Inc. v. New Body Boutique, Inc., 105 F.R.D. 553, 555 (S.D.N.Y. 1985). Accepting all the well-pleaded facts of the proposed amended complaint as true, the Court must decide whether the facts state a claim upon which relief can be granted.
In order to state a claim under RICO, a plaintiff must, inter alia, allege a pattern of racketeering activity. Sedima S.P.R.L. v. Imrex Co., Inc., ___ U.S. ___, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985); Mullin v. Bassett, 632 F.Supp. 532 (D.Del. 1986). In Sedima, the Supreme Court elaborated on what "pattern of racketeering activity" should mean:
The definition of a "pattern of racketeering activity" differs from the other provisions in § 1961 in that it states that a pattern "requires at least two acts of racketeering activity," § 1961(5) (emphasis added), not that it "means" two such acts. The implication is that while two acts are necessary, they may not be sufficient. Indeed, in common practice, two of anything do not generally form a "pattern".
Sedima, 105 S.Ct. at 3285 n. 12. Although this comment was dicta, lower federal courts have read Sedima as providing a clear signal that it was time to re-evaluate the construction given to the term "pattern of racketeering activity." See, e.g., Allington v. Carpenter, 619 F.Supp. 474, 478 (C.D.Cal.1985); Northern Trust Bank/O'Hare, N.A. v. Inryco, Inc., 615 F.Supp. 828 (N.D.Ill.1985). This Court has discussed the pattern issue in Mullin v. Basset, 632 F.Supp. at 540 and Hill v. Equitable Bank, 642 F.Supp. 1013 (D.Del. 1986). Applying those decisions to Satellite Financial's proposed amended complaint, the Court finds that no pattern exists.
One of the prime considerations in finding a pattern is whether the predicate acts alleged are both related and sufficiently differentiated. Mullin, 632 F.Supp. at 541. If the acts are too similar, then no ongoing design or continuity can be found. Id. In Kredietbank, N. V. v. Joyce Morris, Inc., No. 84-1903 (D.N.J. January 9, 1986) [Available on WESTLAW, DCTU database], the court noted that "the repetition of an act taken against a single victim or set of victims following closely on the heels of the original wrong, in some circumscribed circumstances ... suggests no expansion, no ongoing design, no continuity, such as was the target of Congress in RICO."
The RICO count of the proposed amended complaint realleges the state common law fraud claims and supplements these claims with some specific examples of mail and wire fraud. The set of fraudulent misrepresentations that constitute the common law fraud claim should, for RICO purposes, be viewed as one act. Each allegation is an example of the defendants misrepresenting facts with respect to their relationship with plaintiffs. The statements were made to plaintiffs for the purpose of defrauding plaintiffs. The various misrepesentations closely followed each other, were repetitive, and were aimed at a single victim.
Plaintiffs' additional allegations in the RICO count that go beyond the state common law fraud claim are insufficient to create a pattern of racketeering activity. Satellite Financial first alleges that First National Bank caused a trade publication to publish some of the fraudulent representations enumerated earlier. Yet, plaintiffs also allege that the discussion with the trade publication was for the purpose of defrauding plaintiffs, not other victims. The discussion with the publication is in *121 reality one more example of the frauds alleged between plaintiffs and defendants. Therefore, these discussions do not help create a pattern.
The remaining acts alleged in the RICO count concern the communications through the wires and mails by defendants. The wire fraud alleged included "pretended good faith receipt of [credit applications] from plaintiffs, follow-up calls to consumers, credit checking calls to defendants' varied credit sources, calls to and from plaintiffs' various dealers, and factual misstatements to plaintiffs, on a regular and routine basis." Proposed Amended Complaint at ¶ 102(b). The mail fraud alleged concerned the mailing of checks to consumers, dealers and the plaintiffs. Id. at ¶ 102(c). It is noteworthy that the only factual misstatements alleged as going through the mails or wires were those made to plaintiffs. This is significant because all the other acts alleged were part of defendants' obligations under the plaintiffs' agreement with defendants. In other words, plaintiffs seem to be saying that any acts defendants took that were in accordance with the contract were actually part of a pattern of racketeering activity. It makes little sense to find a pattern of racketeering activity through a combination of misrepresentations made concerning an agreement and acts done in conformity with that same agreement.
Another consideration in RICO pattern cases is the continuity of the activity. In Temporaries, Inc. v. Maryland National Bank, 638 F.Supp. 118 (D.Md.1986), the court held that there was no pattern of racketeering activity because the acts alleged took place in a definite period of time and did not have the potential to continue indefinitely. In the instant case, First National Bank's acts took place in a one year period. The alleged goal was to steal Satellite Financial's business. The value First National Bank would receive from the alleged fraud was necessarily brief; once they had access to Satellite Financial's dealer network, there was no need to continue the relationship with Satellite Financial. Second, First National Bank ended the relationship between plaintiffs and defendants after only a year. Defendants, therefore were not trying to perpetrate an ongoing fraud. Plaintiffs cannot allege that the alleged scheme was to be ongoing. See Torwest DBC v. Dick, 628 F.Supp. 163 (D.Col.1986).[2]
On two different levels of analysis, then, plaintiffs have failed to allege a pattern of racketeering activity. First, the activities undertaken were not sufficiently unconnected in time or substance to constitute separate criminal episodes. Allington v. Carpenter, 619 F.Supp. 474, 478 (C.D. Cal.1985). Second, the acts are not sufficiently continuous and ongoing to create a pattern. Temporaries, supra.
With respect to plaintiffs' allegation of the RICO count against First National Bank, there is another ground for denying the motion to amend. A RICO claim must allege an enterprise through which the person subject to liability acted. Sedima, 105 S.Ct. at 3285. Plaintiffs allege that First National Bank was the enterprise through which Commercial Credit and Control Data Corporation effected their goals. The person subject to liability under RICO cannot also be the enterprise for that RICO count. B.J. Hirsch v. Enright Refining Co., 751 F.2d 628 (3d Cir. 1984). Because plaintiffs have not alleged a RICO violation where First National Bank was the person working through another enterprise, the RICO claim, as against First National Bank, should be dismissed.
Plaintiffs have attempted to transform what appears to be a case of state law fraud into a federal RICO cause of action. On close examination of the facts alleged, this effort must fail. The acts alleged are *122 not sufficiently different, nor are they sufficiently ongoing, to allow the RICO claim.
An Order will enter in conformity with this Opinion.
NOTES
[1] The defendants did not argue against the plaintiffs' motion to amend with respect to the state law claims but reserved the right to do so if this Court retained jurisdiction over the case. Because the futility standard applied to motions to amend is identical to that applied on a 12(b)(6) dismissal motion, the Court sees nothing wrong with permitting the plaintiffs to amend with respect to the state law claims. Defendants also presented arguments, primarily on a summary judgment standard, for the dismissal of the plaintiffs' Bank Holding Company Act count. Consideration of that motion will wait until plaintiffs can complete the discovery needed for them to file a response to that motion. In the interests of judicial economy, the Court will allow the plaintiffs to amend with respect to Count I and decide all the issues pertaining to that Count when the summary judgment motion is ready to be decided. The Court notes that defendants renewed their summary judgment motion in their brief pertaining to the instant motion.
[2] The fact that First National Bank ended the relationship with Satellite distinguishes the instant case from Hill v. Equitable Bank, supra. In Hill, defendants allegedly attempted to cover up the fraudulent acts, thus indicating an attempt to make the racketeering activity ongoing. Here, the racketeering activity had a finite lifetime.
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679 F.2d 251
*U. S.v.Johnson
80-5945
UNITED STATES COURT OF APPEALS Eleventh Circuit
5/19/82
1
S.D.Fla.
AFFIRMED
2
---------------
* Fed.R.App. P. 34(a); 11th Cir. R. 23.
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jan 23 2019, 10:27 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mario Massillamany Curtis T. Hill, Jr.
Massillamany Jeter & Carson LLP Attorney General of Indiana
Fishers, Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Quantae A. Johnson, January 23, 2019
Appellant-Defendant, Court of Appeals Case No.
29A05-1712-CR-2974
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable Jonathan M.
Appellee-Plaintiff Brown, Judge
Trial Court Cause No.
29D02-1608-F6-6740
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 29A05-1712-CR-2974 | January 23, 2019 Page 1 of 8
[1] Quantae Johnson appeals after he pleaded guilty to Level 5 Felony Neglect of a
Dependent1 and Level 6 Felony Neglect of a Dependent.2 We restate Johnson’s
arguments as follows: (1) the trial court erred by denying his request to
withdraw his guilty plea; (2) the trial court made multiple pretrial errors; and
(3) Johnson received the ineffective assistance of trial counsel. Finding that the
trial court did not err by denying Johnson’s request to withdraw his guilty plea
and that, by pleading guilty, Johnson waived his right to raise the other
arguments, we affirm.
Facts
[2] In August 2016, Carmel police learned of allegations regarding Johnson’s
treatment of his minor sons, Q.A.J. and Q.J.J., after Q.J.J. ran away from
home. A medical examination revealed that Q.J.J. was five feet tall and
weighed only seventy-two pounds, leading doctors to conclude that he was
severely malnourished. During the ensuing investigation, medical providers
determined that Q.A.J. was also underweight and suffering from
malnourishment. Johnson withheld food from his children as punishment. He
reported that he disciplined Q.J.J. by forcing him to engage in physical exercise
such as sit-ups and push-ups and tried to prevent Q.J.J. from running away by
1
Ind. Code § 35-46-1-4.
2
Id.
Court of Appeals of Indiana | Memorandum Decision 29A05-1712-CR-2974 | January 23, 2019 Page 2 of 8
requiring that the child wear only underwear or his sister’s clothes while he was
at home.
[3] On August 30, 2016, the State charged Johnson with Level 6 felony neglect of a
dependent, later adding a second count of the same charge and a count of Level
5 felony neglect of a dependent. On October 3, 2017, Johnson pleaded guilty to
one count of Level 6 and one count of Level 5 felony neglect of a dependent in
exchange for the dismissal of the second Level 6 felony charge. At the guilty
plea hearing, Johnson admitted to the factual basis underlying the charges and
stated that he had read, understood, and signed the plea agreement.
[4] At the November 27, 2017, sentencing hearing, Johnson told the trial court that
he felt like he had been forced into the plea agreement and that he wanted to
“back out” of the guilty plea. Tr. Vol. II p. 39. Johnson stated that he believed
his attorney had not had time to prepare for a trial and that Johnson felt “under
duress” when the prosecutor informed him that there would be no further plea
offers if Johnson did not plead guilty. Id. at 43. Johnson did not file a written
motion to withdraw his guilty plea. After reviewing the advisements and
Johnson’s statements from the guilty plea hearing, the trial court denied the
request to withdraw the plea agreement.
[5] The trial court imposed a sentence of 910 days for the Level 6 felony
conviction. Of that term, the trial court ordered that 870 days would be
suspended to probation and that 40 days would be served in the Department of
Correction. For the Level 5 felony conviction, the trial court imposed a
Court of Appeals of Indiana | Memorandum Decision 29A05-1712-CR-2974 | January 23, 2019 Page 3 of 8
consecutive term of six years, with four years and three months suspended to
probation, with the executed portion of the sentence to be served on home
detention. Johnson now appeals.
Discussion and Decision
I. Withdrawal of Guilty Plea
[6] We turn first to Johnson’s argument that the trial court erred by denying his
request to withdraw his guilty plea. After a guilty plea is entered but before the
sentence is imposed, a defendant may request to withdraw his guilty plea for
any fair and just reasons unless the State has been substantially prejudiced by its
reliance upon the plea. Ind. Code § 35-35-1-4(b). If the defendant proves by a
preponderance of the evidence that the withdrawal is necessary to correct a
manifest injustice, the trial court must grant the motion. Id. Absent such a
showing, the decision to grant or deny the motion rests solely in the trial court’s
discretion. Id. The trial court’s ruling on a motion to withdraw a guilty plea
arrives in this Court with a presumption in favor of the ruling. Coomer v. State,
652 N.E.2d 60, 62 (Ind. 1995).
[7] Indiana Code section 35-35-1-4(b) explicitly states that a motion to withdraw a
guilty plea “shall be in writing and verified . . . [,] shall state facts in support of
the relief demanded, and the state may file counter-affidavits in opposition to the
motion.” Here, Johnson did not file a written, verified motion, nor did the State
have the opportunity to file counter-affidavits in opposition. Therefore, by the
Court of Appeals of Indiana | Memorandum Decision 29A05-1712-CR-2974 | January 23, 2019 Page 4 of 8
plain terms of the statute, Johnson was not entitled to withdraw the plea and the
trial court did not err by denying his request.
[8] Failure to file a written motion notwithstanding, we note that none of his
arguments supporting his request to withdraw the plea are compelling. He argues
that he should have been permitted to withdraw the plea because the trial court
did not grant him a continuance, but at the time of the guilty plea, the case had
been pending for over a year and the trial court had already granted two
continuances to Johnson. He claims that he did not admit his guilt when he
pleaded guilty, but he plainly did just that at the guilty plea hearing and in the
plea agreement itself. Tr. Vol. II p. 16; Appellant’s App. Vol. II p. 148-49.
Indeed, Johnson made no protestation of innocence whatsoever at the guilty plea
hearing. See Ellis v. State, 67 N.E.3d 643, 650 (Ind. 2017) (noting that the rule
that a guilty plea accompanied by a denial of guilt may not be accepted is
explicitly contingent on the protestation of innocence occurring at the same time
the defendant attempts to enter the plea).
[9] Johnson seems to argue that he was unaware of the provision in the plea
agreement that waived his right to appeal his sentence, but he affirmed at the
guilty plea hearing that he had read, signed, and initialed the plea agreement. In
fact, the provision regarding waiver of the right to appeal bears Johnson’s initials.
See Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008) (holding that a defendant may
waive the right to appellate review of his sentence as part of a written plea
agreement). Moreover, the trial court advised him that by pleading guilty, he
would be giving up multiple rights, including the right to appeal. Tr. Vol. II p. 7-
Court of Appeals of Indiana | Memorandum Decision 29A05-1712-CR-2974 | January 23, 2019 Page 5 of 8
8. And to the extent that he argues that he could not intelligently waive his right
to appeal because he did not know what sentence would be imposed, the plea
agreement plainly spells out precisely what the sentence would be, the trial court
explained what the sentence would be, and Johnson indicated at the guilty plea
hearing that he understood what the sentence would be. Id. at 8-12, 16-17;
Appellant’s App. Vol. II p. 145.
[10] Finally, Johnson claims that he pleaded guilty because he was “under duress and
panic[.]” Appellant’s Br. p. 18. But he did not raise this claim at the guilty plea
hearing, instead affirming that he was satisfied with his counsel’s representation
and was pleading guilty freely and voluntarily. See Johnson v. State, 734 N.E.2d
242, 245 (Ind. 2000) (noting that the answers the defendant gave “while pleading
guilty belie his later assertion that the only reason he entered a guilty plea is
because his counsel pressured him”). Having considered all of Johnson’s
arguments, we find that the trial court did not err by denying the motion to
withdraw his guilty plea.3
II. Remaining Arguments
[11] Johnson argues that the trial court erred in its pretrial rulings (related to his
request to join his case with his wife’s case and to his request for a change of
venue) and that his trial counsel was ineffective. As for the pretrial rulings, it is
3
Johnson also highlights recent amendments to the sentence modification statute and claims that because of
these changes, he should be allowed to withdraw his guilty plea. But this statute is irrelevant to this appeal,
as the statute relates to motions to modify a sentence, which is not at issue here. Ind. Code § 35-38-1-17.
Court of Appeals of Indiana | Memorandum Decision 29A05-1712-CR-2974 | January 23, 2019 Page 6 of 8
well established that a defendant may not question pretrial orders after pleading
guilty. E.g., Branham v. State, 813 N.E.2d 809, 811 (Ind. Ct. App. 2004).
Therefore, we decline to consider these arguments.
[12] As for his claim of ineffective assistance, it is well established that when a
defendant pleads guilty, he may not challenge the validity of his conviction on
direct appeal. E.g., Prowell v. State, 687 N.E.2d 563, 564 n.1 (Ind. 1997).
Indeed, the only claims a defendant may raise on direct appeal following a
guilty plea are (1) a challenge to the trial court’s sentencing decision where the
trial court exercised sentencing discretion; or (2) a challenge to the trial court’s
denial of a motion to withdraw a guilty plea before sentencing. Allen v. State,
865 N.E.2d 686, 688-89 (Ind. Ct. App. 2007). A challenge to the effectiveness
of counsel is not included in these options; therefore, this claim is not available
to Johnson on direct appeal.
[13] Even if we were to consider the ineffective assistance claim herein, we note that
Johnson fails to cite to the record or legal authority in support of this argument.
And indeed, it is well accepted that a post-conviction proceeding is normally
the preferred forum for adjudicating such claims because the presentation of
such arguments often requires the development of new facts not present in the
record, including testimony from trial counsel regarding his thought processes,
pretrial investigation, and consideration of possible defenses. McIntire v. State,
717 N.E.2d 96, 101 (Ind. 1999); Culvahouse v. State, 819 N.E.2d 857, 863 (Ind.
Ct. App. 2004). Under these circumstances, we find that Johnson has not
established that he received the ineffective assistance of counsel.
Court of Appeals of Indiana | Memorandum Decision 29A05-1712-CR-2974 | January 23, 2019 Page 7 of 8
[14] The judgment of the trial court is affirmed.
May, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 29A05-1712-CR-2974 | January 23, 2019 Page 8 of 8
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Mar 06 2018, 9:32 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony S. Churchward Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Lee M. Stoy, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Vincent P. Wells, Sr., March 6, 2018
Appellant-Defendant, Court of Appeals Case No.
02A04-1709-CR-2126
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1705-F5-118
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 1 of 10
STATEMENT OF THE CASE
[1] Appellant-Defendant, Vincent P. Wells, Sr. (Wells), appeals his sentence
following his conviction for domestic battery, a Level 5 felony, Ind. Code § 35-
42-2-1.3(c).
[2] We affirm.
ISSUE
[3] Wells raises one issue on appeal, which we restate as: Whether Wells’ sentence
is inappropriate in light of the nature of the offense and his character.
FACTS AND PROCEDURAL HISTORY
[4] Wells and Ladonna Hinton (Hinton) have been married since September 21,
2013. Wells and Hinton have one child together, B.H. Wells also has several
adult children from prior relationships, including Kayasha Wells (Kayasha).
[5] In approximately January of 2017, Wells and Hinton, along with five-year-old
B.H., moved into Kayasha’s apartment in Fort Wayne, Allen County, Indiana.
Sometime in March of 2017, Kayasha and her pastor, Cynthia Bennett (Pastor
Bennett), traveled to Arkansas for “a revival.” (Tr. Vol. II, p. 127). Wells
offered to care for Kayasha’s three children, ages nine, six, and five, and Pastor
Bennett’s three grandchildren, ages three, two and one, during their absence.
[6] On March 17, 2017, at 6:30 a.m., Hinton awoke to the sound of Wells “yelling
and shouting throughout the house,” followed by him hitting her on the “lower
back and legs” with his belt. (Tr. Vol. II, p. 27). Hinton subsequently got out
Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 2 of 10
of bed, readied B.H. for preschool, and walked with B.H. to the bus stop. A
short time later, Kayasha’s children walked themselves to their bus stop. Pastor
Bennett’s grandchildren remained inside the apartment, sleeping or playing in
their bedrooms.
[7] When Hinton returned to the apartment, she informed Wells that she had a
meeting at B.H.’s school at 11:00 a.m.; however, Wells told her “no . . . that
[she] had to stay and watch [Pastor Bennett’s grandchildren because] there’s
nobody to watch them.” (Tr. Vol. II, pp. 30-31). Wells purportedly had plans
that morning to repair someone’s vehicle, but Hinton was suspicious that Wells
was actually engaging in extramarital activity with another female.
Furthermore, Hinton had no interest in babysitting Pastor Bennett’s
grandchildren. Thus, a shouting match ensued, which escalated to a “tussle”
consisting of them “pushing each other back and forth.” (Tr. Vol. II, p. 32).
Hinton ripped Wells’ shirt, and he pushed her so that she “fell back onto the
couch,” at which time Wells had “one hand [grabbing Hinton’s hair] and the
other hand, he [used to] hit[] [Hinton] upside [her] head.” (Tr. Vol. II, p. 32).
By then, Hinton “was doing everything that [she] could to get away from
[Wells].” (Tr. Vol. II, p. 32). Wells eventually stopped hitting, but the arguing
persisted. Hinton began “calling him names,” including telling “him he was the
devil.” (Tr. Vol. II, p. 36). Then, when Hinton said, “Shut up, you child
molester,” Wells responded by punching her in the nose. (Tr. Vol. II, p. 36).
Blood immediately began “dripping,” and Hinton was crying and shaking and
Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 3 of 10
“couldn’t breathe.” (Tr. Vol. II, p. 37). She asked Wells to get a towel before
she “just blacked out.” (Tr. Vol. II, p. 37).
[8] After Hinton “came to,” she began packing up her belongings, and those of
B.H., with the intention of leaving. (Tr. Vol. II, p. 37). However, after
gathering her bags, Wells stood in front of the door to block her. Wells called
Pastor Bennett, who convinced Wells to allow Hinton to leave. As Hinton
walked away from the building, she called the police.
[9] On May 2, 2017, the State filed an Information, charging Wells with Count I,
domestic battery resulting in serious bodily injury, a Level 5 felony, I.C. § 35-
42-2-1.3(c); Count II, domestic battery in the presence of a child under sixteen
years of age, a Level 6 felony, I.C. § 35-42-2-1.3(b); and Count III, criminal
confinement, a Level 6 felony, I.C. § 35-42-3-3(a). On May 5, 2017, the trial
court issued a no-contact order against Wells, prohibiting him from contacting
Hinton “in person, by telephone or letter, through an intermediary, or in any
other way, directly or indirectly . . . while released from custody pending trial.
This includes, but is not limited to, acts of harassment, stalking, intimidation,
threats, and physical force of any kind.” (Appellant’s Conf. App. Vol. II, p.
23). On May 24, 2017, the State filed notice of its intent to seek a habitual
offender sentencing enhancement based on Wells’ prior felony convictions.
[10] On July 25 and 26, 2017, the trial court conducted a bifurcated jury trial.
Despite Wells’ claim of self-defense, at the close of the evidence, the jury
returned a guilty verdict as to Counts I and II, the domestic battery charges.
Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 4 of 10
The jury found Wells not guilty of Count III, criminal confinement. Thereafter,
additional evidence was presented, and the jury found Wells to be a habitual
offender. The trial court entered judgments of conviction and acquittal in
accordance with the verdict. On August 22, 2017, the trial court held a
sentencing hearing. The trial court merged Count II into Count I and imposed
a six-year sentence for domestic battery as a Level 5 felony. The trial court then
added a six-year habitual offender enhancement, resulting in an aggregate, fully
executed sentence of twelve years.
[11] Wells now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[12] Wells claims that his twelve-year sentence is inappropriate. Pursuant to
Indiana Appellate Rule 7(B), our court may revise a sentence that is otherwise
authorized by statute if, “after due consideration of the trial court’s decision,
[we] find[] that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” “‘[S]entencing is principally a discretionary
function in which the trial court’s judgment should receive considerable
deference.’” Parks v. State, 22 N.E.3d 552, 555 (Ind. 2014) (quoting Cardwell v.
State, 895 N.E.2d 1219, 1222 (Ind. 2008)).
[13] Appellate Rule 7(B) provides for sentence review in an “attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell, 895 N.E.2d at 1225. “[W]hether we
Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 5 of 10
regard a sentence as appropriate at the end of the day turns on our sense of the
culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Id. at 1224.
Our court focuses on “the length of the aggregate sentence and how it is to be
served.” Id. Wells bears the burden of persuading this court that his sentence is
inappropriate. Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App. 2014).
[14] With respect to the nature of the offense, “the advisory sentence is the starting
point [that] our legislature has selected as [an] appropriate sentence for the
crime committed.” Richardson v. State, 906 N.E.2d 241, 247 (Ind. Ct. App.
2009). In this case, Wells was convicted of Level 5 felony domestic battery
resulting in serious bodily injury, which is punishable by “a fixed term of
between one (1) and six (6) years, with the advisory sentence being three (3)
years.” I.C. § 35-50-2-6(b). In addition, Wells was found to be a habitual
offender, which allows the trial court to impose “an additional fixed term that is
between . . . two (2) years and six (6) years[] for a person convicted of a Level 5
. . . felony.” I.C. § 35-50-2-8(i)(2). Thus, the trial court imposed the maximum
sentence allowed by the law—i.e., twelve years.
[15] The evidence establishes that Wells battered his wife, who is also the mother of
his child. He grabbed her by the hair while he repeatedly hit her in the head,
and in response to her name-calling, he punched her in the nose and caused her
to lose consciousness. Wells now argues that “the nature and circumstances of
this offense cannot be considered the absolute worst, and are simply the acts
necessary to commit the crimes with which . . . Wells was charged and
Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 6 of 10
convicted.” (Appellant’s Br. p. 16). Thus, he insists that the maximum
sentence is inappropriate, as it “should generally be reserved for the worst
offenses and offenders.” (Appellant’s Br. p. 16).
[16] Our supreme court has observed that “the maximum possible sentences are
generally most appropriate for the worst offenders.” Buchanan v. State, 767
N.E.2d 967, 973 (Ind. 2002). “This is not, however, a guideline to determine
whether a worse offender could be imagined. Despite the nature of any
particular offense and offender, it will always be possible to identify or
hypothesize a significantly more despicable scenario.” Id. Thus, “we refer
generally to the class of offenses and offenders that warrant the maximum
punishment. But such class encompasses a considerable variety of offenses and
offenders.” Id.
[17] Notwithstanding whether Wells’ conduct was more or less heinous than other
domestic abusers, we find that a review of his character warrants the sentence
imposed by the trial court. We first consider that he has amassed, as described
by the trial court, an “astonishing criminal record,” dating back to 1970. (Tr.
Vol. II, p. 244). As a minor, Wells incurred four delinquency adjudications,
two of which would have been felonies if committed by an adult (arson and
burglary). As an adult, Wells accumulated sixteen misdemeanor convictions
(for crimes that include battery, resisting law enforcement, disorderly conduct,
criminal conversion, operating while suspended, visiting a common nuisance,
criminal trespass, and possession of paraphernalia) and seventeen felony
convictions (for crimes that include burglary, theft, dealing in cocaine,
Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 7 of 10
possession of cocaine, and failure to return to lawful detention). At the time of
the present offense, Wells was on parole.
[18] Wells acknowledges his lengthy criminal history but attempts to minimize its
significance by arguing that “many of his felony convictions were the result of
multiple [t]heft charges for which he was sentenced at the same time.”
(Appellant’s Br. p. 15). Wells also argues that “the vast majority of [his prior
convictions] amounted to non-violent property, driving or drug related crimes.”
(Appellant’s Br. pp. 15-16). We first note that the fact that sentencing
proceedings may have been combined does not negate the fact that Wells has
been convicted of eleven separate instances of felony theft. Furthermore, when
this court examines a criminal history as part of Appellate Rule 7(B) review, we
consider not just the severity of past and present crimes, but also, importantly,
whether the defendant’s past encounters with the criminal justice system have
served to rehabilitate him and deter future criminal conduct. See, e.g., Atwood v.
State, 905 N.E.2d 479, 488 (Ind. Ct. App. 2009), trans. denied.
[19] As the trial court described, Wells has “been given short jail sentences, longer
jail sentences, short terms of probation[,] longer terms of probation, short terms
in the Department of Correction, and longer terms in the Department of
Correction. [He has] been give[n] the benefit of parole, Community Control
Program, the Re-Entry Court Program, Criminal Division Services, and
substance abuse treatment.” (Tr. Vol. II, p. 245). He has had “one suspended
sentence modified, one felony sentence modified, . . . [his] probation modified
once and revoked once, and . . . parole revoked once. Nothing has worked.”
Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 8 of 10
(Tr. Vol. II, p. 245). In fact, Wells has previously been convicted of battery, but
the consequences of that conviction failed to dissuade Wells from committing
the instant offense. Simply, Wells has refused to lead a law-abiding life.
[20] Further reflective of his poor character and perpetual refusal to abide by the
court’s authority is that, while incarcerated, Wells—despite the no-contact
order—called Hinton. In at least one phone call, he repeatedly instructed
Hinton to contact the prosecutor and declare that she had decided not to
“press[] any charges.” (State’s Exh. 17). Wells had been informed of his
pending felony charges and realized that he was going to “miss out on
everything.” (State’s Exh. 17). Wells thus directed Hinton to inform the
prosecutor that “it was fake” and that she “made it up” so that the State could
not take the matter to trial. (State’s Exh. 17). Attempts to interfere with the
criminal justice process and to bully victims of domestic violence are not well-
taken by this court.
[21] We are also unpersuaded by Wells’ request to consider his “mental health
issues” as a reason for reducing his sentence because he has failed to
demonstrate a nexus between the crime committed and his self-reported
diagnoses of “depression, generalized anxiety, post-traumatic stress disorder
and paranoid schizophrenia.” (Appellant’s Br. p. 16); see, e.g., Steinberg v. State,
941 N.E.2d 515, 534-35 (Ind. Ct. App. 2011), trans. denied. The record
establishes that Wells has repeatedly failed to take advantage of the court’s past
leniency and reform his criminal mindset. Wells is the very definition of a
habitual offender, and his sentence is not inappropriate.
Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 9 of 10
CONCLUSION
[22] Based on the foregoing, we conclude that Wells’ twelve-year sentence is not
inappropriate in light of the nature of the offense and his character.
[23] Affirmed.
[24] Baker, J. and Brown, J. concur
Court of Appeals of Indiana | Memorandum Decision 02A04-1709-CR-2126 | March 6, 2018 Page 10 of 10
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CHIEF jUSTICE CLERK
jAMES T. WORTHEN CATHY S. LUSK
TwELFTH COURT OF APPEALS
jUSTICES · CHIEF S!AFF ATTORNEY
BRIAN HOYLE MARGARET HUSSEY
GREG NEELEY
Tuesday, February 17,2015
Jody Ford McCreary
#1694118
Ellis Unit
1697 FM 980
Huntsville, TX 77343
RE: Case Number: 12-14-00 164-CR
Trial Court Case Number: 007-1110-10
Style: Jody Ford McCreary
v.
The State of Texas
This is to acknowledge receipt of your communication dated February 12, 2015.
In response to your inquiries, please be advised that:
1. The mandate in this case was issued on September 4, 2014. Therefore, this Court
no longer has jurisdiction over this appeal.
2. Enclosed for return is your Motion for Expedited of Appeal of Jurisdiction Issue TRAP
40(b )(1 ).
Very truly yours,
CATHY S. LUSK, CLERK
\
By: ..·~
As11Ie)fOUilt,DePy Clerk
1517WESTFRONTSTREET • SUITE354 • TYLER, TX75702 • TEL:903-593-8471 • FAX:903-593-2193
Serving Anderson, Angelina, Cherokee, Gregg, Henderson, Houston, Nacogdoches, Rains, Rusk, Sabine, San Augustine, Shelby, Smith, Trinity, Upshur, Van
Zandt and Wood Counties
www.12thcoa.courts.state.tx.us
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35 Wn. App. 761 (1983)
669 P.2d 903
In the Matter of the Personal Restraint of MARK BUGAI, Petitioner.
No. 11391-7-1.
The Court of Appeals of Washington, Division One.
September 26, 1983.
Bradford G. Moore and Leen & Moore, Inc., P.S., for petitioner.
*762 Seth Dawson, Prosecuting Attorney, and Asa Glazer, Deputy, for respondent.
RINGOLD, J.
Mark Bugai filed a personal restraint petition in this court, which was remanded for a factual hearing to determine whether he was denied the effective assistance of counsel by his trial counsel's action with regard to his waiver of the right to a jury trial. Following the hearing the trial court entered findings of fact, conclusions of law, and an order denying Bugai's petition for new trial, from which he now appeals. We find no error, and affirm the trial court's order.
On April 28, 1980, Bugai was convicted of first degree theft and forgery in a trial to the court. See State v. Bugai, 30 Wn. App. 156, 632 P.2d 917 (1981). On appeal from the conviction, Bugai contended that he did not knowingly, intelligently, and voluntarily waive his constitutional right to a trial by jury. He asserted, based on affidavits attached to his appellate brief, that his counsel at trial coerced him into signing a waiver of jury trial. This court held that the signed waiver form was sufficient to show a knowing, intelligent, and voluntary waiver of jury trial, even though it was filed after the beginning of trial, and that absent a record of the alleged coercion that issue could not be considered on appeal. State v. Bugai, supra. The majority opinion suggested that Bugai file a personal restraint petition.
Bugai filed his personal restraint petition in the Court of Appeals on September 17, 1981. He argued that his trial counsel had coerced him into waiving his right to a jury trial, that the trial record failed to show that he voluntarily, intelligently, and knowingly waived his right to a jury trial, and that he was denied his right to effective assistance of counsel because of his attorney's alleged failure to subpoena or contact certain witnesses and to pursue a possible dismissal of the information. Pursuant to an agreed motion for remand, the matter was transferred to the Snohomish County Superior Court for hearing and entry of "findings of *763 fact and conclusions of law and any appropriate order on the issue of whether petitioner was denied the effective assistance of counsel by his trial counsel's action with regard to the waiver of the right to a jury trial."
The hearing was held December 4, 1981. Terrance Neal, Bugai's original trial counsel, testified as to his version of the events surrounding the waiver of jury trial. He stated that he had discussed the right to jury trial with Bugai 2 weeks prior to trial and had recommended at that time that Bugai waive his right to jury trial and that Bugai had responded that he would think about it. Neal testified that he had then told Bugai that the decision would have to be made prior to the day of trial, and that 2 days prior to trial, Bugai had indicated that he would waive the jury. The deputy prosecutor who tried the case also testified at the hearing. She stated that she had been prepared to try the case to a jury on the morning of trial.
Bugai testified that at his first meeting with Neal the possible waiver of his right to jury trial was discussed, and he had indicated that he wanted a jury trial.[1] Bugai further testified that no further discussion of a jury waiver took place until 1 day prior to trial when Neal suggested to him that they waive the jury trial in order to expedite the hearing of the case. Bugai further testified that when he reasserted his desire for a jury trial, Neal
got a little boisterous with me and at the time I kind of backed down because I didn't know I had any options, or I didn't know what to do, so I just went with his decision.
... [H]e pointed out to me that it would cost me anywhere from 2500 to 3500 dollars to go hire another lawyer and I only had a thousand dollars invested in him, and he said it wasn't worth his time to argue about it, that I could go look someplace else.
He further testified that just before he executed the written waiver of his right to jury trial, Neal told him not to make waves because the judge was on their side and "I might *764 make the judge mad and then he might reverse his decision." When asked what his state of mind was when he signed the jury waiver, Bugai replied:
At the time, inside deep down inside me, I still wanted a jury trial, but I was under the assumption that we won the case and I was thinking, "Well, I can't afford to fire Mr. Neal and come back to court with another attorney just to have jurors," and I thought it would save my time and the State's time so, on the assumption that I had won the case, I followed through with his decision.
When asked at what point he first decided that the jury waiver had been a bad decision, Bugai answered: "you know, I never really released [sic] the fact that it was a bad decision, but, to put it in concrete form, not until after the verdict was passed upon me. I knew at that time that if there was some other way, I should have taken the jury." He testified that before the verdict,
My state of mind was that I thought we won the case; maybe Mr. Neal was right: maybe we it was better off not going in front of a jury. It was all kind of abstract at the time. I was just excited from what he told me; you know, that the judge was on our side. All I could think about was that we won.
The court on remand made the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. Mark Bugai and his lawyer at trial, Terrance Neal, explained and discussed Mr. Bugai's Sixth Amendment right to trial by jury in Mr. Neal's office two weeks before trial in this action. By testimony from Mr. Neal and upon Mr. Bugai's demeanor while testifying at this remand hearing, Mr. Bugai knew and understood his right to trial by jury before waiving that right at trial.
2. Mr. Bugai was not misled or coerced by Mr. Neal in waiving his right to trial by jury, but has only hindsight regret for his decision to waive.
CONCLUSIONS OF LAW
1. This court has jurisdiction of the parties and subject matter.
2. Applying every reasonable presumption against valid waiver, Mr. Bugai did make a knowing, intelligent, *765 voluntary waiver of his Sixth Amendment right to trial by jury.
3. Mr. Bugai's Sixth Amendment right to effective legal counsel was not abridged by jury waiver. Mr. Neal's advice upon jury waiver constituted legitimate trial tactics according Mr. Bugai a fair, impartial trial.
An order was then entered denying Bugai's petition for new trial.
Bugai contends on appeal that this court must independently review the factual record to determine whether there has been a denial of due process rights, citing McNear v. Rhay, 65 Wn.2d 530, 398 P.2d 732 (1965), and argues that this court should believe his version of the facts rather than that of his trial attorney.
[1] This court will independently examine the record to determine if fundamental constitutional rights have been denied. State v. Daugherty, 94 Wn.2d 263, 616 P.2d 649 (1980), cert. denied, 450 U.S. 958 (1981). In considering credibility, however, deference will be made to the trial court, which had the opportunity to evaluate the witnesses' demeanor below. State v. Hoyt, 29 Wn. App. 372, 628 P.2d 515 (1981). We will review the trial court's inferences and conclusions, but not its findings as to credibility or the weight to be given evidence.
Neal testified that he explained the right to a jury trial to Bugai 2 weeks before trial, and that Bugai indicated 2 days before trial that he would waive a jury. The trial court here believed the testimony of Bugai's attorney and disbelieved Bugai, thus leading to the conclusion that no coercion took place. The propriety of the waiver itself, entered near the end of trial, has been established by this court's decision in State v. Bugai, supra, and may not be relitigated here. Bugai was not coerced into waiving his right to a jury trial, and was not denied the effective assistance of counsel.
Bugai further argues on appeal that he was denied the effective assistance of counsel by his attorney's failure to subpoena and call certain witnesses. This matter was beyond the scope of the remand and hearing below. Bugai *766 did not contest the scope of the order of remand, and no factual record has been made for this court's review.
We accordingly affirm the trial court and dismiss the personal restraint petition.
WILLIAMS and CORBETT, JJ., concur.
NOTES
[1] The omnibus hearing application also indicates that a jury would not be waived.
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771 So.2d 1181 (2000)
Naomi R. CHASE, Appellant,
v.
Lennon E. BOWEN, III, Esquire, et al., Appellees.
No. 5D99-890.
District Court of Appeal of Florida, Fifth District.
October 6, 2000.
Rehearing Denied November 27, 2000.
*1182 Richard W. Epstein and Stephanie A. Yelenosky of Greenspoon, Marder, Hirschfeld, Rafkin, Ross & Berger, P.A., Orlando, for Appellant.
Donald L. O'Dell of Meier, Lengauer, Bonner, Muszynski & Doyle, P.A., Orlando, for Appellees.
HARRIS, J.
Naomi Chase sued Lennon Bowen for legal malpractice because he prepared her mother's revised will omitting Naomi as a beneficiary and instead making major bequests to her mother's business associates, the Lavenders.[1] Her claim is based on her allegation that Bowen was "her lawyer" as well as the lawyer for her mother and the Lavenders and that Bowen was "mandated ... by the ethical obligations imposed by his profession" to notify her, her mother and the Lavenders of his "irreconcilable conflict of interest" in preparing her mother's rewrite of her will. The trial court's summary judgment in favor of Bowen is now before us. We affirm.
Although there is no dispute that Bowen has from time to time during the relevant years represented the daughter, her mother and the Lavenders, the record is not clear exactly what, at the time of the preparation of the mother's contested amended will and trust, the nature of Bowen's alleged representation of Naomi was. She alleges only that, "Beginning in 1988 and continuing through 1996, ... Bowen drafted will and trust documents for [Naomi] and redrafted the will and amended the trust agreement of [the mother]."
Naomi apparently believes that Rule 4-1.7, "Conflict of Interest; general rule,"[2] requires that if a lawyer represents a group of people in one matter or in various matters, he must necessarily get the approval of all in order to represent any one of such group in an unrelated matter. We do not so read the rule. If a lawyer prepares the wills of various members of a family, he thereby assumes no obligation to oppose any testator or testatrix from changing such will. Nor is he precluded from assisting such testator or testatrix in the redrafting.[3] There are no allegations that Bowen conspired with the Lavenders to induce the mother to change her will nor is there an allegation that Bowen used his influence to bring about the mother's change of heart. Naomi simply had no legal right to object to Bowen representing her mother when the mother desired to change her previous will prepared by him.
We believe the supreme court in The Florida Bar v. Moore, 194 So.2d 264, 269 (Fla.1966), explained the principle behind the rule when it stated:
We are of the opinion that a lawyer represents conflicting interests, within the meaning of the Canon, when it becomes his duty, on behalf of one client, to contend for that which his duty to another client would require him to oppose.
It is our view that a lawyer who prepares a will owes no duty to any previous beneficiary, even a beneficiary he may be representing in another matter, to oppose the testator or testatrix in changing his or her will and, therefore, that assisting in that change is not a conflict of interest.
We reject the dissent's invitation to apply the tort of intentional interference with inheritance under the facts of this case. We hold as a matter of law that an attorney who merely drafts the will of one who changes his or her mind and excludes *1183 from a later will a beneficiary who had been included in an earlier one cannot be found to have intentionally interfered with the inheritance of such beneficiary. Drafting a will in accordance with the instruction of the testator or testatrix is simply not tortious conduct.
AFFIRMED.
PETERSON, J., concurs.
W. SHARP, J., dissents, with opinion.
W. SHARP, J., dissenting.
I agree that Count II of the complaint failed to sufficiently plead a cause of action against Bowen, but I would remand this case with directions that appellant be allowed to replead, since it appears she may be able to state a cause of action against him.
Naomi Chase (through her Guardian, Jane Aggers) appeals from a partial final summary judgment rendered against her and in favor of Bowen, her attorney, in litigation she brought concerning her mother's (Reah Chase) estate, her expected inheritance, and various properties which had been transferred to third parties, William and Sharon Lavender. At issue in this appeal is the propriety of the trial court's conclusion that count two of the amended complaint, which deals with Bowen's possible tort liability to Naomi, does not present a viable malpractice claim against him.
The record establishes the following facts and circumstances, read in the light most favorable to Naomi.[1] Naomi became disabled during the 1940's when she was sixteen or seventeen years old, due to epilepsy. She has never been able to work outside her home. She lived with her mother, Reah Chase, who lived with her, and supported and cared for her, until Reah died in 1997.
Reah was involved in a number of business transactions and investments in Lake County during the 1960's. She was wealthy and successful. At that time she and Naomi became friends with William Lavender and his wife Sharon, and an attorney, Bowen. All of these people were mutual friends. Bowen represented Reah in some business transactions, as well as the Lavenders, and he prepared estate planning documents for Reah as well as for Naomi. In 1974, Bowen prepared a will and trust instrument for Reah. Naomi was the beneficiary and she was to receive income for her life time.
At some point, Reah had Bowen redraft her will and amend the trust to exclude Naomi, and solely benefit the Lavenders. Reah died in July of 1997 without changing her will or trust, thus depriving Naomi of her expected inheritance. In 1997, Naomi filed for the appointment of a voluntary guardian, and Jane Aggers became Guardian of her property.
After investigating the situation, Aggers filed this suit against the Lavenders and one of their businesses for fraud, to impose a constructive trust, to establish an equitable lien, subrogation, conversion and replevin, based on allegations they misappropriated property and money which belonged to Reah and Naomi, and breached their agreement to give Reah and Naomi lifelong care in their home in exchange for payment in full of the mortgage on the Lavenders' home. The complaint also contained two counts against Bowen: count one, which was dismissed;[2] and count two, *1184 the subject of this proceeding, which alleged legal malpractice against Bowen in his representation of Naomi.
The essence of Naomi's malpractice claim against Bowen is that he committed a breach of professional ethics when he represented Naomi, Reah, and the Lavenders continuously and over a period of time, including the time when he drafted amendments to Reah's trust and will, which disinherited her daughter and replaced her with the Lavenders, and that he did not recuse himself or obtain Naomi's consent, after disclosure to her of his adverse representation.
Rule 4.-1.7(a) of the Rules of Professional Conduct provides:
A lawyer shall not represent a client if the representation of that client will be directly adverse to the interests of another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the lawyer's responsibilities to and relationship with the other clients; and
(2) each client consents after consultation.
Naomi contends that if Bowen had consulted with Naomi and obtained her consent to represent her mother, or if he had refused to represent Reah and sent her to another lawyer with no conflict of interest, she might have had a chance to inquire as to the reasons for her mother's change of mind and ascertain whether the change was the product of undue influence. Due to his failure to comply with the ethical rule quoted above, Naomi lost that opportunity.
It is clear that an attorney should not represent two different clients (without disclosure and consent), who have adverse interests in the same transaction or series of transactions, all of which involve the same clients.[3] Nor can an attorney, after representing a client, assume the representation of a different client in a later matter that is adverse to the first client's interest, again without consultation and consent.[4] As alleged in this case, when Bowen redrafted Reah's trust and will, he represented not only Reah and Naomi, but also the Lavenders, the new beneficiaries. For purposes of a summary judgment motion, it appears Bowen's actions may have created a conflict of interest and a violation of this ethical rule. See Haynes v. First National State Bank of New Jersey, 87 N.J. 163, 432 A.2d 890 (1981); Pascale v. Pascale, 113 N.J. 20, 549 A.2d 782 (1988); Matter of Estate of Shano, 177 Ariz. 550, 869 P.2d 1203 (1994). Compare Estate of Koch, 18 Kan.App.2d 188, 849 P.2d 977 (1993). The trial judge also concluded "at best" there had been a violation of ethical rules.
The Professional Ethics of The Florida Bar Op 95-4 (May 30, 1997), approved by the Board of Governors in May of 1997, supports the conclusion that a breach of professional ethics occurred in this case. That opinion deals with a hypothetical husband and wife, who consult an attorney to draft their wills and do joint estate planning. Later the husband comes to the attorney seeking his advice on whether or not his wife would have the right to elect against his will, if she survived him, because he had executed a codicil leaving a substantial disposition to his mistress (unknown to his wife). This puts the lawyer in an ethical dilemma because he owes a duty of confidentiality to the husband, and yet he owes a duty of communication to the wife and a duty of loyaltynot to take steps to adversely affect her interest without her knowledge and consent.
*1185 The opinion concludes that the duty of confidentiality takes precedence, and the lawyer can not disclose the information to the wife. Further, the Committee concludes, the lawyer must withdraw from the representation of both the husband and the wife. In so doing, the lawyer should inform the wife that a conflict of interest has arisen that precludes the lawyer from continuing to represent her, and he could also say both the husband and wife should retain separate counsel. The Committee recognized that a sudden withdrawal by a lawyer almost certainly would raise suspicions on the part of the wife, which might alert her to the substance of the husband's adverse confidence. This appears to be more stringent than other states' views, which would allow the lawyer, in his discretion to make the disclosure to the wife, but which consistent with the Florida opinion, would still require the lawyer to withdraw from representing either one.
Although this Florida opinion concerns a joint representation case, it is not clear in the instant case that Bowen was not representing Naomi and Reah jointly in their estate planning. But even if the representation in this case was not joint, the opinion would be applicable to require Bowen to withdraw from representing Reah, although it might not require Bowen to tell Naomi a conflict of interest had arisen and that he could no longer represent either of them.
However, it does not follow that, without more, Naomi has a legal malpractice claim against Bowen. At the hearing below, counsel for Naomi conceded that breach of a rule of professional conduct does not by itself, give rise to a cause of action for malpractice. More is required.
There are a few cases in which breach of a lawyer's ethical duties owed to a client have provided part of the basis for an independent tort suit against the attorney. See, e.g., K.M.A. Associates, Inc. v. Meros, 452 So.2d 580 (Fla. 2d DCA 1984) (suit for legal malpractice based on attorney's possible violation of his duty of fair dealing and loyalty to a client in a business deal between them, which resulted in loss to client); Waldeck v. Marks, 328 So.2d 490 (Fla. 3d DCA 1976) (tort suit against attorney was sufficiently stated in complaint which charged the attorney breached his duty of good faith and fair business dealing in a joint development project, resulting in loss to the client); Abstract and Title Corp. of Florida v. Cochran, 414 So.2d 284 (Fla. 4th DCA 1982) (breach of attorney's duty of good faith dealings with client and loyalty held sufficient to void an option of first refusal the attorney had obtained for himself, pursuant to a land purchase from a client). In all of these cases, the client suffered an alleged or proven economic loss from the business deal, which had redounded to the attorney's economic advantage. In the instant case, it is not alleged that Bowen obtained any economic benefit or advantage.
In two other Florida cases, Singleton v. Foreman, 435 F.2d 962 (5th Cir.1970) and Resolution Trust Corp. v. Holland and Knight, 832 F.Supp. 1528 (S.D.Fla.1993), the alleged breaches of ethical duties owed to clients did not arise out of joint business dealings with the attorneys, and did not result in economic advantage to the attorneys and the client's alleged loss. In Singleton, the court held that the client stated a cause of action against her out-of-state attorney for an independent tort, which stemmed from his hostile and abusive representation of her during her divorce case, when he attempted to abort a settlement of the case. By his actions, the court said the attorney breached his confidential relationship with his client, allowed himself to be placed in an economic and personal place hostile to the client, and failed in his professional obligation to withdraw from the case. In Resolution Trust, the court held that a complaint stated a cause of action against a law firm in favoring one client over another, which created a breach of the firm's fiduciary duty (duty of loyalty and obligation of full disclosure), and which *1186 also resulted in an economic loss to the client who was not favored.
The Resolution Trust court quoted from 1 Ronald E. Mallen and Jeffrey M. Smith, Legal Malpractice, § 11.1 at 633 (3d ed 1989):
The [breach of fiduciary duty] constitutes a wrong which is distinct and independent from professional negligence but still comprises legal malpractice.
The court concluded that Resolution Trust Corporation had pled both of the malpractice theories in two separate counts; i.e., breach of duty of care (failure to read security documents properly), and breach of a fiduciary duty (failure to disclose conflict of interest; breach of duty of loyalty). The two counts were not duplicative, but were two distinct theories of malpractice pled alternatively. Additional elements of proof in those cases were the attorney's causation of the clients' loss or damages, and intentional breach of the fiduciary duty owed the client.
Florida has recently recognized and commenced evolving the common law tort of intentional interference with inheritance.[5]Davison v. Feuerherd, 391 So.2d 799 (Fla. 2d DCA 1980); Allen v. Leybourne, 190 So.2d 825 (Fla. 3d DCA 1966). The tort is partially based on Restatement of Torts 2d § 774b:
One who by fraud, duress, or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he or she would otherwise have received is subject to liability to the other for loss of the inheritance....
The actor must have interfered with the inheritance by means that are independently tortious in character [including]... tortious abuse of fiduciary duty....
The basic elements of this tort are:
1. the existence of a fixed expectancy;
2. intentional interference with the expectancy through tortious conduct;
3. causation (a reasonable probability that the expectancy would have been carried out, but for the wrongful acts of the defendant); and
4. damages.[6]
In addition, Florida cases also require that challenges to a testator's will be made in the context of probate litigation, if appropriate. See Martin v. Martin, 687 So.2d 903 (Fla. 4th DCA 1997); DeWitt v. Duce, 408 So.2d 216 (Fla.1981).
In this case, the general allegations of the complaint, coupled with those of count two, suggest that Naomi could possibly allege such a cause of action against Bowen. Sufficient facts are stated to indicate Reah had a fixed intent to leave substantial properties to her daughter, as demonstrated by her prior will and trust, and statements to Bowen. Naomi also alleged that Bowen's action in revising her mother's will and trust adversely to her, while continuing to represent her, was tortious (breach of a fiduciary duty owed to her) or malpractice because it was done intentionally and in violation of professional ethical rules. Causation may pose a problem in this case for Naomi, but she may be able to plead facts to show she could have taken steps to change the outcome, had she been alerted to the existence of a conflict of adverse interest.
I believe enough facts have been alleged generally that Naomi might be able to state a cause of action against Bowen for interference with her inheritance, caused and achieved by his breach of fiduciary duty owed to her as a client while representing *1187 the interests of Reah and the Lavenders, which were adverse to hers. Accordingly, It would affirm, but remand with directions that Naomi be given an opportunity to replead against Bowen. See Henshall v. Lowe, 657 So.2d 6 (Fla. 2d DCA 1995); Allen v. Leybourne.
NOTES
[1] This appeal does not involve Naomi's claims against the Lavenders.
[2] Rules of Professional Conduct.
[3] This would not be true in the case of mutual wills prepared by the attorney. Here, he would be representing two people in a common enterprise and would be precluded from representing one who later wishes to redraw from such common testamentary plan. Such is not present in this case.
[1] Wodonos v. Wodonos, 62 So.2d 78 (Fla. 1952); Florida Farm Bureau General Ins. Co. v. Ins. Co. of No. America, 763 So.2d 429 (Fla. 5th DCA 2000); Bross v. Wallace, 600 So.2d 1198, 1199 (Fla. 5th DCA 1992).
[2] This count asserted a third party beneficiary claim against Bowen based on legal malpractice in his representation of Reah, which frustrated Naomi's inheritance under the will. The facts in this case do not fit the typical pattern of cases allowing an intended beneficiary to sue a lawyer, after the lawyer's poor drafting or advice has caused the lapse or failure of an intended bequest, expressed in a will. See Espinosa v. Sparber, Shevin, Shapo, Rosen and Heilbronner, 612 So.2d 1378 (Fla. 1993); Kinney v. Shinholser, 663 So.2d 643 (Fla. 5th DCA 1995); DeMaris v. Asti, 426 So.2d 1153 (Fla. 3d DCA 1983). The problem for Naomi is that the expressed intent of her mother's will was carried out, and Bowen was effective in his draftsmanship.
[3] The Florida Bar v. Joy, 679 So.2d 1165 (Fla.1996); The Florida Bar v. Moore, 194 So.2d 264 (Fla.1966).
[4] The Florida Bar v. Marke, 669 So.2d 247 (Fla.1996).
[5] DeWitt v. Duce, 408 So.2d 216 (Fla.1981); Nita Ledford,Intentional Interference with Inheritance, 30 Real Prop. Prob. & Tr. J. 325 (Summer ed.1995); Fletcher Belcher, Litigation Under the Florida Probate Code, Ch. 13; Anno: Liability in Damages for Interference with Expected Inheritance or Gift, 22 A.L.R.4th 1229 (1983).
[6] See Whalen v. Prosser, 719 So.2d 2 (Fla. 2d DCA 1998).
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28 F.3d 766
UNITED STATES of America, Plaintiff-Appellee,v.Jose Maria MENDOZA-FIGUEROA, Defendant-Appellant.
No. 93-2867.
United States Court of Appeals,Eighth Circuit.
Submitted Dec. 17, 1993.Decided June 27, 1994.Rehearing and Suggestion for RehearingEn Banc Granted; Opinion and JudgmentVacated Sept. 2, 1994.
James M. Kelley, Lincoln, NE, argued, for appellant.
Janice Marie Lipovsky, Lincoln, NE, argued, for appellee.
Before MORRIS SHEPPARD ARNOLD, Circuit Judge, JOHN R. GIBSON*, Senior Circuit Judge, and BARTLETT**, District Judge.
JOHN R. GIBSON, Senior Circuit Judge.
1
Jose Maria Mendoza-Figueroa appeals the district court's sentencing of him as a career offender under section 4B1.1 of the United States Sentencing Guidelines. We conclude that the Sentencing Commission extended the definition of a career offender in promulgating sections 4B1.1 and 4B1.2 to include conspiracy. In doing so, the Commission exceeded the statutory underpinnings of the career offender provisions. See 28 U.S.C. Sec. 994(h) (1988). We reverse.
2
Mendoza-Figueroa pleaded guilty to conspiring to distribute marijuana, 21 U.S.C. Secs. 841(a)(1) and 846 (1988), and to transferring money obtained pursuant to the conspiracy, 18 U.S.C. Sec. 1956(a)(1)(A)(i) (1988). Mendoza-Figueroa's criminal history included two felony convictions for distribution of controlled substances. Based on these facts, the district court determined that he met the criteria for a career offender. See U.S.S.G. Secs. 4B1.1 & 4B1.2. After making the resulting adjustments to Mendoza-Figueroa's offense level and criminal history category, the court sentenced him to two concurrent terms of 236 months, followed by five years of supervised release. We review the district court's application of the sentencing guidelines de novo. United States v. Casares-Cardenas, 14 F.3d 1283, 1288 (8th Cir.1994).
3
Section 4B1.1 contains three requirements for sentencing a defendant as a career offender:
4
(1) the defendant was at least eighteen years old ..., (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
5
U.S.S.G. Sec. 4B1.1. "Controlled substance offense," as defined by section 4B1.2, includes state or federal offenses involving "the manufacture, import, export, distribution, or dispensing of a controlled substance" or the possession with intent to do any of the above. Critical for our purposes is Application Note 1 to section 4B1.2 which states that "aiding and abetting, conspiring, and attempting to commit such offenses" are controlled substance offenses. (Emphasis added).
6
Mendoza-Figueroa clearly meets the enumerated criteria for career offender status. The question before this court is whether the Sentencing Commission exceeded its mandate by including conspiracy in its definition of career offender in Application Note 1.
7
The career offender provisions of section 4B1.1 originated in 28 U.S.C. Sec. 994(h). Congress provided in section 994(h) that the Commission "shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term" when a defendant over eighteen years old commits a third crime of violence or listed controlled substance violation. Id. The specifically listed controlled substance violations, however, do not include conspiracy, 21 U.S.C. Sec. 846.
8
The government contends that because section 846 provides that those conspiring to commit an offense "shall be subject to the same penalties as those prescribed for the offense," Mendoza-Figueroa should be treated as if he violated 21 U.S.C. Sec. 841, which is among the enumerated offenses in section 994(h). Mendoza-Figueroa argues that the omission of section 846 represents a deliberate congressional choice that should not be disregarded.
9
Despite their similarity, a substantive criminal offense and a conspiracy to commit the same offense are distinct crimes with different elements. The government's sweeping interpretation of "same penalties" would require that we read all statutory references to the underlying offense, for purposes of sentencing, as if conspiracy to commit the offense were included as well. We are convinced that if Congress wanted to include conspiracy in section 994(h), it could easily have done so. It did not, and we reject the government's invitation to insert it through judicial fiat.
10
The government also contends that nothing in section 994(h) prevents the Sentencing Commission from extending career offender status to include conspiracy to commit one of the offenses enumerated in section 994(h).
11
We recognize that Congress gave the Commission broad authority to promulgate sentencing guidelines. See 28 U.S.C. Sec. 994(a); Mistretta v. United States, 488 U.S. 361, 377, 109 S.Ct. 647, 657, 102 L.Ed.2d 714 (1989). The Commission, however, was explicit that Chapter 4, part B implements the section 994(h) mandate that "the Commission assure that certain 'career' offenders, as defined by the statute, receive a sentence of imprisonment, 'at or near the maximum term authorized.' " U.S.S.G. Sec. 4B1.1, cmt., bkgd. (emphasis added). There is no indication that the Commission intended to rely on its discretionary authority under section 994(a) to extend the section 994(h) mandate. Rather, it is evident that the Commission simply exceeded the language of section 994(h). Where an agency action is based on an erroneous view of the law, the action cannot stand. See SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943); Collins v. SEC, 532 F.2d 584, 588 (8th Cir.1976).
12
Our analysis comports with the D.C. Circuit's reasoning in United States v. Price, 990 F.2d 1367, 1369-70 (D.C.Cir.1993). On facts virtually identical to those before us, the court stated that the commentary to section 4B1.1 demonstrates that the Commission sought only to implement the mandate of section 994(h). Id. at 1369. "If the Commission intended Ch. 4, part B to rest as well on its discretionary authority under section 994(a), it certainly did not say so." Id. Thus, the court concluded that "[b]ecause we find its stated basis--Sec. 994(h)--inadequate for Application Note 1's inclusion of conspiracies, Note 1 cannot support [the defendant's] sentence as a career offender." Id.
13
We recognize that at least one circuit has specifically rejected the reasoning of Price.1 See United States v. Heim, 15 F.3d 830 (9th Cir.1994). The Ninth Circuit stated that although the Commission admittedly sought to "implement[ ] the mandate of Sec. 994(h)," it never stated that "it considered Sec. 994(h) to be the sole legal authority for promulgating the career offender guidelines." Id. at 832. From this, the court concluded that "the Commission was lawfully exercising its authority under Sec. 994(a)(2)." Id. We have considered this approach, but believe it would be inappropriate to assume the Commission relied on a possible unstated statutory basis (section 994(a)), however valid, where it expressly relied on an inadequate basis (section 994(h)). See Mayo v. Schiltgen, 921 F.2d 177, 179 (8th Cir.1990) ("reviewing court may not uphold an agency decision based on reasons not articulated by the agency itself"); Chenery, 318 U.S. at 88, 63 S.Ct. at 459 (judicial decision making not appropriate where agency action is "valid only as a determination of policy or judgment which the agency alone is authorized to make").
14
Accordingly, the district court erred in sentencing Mendoza-Figueroa as a career offender. We vacate the sentence and remand to the district court for resentencing.
15
BARTLETT, District Judge, dissenting.
16
Section 994(h) does not define the only crimes that may be included by the Sentencing Commission in the determination of career offender status under the guidelines; it merely states that the enumerated crimes must be included. United States v. Baker, 16 F.3d 854, 857 (8th Cir.1994); United States v. Heim, 15 F.3d 830, 832 (9th Cir.1994); See S.Rep. No. 225, 98th Cong., 2nd Sess. 176 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3359. Thus, as the result of the Commission's broad mandate under section 994(a) to establish sentencing guidelines, the Commission has the authority to include in section 4B1.1 offenses, such as conspiracy, that are not found in section 994(h). See Baker, 16 F.3d at 857; United States v. Price, 990 F.2d 1367, 1369 (D.C.Cir.1993).
17
However, because the Commission expressly stated that section 4B1.1 was designed to implement the mandate of section 994(h), but did not expressly state that section 4B1.1 was also promulgated pursuant to the authority found in section 994(a), the majority concludes that the Commission intended to implement only the mandate of section 994(h) when it adopted section 4B1.1. Because section 994(h) does not include conspiracy, the majority determines that the Commission erroneously included conspiracy in section 4B1.1. I disagree with the majority's reasoning.
18
As explained by the Ninth Circuit Court of Appeals in Heim, the Commission's statement in section 4B1.1 that the career offender guidelines were intended to implement the mandate of section 994(h) "means what it says--the Commission intended to implement the mandate of Sec. 994(h)." 15 F.3d at 832. However, there is no indication that the Commission, in promulgating section 4B1.1, intended only to implement section 994(h) and not to accomplish any other legitimate sentencing purpose. In other words, by stating its desire to implement the mandate of section 994(h), the Commission did not suggest that it considered section 994(h) to be the only authority for adopting the career offender guidelines. Heim, 15 F.3d at 832. The "Commission has generally declared that its Guidelines are issued pursuant to its broad authority under section 994(a)." Baker, 16 F.3d at 857; see U.S.S.G. Ch. 1, Part A, Sec. 1.
19
The Commission is not required to state within each guideline its authority for promulgating that guideline or all sources of its authority to promulgate that guideline. Here, the Commission had authority to promulgate 4B1.1 based on section 994(a), and has stated generally that the guidelines are issued pursuant to section 994(a). That the Commission also found authority in section 994(h) does not restrict its authority under section 994(a) to include in the determination of career offender status offenses beyond those enumerated in section 994(h). Accordingly, I agree with the panel of this court in Baker that had "serious doubts" about the conclusion that the only purpose of the career offender guidelines was to implement section 994(h). 16 F.3d at 857.
20
In 21 U.S.C. Sec. 846 (1988), Congress directed that "[a]ny person who ... conspires to commit any [drug] offense ... shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the ... conspiracy." Therefore, the Sentencing Commission reasonably included conspiracy to commit the offenses referred to in section 994(h) as predicate offenses for determining career offender status under section 4B1.1.
21
For these reasons, I conclude that the Commission properly extended career offender status to include conspiracy to commit one of the offenses enumerated in Sec. 994(h) and thus the district court did not err in sentencing Mendoza-Figueroa as a career offender. I respectfully dissent.
*
The HONORABLE JOHN R. GIBSON was Circuit Judge of the United States Court of Appeals for the Eighth Circuit at the time this case was submitted, and took senior status on January 1, 1994, before the opinion was filed
**
The HONORABLE D. BROOK BARTLETT, United States District Judge for the Western District of Missouri, sitting by designation
1
We are aware that a panel of this court has expressed its "doubts" about Price. United States v. Baker, 16 F.3d 854, 857 (8th Cir.1994). We deal with conspiracy, whereas Baker involved the use of property to possess or distribute controlled substances. Baker did not rest its holding on its doubts about Price, but went on to decide that if the use of property was to possess rather than distribute controlled substances, it would not support the increased sentence. Accordingly, Baker remanded for resentencing based on a finding of either possession or distribution in the use of the property. This is not the issue before us, and Baker does not control our decision
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NOTICE
The text of this opinion can be corrected before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections @ akcourts.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DIEGO BANTAY MAYUYO,
Court of Appeals No. A-11786
Appellant, Trial Court No. 3UN-12-052 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2556 — June 2, 2017
Appeal from the Superior Court, Third Judicial District,
Unalaska, Patricia Douglass, Judge.
Appearances: Sharon Barr, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Craig W. Richards, Attorney General,
Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Allard, Judge.
Judge MANNHEIMER, writing for the Court.
Judge ALLARD, concurring.
Diego Bantay Mayuyo appeals his conviction for first-degree sexual
assault. He argues that the trial judge committed error by (1) allowing the State to
introduce an altered version of a statement that Mayuyo made to his roommate shortly
after the alleged sexual assault, and by (2) prohibiting Mayuyo’s attorney from cross
examiningthe roommate about the alteration in the statement. Mayuyo contends that the
altered version of his out-of-court statement was substantially misleading (in a manner
unfavorable to him), and that his trial was unfair because the trial judge prohibited his
defense attorney from clarifying the misleading aspects of the altered version of the
statement.
We agree with Mayuyo that the superior court’s rulings on this issue were
improper, and that Mayuyo’s trialwas rendered unfair because of these rulings. Mayuyo
is therefore entitled to a new trial.
Mayuyo also contends that the charge against him should be dismissed with
prejudice because he was not brought to trial within the time limits of Alaska Criminal
Rule 45. For the reasons explained in this opinion, we conclude that Mayuyo was
brought to trial within the time limits of Rule 45.
Why we conclude that the superior court committed error by (1) allowing
the State to present an altered and misleading version of Mayuyo’s out-of
court statement, and by (2) prohibiting Mayuyo’s attorney from asking
witnesses about the alteration
Mayuyo and his co-defendant, Ismael Balallo, were charged with sexually
assaulting a woman named L.V. in Unalaska. At Mayuyo’s trial, the State wanted to
introduce an out-of-court statement that Mayuyo made to his roommate, Rommel Viado,
shortly after the alleged sexual assault. According to Viado, Mayuyo told him several
times, “We’re going to jail.” However, Viado understood Mayuyo to be saying that he
(Mayuyo) and Balallo were going to jail because of what Balallo had done.
Because Mayuyo and Balallo were being tried together, the prosecutor
acknowledged that if Viado was called to testify about Mayuyo’s out-of-court
statements, this would raise a confrontation problem under the United States Supreme
–2– 2556
Court’s decision in Bruton v. United States 1 — because Mayuyo’s statements directly
incriminated his co-defendant Balallo.
In Bruton, as later modified by Richardson v. Marsh, 2 the Supreme Court
held that a defendant’s Sixth Amendment right of confrontation is violated if the
confession of a non-testifying co-defendant is introduced at their joint trial, and if this
confession directly implicates the defendant.
In Richardson v. Marsh, the Supreme Court set out three alternatives for
resolving this confrontation problem: (1) the government can try the co-defendants
separately, or (2) the government can elect not to introduce the co-defendant’s
confession, or (3) the government can alter the co-defendant’s confession so that it
no longer directly implicates the other defendants — in which case, the trial judge must
instruct the jurors that they can only consider the confession when evaluating the guilt
of the person who made it. 3
We addressed this third approach — alteration of the confession — in
Pease v. State, 54 P.3d 316, 327 (Alaska App. 2002). While Pease was in jail awaiting
trial on charges related to a homicide, a fellow inmate asked him “if he really did it.”
Pease responded, “We were fucked up. It was bad.” 4 The inmate understood Pease to
1
391 U.S. 123, 126, 128-29; 88 S.Ct. 1620, 1623-25; 20 L.Ed.2d 476 (1968).
2
481 U.S. 200, 211; 107 S.Ct. 1702, 1709; 95 L.Ed.2d 176 (1987) (limiting Bruton to
instances where the confession of the non-testifying co-defendant directly implicates the
defendant).
3
Richardson, 481 U.S. at 208-211, 107 S.Ct. at 1707-09. See also Pease v. State, 54
P.3d 316, 327 (Alaska App. 2002), where this Court explained and summarized the Supreme
Court’s decision in Richardson v. Marsh.
4
Id. at 327-28.
–3– 2556
be referring to the murder that Pease and his co-defendant, Marvin Roberts, were
charged with committing. 5
Pease and Roberts were tried jointly, and the prosecutor recognized that
Bruton barred the admission of Pease’s out-of-court statement to the fellow inmate. To
circumvent this Bruton problem, the prosecutor suggested paraphrasing Pease’s
statement: the fellow inmate would be instructed to testify that Pease said, “I was fucked
up” rather than “we were fucked up”. 6 The superior court approved this approach: the
prosecutor was allowed to introduce the altered statement, and the judge gave the jury
a limiting instruction. 7 We affirmed the superior court’s decision on appeal. 8
In Mayuyo’s case, the prosecutor proposed a similar approach to Viado’s
testimony about Mayuyo’s out-of-court statements. The prosecutor suggested (1) that
she would not ask Viado about Mayuyo’s direct accusations against Balallo, and (2) that
Viado should be instructed to testify that Mayuyo said, “I’m going to jail,” rather than
“We’re going to jail.”
Mayuyo’s defense attorney objected that this alteration would significantly
change the meaning of Mayuyo’s out-of-court statement. As we have explained, Viado
understood Mayuyo to be saying that he (Mayuyo) would be going to jail because of
what Balallo had done. But if the statement was altered as the prosecutor proposed, and
if (as required by Bruton) no one could ask Viado to clarify that Mayuyo had been
accusing Balallo of sexual assault, then Mayuyo’s altered statement would appear to be
an admission of Mayuyo’s own wrongdoing.
5
Ibid.
6
Id. at 328.
7
Ibid.
8
Id. at 329.
–4– 2556
This flaw in the prosecutor’s approach to the Bruton issue should have been
obvious to everyone involved in the trial. Nevertheless, the trial judge adopted the
prosecutor’s suggestion, over the vehement objection of Mayuyo’s attorney (and also the
objection of Balallo’s attorney). The trial judge ruled that Viado could testify to an
altered version of Mayuyo’s words — changing “We’re going to jail” to “I’m going to
jail.”
After the judge issued this ruling, Mayuyo’s attorney asked if he would be
allowed to cross-examine Viado to elicit the fact that, when Mayuyo spoke about going
to jail, he was referring mainly to what Balallo had done. The trial judge answered no.
She told the defense attorney, “[My] ruling ... definitely preclude[s] you from addressing
that [point] in your cross-examination. Because, otherwise, there would be no point [in
altering Mayuyo’s statement].”
Later, when Viado took the stand at Mayuyo’s and Balallo’s trial, the
prosecutor asked Viado if Mayuyo had said he was “concerned about going to jail.”
Viado responded, “Yes.” The defense attorney adhered to the superior court’s rulingand
did not try to cross-examine Viado about the reasons Mayuyo gave for fearing that he
would go to jail.
In closing argument, the prosecutor relied on this evidence to argue that
Mayuyo “knew what happened that night was bad”, and that Mayuyo was already
“talk[ing] about going to jail”.
We conclude that the superior court erred by allowingthe State to introduce
this altered version of Mayuyo’s out-of-court statement. The alteration of Mayuyo’s
statement certainly protected Balallo’s confrontation rights under Bruton. But the
alteration was unfair to Mayuyo. Compared to Mayuyo’s original statement, the altered
version made it appear that Mayuyo was incriminating himself to a significantly greater
degree.
–5– 2556
Richardson v. Marsh allows a trial judge to resolve a Bruton problem by
letting the government introduce an altered version of a defendant’s out-of-court
statement. But the judge must take care that the altered version of the statement still
accurately reflects what the defendant was saying about the defendant’s own culpability.
Here, the altered version of Mayuyo’s statement no longer accurately
conveyed the sense of Mayuyo’s original statement. The altered version materially
misrepresented what (according to Viado) Mayuyo had said about his own involvement
in the crime. The trialjudge therefore committed error by allowing the State to introduce
that altered version.
The State makes no argument that this error was harmless — and, in any
event, we conclude from our independent review of the record that this error was not
harmless beyond a reasonable doubt. Accordingly, we reverse Mayuyo’s conviction.
Why we conclude that Mayuyo was brought to trial within the time limits
of Criminal Rule 45
Mayuyo separately argues that he is entitled to dismissal of his case with
prejudice because he was not brought to trial within the time limits of Alaska Criminal
Rule 45.
Mayuyo’s speedy trial claim hinges on the resolution of one question:
whether the superior court abused its discretion when it delayed Mayuyo’s trial by 31
days so that Mayuyo’s trial could remain joined with the trial of his co-defendant Balallo.
For the reasons we explain here, we conclude that the superior court’s ruling does not
constitute an abuse of discretion.
–6– 2556
The Rule 45 speedy trial calculation began when Mayuyo was served with
the criminal complaint on March 29, 2012. 9 Thus, Day 1 of the Rule 45 calculation was
March 30, 2012, and the projected 120th day — i.e., the projected last day for bringing
Mayuyo to trial — was July 27, 2012. 10
At a pre-indictment hearing on April 6th, Mayuyo’s attorney asked for a
continuance to pursue further investigation of the case. Without objection, the court set
Mayuyo’s next pre-indictment hearing for May 1, 2012. The defense attorney’s request
tolled the Rule 45 clock for 25 days — or, rather, the speedy trial clock would have been
tolled for 25 days, except for the fact that Mayuyo was indicted and then arraigned on
that indictment before the scheduled May 1st pre-indictment hearing.
The grand jury indicted Mayuyo on April 13, 2012, and Mayuyo’s superior
court arraignment took place four days later, on April 17, 2012. Because Mayuyo was
arraigned on his indictment before the requested 25 days elapsed, the Rule 45 clock was
only tolled for the 12 days from April 6th to April 17th (inclusive).
At Mayuyo’s arraignment on April 17th, the superior court erroneously
calculated the Rule 45 expiration date to be July 28, 2012 (a Saturday). This calculation
mistakenly gave the State 121 days to bring Mayuyo to trial, rather than 120 days, but
neither party objected.
The superior court’s calculation also mistakenly failed to exclude the 12
day period that was tolled because of Mayuyo’s request for a continuance of the pre
indictment hearing. With the added 12 days, the actual Rule 45 expiration date was
August 8, 2012.
9
See Criminal Rule 45(c)(1).
10
See Criminal Rule 40(a): “Except as otherwise specifically provided ... , in computing
any period of time, the day of the act or event from which the designated period of time
begins to run is not to be included.”
–7– 2556
Mayuyo and his co-defendant Balallo were scheduled to be tried together.
But at the beginning of July, the State alerted the superior court that there was a potential
severance problem: the State believed that one co-defendant would be ready for the
scheduled trial, while the other would ask for a continuance. The State suggested that
the trial of both defendants be delayed until early September 2012.
On July 3rd, the parties appeared in court to discuss the possibility of
delaying the trial. Mayuyo’s attorney announced that he was ready for trial, and he
objected to the proposed continuance. However, this matter was not resolved on July
3rd, and the court continued the hearing until July 5th (since July 4th was a holiday).
Both Mayuyo and the State agree that the Rule 45 calculation was tolled for
these additional two days. This meant that the actual Rule 45 expiration date was now
August 10, 2012.
On July 5th, the superior court ruled that Mayuyo’s trial should remain
joined with his co-defendant Balallo’s trial, and that this joint trial should be continued.
The superior court set the trial for the week of Monday, September 10th — the next
scheduled trial calendar in Dutch Harbor.
This scheduled trial date of September 10, 2012 was 31 days over the then-
current Rule 45 expiration date of August 10th.
The following month (on August 8th), the superior court held a status
hearing regarding the feasibility of holding trial during the week of September 10th. The
parties informed the court that they were encountering difficulties in making travel
arrangements and in securing hotel accommodations. Without objection, the court
continued the trial until September 24, 2012. And the trial did, in fact, begin that day.
Given this series of events, Mayuyo was brought to trial within the time
limits of Criminal Rule 45 unless the superior court committed error when, in response
–8– 2556
to the State’s July motion for a continuance, the court rescheduled Mayuyo’s and
Balallo’s joint trial for September 10th.
The provision of Rule 45 that applies to the superior court’s ruling is
subsection (d)(5), which states that a “reasonable period of delay” shallbe excluded from
the Rule 45 calculation if co-defendants are joined for trial and there is good cause for
not granting a severance.
In Miller v. State, we explained that the Rule 45 clock will be tolled under
subsection (d)(5) only if the trial court (1) specifically considers the question of
severance, (2) concludes that the requested continuance will constitute only a “modest
extension of the [Rule 45] time limits,” and (3) concludes that holding a joint trial is
important to the prosecution’s case. 11
In Mayuyo’s case, the superior court expressly addressed the question of
whether Mayuyo’s and Balallo’s trials should remain joined (and should be continued),
or whether the trials should be severed. Applying the test that this Court established in
Miller, the superior court concluded that delaying Mayuyo’s trial until September 10,
2012, constituted a modest extension of time, and that there was a significant interest in
keeping Mayuyo’s and Balallo’s cases joined for trial.
Regarding this latter prongof the Miller test, the court noted that the State’s
evidence against the two co-defendants was “about as intertwined as you can [possibly]
get.” The court also noted that, because the evidence against the two defendants was so
closely connected, and because Dutch Harbor is a relatively small community, holding
Mayuyo’s trial in late July or early August would probably make it difficult to select a
second jury for Balallo’s trial only a few weeks later, in September.
11
706 P.2d 336, 340 (Alaska App. 1985).
–9– 2556
A trial court’s decision under Miller should be reviewed for “abuse of
discretion” because this is a situation where (1) the law does not specify a particular
“right” answer, but instead only specifies the factors or criteria that a judge should
consider, and where (2) reasonable judges, given the same facts and applying the correct
criteria, might come to differing conclusions about how to deal with the problem. 12
Given the record in Mayuyo’s case, we conclude that the superior court did
not abuse its discretion when the court concluded that the interest in having Mayuyo’s
and Balallo’s cases tried together justified a 31-day extension of the Rule 45 time limit
in Mayuyo’s case.
We therefore conclude that Mayuyo was tried within the time limits of
Criminal Rule 45.
Conclusion
The judgement of the superior court is REVERSED, but Mayuyo may be
retried should the State elect to do so.
12
See Booth v. State, 251 P.3d 369, 373 (Alaska App. 2011).
– 10 – 2556
Judge ALLARD, concurring.
I join the majority decision and write separately only to emphasize that the
Bruton problem presented in this case could have been easily solved by the court
granting Mayuyo’s motion to sever (or by the prosecutor choosing to forego use of
Mayuyo’s statement at trial). Instead, the prosecutor opposed the motion to sever and
the trial judge denied the motion and permitted the prosecutor to introduce an altered and
misleading version of Mayuyo’s statement to the jury. As the majority opinion points
out, there are significant risks associated with redacting or altering a non-testifying
defendant’s statement in order to eliminate references to a co-defendant. In some cases,
the redaction will not go far enough and will insufficiently protect the co-defendant’s
rights under the confrontation clause.1 In other cases, as occurred here, the redaction will
go too far, distorting the meaning of the statement and prejudicing the rights of the
defendant who made the statement.2 Given this, courts should carefully consider whether
1
See, e.g., Gray v. Maryland, 523 U.S. 185, 193 (1998) (holding that Bruton may be
violated if the act of redaction is obvious); Vazquez v. Wilson, 550 F.3d 270, 280 (3rd Cir.
2008) (reversingconvictions where the references to the two accomplices were replaced with
the terms “my boy” and “the other guy” because, in context, these terms unmistakably
referred to the co-defendant on trial); People v. Archer, 99 Cal. Rptr. 2d 230, 235 (Cal. App.
2000) (reversing a conviction where the jury would likely infer that the pronouns in the
redacted statement referred to the co-defendant).
2
See, e.g., Ex parte Sneed, 783 So. 2d 863, 870-71 (Ala. 2000) (reversing a conviction
where the alteration of the defendant’s statements from “we” to “I” distorted the meaning of
the statement and undermined the defendant’s defense); State v. Rakestraw, 871 P.2d 1274,
1281 (Kan. 1994) (reversing a murder conviction where the redacted version of the
defendant’s out-of-court statement distorted its meaning in a way that deprived the defendant
of a fair trial); People v. La Belle, 222 N.E.2d 727, 729 (N.Y. 1966) (reversing a conviction
where the redaction of the defendant’s statement distorted the meaning of the statement and
seriously prejudiced the defendant).
– 11 – 2556
the benefits that might be gained by a joint trial are worth the risk of potentially injecting
reversible error into the State’s case.
– 12 – 2556
| {
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 18, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
CLAUDIA BEATRIZ HERNANDEZ
LOPEZ,
Petitioner,
v. No. 18-9505
(Petition for Review)
MATTHEW G. WHITAKER, Acting
United States Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT**
_________________________________
Before HOLMES, O’BRIEN, and CARSON, Circuit Judges.
_________________________________
Claudia Beatriz Hernandez Lopez, a native and citizen of El Salvador,
petitions for review of a Board of Immigration Appeals (BIA) decision denying her
motion to reopen. We deny the petition for review.
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Matthew G. Whitaker is substituted for Jefferson B. Sessions, III, as the
respondent in this action.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I
Fleeing alleged gang violence in El Salvador, Ms. Lopez has attempted to
enter the United States four times. Among them, in July 2014, she told immigration
officials she came only to work and would live in Albuquerque with an uncle, but
then asked for protection, saying she was afraid of a gang member. She was found
not to have a credible fear of persecution or torture and was removed to El Salvador
on October 1, 2014. In May 2015 she again tried to enter the United States but was
caught in Mexico and returned to El Salvador. When she next entered the United
States, in August 2015, an immigration officer issued a notice of intent to reinstate
her original removal order, and she was removed to El Salvador on October 1, 2015.
She subsequently reentered the United States in December 2015, at which time an
immigration officer issued yet another notice of intent to reinstate her original
removal order, finding she did not have a reasonable fear of returning to El Salvador.
An immigration judge (IJ) reversed that decision, however, and allowed her to apply
for withholding of removal and protection under the Convention Against Torture
(CAT). See 8 C.F.R. § 1208.31(g)(2).
In support of these claims, Ms. Lopez testified before an IJ that a gang
member in El Salvador named “Tiny” repeatedly made sexual advances toward her
and eventually kidnapped her. Admin. R. at 619. She stated that after abducting her,
Tiny and two other men raped her and left her naked and bound with rope outside her
home. She claimed she was persecuted on account of her membership in several
2
different social groups, including “women in El Salvador unable to leave domestic
relationships or an attempted domestic relationship.” Id. at 542.
The IJ noted several inconsistencies in Ms. Lopez’s statements, but ultimately
found she was “for the most part” credible. Id. at 540. The IJ nevertheless found
that Ms. Lopez was not a member of the above social group and, by order dated
October 19, 2016, denied relief.1 Ms. Lopez challenged that decision, but on
April 12, 2017, the BIA affirmed, noting that Ms. Lopez had abandoned her CAT
claim. Through new counsel, Ms. Lopez moved the BIA to reconsider, but the BIA
denied her motion, and we denied her petitions for review, see Lopez v. Sessions,
744 F. App’x 574, 576 (10th Cir. 2018) (unpublished).
On July 11, 2017, while her petitions for review were pending in this court,
Ms. Lopez moved the BIA to reopen her administrative proceedings (her earlier
motion to reconsider was denied by the Board on June 15, 2017). She sought to
submit reports on country conditions in El Salvador and a sworn statement that she
prepared “as a hypothetical continuation of her live testimony” before the IJ,
Admin. R. at 102. She argued that these materials were previously unavailable
because her first attorney was ineffective in failing to present them. Later, she
moved to supplement her motion to reopen with another report prepared by an expert
on country conditions in El Salvador. According to Ms. Lopez, the expert report
1
The IJ found that the other social groups advanced by Ms. Lopez were not
“socially distinct” groups. Admin. R. at 544-46.
3
bolstered her claim that she had been “‘in a relationship’ with the gang by virtue of
having been unilaterally claimed by the gang leader to be his girlfriend.” Id. at 9.
The BIA denied the motion to reopen. The BIA ruled that 1) it was untimely,
2) the documents Ms. Lopez sought to submit were not previously unavailable and
did not show materially changed conditions in El Salvador, and 3) she did not satisfy
the requirements for claiming ineffective assistance of counsel. Ms. Lopez now
contests the BIA’s decision, arguing her motion to reopen was timely and there are
no alternative grounds upon which the BIA’s decision can be sustained.
II
“We review the BIA’s decision on a motion to reopen only for an abuse of
discretion.” Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013) (brackets
and internal quotation marks omitted). “[M]otions to reopen immigration cases are
plainly disfavored, and [the alien] bears a heavy burden to show the BIA abused its
discretion.” Id. (brackets and internal quotation marks omitted). “The BIA abuses its
discretion when its decision provides no rational explanation, inexplicably departs
from established policies, is devoid of any reasoning, or contains only summary or
conclusory statements.” Id. (internal quotation marks omitted). “[O]ur review is
confined to the reasoning given by the agency, and we will not independently search
the record for alternative bases to affirm.” Karki v. Holder, 715 F.3d 792, 800
(10th Cir. 2013) (brackets and internal quotation marks omitted). But the BIA’s
decision may be sustained on alternative grounds articulated by the agency. See id. at
804 (rejecting agency’s decision on one ground and proceeding to evaluate agency’s
4
alternative rationale); Nazaraghaie v. INS, 102 F.3d 460, 464 (10th Cir. 1996)
(finding any error in BIA’s conclusion regarding past persecution was harmless
because the agency’s decision was supported by record evidence rebutting any
presumption of future persecution).
A. Timeliness
The BIA first denied the motion to reopen on the basis that it was untimely.
Generally, a motion to reopen must be filed within 90 days of the final order of
removal. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The BIA issued its
final order of removal on April 12, 2017, and Ms. Lopez filed her motion to reopen
90 days later, on July 11, 2017. Consequently, the motion to reopen was timely, and
the agency’s decision must be sustained, if at all, on some alternative ground
proffered by the BIA. See Karki, 715 F.3d at 804.
B. Ineffective Assistance
As previously noted, the BIA also denied Ms. Lopez’s motion to reopen on the
basis that she did not satisfy the requirements for claiming ineffective assistance of
counsel.2 “In order to assert an ineffective-assistance claim in support of [her]
2
Without citation to authority, Ms. Lopez summarily contends that the BIA’s
ineffective-assistance analysis presupposed that her motion to reopen was untimely
and, therefore, it is ‘not transfer[]able’ to the issue of whether reopening was
warranted. Pet’r’s Br. at 45 n.11. “A party’s offhand reference to an issue in a
footnote, without citation to legal authority or reasoned argument, is insufficient to
present the issue for our consideration.” Verlo v. Martinez, 820 F.3d 1113, 1127
(10th Cir. 2016). Even if Ms. Lopez properly presented the issue for appellate
review, her argument would still fail because the BIA’s decision confirms that the
ineffective-assistance analysis was an independent basis for denying the motion to
(continued)
5
motion to reopen, [Ms. Lopez] had to comply with the BIA’s requirements.” Tang v.
Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003).
Under Matter of Lozada, a motion based on a claim of ineffective
assistance of counsel must be supported by (1) the aggrieved party’s
affidavit setting forth the agreement that was entered into with former
counsel and what counsel did or did not represent to the respondent in
this regard; (2) evidence that former counsel was informed of the
allegations and allowed the opportunity to respond; and (3) evidence the
aggrieved party filed a complaint with appropriate disciplinary
authorities, and, if not, why not. Matter of Lozada, 19 I. & N. Dec.
[637,] 639 [(BIA 1988)].
Mickeviciute v. INS, 327 F.3d 1159, 1161 n.2 (10th Cir. 2003).
The BIA determined that Ms. Lopez failed to comply with the second and third
Lozada requirements. Regarding the second requirement—notice to her attorney—
the BIA observed that the motion was supported by a letter to her attorney but there
was no evidence the letter was mailed, nor was there any indication that her attorney
responded. Regarding the third requirement—a disciplinary complaint—the BIA
noted that Ms. Lopez acknowledged that her attorney did not violate any ethical or
legal duties and that no bar complaint was filed.
The record confirms these deficiencies. Ms. Lopez contends she satisfied the
second Lozada requirement because, concurrently with the filing of her motion to
reopen, she sent a letter via certified mail to her prior counsel informing him of the
alleged deficiencies in his representation. As the BIA observed, however, there is no
reopen. See Admin. R. at 3 (“The applicant also attempts to assert a claim of
ineffective assistance of counsel but has not substantially complied with the
requirements for asserting such a claim.” (emphasis added)).
6
evidence the letter was actually sent; the letter is neither dated nor post-marked.
See Admin. R. at 338. Although Ms. Lopez offers to submit a certified-mail receipt
to this court, “our review is restricted to ‘the administrative record on which the
order of removal is based,’” Infanzon v. Ashcroft, 386 F.3d 1359, 1363 (10th Cir.
2004) (quoting 8 U.S.C. § 1252(b)(4)(A)). Moreover, even if she did mail the letter
to her attorney the same day she filed her motion to reopen, she denied counsel the
opportunity to respond to her allegations before she filed the motion. Under these
circumstances, Ms. Lopez failed to satisfy the second Lozada requirement. See Reyes
v. Ashcroft, 358 F.3d 592, 598-99 (9th Cir. 2004) (holding that second Lozada
requirement was not satisfied where alien failed to provide evidence that counsel was
informed of the ineffective-assistance claim and given an adequate opportunity to
respond before alien filed the motion to reopen).
As for the third Lozada requirement, the BIA faulted Ms. Lopez for failing to
file a disciplinary complaint against her former attorney and instead acknowledging
that her attorney did not violate any legal or ethical duties. In the letter she prepared
for her prior counsel, Ms. Lopez admitted that she did “not fil[e] a grievance with
any disciplinary authorities.” Admin. R. at 338. She also conceded that her attorney
“did not violate any professional rules of conduct” and that her case was a “close
call.” Id. Nonetheless, Ms. Lopez contends she complied with Lozada because a
disciplinary complaint is required “only where the [alien] asserts that prior counsel’s
actions violated his ethical or legal responsibilities.” Pet’r’s Br. at 47. We are not
persuaded.
7
A disciplinary complaint serves to discourage aliens from filing dilatory
ineffective-assistance claims in immigration proceedings because it
fosters “confidence in the validity of the particular claim, reduces the
likelihood that an evidentiary hearing will be needed, serves the BIA’s
long-term interests in monitoring the representation of aliens by the
immigration bar, and acts as a protection against collusion between
counsel and client to achieve delay in proceedings.”
Yero v. Gonzales, 236 F. App’x 451, 454 (10th Cir. 2007) (unpublished) (brackets
and ellipses omitted) (quoting Matter of Assaad, 23 I. & N. Dec. 553, 556 (BIA
2003)).3 Although Ms. Lopez insists that her prior counsel’s representation was still
“prejudicially deficient,” Pet’r’s Br. at 48, her present “counsel’s own view of the
gravity of error” does not serve the foregoing purposes, Yero, 236 F. App’x at 454.
Accordingly, having correctly concluded that Ms. Lopez failed to satisfy two
of the three Lozada requirements, the BIA did not abuse its discretion in denying the
motion to reopen. See Tang, 354 F.3d at 1197 (citing cases recognizing that BIA
does not abuse its discretion in denying a motion to reopen based on alien’s failure to
satisfy two of the three Lozada requirements).4
3
We may consider non-precedential, unpublished decisions for their persuasive
value. See 10th Cir. R. 32.1(A); Fed. R. App. P. 32.1.
4
Because we conclude Ms. Lopez’s ineffective assistance of counsel argument
does not provide a basis for reversal, we need not reach her additional arguments.
8
III
The petition for review is denied. Ms. Lopez’s motion to proceed on appeal
without prepayment of costs or fees is granted, and we remind her of her obligation
to pay the full amount of the appellate filing and docketing fees.
Entered for the Court
Joel M. Carson, III
Circuit Judge
9
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MONUMENTAL PAVING & EXCAVATING,
INCORPORATED,
Plaintiff-Appellant,
v. No. 96-2858
PENNSYLVANIA MANUFACTURERS'
ASSOCIATION INSURANCE COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-96-1722-AMD)
Argued: June 6, 1997
Decided: May 18, 1999
Before RUSSELL,* WIDENER, and WILKINS, Circuit Judges.
_________________________________________________________________
Affirmed in part, reversed in part, and remanded with instructions by
published opinion. Judge Widener wrote the opinion, in which Judge
Wilkins concurred.
_________________________________________________________________
*Judge Russell heard oral argument in this case but died prior to the
time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
COUNSEL
ARGUED: James David Mathias, PIPER & MARBURY, L.L.P.,
Baltimore, Maryland, for Appellant. Geoffrey Stetson Gavett,
GAVETT & DATT, P.C., Rockville, Maryland, for Appellee. ON
BRIEF: Glen K. Allen, PIPER & MARBURY, L.L.P., Baltimore,
Maryland, for Appellant. Rhoda S. Barish, GAVETT & DATT, P.C.,
Rockville, Maryland, for Appellee.
_________________________________________________________________
OPINION
WIDENER, Circuit Judge:
Monumental Paving & Excavating, Inc. (Monumental) appeals
from a decision in favor of its insurer, Pennsylvania Manufacturers'
Association Insurance Company, the PMA Group, entered by the
United States District Court for the District of Maryland on cross-
motions by the parties for summary judgment. Monumental initiated
the action after PMA denied coverage of certain of the losses which
resulted from a fire on Monumental's premises. The decision of the
district court is affirmed in part and reversed in part.
I.
There is no dispute as to the material facts. On December 9, 1995
a fire destroyed Monumental's maintenance shop building on Monu-
mental's premises at 1805-1815 Edison Highway, in Baltimore,
Maryland. Among the items of personal business property contained
in the building and destroyed in the fire were two Patch Masters,
machines which Monumental utilized in its paving business to melt
and mix asphalt in the repairing of pot holes and other paving defects.
The Patch Masters functioned as melting pots for the materials used
in the paving and were equipped with radiant heat panels which
melted the area of pavement surrounding the repair, thereby prevent-
ing the creation of a weaker cold seam in the asphalt surface. Monu-
mental's Patch Masters were each permanently affixed to Ford truck
chassis and cab; however, it is possible to mount them on trailers.
Normally they were not kept in the burned maintenance building,
2
building number 002 on the insurance policy. According to Monu-
mental, they were inside at the time of the fire due to harsh weather.
There is no dispute but that at the time of the fire, Monumental had
a Commercial Package Policy of insurance with PMA. That plan con-
sisted of four Coverage Parts which included (1) Commercial Prop-
erty Coverage; (2) Commercial General Liability Coverage; (3)
Commercial Crime Coverage; and (4) Commercial Inland Marine
Coverage. The Commercial Property Coverage part of the policy pro-
vided Monumental with "blanket building and business personal
property coverage for all locations" at "replacement cost value" with
a total limit of $686,000. Replacement cost value is the cost of
replacement without deduction for depreciation. Additionally, this
portion of the policy provided coverage for lost business income in
the amount of $50,000. The Commercial Inland Marine part provided
insurance for those items of Contractor's Equipment specified in the
included schedule by Monumental. Monumental included therein the
Patch Masters which were valued at $37,500 each, or a total of
$75,000, which represented their actual cash value, or cost of restora-
tion or replacement, whichever be less, rather than their replacement
value.
Monumental and PMA settled a substantial portion of the claims
resulting from the fire. However, they could not agree on two issues.
First, Monumental claimed that under the Commercial Property Cov-
erage, it was entitled to recover from PMA the replacement value of
the Patch Masters, which Monumental estimates is about $425,000,
because the units fell within the blanket coverage as they were in the
maintenance building which burned. PMA refused to pay the replace-
ment value of the Patch Masters, asserting that Monumental was only
entitled to $75,000 because that was the amount Monumental had
listed on the Inland Marine Contractor's Equipment Schedule. The
second point of contention is that Monumental claimed it was entitled
to apply the $50,000 of business income coverage to the loss of busi-
ness income and extra expenses that it claimed resulted from the
destruction of the Patch Masters and other property. PMA refused
payment because it contended that the business income insurance
covered only the destruction of one specific building on the premises
(not the one destroyed) rather than the destruction of any of the build-
ings.
3
Monumental, in a two-count complaint, brought suit to settle the
outstanding claims, and subsequently the parties filed their respective
motions for summary judgment. The district court decided in favor of
PMA on both counts, and Monumental has appealed.
II.
Summary judgment is appropriate under Federal Rule of Civil Pro-
cedure 56(c) "if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." Anderson v. Liberty
Lobby, 477 U.S. 242, 247 (1986). We review the district court's grant
of summary judgment de novo. Roe v. Doe , 28 F.3d 404, 406-7 (4th
Cir. 1994). In doing so, we consider the facts in the light most favor-
able to the non-moving party. Anderson, 477 U.S. at 255 (1986).
When considering motions from both parties for summary judgment,
the court applies the same standard of review and so may not resolve
genuine issues of material fact. ITCO Corp. v. Michelin Tire Corp.,
Com. Div., 722 F.2d 42, 45, n.3 (4th Cir. 1983), cert. denied, 469 U.S.
1215 (1985). Instead, we consider and rule upon each party's motion
separately and determine whether summary judgment is appropriate
as to each under the Rule 56 standard. See Charles A. Wright, Arthur
R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720
(2d ed. 1983).
III.
The facts are not disputed, so what we are faced with is a question
of the legal effect of this insurance contract. Count One of Monumen-
tal's complaint alleges that the contractor is entitled to the replace-
ment value of the Patch Masters because they fit within the "Building
and Personal Property" coverage section of the policy's definition of
"covered property." That section defines "covered property" as
including equipment within the insured buildings.
1. Covered Property
Covered Property, as used in this Coverage Part, means
the following types of property for which a Limit of Insur-
ance is shown in the Declarations: . . .
4
b. Your Business Personal Property located in or on the
building described in the Declarations or in the open (or in
a vehicle) within 100 feet of the described premises, consist-
ing of the following unless otherwise specified in the Decla-
rations or on Your Business Personal Property - Separation
of Coverage form: . . .
(2) Machinery and equipment;
(3) Stock;
(4) All other personal property owned by you and used
in your business;
Building and Personal Property Coverage Form, A.1.b.(2)-(4)
(emphasis added). Monumental acknowledges that its Patch Masters
were specifically covered under the Commercial Inland Marine policy
for their actual cash value, or cost of restoration or replacement,
whichever be less, and that it would only have received that amount
of $75,000 had the units been destroyed with no coverage except the
Commercial Inland Marine section of the policy. Notwithstanding
this, Monumental asserts that the units fall within the definition of
covered property by virtue of being equipment that was within the
maintenance building at the time of the fire, and that Monumental is
entitled to their replacement value.
Like any insurance policy, this one contains exceptions to cover-
age, two of which PMA argues prevent Monumental from recovering
under the business personal property policy. First, Monumental
asserts, and the district court agreed, that Exclusion (k) prevented
coverage of the Patch Masters under the blanket policy.
k. Property that is covered under another coverage form of
this or any other policy in which it is more specifically
described, except for the excess of the amount due (whether
you can collect on it or not) from that insurance.
Building and Personal Property Coverage Form, A.2.k. PMA asserts
that where the Patch Masters were scheduled under the Contractor's
5
Equipment Coverage Form of the Inland Marine portion of the policy
at a total of $75,000, and where that form stated that the scheduled
amount was "the most that we will pay for a loss of that item," no
amount was due in accordance with Exclusion (k) as replacement
value over and above the $75,000 that PMA agreed to pay.
The district court agreed with PMA's analysis. Further because the
court found the replacement value of the blanket policy to be incon-
sistent with the scheduled actual value of the Patch Masters, the court
looked to whether, outside of the contract, there was any evidence
that the parties had ever intended that the replacement value apply
rather than the actual value that was due under the Commercial Inland
Marine policy. The district court determined that"Monumental has
failed to establish the existence of genuine material fact relative to its
expectation of replacement cost coverage for the Patch Masters at the
time it purchased the PMA policy." The court placed great weight on
the fact that in its statement of values, which PMA used to determine
the premium and limits of the blanket policy, Monumental listed the
personal property in the burned building as worth $15,000, an amount
far below the replacement value it was claiming for the Patch Mas-
ters. The court noted that while the blanket policy limit of $686,000
would cover the claimed $400,000 replacement value of the Patch
Masters, this was only possible because the limit was calculated at
90% of the value of the personal property in all four buildings (a total
of $116,667), and the buildings themselves, which were valued by
Monumental at $645,555. On this basis the court found that under
Exclusion (k) there was no evidence that Monumental had reasonably
expected to receive the replacement value of the Patch Masters when
it bought the policy, and therefore the court entered judgment as a
matter of law in favor of PMA.
IV.
We are of opinion that the definition of "covered property"
squarely includes the Patch Master units and that the district court
erred in its analysis of Exclusion (k). The district court felt that it was
inconsistent for the Inland Marine portion of the policy to provide
coverage at the actual value while the blanket policy provided for
replacement value. Based on this inconsistency, the court found there
was ambiguity which warranted the examination of extrinsic evidence
6
as to the intent of the parties and that their intent was that the cover-
age only insured the Patch Masters at their actual value.
We find no inconsistency between the two policy portions, and cer-
tainly no ambiguity in Exclusion (k). The district court found, and the
parties do not dispute, that the Commercial Property Coverage portion
provided Monumental "blanket" protection for the building and busi-
ness personal property up to a $686,000 limit. A blanket policy by
definition covers different types of property at one or more locations
and does not specify the valuation of the items protected under the
blanket, but allocates an overall limit to the policy, upon which pre-
miums are based.
A blanket, compound, or floater policy is written upon a risk
as a whole, embracing whatever articles or items are
included therein, often changing in nature; in contravention
thereto, a specific policy is one which allocated the amount
of risk in stated values upon the several items embraced in
the coverage. ...
6 Appleman, Insurance Law & Practice, § 3912. The blanket policy,
then, by definition, did not require that Monumental assign values to
each individual item of business personal property that fell within the
policy limit. "The statement of values used in connection with a blan-
ket policy is not a part of the policy but is furnished by an assured
. . . for the purpose of arriving at an average rate for a blanket policy."
Reliance Insurance Co. v. Orleans Parish School Board, 322 F.2d
803, 806 (5th Cir. 1963), cert. denied, 377 U.S. 916 (1964). In that
connection, we note that the term blanket policy has been judicially
defined in this circuit.
The expression "blanket policy" is a term of art in the field
of insurance. It appears to be most frequently used in con-
nection with fire insurance policies and has acquired a rather
precise connotation. A blanket policy is said to be one
which contemplates the risk of shifting, fluctuating or vary-
ing, and is applied to a class of property rather than to any
particular risk or thing . . . . A compound or blanket policy
invariably covers and attaches to every item of property
described in the policy and insures the property collectively,
7
without providing in the event of loss for a distribution of
the insurance to each item. Nat'l Bank v. Fidelity and Casu-
alty Co., 125 F.2d 920, 924 (4th Cir. 1942).
Applying the Orleans Parish and Nat'l. Bank cases to the facts of this
case requires the conclusion that because the Patch Masters were
business personal property in the building which burned they were
explicitly insured under the insuring clause of the policy, and the dis-
trict court erred in finding an ambiguity as to coverage. Its essential
error was in not recognizing the characteristics of a blanket policy.
Our construction of the policy is consistent with another provision of
the applicable section of the policy provided for in the Business and
Personal Property Coverage Form, "A. COVERAGE, Under part
1.b(2)" is the explicit provision for coverage of"Business Personal
Property, Machinery and Equipment" located "in or on the building
described" or "in the open (or in a vehicle) within 100 feet of the
described premises." So, if the Patch Masters had been in the open but
within 100 feet of the building, they would have been explicitly cov-
ered under the terms of the policy. It is a greater jump of logic than
we can subscribe to, to say that if the Patch Masters had been in the
open within 100 feet of the building which burned, they would have
been covered, but since they were in the burned building, they were
not covered. Finally, pre-Erie, and before the reorganization of the
Courts of Appeals, the Supreme Court construed, as we do here, a
blanket policy of insurance under Maryland law. Home Ins. Co. v.
Baltimore Warehouse Co., 93 U.S. 541 (1876). That case cautioned
against going outside the wording of the coverage of an insurance
policy, as the district court did here, to find ambiguity, and the Court,
in finding coverage, stated that ". . . the subject of the insurance, its
nature and its extent, are to be ascertained from words of the contract
which the parties have made." 93 U.S. at 541. The words of the con-
tract made by the parties in this case are plain. The business personal
property located in or on the building described, or in the open (or in
a vehicle) within 100 feet of the described premises, is insured. We
hold there is no ambiguity in this policy.
To repeat, Exclusion (k) provides:
k. Property that is covered under another coverage form of
this or any other policy in which it is more specifically
8
described, except for the excess of the amount due (whether
you can collect on it or not) from that insurance.
As Monumental has pointed out, Exclusion (k) is what is called in the
insurance business an "excess insurance clause." Notably, Exclusion
(k), like all the provisions of the "Building and Personal Property
Coverage Form," is an exact copy of the standard insurance form "CP
00 10 10 91," as indicated at the bottom of the pages by the label
"Copyright, ISO Commercial Risk Services, Inc. 1990CP 00 10 10
91." See Susan J. Miller & Philip Lefebvre, Miller's Standard Insur-
ance Policies Annotated, Vol I., p. 458, Form CPCOV (Business and
Personal Property Coverage Form), Subsection (k) 4th Ed. 1995). See
Clausen v. Colombia National Insurance Co., 510 N.W.2d 399, 401
(Neb. App. 1993) (finding coverage without discussion despite an
Exclusion (k) clause identical to the one here). Other courts have
found this standard clause to be an excess clause. See Utica Mut. Ins.
Co. v. Travelers Ins. Co., 624 N.Y.S.2d 485, 486-87 (N.Y. App. Div.
1995) (noting that an identical clause in that contract is "characterized
as an excess clause;" citing 71 N.Y. Jr. 2d Insurance § 1984, at 334-
35). See also Klotz Tailoring Co. v. Eastern Fire Ins. Co., 102 N.Y.
Supp. 82 (App. Div. 1907); Wilson & Co. v. Hartford Fire Ins. Co.,
254 S.W. 266 (Mo. 1923).
An "excess clause" is a type of "other insurance" which typically
provides that "`the policy' shall apply only as excess insurance over
any other insurance." R. Keeton & A. Widiss, Insurance Law
§ 3.11(a) (1988). Under an excess clause the insurer remains liable
"up to the limits of the policy containing the excess clause." Barry B.
Ostrager, Thomas R. Newman, Handbook on Insurance Coverage
Disputes, § 11.02(b) (5th ed. 1992). This is distinct from an "escape"
clause which provides that the insurer has no liability if there is other
insurance. Keeton & Widiss, Insurance Law§ 3.11(a). See Am. Jr. 2d
Insurance § 1789 (2d ed. 1982) (distinguishing excess clause under
which insurer "is liable only for the amount of loss or damage in
excess of the coverage provided by the other policy or policies of
insurance" from clauses that contain "an express provision against lia-
bility where there is other more specific insurance" which "absolve
the insurer from liability if other more specific insurance" is
obtained). See also Couch On Insurance,§§ 1:5; 148:27 (3d ed.
1998).
9
Thus, applying standard form Exclusion (k) to the case at hand, it
is clear that the Inland Marine Coverage section of the policy consti-
tuted a more specific form of insurance for the Patch Masters. The
two units were there collectively scheduled as having an actual value
of $75,000. Accordingly, that amount of $75,000 cannot be collected
under the Blanket Policy, because it is excepted from the blanket pol-
icy under Exclusion (k). However, under the second part of that same
Exclusion (k), because the blanket policy insures the personal busi-
ness property in the building at replacement value, and the replace-
ment value of the two Patch Masters purportedly exceeds $400,000,
the excess over the $75,000 due under the Inland Marine part of the
policy is excepted from Exclusion (k) and therefore is covered by the
blanket policy. The district court converted the Exclusion (k) excess
clause into an escape or non-liability clause by concluding that the
fact that the Inland Marine Policy provided for actual value rejected
the replacement value coverage provided under the blanket policy.
This was error, as there is nothing preventing a contractual agreement
for different standards of value for losses under different parts of the
policy.
Due to its ruling on Exclusion (k), the district court did not reach
the issue of whether Exclusion (o) removed the Patch Masters from
the blanket policy. It correctly assumed that the Patch Masters were
equipment. Exclusion (o) removes from the policy certain vehicles.
o. Vehicles or self-propelled machines (including aircraft
or watercraft) that:
(1) Are licensed for use on public roads; or
(2) Are operated principally away from the
described premises.
Building and Personal Property Coverage Form, A.2.o. PMA asserts
that once the Patch Masters were purchased, they were permanently
affixed to the chassis, creating mobile units which the company bro-
chures and the fire department report referred to as trucks. PMA
asserts that Monumental's brochures indicated that these vehicles
repaired asphalt away from the insured premises at the customer's
10
location, and its argument is that therefore the Patch Masters should
be excluded under Exclusion (o).
Monumental's brochures do refer to the Patch Masters as specially
equipped trucks. However, Monumental's advertisements and the fire
department's reports are hardly dispositive of how the Patch Masters
are to be treated under the insurance contract. The Patch Masters here
were scheduled under the Inland Marine Coverage part as separate
items of "Contractor's Equipment" (emphasis added). Moreover, the
Contractor's Equipment Coverage, similar to the business property
coverage, explicitly excludes "self-propelled vehicles that are
designed for highway use." Contractor's Equipment Coverage, exclu-
sion 6. Further, each Ford chassis and cab which bore a Patch Master
was separately insured under a distinct commercial automobile policy
not discussed previously herein.
We are of opinion that the Patch Master units do not fall within the
ordinary meaning of "vehicles or self-propelled machines" as
excluded by Exclusion (o), and thus they remain within the blanket
coverage.
Accordingly, the district court's ruling as to count One is reversed.
V.
The claim with respect to Count Two, for lost business income, is
less complicated. Monumental claims that it is entitled to apply the
$50,000 business income coverage towards income loss related to the
fire at building 2. In support of its claim, Monumental cites the lan-
guage of the Business Income Coverage Form which provides that
PMA
will pay for the actual loss of Business Income you sustain
due to the necessary suspension of your "operations" during
the "period of restoration." The suspension must be caused
by direct physical loss of or damage to property at the
premises described in the Declarations . . . .
Business Income Coverage Form ¶ A (emphasis added). Monumental
argues that the only premises described in the Declarations is "prem-
11
ises 001," which includes the entire Monumental property, all of
1805-1815 Edison Highway, including building 002.
The district court correctly rejected this claim. The loss of business
income is only as a result of "loss of or damage to property at the
premises described in the Declarations." The Declarations section of
the policy provides that:
__________________________________________________________
PREMISES PROVIDED: Insurance at the described premises applies
only for coverages for which a limit of insurance is shown. COIN-
SURANCE CLAUSE APPLIES IF o/o IS INDICATED.
__________________________________________________________
Prem Bldg Limit of
No No Coverage Insurance
BLANKET BUILDING AND BUSINESS
PERSONAL PROPERTY COVERAGE
FOR ALL LOCATIONS EXCEPT AS
LISTED BELOW:
001 001 BUSINESS INCOME INCLUDING EXTRA $50,000
EXPENSE OPTION III RENTAL VALUE
CONSTRUCTION: JOISTED MASONRY
__________________________________________________________
We thus see that the premises are 001 and the building number is 001.
The building is constructed of "joisted masonry". Referring back to
the Designation of Premises Schedule, we see that it is in the follow-
ing form:
__________________________________________________________
Prem Bldg Designated Premises
No No Address, City, State
__________________________________________________________
001 001 1805-1815 EDISON HIGHWAY, BALTIMORE, MD
21213-1527
001 002 1805-1815 EDISON HIGHWAY, BALTIMORE, MD
21213-1527
001 003 1805-1815 EDISON HIGHWAY, BALTIMORE, MD
21213-1527
12
001 004 1805-1815 EDISON HIGHWAY, BALTIMORE, MD
21213-1527
002 106-108 SORRENTO AVENUE, BALTIMORE, MD
21229-3422
__________________________________________________________
From this we see that there were two premises insured, 001 at 1805-
1815 Edison Highway, consisting of four buildings, 001-004; and
premises 002 at 106-108 Sorrento Avenue, with no building designa-
tion. We are of opinion that a fair reading of the phrase "the premises
described in the declarations" means building 001 at 1805-1815 Edi-
son Highway. The addition of "joisted masonry" to describe its con-
struction would have no other purpose than to describe the building,
and this is especially true in this case since building 002, the building
which burned, had frame construction.
We are thus of opinion that the loss of business income provision
does not cover that attributed to the burning of building 002.
VI.
For the reasons expressed, the decision of the district court with
respect to Count One, that is to say, liability on account of the
destruction of the two Patch Masters, is reversed; the decision of the
district court with respect to Count Two, that is to say, the business
income insurance, is affirmed. The case must be remanded for the dis-
trict court to ascertain the damages due to Monumental in accordance
with this decision. On remand, the district court will ascertain the
replacement value of the Patch Masters and enter its judgment in
favor of Monumental on that account.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS*
_________________________________________________________________
*Any defense of estoppel made by PMA is without merit.
13
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38 F.3d 1100
LAS VEGAS NIGHTLIFE, INC., d/b/a Club Tabu; G. Group, Inc.,d/b/a Black Garter; Springston, Inc., d/b/a Nasty's; G ofL Corp., d/b/a Chaser's; Las Vegas Afterdark, Inc., d/b/aNight Gallery; Smart Alley, Inc., d/b/a Alley's; and AscotPromotions, Inc., d/b/a Black Dominion, Plaintiffs-Appellants,v.CLARK COUNTY, NEVADA, et al., Defendants-Appellees.
Nos. 93-15864, 93-16184.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Sept. 14, 1994.Decided Oct. 26, 1994.
Allen Lichtenstein and Janet Trost, Las Vegas, NV, for plaintiffs-appellants.
Charles A. Paine, Deputy Dist. Atty., and Michael L. Douglas, Deputy Dist. Atty., Las Vegas, NV, for defendants-appellees.
Appeals from the United States District Court for the District of Nevada.
Before: CHOY and NOONAN, Circuit Judges, and MARQUEZ*, District Judge.
NOONAN, Circuit Judge:
1
The plaintiff adult nightclubs [the "Clubs"], doing business under the variety of colorful names indicated in the caption of this case, sought declaratory and injunctive relief against Clark County, Nevada, and John Moran, the Sheriff of Clark County, the defendants. The Clubs alleged that an ordinance enacted by the County on November 19, 1991, unconstitutionally regulated their business. From an unfavorable judgment of the district court, the plaintiffs appeal. We affirm the district court.
PROCEEDINGS
2
In their third amended complaint, filed July 11, 1992, the Clubs attacked the ordinance for violation of the Due Process Clause, the Equal Protection Clause, and the First Amendment.
3
The County introduced the legislative material that had led the County Commission to adopt the ordinance. This material tended to show that there were persistent problems concerning what the ordinance described as "adult night clubs." A number of customers (all male) complained that they were brought to the Clubs by taxi drivers (tipped by the Clubs) who indicated the Clubs would furnish "girls and booze" to the customers; that the customers were induced by female attendants to purchase drinks at prices that were exorbitant ($500 to $1200 per bottle), which the customers paid in the expectation that the attendants would provide sexual acts; and that these expectations were frustrated so that the customers had simply been swindled out of the large sums they paid for the drinks. The material before the County Commission suggested that on a number of occasions the adult night clubs had played a variant of the badger game on the duped customers.
4
John Sweeney, the "chief operating officer" of the Clubs, provided an affidavit describing the "nonalcoholic night club business" of the Clubs. He stated that the premises of each contained signs stating that prostitution was illegal in Clark County and signs stating that no alcoholic beverages were served. He further swore that the "private rooms" of the Clubs were not allowed "to be fully closed. All of these rooms have just four inch wide imitation leather slats covering the openings that allow only a small measure of privacy, while allowing visual and aural monitoring of the conduct in the rooms by other employees." He added that there was "constant monitoring of the rooms when occupied by hostesses and customers by other employees to assure that no illegal activity occurs." The same declarations were sworn to by Terry Gordon, who identified himself as "the chief executive officer" of all the plaintiffs.
5
The defendants took the depositions of Sweeney and Gordon. According to Sweeney, the "theme of the Clubs" is "comfortable relaxing atmosphere for generally single men. I refer to it, if I may, as king for a day." Gordon explicitly testified that the Clubs provided "no entertainment." Sweeney said that cab drivers were paid tips to bring customers to the Clubs. The women that work in them were described by Sweeney as "hostesses." He said that they were considered to be "independent contractors" and, therefore, were not paid a salary but compensated only by tips from the customers. The plaintiffs' attorney was present at this deposition but did not conduct any cross-examination, so that only these facts were brought out as to the business of the plaintiffs.
6
The plaintiffs and the defendants each moved for summary judgment. The district court found certain sections of the ordinance invalid and sustained the rest. The plaintiffs appeal, alleging that the ordinance is "over-broad" and an impermissible infringement on their right to free speech. They rely only on the Free Speech Clause of the First Amendment.
7
The Clubs challenge the decision of the district court as to the following six provisions of the ordinance:
8
1) Sec. 6.170.060(d)(1) prohibiting the County from issuing a license if the applicant or any stockholder or partner has been convicted within the past five years of any crime involving moral turpitude, embezzlement, or fraud.
9
2) Sec. 6.170.090(h) requiring that all communication between attendants and patrons shall take place in an area visible immediately upon entrance into the club.
10
3) Sec. 6.170.050(b)(7)(A-C) requiring applicants and anyone with a financial interest in the club to disclose any past criminal convictions, past denials of business licenses, and any history of employment by swingers clubs, escort services, brothels, or adult nightclubs.
11
4) Sec. 6.170.090(p) banning nudity in the Clubs.
12
5) Sec. 6.170.030(a) defining Adult Nightclub.
13
6) Sec. 6.170.080(d) requiring the County to issue an attendant/server work permit within ten days of application.
ANALYSIS
14
The County has amended the ordinance to cure the defects found by the district court. On appeal we review the ordinance as amended. IDK, Inc. v. Clark County, 836 F.2d 1185, 1187 (9th Cir.1988). In order to assert a First Amendment claim of freedom of speech the plaintiffs must show that the County's regulation reaches "a substantial amount of constitutionally protected conduct." Id. at 1196. It is "the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, n. 5, 104 S.Ct. 3065, n. 5, 82 L.Ed.2d 221 (1984). Although counsel in oral argument contended that "exotic dancing" was done by the hostesses, no evidence in the record supports this assertion, and it is directly contradicted by Gordon's affidavit that the Clubs offered "no entertainment." The evidence offered by the plaintiffs, consisting solely in the affidavits and depositions of the chief executive officer and chief operating officer, does not show that the Clubs engage in a substantial amount of conduct that could be considered free speech protected by the United States Constitution.
15
The legislative material introduced by the County, while admissible to show that the County had a legitimate motive in adopting the Ordinance, was inadmissible hearsay to the extent it was offered to show the conduct of the Clubs. F.R.Civ.P. 56(e); 6 Moore's Federal Practice p 56.22 (2d ed.) at 743-46. The plaintiffs' evidence shows only commercial activities conducted by women, not employed by the Clubs, who depend on tips from the customers for compensation. These activities occur either in a completely public area or in the so-called private rooms, which according to the plaintiffs' own evidence allow visual and aural monitoring and are in fact constantly monitored by other employees. "While it is possible to find some kernel of expression in almost every activity a person undertakes ... such a kernel is not sufficient to bring the activity within the protection of the First Amendment." Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1988).
16
Ordinary commercial activity of the kind conducted by the Clubs is subject to governmental regulation without offending the First Amendment. The Supreme Court offered a number of examples of such regulation in Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456-57, 98 S.Ct. 1912, 1918-19, 56 L.Ed.2d 444 (1978): the exchange of information about securities, SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (CA2 1968), cert. denied, 394 U.S. 976 [89 S.Ct. 1454, 22 L.Ed.2d 756] (1969), and corporate proxy statements, Mills v. Electric Auto-Lite Co., 396 U.S. 375 [90 S.Ct. 616, 24 L.Ed.2d 593] (1970), the exchange of price and production information among competitors, American Column & Lumber Co. v. United States, 257 U.S. 377 [42 S.Ct. 114, 66 L.Ed. 284] (1921), and employers' threats of retaliation for the labor activities of employees, NLRB v. Gissel Packing Co., 395 U.S. 575, 618 [89 S.Ct. 1918, 1942, 23 L.Ed.2d 547] (1969). See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61-62 [93 S.Ct. 2628, 2637, 37 L.Ed.2d 446] (1973). The regulation of the Clubs by the County is not different in kind or degree from this kind of regulation aimed at promoting full disclosure or avoiding fraud or overreaching.
17
The plaintiffs also press an "over-breadth" claim. However, a challenge on the basis of over-breadth based on the ordinance's impact on the rights of other business associations cannot be made in a commercial context. IDK, Inc. v. Clark County, 836 F.2d 1185 at 1197; see Bates v. State Bar of Arizona, 433 U.S. 350, 380-81, 97 S.Ct. 2691, 2707-08, 53 L.Ed.2d 810 (1977).
18
Accordingly, the judgment of the district court is AFFIRMED.
*
The Honorable Alfredo C. Marquez, Senior United States District Judge for the District of Arizona, sitting by designation
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Provencal, LLC v Tower Ins. Co. of N.Y. (2016 NY Slip Op 02643)
Provencal, LLC v Tower Ins. Co. of N.Y.
2016 NY Slip Op 02643
Decided on April 6, 2016
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 6, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
ROBERT J. MILLER
JOSEPH J. MALTESE
COLLEEN D. DUFFY, JJ.
2014-00893
(Index No. 31262/12)
[*1]The Provencal, LLC, respondent,
vTower Insurance Company of New York, et al., appellants.
Mound Cotton Wollan & Greengrass, New York, NY (Kevin F. Buckley and Daniel M. O'Connell of counsel), for appellants.
Bleakley, Platt & Schmidt, LLP, White Plains, NY (Susan E. Galvao of counsel), for respondent.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of an insurance contract, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Rockland County (Berliner, J.), dated December 5, 2013, as denied their motion for summary judgment dismissing the complaint.
ORDERED that the appeal is dismissed, with costs.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). Although the issues raised on the defendants' appeal from the order are brought up for review on the separate appeal by the plaintiff from the judgment (see CPLR 5501[a][1]; The Provencal, LLC v Tower Insurance Co. of New York, _____ AD3d _____ [Appellate Division Docket No. 2015-00192, decided herewith]), those issues have been rendered academic in light of our determination of the appeal from the judgment.
LEVENTHAL, J.P., MILLER, MALTESE and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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714 F.2d 141
McKnightv.Sowders
82-5394
UNITED STATES COURT OF APPEALS Sixth Circuit
6/16/83
1
W.D.Ky.
REMANDED
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Reversed and Rendered and Opinion filed December 23, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00743-CV
GENESIS PRODUCING COMPANY, L.P., Appellant
V.
SMITH BIG OIL CORPORATION, TODD M. SMITH AND JAMES A.
WHITSON, JR., Appellees
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Cause No. 2012-30652
OPINION
In this dispute over an assignment of an interest in an oil and gas lease,
Genesis Producing Company, L.P., appeals the trial court’s judgment granting
Smith Big Oil Corporation and Todd M. Smith’s summary judgment motion,
denying Genesis’s summary judgment motion, and striking Genesis’s amended
petitions. Concluding that Genesis nonsuited its claims before judgment was
rendered on the competing summary judgment motions, we reverse and render.
FACTUAL AND PROCEDURAL BACKGROUND
Genesis is in the business of oil and gas exploration and the purchase and
sale of oil, gas, and mineral leases in Texas and other states. J. Morgan Smith
(Morgan) owns a majority limited partnership interest in Genesis and his company,
J. Morgan Smith, Inc., is its general partner. Todd M. Smith (Todd) is Morgan’s
son and Smith Big Oil is Todd’s company. Unless otherwise indicated, we will
collectively refer to Smith Big Oil and Todd as “SBO.”
According to Genesis’s petition, Genesis’s business has declined over time
and its assets consist of a few remaining oil, gas, and mineral leases. As business
continued to worsen, Genesis owed substantial sums to creditors. Consequently,
Genesis entered into several transactions, including a purported assignment to
Smith Big Oil of its working interest in an oil and gas lease in Louisiana that is the
subject of this lawsuit. The lease contains one producing oil and gas well, which
Genesis asserts is Morgan’s principal source of personal income. Genesis claims
that the assignment was made “solely for the purpose of protecting the income and
revenues received on the Lease for the benefit of J. Morgan Smith and protecting
same from the claims of certain creditors” of Genesis.
Genesis alleges that the assignment of the lease is invalid because (1) no
consideration was paid for it, (2) the assignment was made through error, mistake,
or fraud, and (3) the assignment was improperly witnessed and notarized. Genesis
also alleges that it entered into this transaction unwittingly and on the advice of
one of its officers. Although Genesis demanded that SBO reassign the lease to
Genesis, SBO refused. Genesis also demanded that James A. Whitson, Jr., the
operator of the well, continue making payments of proceeds from the well to
Genesis. In response, SBO’s counsel instructed Whitson to continue making all
payments to Smith Big Oil.
2
In 2012, Genesis sued Smith Big Oil, Todd, and Whitson, asserting causes
of action for conversion, breach of contract, and declaratory judgment in
connection with Genesis’s assignment of the lease to Smith Big Oil, and requesting
a temporary restraining order and temporary injunction. Shortly after the petition
was filed, the trial court signed an order reflecting that SBO agreed to a temporary
injunction requiring Whitson to pay certain revenues from the well into the registry
of the court during the pendency of the case. EOG Resources, Inc., one of
Genesis’s creditors, later intervened in the lawsuit, seeking to recover damages for
fraudulent transfer against SBO.
In January 2013, Genesis moved for summary judgment. SBO responded
and also moved for traditional and no-evidence summary judgment against
Genesis. The trial court heard the parties’ arguments on their cross-motions on
March 25, 2013. On April 11, Genesis filed a first amended petition adding
additional causes of action and a new defendant; SBO objected and moved to strike
the first amended petition. On April 16, Genesis filed a second amended petition,
as well as a motion to extend the pleading deadline. Genesis also moved to strike
EOG’s intervention, but the trial court denied the motion to strike on April 19 by
written order.
On April 22, at 3:44 p.m., the trial court sent the following email to counsel
for both parties:
On Friday the court denied Plaintiff’s Motion to Strike the
Intervention of EOG Resources, Inc.
Today, the court is denying [Genesis’s] Motion for Summary
Judgment and granting [SBO’s] Motion for Summary Judgment as to
Breach of Contract and Conversion of the Lease that is the subject of
this lawsuit. The court is denying [SBO’s] Motion for Summary
Judgment as to proceeds of the lease that are deposited into the
registry of the court.
3
Counsel for SBO immediately requested a hearing seeking clarification as to
“whether any claims remain for trial” on April 24.
On the morning of April 23, the trial court held a telephonic hearing with the
parties which apparently was not recorded. At 12:32 p.m. that same day, Genesis
filed a notice of nonsuit of all of its causes of action. Later that afternoon, SBO
filed and served a proposed “Final Order on Plaintiff’s Claims.”
On April 24, the trial court signed the Final Order on Plaintiff’s Claims. In
the two-page order, the trial court expressly dismissed with prejudice Genesis’s
claims for breach of contract and conversion, as well as Genesis’s “fraud claim,
styled as a request for a declaratory judgment.” The trial court also specified that it
was dismissing with prejudice Genesis’s other requests for declaratory judgment
concerning failure of consideration, error or mistake, and improper witnessing and
notarization, and expressly confirmed that the court was dismissing all of
Genesis’s claims against Smith Big Oil, Todd, and Whitson. Finally, the trial court
denied Genesis leave to amend its original petition or file its first or second
amended petitions, and struck Genesis’s first and second amended petitions.
On July 19, 2013, the trial court signed a final judgment based on its
dismissal of Genesis’s claims and a subsequent settlement agreement between
EOG and SBO. In the final judgment, the trial court dismissed EOG’s claims
without prejudice, dissolved the temporary injunction, ordered the release of the
funds in the court’s registry to a trust account for the benefit of Smith Big Oil, and
ordered Whitson to pay a specified amount of all future oil and gas revenues from
the lease to the trust.1 Genesis filed a motion for new trial that was overruled by
operation of law, and this appeal followed.
1
Neither Whitson nor EOG are parties to this appeal.
4
ANALYSIS
In five issues, Genesis complains that the trial court erred in granting
summary judgment in favor of Smith Big Oil and Todd on Genesis’s claims,
denying Genesis’s summary judgment motion, denying Genesis’s motion for leave
to extend the pleading deadline, and striking Genesis’s amended petitions. In its
second issue, Genesis contends that the trial court erred in rendering judgment after
Genesis nonsuited its claims. Because we conclude that this complaint is
dispositive, we need not address Genesis’s other issues.
A plaintiff may take a nonsuit at any time before it has introduced all of its
evidence other than rebuttal evidence. Tex. R. Civ. P. 162. The nonsuit renders the
merits of the plaintiff’s claims moot. Travelers Ins. Co. v. Joachim, 315 S.W.3d
860, 862 (Tex. 2010). The right to take a nonsuit is unqualified and absolute as
long as the defendant has not made a claim for affirmative relief. Villafani v. Trejo,
251 S.W.3d 466, 469 (Tex. 2008). But a decision on the merits, including a
summary judgment in the defendant’s favor, is not vitiated. See Hyundai Motor
Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex. 1995) (per curiam) (“Once a judge
announces a decision that adjudicates a claim, that claim is no longer subject to the
plaintiff’s right to nonsuit.”).
Rendition of judgment is “the judicial act by which the court settles and
declares the decision of the law upon the matters at issue.” Comet Aluminum Co. v.
Dibrell, 450 S.W.2d 56, 58 (Tex. 1970). Generally, a judgment is rendered when
the decision is officially announced orally in open court, by written memorandum
filed with the clerk, or otherwise announced publicly. Garza v. Tex. Alcoholic
Beverage Comm’n, 89 S.W.3d 1, 6 (Tex. 2002); Dibrell, 450 S.W.2d at 59.
Rendition is distinguishable from the entry of judgment, which is a purely
ministerial act by which the judgment is made of record and preserved. Ex
5
parte Gnesoulis, 525 S.W.2d 205, 209 (Tex. Civ. App.—Houston [14th Dist.] 1975,
orig. proceeding).
Although neither party has directed us to a case involving a trial judge’s
purported ruling communicated by email to the parties, courts have held that a trial
court’s letter may constitute a rendition of judgment if it is in sufficient detail to
state the court’s decision on all the matters at issue and is filed with the clerk. See,
e.g., Greene v. State, 324 S.W.3d 276, 282 (Tex. App.—Austin 2010, no pet.);
Mixon v. Moye, 860 S.W.2d 209, 210 (Tex. App.—Texarkana 1993, no writ); Ex
parte Gnesoulis, 525 S.W.2d at 209. Because the rendition of judgment is a present
act that decides the issues upon which the ruling is made, the words used by the
trial court must clearly indicate its intent to render judgment at that time, rather
than in the future. See S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857–
58 (Tex. 1995) (per curiam); Greene, 324 S.W.3d at 283. A trial court’s letter to
the parties is not a rendition of judgment if it merely indicates the court’s intention
to render judgment in a certain way and sets out guidelines by which counsel are to
prepare a judgment. Mixon, 860 S.W.2d at 210; Ex parte Gnesoulis, 525 S.W.2d at
209.
Genesis argues that because it filed its April 23 nonsuit before the trial court
rendered judgment in its April 24 written order, the trial court’s April 22 email is
ineffective as a ruling on the merits of Genesis’s claims. In response, SBO argues
that the trial court’s email was intended to dismiss all of Genesis’s claims. In
support of its contention, SBO relies on Alvarado and Curry v. Bank of America
for the proposition that a party cannot nonsuit claims after they have been
adjudicated. See Alvarado, 892 S.W.2d at 855; Curry v. Bank of Am., N.A., 232
S.W.3d 345, 354 (Tex. App.—Dallas 2007, pet. denied) (citing Alvarado and
explaining that a party who has had his claims adjudicated unsuccessfully cannot
6
later nonsuit his claims to avoid the judgment). But SBO’s argument assumes that
the trial court’s email effectively rendered judgment on Genesis’s claims. Neither
Alvarado nor Curry involved a dispute concerning whether the trial court
adjudicated the plaintiffs’ claims prior to nonsuit. See Alvarado, 892 S.W.2d at
855; Curry, 232 S.W.3d at 354.
At first glance, the trial judge’s email purports to deny Genesis’s summary
judgment motion and grant SBO’s motion for summary judgment at least as to
Genesis’s breach of contract and conversion claims. But, there is not any indication
in the record that the email was ever filed with the clerk or otherwise announced
publicly. In contrast, the trial court’s ruling denying Genesis’s motion to strike
EOG’s intervention—also mentioned in the email—was memorialized in a written
order that was signed and filed with the clerk. Additionally, counsel for SBO
immediately requested a telephonic hearing seeking “clarification” concerning the
email before the start of trial.2 The written “Final Order on Plaintiff’s Claims,”
signed after Genesis filed its nonsuit, is markedly different from the trial court’s
earlier email, including numerous additional rulings on matters not previously
mentioned in the email and expressly dismissing Genesis’s declaratory judgment
claims.
Based on the trial court’s failure to file the email or otherwise announce its
ruling publicly, as well as the differences between the email and the court’s
subsequent written ruling, we conclude that the email was not a rendition of
2
SBO represents that during the telephone conference, the trial court clarified that it was
dismissing all of Genesis’s claims, including its declaratory judgment claims, and instructed
SBO’s counsel to memorialize its rulings in a “Final Order on Plaintiff’s Claims” which the trial
court ultimately signed. However, there is no record of an oral pronouncement at the telephonic
hearing showing that the trial court rendered judgment at that time. See In re R.A.H., 130 S.W.3d
68, 69–70 (Tex. 2004) (per curiam) (holding that judgment was rendered when formal decree of
paternity was signed when no record or evidence of an oral pronouncement at earlier hearing
existed and the only written memorandum was an unsigned docket sheet).
7
judgment. See Garza, 89 S.W.3d at 6; cf. Mixon, 860 S.W.2d at 210 (letter
consisting of one short paragraph that was not filed with the clerk and was
followed by a later, far more detailed order was not a rendition of judgment).
Because the trial court’s April 22 email to the parties was insufficient to effectuate
a rendition of judgment, Genesis’s April 23 nonsuit mooted all of its claims.
Consequently, the trial court erred when it subsequently rendered judgment
dismissing Genesis’s claims with prejudice. We therefore sustain Genesis’s issue
and reverse and render judgment that Genesis’s claims are dismissed without
prejudice.
CONCLUSION
We reverse the trial court’s final judgment, signed July 19, 2013, to the
extent that the judgment dismisses with prejudice Genesis’s claims for breach of
contract, conversion, and declaratory judgment. In light of Genesis’s nonsuit, we
render judgment that these claims asserted by Genesis are dismissed without
prejudice.
/s/ Ken Wise
Justice
Panel consists of Justices Boyce, Busby, and Wise.
8
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849 S.W.2d 948 (1993)
312 Ark. 401
Judge BRIMER, Jr., Appellant,
v.
ARKANSAS CONTRACTORS LICENSING BOARD, Appellee.
No. 92-1220.
Supreme Court of Arkansas.
March 29, 1993.
*949 Steven G. Howard, Newport, for appellant.
Rick Hogan, Little Rock, for appellee.
HOLT, Chief Justice.
This is an appeal of the White County Circuit Court's approval of a decision of the Arkansas Contractors Licensing Board *950 (Board) to fine Judge Brimer, Jr. (Brimer) for acting as a contractor without a license in violation of Ark.Code Ann. § 17-22-101 (1987). We agree and affirm.
Michael Hoofman is an investigator with the Board. According to Hoofman's testimony before the Board, he first investigated the appellant, Brimer, when he was working on the Brown Sheet Metal Building in Gravel Ridge. Brimer told Hoofman that he was getting out of the business and working for his cousin, Mrs. Brown. So, Hoofman closed the investigation without a hearing.
Hoofman next encountered Brimer when he was working as a contractor on the Russell Grocery Store in Russell, Arkansas. This investigation led to a hearing before the Board at which it voted unanimously to charge Brimer with a civil penalty of $547 to be suspended and ordered him to refrain from bidding on projects in excess of $20,000 prior to being properly licensed as a contractor.
Mr. Hoofman then testified as to the contracting job at issue stating that he was in Blytheville, Arkansas and saw a church, First United Pentecostal, under construction. He took photographs of it and then went up to Brimer, who was on the job site, and asked him how he was involved in the project. Brimer replied that he was being paid by the hour and that Pastor Stephen Spears was in charge.
Hoofman talked to Pastor Spears who indicated that Brimer had given him proposals and contracts for the concrete work and the metal building. The concrete work proposal quoted $15,000 and the building proposal quoted $16,000. Both of these proposals were signed by Brimer.
Hoofman next subpoenaed Razorback Concrete to obtain statements it had sent to the church. These statements totalled $16,814.16 for materials. And, according to a proposal by M.B.I. Enterprises, the metal for the building would total $75,084.80. This proposal is addressed to and signed by Stephen Spears.
After hearing this testimony, the Board voted unanimously to find Brimer guilty of violating the Contractor's Licensing Law and fined him $100 per day to the limit of three percent of his contract. This fine would be reduced to two percent if he obtains a license within one hundred twenty days. The Board's findings were:
FINDINGS OF FACTS
1. Judge Brimer, Jr. has undertaken the position of contractor as defined in Section 1. (Act 150 of 1965 as amended), 1st United Pentecostal Church in Blytheville, AR.
2. Judge Brimer, Jr. is not licensed by the Contractors Licensing Board.
CONCLUSIONS OF LAW
Judge Brimer, Jr. is guilty of violating Section 13, Act 150, as amended. (See Act 180 of 1985.)
ORDER
(1.) The Board voted unanimously that Judge Brimer, Jr. shall pay a civil penalty of $3,687.00, suspended to $2,458.00 upon licensure within 120 days of receipt of this Order and refrain from bidding on or performing work on any projects in excess of $20,000.00 prior to being licensed with the Contractor's Licensing Board.
DONE AND SO ORDERED this 8th day of May, 1992.
Brimer appealed this decision to the White County Circuit Court. After reviewing the transcript of the hearing and briefs submitted by both sides, the court affirmed the decision of the Board. It is from this decision that Brimer brings this appeal.
Brimer claims that proper interpretation of the statute, Ark.Code Ann. § 17-22-101 (1987) leads to the conclusion that he is not a contractor.
The language of the statute clearly indicates that in determining whether a person is a contractor, the court should look at the total costs of the contracting job:
As used in this chapter, unless the context otherwise requires, "contractor" means any person, firm, partnership, association, corporation, or other organization, *951 or any combination thereof, who, for a fixed price, commission, fee or wage, attempts to or submits a bid to construct, or contracts or undertakes to construct, or assumes charge, in a supervisory capacity or otherwise, or manages the construction, erection, alteration, or repair, or has or have constructed, erected, altered, or repaired, under his, their or its direction, any building, apartment, condominium, highway, sewer, utility, grading, or any other improvement or structure on public or private property for lease, rent, resale, public access or similar purpose, except single-family residence, when the cost of the work to be done, or done, in the State of Arkansas by the contractor, including but not limited to, labor and materials, is twenty thousand dollars ($20,000) or more.
(Emphasis added.)
Our rule of interpreting statutory language is that we construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. City of Hot Springs v. Vapors Theatre Restaurant, Inc., 298 Ark. 444, 769 S.W.2d 1 (1989). The language in licensing statutes must be strictly construed. Wilcox v. Safley, 298 Ark. 159, 766 S.W.2d 12 (1989). Applying this rule, the statute clearly indicates that the court is to look at the total cost of the work to be done and not merely the cost of the materials actually ordered or passing through the contractor's hands. In short, the statute refers to the cost of the project.
The purpose behind the Contractors Licensing Act is to require contractors who desire to engage in certain types of construction work to meet certain standards of responsibility such as experience, ability, and financial condition. Bird v. Pan Western Corp., 261 Ark. 56, 546 S.W.2d 417 (1977). Brimer has twice been penalized for acting outside this law.
When an administrative agency's decision is appealed, a number of general rules of appellate review apply. Review of administrative decisions, both in the circuit court and here, is limited in scope. The appellate court's review is directed, not toward the circuit court, but toward the decision of the agency. In Re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992); Arkansas Alcoholic Bev. Control v. Person, 309 Ark. 588, 832 S.W.2d 249 (1992). The construction of a statute by an administrative agency should not be overturned unless it is clearly wrong, and the court will not substitute its judgment for that of an administrative agency unless the administrative agency's decision is "arbitrary and capricious." Ramsey v. Department of Human Services, 301 Ark. 285, 783 S.W.2d 361 (1990); Arkansas State Bank Comm'r v. Bank of Marvell, 304 Ark. 602, 804 S.W.2d 692 (1991). The evidence is given its strongest probative force in favor of the ruling of the administrative agency. Arkansas Contractors Licensing Bd. v. Butler Constr. Co., 295 Ark. 223, 748 S.W.2d 129 (1988). The court may not reverse a decision of an administrative agency if there is any substantial evidence to support its decision. Butler Constr. Co., supra, citing Williams v. Scott, 278 Ark. 453, 647 S.W.2d 115 (1983).
Brimer contends that because he did not directly oversee or order the materials used for the building and the concrete work, his work did not total $20,000 or more as required by the statutory definition of contractor. But, the evidence presented at the administrative hearing clearly indicates that the labor and materials for the metal building totalled over $90,000 and for the concrete work it totalled over $30,000. Taken together or separately these jobs designate Brimer as a contractor for the purposes of Ark.Code Ann. § 17-22-101 (1987).
Yet, Brimer insists that because the materials were paid for by the church and not by him, then he is not a contractor. This argument is not persuasive. In Arkansas Contractors Licensing Bd. v. Butler Constr. Co., 295 Ark. 223, 748 S.W.2d 129 (1988), this court was faced with a similar argument. Like Brimer, Butler contended that he was working for a flat fee and did not furnish any materials or labor. In finding against Butler, we determined that the *952 court should look to see if the overall cost of the project equals or exceeds $20,000 in determining if a contracting license is required.
Nevertheless, Brimer argues that Butler Constr. Co. is not persuasive because the Board found that Butler had agreed to be responsible for obtaining all material and no such finding was made in Brimer's situation. It seems, though, that the Board's decision comes down to a question of sufficiency of the evidence before the Board. This court has previously held that in order to establish an absence of substantial evidence, the appellant has the burden of establishing that the proof before the administrative board was so nearly undisputed that fair-minded persons could not reach the Board's conclusions. Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992); Arkansas Health Planning and Development Agency v. Hot Springs County Memorial Hospital, 291 Ark. 186, 723 S.W.2d 363 (1987).
Brimer has failed to meet this burden. The evidence before the Board indicated that he has a history of refusing to become licensed ... he even admitted that he did not want to get a contractor's license. He submitted proposals for the metal building and the concrete work on his business stationery. He admittedly oversaw the concrete work and the metal building. The evidence presented clearly proves that Brimer was in charge of jobs costing more than $20,000, and as such, the decision of the administrative board is upheld and the findings of the White County Circuit Court are affirmed.
Affirmed.
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785 F.2d 308
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.STARLIN THEODOR HARGROVE, Plaintiff-Appellantv.CAZARELLI, INDIVIDUALLY AND AS SHERIFF; WILLIE FRENCH,INDIVIDUALLY AND AS SHERIFF'S CAPTAIN; SUMMITCOUNTY COMMISSIONERS RONNIE BUTLER; TONYROWE; JOHN DOE, Defendants-Appellees.
85-3506
United States Court of Appeals, Sixth Circuit.
1/30/86
ORDER
1
BEFORE: KENNEDY and CONTIE, Circuit Judges, and GIBSON, District Judge.*
2
Plaintiff has appealed from the decision of the district court dismissing his civil rights complaint as barred by the statute of limitations. The appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the informal brief and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure. Appellant has filed a motion for appointment of counsel.
3
On October 30, 1984, plaintiff filed in the district court a civil rights action pursuant to 42 U.S.C. Sec. 1983. The complaint alleged that on October 11, 1978, plaintiff was assaulted while being held at the Summit County Jail. Plaintiff states that he was not given medical treatment until the day after the assault. He was released from jail on October 14, 1978, and has been incarcerated several times since that date.
4
In Section 1983 actions, the federal courts apply the most analogous state statute of limitations. Board of Regents v. Tomanio, 446 U.S. 478 (1980). Civil rights actions brought pursuant to Section 1983 should be characterized as personal injury actions for the purpose of determining the applicable statute of limitations. Wilson v. Garcia, ---- U.S. ----, 105 S.Ct. 1938 (1985). This Court recently held that O.R.C. Sec. 2305.11 is applicable to federal civil rights actions. Mulligan v. Hazard, ---- F.2d ----, Case No. 84-3555 (6th Cir. November 26, 1985). The statute of limitations was tolled by the disability of imprisonment since the action accrued when plaintiff was incarcerated. O.R.C. Sec. 2305.16. Plaintiff was released October 14, 1978, and the statute of limitations started to run. However, subsequent incarcerations which occurred after the action accrued did not toll the statute of limitations. Hibbert v. Cincinnati, 4 Ohio App.3d 128 (1982). Upon review of the record, it appears that the district court did not err in dismissing the plaintiff's complaint.
5
It is ORDERED that the motion for counsel be denied and the decision of the district court be and hereby is affirmed. Rule 9(d)(3), Rules of the Sixth Circuit.
*
The Honorable Benjamin F. Gibson, U.S. District Judge for the Western District of Michigan, sitting by designation
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Case: 11-12589 Date Filed: 01/10/2013 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-12589
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cv-21268-AJ
MICHAEL A. RENDER,
Petitioner-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 10, 2013)
Before CARNES, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Case: 11-12589 Date Filed: 01/10/2013 Page: 2 of 7
Michael Render appeals the district court’s denial of his petition for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2254 of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). Render argues that the state trial court
violated his constitutional rights by not sufficiently inquiring into a juror who
stated she felt ill before taking the verdict in his original trial. After review, 1 we
affirm the district court.2
I.
In 1990, Michael Render was charged with one count of attempted first-
degree murder, one count of robbery, two counts of armed burglary, and one count
of unlawful possession of a firearm while engaged in a criminal offense. In 1992,
Render was convicted on the first four counts. As a habitual offender, the state
court sentenced him to a term of natural life imprisonment on each of the four
counts, set to run concurrently.
During the trial that led to his conviction, a juror felt ill and asked to be
excused. The state court and attorneys discussed available options and instructed
the bailiff to inquire about the nature of the juror’s illness. When the bailiff
returned from attempting to retrieve the jury, he noted that the jury foreman had
1
We review de novo the district court’s determination of whether the state court decision
contravened clearly established federal law or unreasonably applied federal law under 28 U.S.C.
§ 2254. Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1332 (11th Cir. 2009).
2
Render’s motion to submit his reply brief out of time is granted.
2
Case: 11-12589 Date Filed: 01/10/2013 Page: 3 of 7
asked for a little more time. Shortly thereafter, the jury returned, indicating it had
reached a verdict.
Render argued that the court should not proceed given the ill juror’s request.
The state court, however, decided to accept the verdict and poll the jury afterwards.
After announcing the guilty verdict, the jury was polled and confirmed that the
verdict was supported by each member, including the ill juror.
II.
In his petition for a writ of habeas corpus before this Court, Render argues
that the state court committed constitutional error in failing to hold a hearing to
determine whether the ill juror should have been retained. According to Render,
federal law3 requires courts to inquire into a juror’s illness. Additionally, Render
argues that prejudice should be assumed because the verdict was rendered soon
after the ill juror asked to be excused. In Render’s view, the close proximity in
time between the verdict and the ill juror’s request demonstrates the juror was
forced to surrender her honest belief in Render’s innocence.
We disagree. Habeas corpus relief “is a guard against extreme malfunctions
in the state criminal justice system, not a substitute for ordinary error correction
through appeal.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (internal
3
Specifically, Render relies on the Sixth and Fourteenth Amendments of the Constitution
for his federal law habeas claims. See U.S. Const. amend. VI (“In all criminal prosecutions, the
accused shall enjoy the right to a . . . trial, by an impartial jury . . . .”); U.S. Const. amend. XIV,
§ 1 (“No state shall . . . deprive any person of life, liberty, or property, without due process of
law . . . .”).
3
Case: 11-12589 Date Filed: 01/10/2013 Page: 4 of 7
quotation marks omitted). Under § 2254(d)(1) of AEDPA, the petitioner must
prove that a state court adjudicated the merits of his claim in a manner that was
“contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 4 28
U.S.C. § 2254(d)(1); see also Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct.
357, 360 (2002) (per curiam) (establishing that petitioner carries the burden of
proof for habeas claims brought under 28 U.S.C. § 2254(d)).
First, § 2254(d)(1)’s phrase “clearly established Federal law” refers to
Supreme Court holdings that were in effect at the time of the relevant state court
decision. Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523 (2000).
A state court’s decision is “contrary to” clearly established federal law, only when
it either (1) applies a rule “that contradicts the governing law set forth by Supreme
Court case law,” or (2) reaches a different result from the Supreme Court “when
faced with materially indistinguishable facts.” Ward v. Hall, 592 F.3d 1144, 1155
4
Appellant also alleged a violation of 28 U.S.C. § 2254(d)(2) at the conclusion of his
opening brief. There, he asserted that the state court’s decision was “based on an unreasonable
determination of the facts in light of the evidence presented to the State court.” Appellant,
however, has not supported his § 2254(d)(2) contention with any legal or factual argument, and
thus we do not consider it. See, e.g., United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th
Cir. 2003) (“[A] party seeking to raise a claim or issue on appeal must plainly and prominently
so indicate. Otherwise, the issue . . . will be considered abandoned.”); Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (concluding that because a party
“elaborate[d] no arguments on the merits as to this issue in its initial or reply brief,” the “issue is
deemed waived”).
4
Case: 11-12589 Date Filed: 01/10/2013 Page: 5 of 7
(11th Cir.) (internal quotation marks omitted), cert. denied, Hall v. Ward, 131 S.
Ct. 647 (2010).
Second, under § 2254(d)(1), an “unreasonable application of . . . Federal
law” occurs (1) when the state court’s decision does not square with Supreme
Court rulings on “materially indistinguishable facts,” Williams, 529 U.S. at 413, or
(2) or when the state court “unreasonably extends or fails to extend a clearly
established legal principle to a new context,” Ward, 592 F.3d at 1155 (internal
quotation marks omitted). An application of federal law is not unreasonable
simply because an appellate court thinks it incorrect or erroneous. Id. Rather, an
unreasonable application must be “objectively unreasonable,” Williams, 529 U.S.
at 409, such that there is “no possibility fairminded jurists could disagree that the
state court’s decision conflicts with [the Supreme] Court’s precedents,”
Harrington, 131 S. Ct. at 786.
Here, Render has not met the requirements for habeas relief articulated in 28
U.S.C. § 2254(d). First, the state court did not violate “clearly established Federal
law.” When the jury convicted Render in 1992, Supreme Court precedent did not
clearly require an inquiry into the juror’s illness beyond that which the state court
performed. Hence, the state court did not violate “clearly established Federal law”
on that issue. See, e.g., Anderson v. Sec’y Dep’t of Corr., 462 F.3d 1319, 1327–28
(11th Cir. 2007).
5
Case: 11-12589 Date Filed: 01/10/2013 Page: 6 of 7
Render, however, argues that this Court’s decision in Green v. Zant
established clear federal law requiring the state court to determine in greater depth
whether the ill juror could continue. In Green, a state trial court discharged and
replaced a juror without inquiry three hours into jury deliberations when she fell to
the floor and repeatedly cried, “I can’t do it.” Green v. Zant, 715 F.2d 551, 554–56
(11th Cir. 1983). We vacated the district court’s denial of habeas relief and
remanded for the purpose of conducting an evidentiary hearing on whether the
juror had been capable of continuing prior to her dismissal. Id. at 555–59. But in
concluding that a hearing on remand was appropriate, Green did not articulate a
principle of federal law requiring state courts to conduct searching inquiry into the
capabilities of jurors who wish to be excused. Rather, Green held that substitution
of a juror during deliberations, if done for improper reasons, may constitute a due
process violation. Id. Thus, Render’s reliance on Green is misplaced. Because no
potentially improper juror substitution occurred in Render’s case, the state court
did not violate “clearly established Federal law” within the meaning of § 2254(d).
Second, the state court did not “unreasonably apply” federal law as it stood
in 1992. The state court instructed the bailiff to ask members of the jury whether
they were capable of proceeding. They were. The state court also polled the jury
after the verdict was announced to ensure each member stood by the verdict. They
did. Federal law, as it existed in 1992, did not demand a specific or more elaborate
6
Case: 11-12589 Date Filed: 01/10/2013 Page: 7 of 7
type of inquiry in order to retain a juror under these circumstances. Cf. Green, 715
F.2d at 556 (“Where the disability of the juror is less certain or obvious . . . some
hearing or inquiry into the situation is appropriate to the proper exercise of judicial
discretion.” (emphasis added)). The record shows that the state court
conscientiously inquired into the capacities and convictions of all members of the
jury, and thus did not unreasonably apply federal law in Render’s 1992 trial.
Accordingly, we affirm.
III.
The district court’s decision denying Render’s petition for habeas corpus is
affirmed.
AFFIRMED.
7
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205 F.2d 315
Application of ADA MILLING CO.
Patent Appeals No. 5969.
United States Court of Customs and Patent Appeals.
June 24, 1953.
Harvey B. Jacobson, Washington, D. C. (John H. Lewis, Jr., Washington, D. C., of counsel), for appellant.
E. L. Reynolds, Washington, D. C. (Clarence W. Moore, Washington, D. C., of counsel), for the Commissioner of Patents.
Before O'CONNELL, JOHNSON, WORLEY, COLE, and JACKSON (retired), Judges.
WORLEY, Judge.
1
This is an appeal from the decision of the Commissioner of Patents in a trade-mark proceeding, affirming the decision of the Examiner of Trade-Marks in refusing registration under section 2 of the Lanham Act, Trade-Mark Act of 1946, 15 U.S.C.A. § 1052, of the mark "Startgrolay" for use on "Poultry Feed, Consisting of Wheat Shorts, Salt Calcium Carbonate, Soybean Grits, Soybean Meal, Meat and Bone Meal, Ground Kaffir, Milo Maze, and Yellow Corn."
2
The application, Serial No. 581,513, filed July 5, 1949, was refused registration on the Principal Register by the tribunals of the Patent Office on two grounds, viz., that the mark "Startgrolay" was generally descriptive of the goods on which it is used and not capable of distinguishing the appellant's goods, and that it was confusingly similar to the registered mark "Lay-An-Grow," Registration No. 360,713, issued September 20, 1938, for use on poultry feed.
3
In denying registration on the first ground of rejection, the Examiner-in-Chief stated:
4
"* * * the mark is generally descriptive of the goods and not capable of distinguishing applicant's goods. The term `Startgrolay' is a combination of the words `start', `grow', phonetically spelled, and `lay'. These words, in adjectival form, are commonly used to indicate various types of feed used in the raising of poultry. As applied to applicant's goods, the mark merely indicates that the feed in connection with which it is used is intended for or claimed to be a starting feed, a growing feed, and a laying feed. The applicant does not appear to deny the examiner's statement that starting, growing, and laying are commonly used to indicate various kinds of feeds * * *."
5
The second ground of rejection by the Examiner was also sustained on the theory that "Applicant's mark incorporates the dominant parts of the reference mark and is considered unregisterable thereover, * * *."
6
While appellant admits that the words "starting," "growing," and "laying" are generically descriptive of certain types of poultry foods, it takes the position that the dropping of the suffix "ing" from each of those words and compounding the roots thereof creates a coined unitary technical trade-mark sufficient to remove the notation "Startgrolay" from the category of generically descriptive terms; that the result is not a mere combination of descriptive words but a combination which deviates from the common use of words and parts of words sufficiently to constitute a coined technical trade-mark eligible for registration under the above provisions.
7
In support thereof, appellant cites the following excerpt from Ex parte Barker, 92 USPQ 218, wherein the mark "Cherry-Berry-Bing," as applied to fruit and berry preserves, was held not to be generic to those goods:
8
"While it may be true that each of the individual words in the present applicant's mark are generic and thus independently unregistrable, it seems to me that their unusual association or arrangement in the applicant's mark results in a unique and catchy expression which does not, without some analysis and rearrangement of its components, suggest the contents of applicant's goods. I am constrained to disagree with the Examiner's holding in the present case that the applicant's mark is incapable of functioning as a trade-mark to distinguish the applicant's goods in commerce."
9
Appellant also sets out in its brief the following quotation from the decision of the Circuit Court of Appeals of the First Circuit decided in 1949 in Food Fair Stores, Inc. v. Food Fair, Inc., 1 Cir., 177 F.2d 177, 185:
10
"The defendant's further contention that the words Food Fair are not susceptible of appropriation because they are generic deserves only slightly more extended consideration. It is true that both words involved are generic. But, as we have had occasion to observe before, a trade mark is not to be resolved into its component parts, and each part analyzed separately in cases of this sort. Pro-Phy-Lac-Tic Brush Co. v. Jordan Marsh Co., 1 Cir., 165 F. 2d 549, 552. Considered together the words involved may be relatively weak, but we do not think that they are by any means too weak to deserve the protection given them by the court below."
11
as well as the following from the case of Vita-Var Corporation v. Alumatone Corporation, which involved the marks "Alumikote" and "Alumatone," decided by the District Court S. D. California Central Division in 1949, 83 F.Supp. 214, 215:
12
"At the same time, I am of the view that plaintiff's mark ["alumikote"] is not a mere combination of descriptive words, but a combination which has enough deviation from the common use of words and parts of words to make its registration as a trademark valid."
13
Here appellant has so combined three words into a unitary notation as to result in a mark which, in our opinion, may suggest but does not necessarily describe the character of its goods. While it is, of course, true that if the mark were dissected, the words "Start," "grow," and "lay" might well be descriptive of the characteristics of various types of poultry feed, it is our belief that when the mark is viewed in its entirety, as it is viewed in the market place, it is capable of distinguishing applicant's goods from those of others.
14
Turning then to the second ground of rejection, it is our belief that the two marks, when not dissected, but viewed in their entirety as they should be, reflect no such similarity in appearance, spelling, sound, or meaning as to be likely to cause confusion in the mind of the purchasing public as to the origin of the respective goods.
15
In view of the above conclusions, we find it necessary to reverse the decision of the Patent Office.
16
Reversed.
17
JACKSON, J., retired, recalled to participate herein in place of GARRETT, C. J.
18
O'CONNELL, Judge (dissenting).
19
The law is thoroughly established in this and other federal jurisdictions that trade-marks are nonregistrable whenever they consist of a combination of words, such as we have here, each word of which is individually nonregistrable under the mandate of the statute. In re Midy Laboratories, Inc., 104 F.2d 617, 26 C.C.P.A., Patents, 1294; Kimberly-Clark Corporation v. Marzall, 90 U.S.App.D.C. 409, 196 F.2d 772. In the cases just cited the respective courts properly rejected the proposition now advanced here that words nonregistrable separately or standing alone become registrable if combined, on the theory that trade-marks cannot be dissected and must be considered as a whole, irrespective of the character of their constituent parts. Moreover, appellant has unlawfully incorporated as the dominant part of its mark the essential features of the previously registered mark "Lay-an-Grow" for goods of the same kind of goods. Carmel Wine Co. v. California Winery, 38 App.D.C. 1; In re Fleet-Wing Corp., 188 F.2d 476, 38 C.C.P.A., Patents, 1039.
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2 F.Supp.2d 675 (1998)
ASHLAND REGIONAL MEDICAL CENTER, Plaintiff,
v.
Donna E. SHALALA, Secretary of Health and Human Services, in her official capacity, Bruce C. Vladeck, Administrator, Health Care Financing Administration, in his official capacity, and Richard C. Rinschler, Director, Provider Audit and Settlement, Blue Cross of Western Pennsylvania, in his official capacity, Defendants.
Civil Action No. 97-CV-0036.
United States District Court, E.D. Pennsylvania.
April 3, 1998.
*676 *677 Marjorie Lynn McMahon, Ellen Covner, Steven B. Goodman, Dilworth, Paxson, Kalish & Kauffman LLP, Philadelphia, PA, for Plaintiff.
Marilyn May, U.S. Attorney's Office, Philadelphia, PA, for Defendants.
OPINION AND ORDER
VAN ANTWERPEN, District Judge.
I. INTRODUCTION
Plaintiff Ashland Regional Medical Center ("Ashland") seeks judicial review of a final determination of the Provider Reimbursement Review Board ("PRRB" or the "Board") of the Health Care Financing Administration ("HCFA") denying jurisdiction over Ashland's appeals from the Blue Cross of Western Pennsylvania's (a fiscal intermediary) decision refusing to reopen prior years' Medicare reimbursement claims to allow retroactive recognition of Ashland's status as a Medicare Dependent Small Rural Hospital ("MDH"). Plaintiff asks this court to remand this case to the PRRB for a hearing on the merits of retroactively declaring Ashland a MDH. Alternatively, Plaintiff argues that because the PRRB's administrative record is incomplete, this case must be remanded to the PRRB with directions to develop a complete record and to provide a full and satisfactory explanation of its decision.
Pursuant to a stipulation of the parties approved by the court on February 10, 1998, Plaintiff and Defendants have agreed that there are no issues of material fact and have filed cross-motions for summary judgment. For the reasons discussed below, we will grant the Defendants' Motion for Summary Judgment and deny the Summary Judgment Motion filed by the Plaintiff.
II. FACTS[1]
Ashland is a provider of inpatient hospital services which receives reimbursement for the cost of providing those services to Medicare beneficiaries, pursuant to Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq. (the "Medicare Act"). Under the Medicare Act, private insurance companies, like Blue Cross of Western Pennsylvania ("Blue Cross" or the "Intermediary"), act as intermediaries for the Secretary of Health and Human Services and determine the amount of reimbursement that providers are due. Providers, like Ashland, are paid under a prospective payment system ("PPS"). In lay terms, this means that hospitals are paid for their services to Medicare patients according to predetermined schedules of national and regional rates, and not according to the actual costs or charges.
In 1989, Congress amended the Medicare Act to create a new category of hospitals known as "Medicare dependent small rural hospitals" ("MDHs"). MDHs can potentially receive two adjustments to its Medicare reimbursement. First, an MDH can receive a special payment adjustment to its PPS payments. 42 U.S.C. § 1395ww(d)(5)(G)(i)(I). Second, a MDH can also receive an adjustment known as "the MDH volume adjustment." 42 U.S.C. § 1395ww(d)(5)(G)(iii). The bottom line is that a hospital classified as a MDH will receive more money for its services than the same hospital if it were not classified as a MDH.
*678 A hospital must meet a number of criteria to be classified as a MDH, however the only criterium important for this case is that the hospital have fewer than 100 beds. Federal regulations specify the manner by which hospitals should calculate the number of beds applicable to this requirement. According to the regulations, the number of beds are calculated "by counting the number of available bed days during the cost recording period, not including beds assigned to newborns, custodial care, and excluding distinct part hospital units, and dividing that number by the number of days in the cost reporting period." 42 C.F.R. § 412.105(b)(1992).
In order to receive Medicare reimbursements, hospitals submit cost reports to intermediaries who analyze and, if necessary, audit the report. The intermediary applies the Medicare reimbursement policies in effect for the cost reporting period and issues the final determination of Medicare reimbursement for the final year which is set forth in a Notice of Program Reimbursement ("NPR").
If a provider is dissatisfied with any aspect of the reimbursement provided in the NPR, it can request a hearing before the PRRB. In order to qualify for PRRB review, the amount in controversy must be at least $10,000 and the provider must submit a hearing request within 180 days of the initial NPR. 42 U.S.C. §§ 1395oo(a),(b). The appeal of a provider's MDH status must be made during the course of the usual appeal of the NPR. If the jurisdictional prerequisites are met and the PRRB has the authority to decide the matter at issue, see 42 C.F.R. §§ 405.1839, 405.1867, then the PRRB may hold a hearing and issue a decision that is potentially subject to further review by the Administrator of the HCFA. 42 U.S.C. § 1395oo(f)(1); 42 C.F.R. § 405.1875. Thereafter, the statute allows for appeal to a U.S. District Court. 42 U.S.C. § 1395oo(f)(1); 42 C.F.R. § 405.1877. In order to obtain judicial review of the agency decision, whether issued by the PRRB or the HCFA Administrator, the provider must file an action within 60 days after being notified of the final decision. 42 U.S.C. §§ 405(h), 1395(ii), 1395oo(f)(1).
Separate from the statutory administrative and judicial appeals process, the Secretary's regulations provide for reopening of final reimbursement determinations. If a provider does not timely appeal the specific determination included in the initial NPR, then the cost report is considered final. The regulations permit, however, reopening a cost report to make limited corrections on otherwise final reimbursement determinations. An intermediary's determination "may be reopened with respect to findings on matters at issue" either on a motion of the intermediary or the provider, provided that the reopening request is made within three years of the finalization of the specific cost report determination included in the NPR. 42 C.F.R. § 405.1885(a).
An intermediary is required to reopen a decision in certain situations not at issue in this case. 42 C.F.R. § 405.1885(b). Otherwise, according to the Board's position, an intermediary's decision to reopen a case is discretionary. Under PRM regulations, "[w]hether or not the intermediary will reopen a determination, otherwise final, will depend on whether new and material evidence has been submitted, or a clear and obvious error was made, or the determination is found to be inconsistent with the law, regulations and rulings, or general instructions." PRM § 2931.2, reprinted in CCH Medicare and Medicaid Guide ¶ 7738 ("PRM").
The regulations specifically provide that when reopening is granted, a provider has the right to appeal the result of the reopening to the PRRB. 42 C.F.R. § 405.1889. However, if the fiscal intermediary denies a reopening request, the regulations do not authorize an appeal to the PRRB, but instead provide that "jurisdiction for reopening a determination or decision rests exclusively with the administrative body that rendered the last determination or decision." 42 C.F.R. § 405.1885(c). Thus, the PRM states that "[a] provider has no right to a hearing on a finding by an intermediary or hearing officer that a reopening or correction of a determination or decision is not warranted." PRM § 2931.1.
PRM § 2931.2 also gives the intermediary discretion to permit a provider to file an amended cost report in limited circumstances. However, according to the Board, *679 "once a cost report is filed, the provider is bound by its elections." Generally, "a provider may not file an amended cost report to avail itself of an option it did not originally elect." PRM § 2931.2. An intermediary's refusal to permit a provider to amend a cost report falls under the scope of the reopening regulations, Westchester General Hospital v. Blue Cross and Blue Shield Association/Blue Cross of Florida, CCH Medicare and Medicaid Guide ¶ 45,181 at 53,489 (HCFA Administrator Decision 1997), and is not a reviewable decision. Bon Secours Heartlands Home Health Agency v. Blue Cross and Blue Shield Association/Blue Cross and Blue Shield of Maryland, CCH Medicare and Medicaid Guide ¶ 41,690 at 37,337 (HCFA Administrator Decision 1993).
At issue in this case are Ashland's reimbursement claims involving three fiscal years ending ("FYE")February 14, 1992, June 30, 1992, and June 30, 1993. Ashland took over the operation of the former Ashland State General Hospital ("ASGH") from the Commonwealth of Pennsylvania on or about February 15, 1992. When filing cost reports with Blue Cross for the above three time periods, Ashland followed its predecessor's practice of listing the number of licensed beds instead of the average number of beds available. This led Ashland to report that it had more than 100 beds. Ashland asserts, however, that the number of beds actually available throughout these three time periods was always less then 100 beds. Thus, because of the hospital's bed reporting errors, Blue Cross determined that Ashland was not entitled to MDH status. Had Ashland been declared a MDH, it would have received an extra estimated $1,530,870 for FYE 2/14/92, an extra estimated $910,514 for FYE 6/30/92 and an extra $2,987,561 for FYE 6/30/93. All told, Ashland's reporting error cost the hospital an estimated $5,428,945 in Medicaid reimbursements.
In March of 1994, Ashland became aware that it qualified as an MDH, after learning that a similarly situated hospital had obtained MDH classification, retroactively, by counting the number of available beds instead of the number of licensed beds. Ashland contacted both the HCFA and Blue Cross on or about April 1994 and requested recognition of its status as a MDH for the current cost reporting period, as well as retroactive recognition for the three prior reporting periods. Ashland claimed that it could substantiate that the hospital maintained less than 100 beds during the relevant times. Based on evidence submitted by Ashland, HCFA's region office confirmed that Ashland maintained less than 100 beds and recognized that Ashland qualified as a MDH for FYE 1994. Plain. Ex. A.
Meanwhile on June 23, 1994 and November 22, 1995, based on the cost reports originally submitted by Ashland, Blue Cross issued Notices of Program Reimbursement ("NPR") for the hospital for FYE's 2/14/92, 6/30/92 and 6/30/93 which did not provide for Ashland's reimbursement as an MDH. Administrative Record ("A.R.") at 7-31, 110-23, 272-98. Nevertheless, Ashland continued to press for retroactive MDH status. HCFA, however, indicated that it could not verify Ashland's status as an MDH retroactively and directed the hospital to Blue Cross for a determination whether the prior cost reports might be reopened to allow Ashland to amend the number of beds reported. A.R. at 76. HCFA stated that the Intermediary would have to decide whether the cost reports could be reopened and whether amended cost report information could be accepted. Id.
Ashland then requested that the Intermediary reopen the NPRs by a October 13, 1994 letter. Answer at ¶ 17.[2] Blue Cross examined the hospital's cost reports from 1991 through 1994 to determine whether the hospital's square feet had been changed in the reports. A.R. at 78-79. The Intermediary also visited Ashland to examine the number of beds available to substantiate the change in square feet reported in the 1994 report (which was substantially different from those reported in the three prior cost reports). Id.; Answer at ¶ 20. However, according to the Plaintiff, the Intermediary refused to complete the review process by allowing Ashland to offer additional substantiation of its MDH claims. A.R. at 79. And, Blue Cross decided not to reopen any of the cost reports from prior years. Id.
*680 On December 14, 1994, Ashland filed requests for appeal with the Board based on Blue Cross's refusal to reopen the NPRs to allow Ashland's cost reports to be amended to reflect the hospital's MDH status. A.R. at 108-09, 195-96; Plain. Ex. C. The Intermediary, through a February 23, 1995 memo, informed the Board of its opinion that the Board lacked jurisdiction over the Intermediary's refusal to reopen the NPRs. A.R. at 90. The Board directed Ashland to submit position papers responding to the Intermediary's challenge to the Board's jurisdiction over the matter. Ashland complied with the Board's request by filing briefs and exhibits. A.R. at 38-88, 124-75, 299-350. The Intermediary did not file any position papers on the issue, beyond its February 23rd letter.
On August 5, 1996, the Board notified Ashland and the Intermediary that HCFA had misplaced the files for the cases at issue. A.R. at 93. The Board requested Ashland to submit copies of its initial appeal requests, the Intermediary's final determination being appealed and its position papers. The Intermediary was requested to supply copies of any documentation it previously sent regarding these cases so that the files could be reconstructed. Id. According to the Plaintiff, the material submitted by the Intermediary amounts to only 12 pages out of the 366 page reconstructed Administrative Record. Plaintiff Ashland Regional Medical Center's Memorandum in Support of its Motion for Summary Judgment ("Plaintiff's Motion") at 7.
On November 4, 1996, the Board issued its final determination that it lacked jurisdiction over Ashland's appeals. The Board based its decision on 42 C.F.R. § 405.1885(c) which states that jurisdiction for reopening a determination rests solely with the administrative body (in this case, the Intermediary) who originally rendered the last determination and on the district court's decision in St. Vincent Health Center v. Shalala, 937 F.Supp. 496 (W.D.Pa.1995), aff'd 96 F.3d 1434 (1996) (Table) ("St. Vincent"), holding that the Board's refusal to review an intermediary's decision not to reopen a cost report was proper. The Board's decision letter did not address the Plaintiff's argument that the Intermediary had constructively reopened the cost reports through its actions. Plaintiff has filed this suit asking us to remand the case to the Board to consider the merits of the Plaintiff's claims, or in the alternative to develop a more complete administrative record.
III. DISCUSSION
A. Standard Of Review
Both sides in this case have submitted motions for summary judgment. The court shall render summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. at 248. All inferences must be drawn and all doubts resolved in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985).
On motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record that it believes demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. Id. at 321 n. 3 (quoting Fed.R.Civ.P. 56(e)); see also First National Bank of Pennsylvania v. Lincoln National Life Ins. Co., 824 F.2d 277, 282 (3d Cir.1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson, 477 U.S. at 248-49.
In determining which side of this case is entitled to summary judgment, this court's review of the Plaintiff's complaint is limited *681 by the Medicare statute. 42 U.S.C. § 1395oo(f)(1). The Medicare statute provides that agency decisions will be reviewed under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. Under the APA, we may only set aside a final agency action when it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or when the action is "unsupported by substantial evidence" in the administrative record taken as a whole. 5 U.S.C. § 706(2)(A),(E); Monongahela Valley Hospital, Inc. v. Sullivan, 945 F.2d 576, 591 (3d Cir.1991).
Furthermore, as the D.C. Circuit has recognized, "to the extent HHS has based its decision on the language of the Medicare Act itself," the agency is owed deference. Marymount Hospital, Inc. v. Shalala, 19 F.3d 658, 661 (D.C.Cir.1994), citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ("Chevron"). Under Chevron, courts should defer to an agency's interpretation of a statute, so long as it is a permissible construction, unless Congress has spoken on the particular issue at hand. HCA Health Services of Oklahoma, Inc. v. Shalala, 27 F.3d 614, 617 (D.C.Cir.1994) ("HCA"). Deference to the agency is especially appropriate where Congress has delegated responsibility for a regulatory scheme as intricate as Medicare. Butler County Memorial Hospital v. Heckler, 780 F.2d 352, 356 (3d Cir.1985). And, the Secretary's interpretation of her own regulations is entitled to "substantial deference," and must be given "controlling weight unless it is plainly erroneous or inconsistent with the regulation." Thomas Jefferson University v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994).
B. Plaintiff Is Not Entitled To Have Its Case Remanded To The PRRB For A Hearing On The Merits
1. The Board Correctly Determined That It Did Not Have Jurisdiction Over Ashland's Appeals Since The Intermediary Refused To Reopen The Case
The PRRB properly held that it did not have jurisdiction over Ashland's appeal of the Intermediary's refusal to reopen the three cost reports/NPRs at issue. The Secretary's regulations provide that an intermediary may reopen an NPR on its own motion or at a provider's request. 42 C.F.R. § 405.1885(a). However, as we have already discussed in the Facts section of this Opinion, the reopening of a case is strictly discretionary and the Secretary's regulations provide that "jurisdiction for reopening a determination or decision rests exclusively with that administrative body that rendered the last determination or decision." 42 C.F.R. § 405.1885(c). Thus, the Board has determined that a "provider has no right to a hearing by an intermediary or hearing officer that a reopening or correction of a determination or decision is not warranted." PRM § 2932.1.
The PRRB's decision that providers are not entitled to review of reopening denials is a reasonable construction of the Medicare statute. See St. Vincent, 937 F.Supp. at 503-04. Indeed, the overwhelming majority of courts have upheld the Board's view that it lacks jurisdiction over such denials. See Your Home Visiting Nurse Services, Inc. v. Secretary HHS, 132 F.3d 1135 (6th Cir.1997); Good Samaritan Hospital Regional Medical Center v. Shalala, 85 F.3d 1057 (2d Cir.1996) ("Good Samaritan"); Athens Community Hospital, Inc. v. Schweiker, 743 F.2d 1, 4 n. 4 (D.C.Cir.1984), overruled on other grounds, Bethesda Hospital Association v. Bowen, 485 U.S. 399, 108 S.Ct. 1255, 99 L.Ed.2d 460 (1988); St. Vincent, 937 F.Supp. at 503-04; Binghamton General Hospital v. Shalala, 856 F.Supp. 786, 795 (S.D.N.Y.1994) ("Binghamton"); Memorial Hospital v. Sullivan, 779 F.Supp. 1406, 1408-09 (D.D.C.1991). But see State of Oregon on Behalf of Oregon Health Sciences University v. Bowen, 854 F.2d 346 (9th Cir.1988).
Such a construction of the statute is supported by the plain language of the Medicare statute which does not contemplate jurisdiction over an intermediary's denial of reopening. See 42 U.S.C. § 1395oo(a). Indeed, reopening is purely a creature of regulation, St. Vincent, 937 F.Supp. at 504, and therefore any right to reopening is governed by the regulation that created it. 42 C.F.R. *682 §§ 405.1885-89; see Binghamton, 856 F.Supp. at 796.
Furthermore, though the statute grants jurisdiction over an intermediary's final determination regarding the total amount of program reimbursement due to the provider, this should not be read to include denials of reopening requests. While a decision not to reopen may be in some sense final, it does not establish an amount of program reimbursement. Instead, it "is a final determination that there are not grounds on which to reconsider a previous final determination as to the amount of program reimbursement." Good Samaritan, 85 F.3d at 1061, quoting 894 F.Supp. at 690; see also St. Vincent, 937 F.Supp. at 504. Consequently, a reopening denial is "akin to a decision of a judicial panel or en banc court to deny rehearing, and `no one supposes that denial, as opposed to the panel opinion, is an appealable action.'" Binghamton, 856 F.Supp. at 794, quoting I.C.C v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 280, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987).
Ashland asserts, however, that the Board's interpretation that it does not have jurisdiction over an intermediary's decision not to reopen a case cannot be reasonable because such an interpretation would afford a provider no procedural rights when it timely seeks to correct an error in its cost reports affecting its provider status. Plaintiff's Memorandum in Opposition to Defendants' Cross-Motion for Summary Judgment ("Plaintiff's Memorandum in Opposition") at 17. Plaintiff attacks the "scheme, set forth by Defendants," where once "Ashland made an initial error on its cost reports," the Plaintiff "had no rights to any review, but remained subject to the whim and caprice of the Intermediary, the agency's private contractor." Plaintiff's Memorandum in Opposition at 18. Plaintiff argues that, under the Defendants' system, "the Intermediary had complete discretion to decide whether to permit Ashland to amend the cost reports ... and its refusal to permit amendment was unreviewable by the Board." Id. at 18-19 (emphasis in original). Plaintiff argues that an interpretation of the statute and regulations that provides a provider, like Ashland, no review of an intermediary's decision not to reopen a cost report, is "unjust, unsound and in direct conflict with congressional policy and the law." Plaintiff's Memorandum in Opposition at 21.
We agree with the Plaintiff that the Board's interpretation of the regulations and statues at issue in this case is harsh. However, just because an interpretation is harsh does not make it unreasonable. It was, of course, the Plaintiff who submitted three years worth of incorrect cost reports. Under the Defendants' scheme, the Plaintiff is allowed to petition the Intermediary to correct its mistakes. However, if the Intermediary refuses to allow the provider to correct its cost reports, then the end result is that the provider is forced to live with its own mistakes. While requiring Ashland to live with its mistakes is indeed harsh (in this case a simple reporting error will cost the hospital over five million dollars), we cannot say that it is unjust.
Indeed, even in our court, simple mistakes can sometimes have draconian (and seemingly unfair) ramifications on the parties that come before us. For example, if a party fails to object to an issue at trial, then that party is barred from raising the issue on appeal, unless it involves fundamental error. Fed. R.Evid. 103. Indeed, there are often times in life that we are only given one bite at the apple and are forced to live with our mistakes. While this may sometimes seem unfair, life is not always fair. Thus, we refuse to hold that the agency's interpretation is unreasonable simply because it is strict and unforgiving.
Plaintiff also points out that the Defendants' interpretation conflicts with the regulatory provision mandating reopenings based on fraud. Ashland points out that according to regulations, "an intermediary determination ... shall be reopened and revised at any time if it is established that such determination or decision was procured by fraud or similar fault of any party to the determination of the decision. 42 C.F.R. § 405.1885(d)." St. Vincent, 937 F.Supp. at 506-07. Thus, the court in St. Vincent opined that in such a case it would not be unconscionable to hold that the Board could lack jurisdiction to review the intermediary's decision. Id. at 507. Plaintiff claims that such "a result seems incomprehensible ... *683 and should not be countenanced by the [c]ourt." Plaintiff's Memorandum in Opposition at 23. However, the case before this court does not involve fraud; it involves the Plaintiff's own mistake. Thus, while Plaintiff makes a strong argument that the Board's refusal to assert jurisdiction over an intermediary's refusal to reopen a case when that intermediary is involved in fraud may be unreasonable, that is not the case before the court today. We will therefore refrain from deciding the hypothetical case proposed by the Plaintiff until such a case is actually before this court.
Plaintiff further asserts that the Defendants' interpretation conflicts with the PRM provision establishing reopening criteria. The PRM does lay out factors that should be considered by an intermediary when determining whether or not to reopen a case. And, one of these factors, as the Plaintiff points out, is whether there has been a clear or obvious error. PRM § 2931.2. But, nowhere in the PRM does it state that reopening is required when the provider makes a mistake. Instead, as 42 C.F.R. § 405.1885(a) illustrates, an intermediary's decision to reopen a case is discretionary: "[an intermediary's decision] may be reopened with respect to findings on matters at issue[.]" Id. (emphasis added). The discretionary nature of reopening in the situation at issue (where the reopening request is based on the provider's own mistake) is bolstered by the fact that reopening is mandatory in certain other limited situations, such as when there is fraud. See 42 C.F.R. § 405.1885(b). Thus, we do not find that the Board's interpretation conflicts with the PRM.[3]
Plaintiff contends that the Defendants' interpretation prevents providers from receiving a congressionally created special hospital status. Plaintiff's Memorandum in Opposition at 23. We disagree. It is not the Defendants' interpretation of the regulations, but Ashland's own mistakes that have prevented the hospital from being declared a MDH. Had Ashland submitted the correct number of beds to the Intermediary in the first place, its cost reports would not have to be reopened.
We also disagree with Ashland's contention that the Defendants' interpretation impermissibly delegates too much discretion to the Intermediary. Plaintiff cites a footnote from a twenty-two year-old Eighth Circuit case to stand for the proposition that the Medicare Act does not permit the Secretary to enter into agreements which would preclude any administrative review whatsoever of an intermediary's determination. St. Louis University v. Blue Cross Hospital Service, 537 F.2d 283, 293 n. 13 (8th Cir.), cert. denied 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584 (1976). However, the situation at issue in this case does not prevent all administrative review of an intermediary's decision. An intermediary's issuance of an NPR is generally appealable to the PRRB, so long as certain jurisdictional requirements are met. The fact that the Board will not review an intermediary's decision not to reopen a case does not constitute a denial of any administrative review whatsoever of an intermediary's determination. The intermediary's initial determination can be reviewed through the normal means to the Board. Therefore, we do not find that the agency's interpretation delegates too much discretion to the intermediary. We also disagree with Plaintiff's assertion that the agency's decision precludes any judicial review. As this case illustrates, even if the Board refuses to assert jurisdiction, a provider, like Ashland, is still able to file an action in federal court. And though we are not giving the Plaintiff the result that it would like, we are certainly subjecting the Defendants' actions to meaningful judicial scrutiny.
Thus, despite the Plaintiff's arguments to the contrary, we find that the Board was justified in its determination that it did not have jurisdiction over Ashland's appeal of the Intermediary's reopening denial. We will next turn our attention to Plaintiff's contention that the Intermediary did, in reality, reopen Ashland's case.
*684 2. The Intermediary Did Not De Facto Reopen Plaintiff's Case
Plaintiff argues that, despite the Intermediary's statements to the contrary, Blue Cross, through its actions, actually reopened the Plaintiff's case. Ashland asserts that reopening is defined by HCFA's Provider Reimbursement Manual ("Manual") as "an affirmative action taken by an intermediary ... to re-examine or question the correctness of a determination or a decision otherwise final." Manual at § 2931(A). Plaintiff claims that the Intermediary reopened the case when it reviewed the prior years' cost reports to see whether the number of square feet in the hospital had been changed and when the Intermediary sent a representative to Ashland to tour the facility and review the number of beds available. Plaintiff's Motion at 10. Plaintiff's argument, however, fails both on the facts of this case and on the law.
Plaintiff's de facto reopening argument fails on the facts of this case which plainly show that no reopening ever took place. Plaintiff relies on a letter from the Intermediary to support its position that Blue Cross reopened its prior years cost reports. This letter, in relevant part, states:
We have reviewed your B-1 square feet from Ashland Regional Medical Center's cost reports from 1991 through 1994. Our review shows there was no major change in the square feet until the 1994 cost report. Minor differences between years indicate changes could have been made between cost centers without intermediary approval. Based on this analysis and HCFA's instructions, no prior year cost reports can be reopened. We also do not believe it is appropriate to accept an amended cost report, as the B-1 square feet do not show a change that would indicate any difference in available beds from those filed.
In order to substantiate the change in square feet we will conduct an onsite review, Friday, November 11, 1994, to tour your facility and review beds available.
A.R. at 79.
From this letter, it is obvious that the Intermediary did not, in fact, re-examine or question its prior decision regarding the NPRs. Instead, the Intermediary merely reviewed four years of cost reports to determine whether the cost reports could, in fact, be reopened. The Intermediary clearly determined, however, that reopening the cost reports would not be proper. Ashland wants this court to believe that a reopening occurred just because the Intermediary examined the reports upon Ashland's request to reopen them. Following the Plaintiff's logic, the only way for the Intermediary to have not reopened the case would have been not to look at the cost reports at any point after the Plaintiff's reopening request. Yet, how could the Intermediary determine whether it was proper it reopen the cost reports without looking at the cost reports at issue? Thus, we cannot find, under these facts, that the Intermediary's examination of the cost reports in order to determine whether they should be reopened was itself a reopening.
Furthermore, the Intermediary's on-site review of the hospital clearly did not constitute a reopening. The purpose of the on-site review was to substantiate the change in square feet reported in Ashland's 1994 cost report (for which Ashland would receive MDH status). There is no indication that the purpose of the on-site review was to examine Ashland's claims relating to the three cost reports the hospital wanted reopened. Thus, even if Ashland's contention that there was a de facto reopening were supported by the law, it is not supported by the facts of this case.
Plaintiff's position, however, is not supported by the law. Ashland has presented no cases finding a de facto reopening where an intermediary declines to reopen a case and refuse to issue a revised NPR. Plaintiff cites to the Seventh Circuit's decision in Edgewater Hospital, Inc. v. Bowen, 857 F.2d 1123 (7th Cir.), mod. 866 F.2d 228 (1989), to support its assertion that Defendants did in fact, de facto, reopen Ashland's NPR. In Edgewater, a hospital requested that an intermediary reopen an NPR to reconsider four disallowed items. The intermediary issued a revised NPR which granted only one of the provider's disputed claims and disallowed the other three. The intermediary asserted that the reopening and Board review applied only to the single cost item *685 which was adjusted. The court found, however, that regardless of the intermediary's decision not to change three of the items on the NPR, its review of all four cost items represented a reconsideration of all those challenged items. Thus, the intermediary's actions constituted a reopening of all the considered items, not only the single adjusted item. Id. at 1135-1137.
Even if Edgewater were controlling in the Third Circuit, this case is easily distinguishable from Ashland's situation. In Edgewater, the court found that, in response to the provider's request to reopen four items, the intermediary wrote a letter that reopened the NPR. The intermediary then issued a revised NPR that changed only one of the items the providers had asked for the intermediary to reopen. The court found, however, that the intermediary's initial letter reopened all four issuesnot just the one issue which was ultimately revised. The circuit court's finding was based on the fact that the intermediary "reopened the first NPR; it sent Edgewater a letter ... explaining that it would not change three items but that it had been persuaded to allow the fourth claim; and it sent the second NPR with the revised cost reports incorporating the adjustment." Id. at 1135. In Ashland's case, the Intermediary did not reopen any NPRs; it did not consider any of Ashland's evidence; it did not even permit Ashland to submit amended cost reports; and it did not, like the intermediary in Edgewater, ultimately revise a NPR based on the provider's claim. Thus, since "this action involves a situation in which the application to reopen [has been] denied in its entirety," Edgewater does not apply to the Plaintiff's case. Saint Vincent, 937 F.Supp. at 505.
While Plaintiff, in order to support his de facto reopening argument, cites to social security cases where courts have found a de facto reopening of a prior application for benefits, we do not find this line of cases to be convincing. The Third Circuit has held that though typically res judicata will prevent review of social security claims denied on the merits through prior administrative decisions, a final disability determination may be reopened and reconsidered where new and material evidence is provided or the evidence shows that the determination was clearly in error. Purter v. Heckler, 771 F.2d 682, 691-92 (3d Cir.1985). While the Secretary's decision not to reopen a disability claim is generally not judicially reviewable, courts will examine the record to determine whether or not a reopening has actually occurred. Id.; Coup v. Heckler, 834 F.2d 313, 317 (3d Cir.1987). However, when an agency (like in this case), explicitly denies reopening, courts will generally take the agency at its word. See Stauffer v. Califano, 693 F.2d 306, 308 (3d Cir.1982); see also Hardy v. Chater, 64 F.3d 405, 407-08 (8th Cir.1995); Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir.1990); Moore v. Chater, 97 F.3d 1460, 1996 WL 498916, *1 (Table) (9th Cir.1996); Powers v. Secretary of Health and Human Services, 791 F.2d 934, 1986 WL 16912, *1 (Table).
Furthermore, Plaintiff cites no cases that have extended the concept of de facto reopening from social security cases to Medicare provider cases.[4] Indeed, the Third Circuit found that de facto reopening, as a "flexible approach to the application of res judicata," was necessary in social security cases because "claimants under the [SSA] are generally without assistance of counsel and are involved in a review process not safe-guarded by adversarial concepts." Purter, 771 F.2d at 691. This case does not involve a lone individual fighting, without a lawyer, to maintain her monthly disability payments. Instead, this case is about a hospital with access to talented attorneys and accountants trying to obtain millions of dollars in Medicare reimbursements. Thus, the Purter rationale for courts looking behind an agency's actions where the agency does not clearly state whether or not it has reopened a prior matter does not exist in the Medicare context. Plaintiff has failed to provide us with a legal basis from which we can determine that the Intermediary reopened its case. And, even had Ashland provided us a legal basis from which we could make this determination, the facts of this case clearly *686 show that the Intermediary did not, de facto or otherwise, reopen Ashland's cost reports/NPRs. Thus, since the Intermediary did not reopen Ashland's cost reports/NPRs and since the PRRB correctly ruled that it did not have jurisdiction to review the Intermediary's decision not to reopen the cost reports/NPRs, we will deny Plaintiff's request that we remand this case to the PRRB for a hearing on the merits of retroactively declaring Ashland a MDH.
Plaintiff argues that the PRRB's decision was arbitrary and capricious because it failed to explicitly address Ashland's de facto reopening argument. We disagree. Plaintiff cites to Motor Vehicle Manufacturers Assoc. v. State Farm Mutual Auto. Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), which states that "an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has 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." Ashland argues that the PRRB entirely failed to consider an important aspect of the problem because it did not discuss Plaintiff's de facto reopening argument. First of all, we note that this definition of arbitrary and capricious is for the rule making setting, while the Plaintiff is trying to challenge the PRRB's adjudicative decision. Yet, in any case, even under this definition, we do not find that the agency's denial of jurisdiction was arbitrary and capricious.
As we have already discussed, Plaintiff's de facto reopening argument is completely without merit. The PRRB did not act in an arbitrary and capricious manner by not addressing the Plaintiff's meritless de facto reopening argument. The agency did not entirely fail to consider an important aspect of the problem at issue because it did, in fact, consider whether the Intermediary reopened the case. The PRRB took the Intermediary at its word and found that there was no reopening and therefore no jurisdiction. Had the PRRB denied jurisdiction without determining whether there was a reopening, then the agency would have entirely failed to address an important issue. But, the PRRB did address the important issue, whether the case had been reopened. Therefore, its actions were not arbitrary and capricious and we will not remand these appeals to the Board.
C. Plaintiff Is Not Entitled To Have Its Case Remanded To The PRRB For The Development Of An Administrative Record
Plaintiff argues that we must remand this case to the Board because relevant documents are missing from the Administrative Record on which the Board based its determination that it lacked jurisdiction over Ashland's claims. Plaintiff presents six documents as examples of papers that are missing from the reconstructed Administrative Record. These include an April 20, 1994 memo regarding HCFA's review of Ashland's claims and request for the Intermediary to conduct further review, Plain. Ex. A, an April 27, 1994 letter from the HCFA to the Intermediary concurring with the Intermediary's decision to recognize Ashland's MDH status for FYE 6/30/94, Plain. Ex. B, a letter from the HCFA asking Ashland and the Intermediary to submit briefs, Plain. Ex. D, a letter from HCFA to Ashland explaining HCFA's inability to retroactively verify Ashland's MDH status, Plain. Ex. H, a letter from Ashland to the Intermediary requesting that the cost reports be reopened, quoted in Answer at ¶ 17, and any documents related to the November 11, 1994 on-site visit to Ashland by the Intermediary.
First of all, we must point out that two of the examples of missing documents are not even directly related to Ashland's claims. The documents related to the on-site review and the letter from HCFA concurring with the Intermediary's approval of Ashland's MDH status for FYE 6/30/94 do not involve Ashland's MDH status for the three fiscal years actually at issue. Instead, they relate to Ashland's award of MDH status for FYE 6/30/94.
Secondly, none of the documents would have any impact on the Board's determination that it did not have jurisdiction over the *687 Plaintiff's claims. As we have already stated, the on-site documents and the April 27, 1994 letter from HCFA are not related to the Plaintiff's claims that its cost reports should have been reopened. And, we find that none of the remaining documents presented by the Plaintiff would effect the Board's decision that it did not have jurisdiction over the reopening claims in any manner.
Furthermore, Ashland presents no case law that requires us to remand the case back to the agency when, as in this case, a few unimportant documents may be missing from the administrative record. Ashland cites to Harrison v. PPG Industries, Inc., 446 U.S. 578, 594, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980), and Fowler v. Califano, 596 F.2d 600, 604 (3d Cir.1979). Neither of these cases mandate the court to remand this case to the agency. Harrison merely held that when an appellate court finds that it is "unable to exercise informed judicial review because of an inadequate administrative record ... [the] court may always remand a case to the agency for further consideration." 446 U.S. at 594. Here, we have no trouble making an informed judicial review based on the record which is before us. Therefore, there is no need to remand this case to the Board.
Fowler does not support Plaintiff's position that we must remand its case to the Board either. In Fowler, the SSA lost the application and denial of the plaintiff's claim and therefore held that there is no evidence from which a determination of error can exist. The SSA refused to hear her claim, even though the plaintiff provided evidence to reconstruct the record. The court remanded the case to the SSA to review the case "in view of the injustice that has been visited upon the claimant and the difficulty of proof existing through no fault of her own." Fowler, 596 F.2d at 604. In Ashland's case the Defendants are not using the fact that they lost the original record to deny Plaintiff's claim. Instead, the Board recreated a 366 page record from which to reach a decision. And, as we have stated, none of the purported missing documents would have had any effect on the Board's denial of jurisdiction. Therefore, Fowler is inapposite to this case.
We find that the Administrative Record was more than sufficient for the Board to determine that it lacked jurisdiction over the Intermediary's decision not to reopen Ashland's cost reports/NPRs. Therefore, we see no need to remand this case back to the Board to further develop the Administrative Record.
IV. CONCLUSION
We find that the Board's decision that it lacked jurisdiction to review the Intermediary's refusal to reopen Ashland's cost reports/NPRs was not arbitrary and capricious and was supported by substantial evidence. The Board's interpretation of relevant statutes and regulations to determine that it does not have jurisdiction to review the Intermediary's failure to reopen Ashland's case was reasonable. And, Ashland's argument that the Intermediary de facto reopened its case is without merit. We further find that there is no reason to remand this case to the Board to further develop the Administrative Record. We will therefore grant the Defendants' motion for summary judgment and dismiss Plaintiff's case.
An appropriate order follows.
ORDER
AND NOW, this 3rd day of April, 1998, upon consideration of Defendants' February 19, 1998 Motion for Summary Judgment, Plaintiff's February 20, 1998 Motion for Summary Judgment, Plaintiff's March 16, 1998 Memorandum in Opposition to Defendants' Cross-Motion for Summary Judgment, Defendant's March 16, 1998 Reply Brief in Support of Motion for Summary Judgment, and the February 6, 1998 Stipulation to File Cross-Motions (including the binding stipulation that there are no issues of material fact), it is hereby ORDERED that:
1. Defendants' February 19, 1998 Motion for Summary Judgement is GRANTED in its entirety;
2. Plaintiff's February 20, 1998 Motion for Summary Judgment is DENIED;
3. Judgment is entered in favor of Defendants Shalala, Ashland and Rinschler, and *688 against Plaintiff Ashland Regional Medical Center;
4. This case is closed.
NOTES
[1] Parties have conceded that there are no factual issues in dispute in this case. 2/6/98 Stipulation to File Cross-Motions.
[2] This letter, however, is missing from the Administrative Record. Plaintiffs assert that the absence of this letter is proof that the Administrative Record is inadequate on its face.
[3] We further note, that even if we read the PRM to state that an intermediary must reopen a case when there has been a clear error, it would not lead us to conclude that the Board's decision that it lacked jurisdiction was unreasonable. While such a reading would establish that the Intermediary incorrectly refused to reopen Ashland's case, it would not grant the Board jurisdiction over the intermediary's decision.
[4] While Edgewater does rely, in part, on the concept of de facto reopening, it does not draw an analogy between social security disability appeals cases and Medicare provider reimbursement cases.
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559 P.2d 502 (1977)
277 Or. 81
FOREST GROVE BRICK WORKS, INC., an Oregon Corporation, Appellant,
v.
Jess STRICKLAND and Mary E. Strickland, Dba Surge Sales and Service, Respondents.
Supreme Court of Oregon, Department 1.
Argued and Submitted January 7, 1977.
Decided January 27, 1977.
*503 Ray G. Brown, Portland, argued the cause for appellant. With him on the briefs was John R. Sidman, Portland.
J.W. Darr, Hillsboro, argued the cause and filed a brief for respondents.
Before DENECKE, C.J., and HOWELL, LENT and BRADSHAW, JJ.
LENT, Justice.
This is an action for money damages for fraud arising out of the sale to plaintiff by defendants of a vacuum pump used in the manufacture of clay drain tile. Plaintiff appeals from a dismissal of his action by summary judgment.
The dispute arose from the failure of the purchased pump to produce the amount of suction which defendants warranted. The pump was sold to plaintiff on November 15, 1968. On March 11, 1974, plaintiff filed a complaint against defendants for breach of warranty. Plaintiff alleged that defendants warranted that the pump would produce 21 inches of vacuum for four continuous hours. The complaint further recited *504 that plaintiff discovered the pump would not function as warranted and gave notice of the breach of warranty to defendants by July 1, 1971.
After a demurrer based upon the statute of limitations was allowed, plaintiff filed a third amended complaint based upon fraud. After various motions, a sixth amended complaint was again framed on a theory of fraud, and alleged: the purchase; the representations that the pump would produce 21 inches of vacuum for four continuous hours; that the representations were false and knowingly or recklessly made with the intent to defraud and that plaintiff believed and relied upon the representations to his detriment.
Plaintiff further recited that he first learned on January 15, 1973, after obtaining a manufacturer's brochure, that the pump was not designed to produce the required suction. According to allegations contained in this complaint, plaintiff asked the defendants during 1970-1972 why the pump was malfunctioning. Defendants assured the plaintiff that the pump was large enough to meet plaintiff's need and that there was no book of operating instructions for the pump. The amended complaint alleged that at the urging of defendants, plaintiff tried various schemes to correct the problem, including installation of a larger motor and an oil reclaimer, inspecting and overhauling the machine to which the pump was connected and spraying water on the pump while it was operating. Plaintiff alleged:
"During all of the foregoing transactions plaintiff trusted said defendant and was lulled into a belief that said pump would be made to operate satisfactorily. Defendants, however, concealed from it the fact that the pump was not engineered or designed to produce 21 inches of vacuum for four continuous hours."
To this complaint, defendants filed a motion for summary judgment based upon expiration of the applicable statute of limitations.[1] In an affidavit opposing the motion, plaintiff's agent swore that,
"It is correct that I discovered, prior to January 15, 1973, that the pump in question would not produce 21 inches of vacuum for four consecutive hours, and that it overheated."
Because plaintiff discovered more than two years prior to the original complaint that the pump was not as represented by the defendants, the trial court entered an order allowing the motion for summary judgment. Plaintiff appeals from the judgment entered in favor of defendants.
ORS 18.105(3), the summary judgment statute, is identical to Federal Rule of Civil Procedure 56(c). It provides that:
"The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Our function on appeal is to examine the record to determine if there are triable issues of fact which would preclude summary procedure. In the present case, the inquiry is, first, whether as a matter of law the period of limitations begins at the time plaintiff discovered that the pump would not function as represented. If not, the issue becomes whether the facts are free from dispute as to when the period commenced.
The period of limitation in fraud cases commences "from the discovery of the fraud or deceit."[2] The fraudulent misrepresentation asserted here is that the pump would produce a certain amount of suction. *505 To the average person, such a statement could imply not only that the particular pump was capable of such a performance but that, generically, all pumps of that design and engineering would produce the warranted performance. Given its failure to do so, two causes would be suspected: either that a defect in the manufacture or error in maintenance prevented full performance or that the pump was not designed to do the task. Not all cases of manufacturing defects give rise to actions for fraud. It may be that the particular defect was unknown to the seller at the time of the misrepresentation, so that the elements of scienter or intent are lacking.[3] It cannot be said, then, that knowledge by plaintiff here that the pump would not perform as represented shows actual knowledge of fraud as a matter of law.
The word "discovery" in the statute has been interpreted, however, in an objective as opposed to a subjective manner. Not only knowledge but imputed or constructive knowledge will commence the period of limitations. A person is charged with knowledge that "a reasonably diligent inquiry would disclose"[4] when he receives "notice enough to excite attention and put a party upon his guard or call for an inquiry ...."[5]
It may be that here the failure of the pump over a long period of time called for such an inquiry. But the issue is not free from doubt. As has been noted,
"The concept of due diligence is not imprisoned within the frame of a rigid standard; it is protean in application. A fraud which is flagrant and widely publicized may require the defrauded party to make immediate inquiry. On the other hand, one artfully concealed or convincingly practiced upon its victim may justify much greater inactivity. The presence of a fiduciary relationship or evidence of fraudulent concealment bears heavily on the issue of due diligence." Azalea Meats, Inc. v. Muscat, 386 F.2d 5, 9 (5th Cir.1967).
Thus, in the present case two questions are presented. Was plaintiff's knowledge that the pump would not function as represented sufficient to raise the inference of fraud? And, if so, could the plaintiff exercise reasonable diligence and discover the alleged fraud?[6] Even if knowledge that the pump would not produce as warranted raises an inference of fraud, the issue of reasonable diligence is clouded by the allegations of fraudulent concealment contained in the amended complaint and plaintiff's affidavit. We cannot say, based upon *506 the record before us, that plaintiff's reliance on defendants' explanations of the causes of the malfunctioning of the pump was entirely misplaced or unreasonable;[7] therefore, an issue of fact remains as to when the period of limitation began.
To warrant summary judgment the moving party must show that there is no genuine issue of material fact. It is not the function of this court on review to decide issues of fact but solely to determine if there is an issue of fact to be tried. We review the record on summary judgment in the light most favorable to the party opposing the motion.[8]
In Hoeflich v. William S. Merrell Co., 288 F. Supp. 659 (E.D.Pa. 1968), the issue in a summary judgment proceeding involved discovery of medical malpractice. The court commented,
"Though the summary judgment procedure is freely available in all types of litigation, it is obvious that some kinds of cases lend themselves more readily to summary adjudication than do others. It usually is not feasible to resolve on motion for summary judgment cases involving questions such as when knowledge is discoverable by reasonable diligence of plaintiff and concealment by the defendants. It would be wrong to generalize from this and conclude that summary judgment never is granted in such cases." (288 F. Supp. at 662)[9]
We do not pass on the validity of plaintiff's response to the statute of limitations argument but hold merely that it raises disputed questions of fact. For this reason, the judgment must be reversed and the cause remanded for further proceedings.
NOTES
[1] The applicable statute of limitations is ORS 12.110(1). It provides:
"An action for assault, battery, false imprisonment, for criminal conversation, or for any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years; provided, that in an action at law based upon fraud or deceit, the limitation shall be deemed to commence only from the discovery of the fraud or deceit."
[2] ORS 12.110(1), supra at n. 1.
[3] In Musgrave v. Lucas, 193 Or. 401, 410, 238 P.2d 780, 784 (1951) it was held that: "Comprehensively stated, the elements of actionable fraud consist of: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted on by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; (9) and his consequent and proximate injury." Accord: Chaney v. Fields Chevrolet, 258 Or. 606, 611-12, 484 P.2d 824 (1971); Zeleny v. Karnosh, 224 Or. 419, 356 P.2d 426 (1960).
[4] Wood v. Baker, 217 Or. 279, 287, 341 P.2d 134, 138 (1959); Huycke v. Latourette, 215 Or. 173, 175-76, 332 P.2d 606 (1958). In Salem Sand & Gravel v. City of Salem, 260 Or. 630, 636-37, 492 P.2d 271, 274 (1971), it was held: "`Discovery' means from the time the fraud was known or could have been discovered through exercise of reasonable care." Accord: Dixon v. Schoonover, 226 Or. 443, 447, 359 P.2d 115, 360 P.2d 274 (1961); Dilley v. Farmers Ins. Group, 250 Or. 207, 210, 441 P.2d 594 (1968).
[5] Linebaugh v. Portland Mortgage Co., 116 Or. 1, 14, 239 P. 196, 200 (1925). Mere suspicion of fraud may not be enough to excite inquiry. It is at some point on the continuum of understanding between mere suspicion and knowledge that constructive notice of the fraud will be found. The exact point has been defined as: "[W]here circumstances are such as to suggest to a person of ordinary intelligence the probability that he has been defrauded" (Warner v. Republic Steel Corp., 103 F. Supp. 998 (S.D.N.Y. 1952)); "when facts are known from which the inference of fraud flows." (Ectore Realty Co. v. Manufacturers Trust Co., 250 App.Div. 314, 294 N.Y.S. 96 (1937); "evidential facts leading to a belief in the fraud" (Davison v. Hewitt, 6 Wash.2d 131, 106 P.2d 733 (1940)).
[6] For a similar analysis, see Maine v. Leonard, 365 F. Supp. 1277, 1281 (W.D.Va. 1973).
[7] Fraudulent concealment has been recognized in Oregon as tolling the applicable statute of limitations. Chaney v. Fields Chevrolet Co., 264 Or. 21, 26-7, 503 P.2d 1239 (1972).
[8] United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam); Poller v. Columbia Broadcasting, 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (interpreting F.R.Civ.Pr. 56(c)). Because the Oregon summary judgment statute is identical to Fed. Rule Civil Procedure 56(c), decisions of the Federal Courts on summary judgments are of helpful guidance. See State ex rel. Western Seed v. Campbell, 250 Or. 262, 270-71, 442 P.2d 215 (1968): "When one state borrows a statute from another state, the interpretation of the borrowed statute by the courts of the earlier enacting state ordinarily is persuasive. (citing cases)."
[9] Similarly, in Dzenits v. Merrill, Lynch, Pierce, Fenner & Smith, 494 F.2d 168 (10th Cir.1974) (involving the issue of actual or constructive knowledge of fraud for purposes of commencement of limitations period and appropriateness of summary judgment), the court said: "While cases involving defenses hinging upon applicable statutes of limitation frequently lend themselves to summary judgment proceedings, a court should not grant summary judgment for a defendant if there is a viable issue of fact as to when the limitations period began. 10 Wright and Miller § 2734, n. 31 at p. 651; 6 Moore § 56.17(58) at 2171-72 and cases cited at note 10.... It would seldom, if ever, be possible for a judge to determine summarily when the injured person in a case such as this became fully aware that he or she had been victimized. An appraisal of the full testimony is generally called for." (494 F.2d at 171-72). See also, Saylor v. Lindsley, 391 F.2d 965 (2d Cir.1968); Sheets v. Burman, 322 F.2d 277 (5th Cir.1963); R.J. Reynolds Tobacco Co. v. Hudson, 314 F.2d 776 (5th Cir.1963); Tracerlab, Inc. v. Industrial Nucleonics Corp., 313 F.2d 97 (1st Cir.1968); Pollard v. United States, 384 F. Supp. 304 (M.D.Ala. 1974) and Hornung v. Richardson-Merrill, Inc., 317 F. Supp. 183 (D.Mont. 1970).
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288 So.2d 785 (1973)
WINN-DIXIE MONTGOMERY, INC., a corporation,
v.
Nora M. ROWELL, as the Administratrix of the Estate of Alford L. Rowell.
Civ. 59.
Court of Civil Appeals of Alabama.
November 14, 1973.
Rehearing Denied December 12, 1973.
*787 Davies, Williams & Wallace, Birmingham, for appellant.
E. Ray Large, Birmingham, for appellee.
BRADLEY, Judge.
This appeal is from a judgment of the Circuit Court of Jefferson County rendered against the appellant, Winn-Dixie Montgomery, Inc., in the amount of $10,000.
The plaintiff, Alford L. Rowell, died after the taking of the appeal in this case and his widow, Nora M. Rowell, the administratrix of the estate, has moved this court to revive the appeal in her name as administratrix. The motion was granted.
Alford L. Rowell filed a one count complaint alleging that while a business invitee on appellant's premises, he was injured as a result of the negligent stacking of building materials in a walkway of appellant's store and the negligent lighting of said premises. To this complaint appellant pleaded in short by consent, etc. Jury trial was held with verdict and judgment for Mr. Rowell. Appellant's motion for new trial was overruled.
The evidence and its tendencies showed that Mr. Rowell went to appellant's store in Berney Points, Jefferson County, Alabama on June 1, 1970 about eight thirty in the morning to get a box of Kleenex for his wife who was in the hospital.
Upon approaching the front of the store where he had been many times before, Mr. Rowell noticed that one of the front doors was propped open. He stated that he saw a big sign over the door but paid no attention to it. He walked in the door and proceeded to the right to get around the cash register checkout area and back to the counter where the Kleenex was located.
Mr. Rowell said that he saw the manager and assistant manager operating the cash registers. There were no women operating them as was the usual custom.
He stated that as he went around the cash register area, he turned to the left to go to get the Kleenex and that is when he slipped. There were boxes and lumber stacked in there behind the cash registers.
There was a statement by Mr. Rowell that the store did not seem to be as well lighted on this occasion as it usually was.
As he got in the area of the lumber and boxes, Mr. Rowell said his right foot slipped on something and he tried to put out his left foot to catch himself and it caught on something. He said there was a board in the vicinity of his left foot but he could not say whether his left foot caught on the board or not. He fell and injured his right arm.
Mr. Rowell stated that he was in the regular walkway or aisle when he fell. After falling, he got up and went to the front of the store and sat down. The manager came over to see about him.
About thirty minutes after he fell, Mr. Rowell left the store and went to the hospital to see his wife. While at the hospital he asked to see a doctor. The next day he saw Dr. Ross who prescribed an x-ray examination of the right arm. Subsequent to the x-ray, Dr. Denton put a cast on the right arm.
On the day that he entered the store, Mr. Rowell said that he saw workmen outside the store and inside the store. The work inside the store was going on to the right of the cash registers as he entered the store, in the area of the refrigerator cases. Further, Mr. Rowell stated that after he fell and while seated in the chair he noticed customers in the store and being checked out at the cash registers.
He said that when he went around the end of the cash registers to get to the Kleenex he saw some buggies filled with canned goods between the cash registers and where the work was going on. He testified that they were not blocking his way and that he walked by them in a normal *788 fashion, i. e., he did not have to squeeze by them.
An employee of Barber Pure Milk Company testified that he was in the store when Mr. Rowell fell and that Mr. Rowell pointed out the object which caused his fall. It was round like a broom, mop or shovel handle and was located to the right of the walkway over near the buggies.
The refrigeration engineer in charge of installation of the refrigeration equipment in the store stated that a two-by-six was propped up against the last cash register and protruded into the walkway which was used by customers in getting from the front of the store into the store proper. This person also stated that a big sign saying that the store was closed was strung across the front of the store. He stated that four loaded buggies were placed around the entrance to the area under construction to act as a barrier but a passageway was left open for the use of the workmen. He also testified that the lighting in the store was normal. He further stated that he saw no signs on the entrance doors or in front of them proclaiming that the store was closed, nor was there anyone standing at the door preventing people from entering the store through the open door.
The manager of the store in question testified that a large sign was placed on the door of the store over the entranceway stating that the store was closed for business. On the day that Mr. Rowell fell, the only employees in the store were the assistant manager and himself. The other employees had been told not to come to work that day.
The manager stated that he did not know Mr. Rowell was in the store until he saw him sitting down appearing to be uncomfortable. He got him to a chair. He stated that at the time he heard that someone had fallen he was checking out one of the workmen who had purchased some merchandise. He further stated that he had checked others out and he could not say that they were workmen or someone else. He did say that anyone he checked out was a customer.
Assignments of error one, two and three relate to the refusal of the trial court to give the general affirmative charge with hypothesis in favor of the appellant. The argument in support of these assignments is to the effect that the evidence does not support the allegation that Mr. Rowell was a business invitee; that the burden of proof to support the conjunctive allegations of negligence is not carried by plaintiff; and that there is insufficient evidence on the question of negligence to go to the jury.
When the general affirmative charge is refused, the appellate courts will construe the evidence most strongly in favor of the plaintiff. Delchamps, Inc. v. Stewart, 47 Ala.App. 406, 255 So.2d 586.
A person who goes upon the premises of another for purposes connected with the business of the owner or occupant of the premises is an invitee. Pinson v. Barlow, 209 So.2d 722 (Fla.App.); Maxymow v. Lake Maggiore Baptist Church, 212 So.2d 792 (Fla.App.); Chambers v. Peacock Const. Co., 115 Ga.App. 670, 155 S.E.2d 704; Aguillard v. Home Ins. Co., 203 So.2d 746 (La.App.); Kapka v. Urbaszewski, 47 Ill.App.2d 321, 198 N.E.2d 569; Wright v. Caffey, 239 Miss. 470, 123 So.2d 841.
In Alabama a grocery store customer has been considered an "invitee" of the store operator. Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 213 So.2d 211.
In the case at bar, Rowell alleged in his complaint that he was a "business invitee" of the appellant. Having alleged that he was an invitee, it became incumbent upon him to prove that he was an invitee.
The proof is in conflict. Mr. Rowell testified that he had been a regular customer of appellant's store in Berney Points *789 for sometime, knew the manager and assistant manager, and was generally familiar with the layout of the store; that on the Monday morning he went to the store, he saw the front door propped open and the manager and assistant manager at the cash registers. He stated he saw a sign over the front of the store just above the doors but he did not pay too much attention to it. He said he also saw workmen outside the store. He entered the store through the open door and no one attempted to stop him. He proceeded to go to his right, around the cash register area as was his practice, then turned left to go over to the area where the Kleenex was located, which was the item he had entered the store to purchase. As he made the turn around the cash register area which was a walkway for access to the other parts of the store, he fell. After the fall and while seated, he saw other customers in various parts of the store, including the checkout area, i. e., the cash registers.
The manager of the store and another witness testified that there was a large sign over the entrance to the store proclaiming that the store was closed for remodeling. Both stated, however, that the front door was propped open. The manager stated this was to facilitate the passage of the workmen about their work. He stated that he and his assistant were the only ones on duty that day, that he had told the other employees not to report for work. The manager did say that he checked out customers at the cash register that day and he could not tell whether they were workmen or not.
The evidence was in conflict as to whether or not the appellant's store was open for business and whether or not plaintiff was invited to come on its premises.
The question of whether a person is or is not an invitee is factual and in a jury trial devolves upon the jury for determination. Franklin Fire Ins. Co. v. Slaton, 240 Ala. 560, 200 So. 564. The question was presented to the jury in the instant case and it found for the plaintiff. Moreover, the evidence was sufficient to constitute a scintilla so as to authorize the trial court to refuse the requested affirmative charge with hypothesis on this ground. Liverpool & London & Globe Ins. Co. Ltd. of England v. McCree, 213 Ala. 534, 105 So. 901.
Appellant also argues, in support of its contention that the trial court erred in refusing the affirmative charges with hypothesis, that Mr. Rowell failed to prove the allegations of negligence as set out in the complaint. These allegations were to the effect that appellant had negligently stacked building materials in a walkway of the store and that the store was negligently lighted. It says that the allegations of negligence are in the conjunctive and that Rowell had the burden to prove both of them.
In Delchamps, Inc. v. Stewart, 47 Ala. App. 406, 255 So.2d 586, this court said:
"There is a duty upon all storekeepers to exercise reasonable care in providing and maintaining reasonably safe premises for the use of their customers. The storekeeper is not an insurer of the customers' safety while on the premises, but is liable for injury only in the event he negligently fails to use reasonable care in maintaining his premises in a reasonably safe condition. [Citations omitted.]
"The burden of proving a breach of duty by the storekeeper is upon the plaintiff as in all negligence cases. . . ."
Rowell said that as he rounded the cash register area proceeding to his left, he slipped on something with his right foot and while attempting to catch himself, caught his left foot on something which caused him to fall and injure his right arm. After falling, he said he saw a board in the area where his left foot had caught on something. Mr. Rowell further testified that at the time of his fall the lighting *790 did not seem to be as bright as it usually was.
Appellee contends that this evidence was sufficient to show that appellant had breached its duty to maintain the premises in a reasonably safe condition.
The tendencies of the evidence were such that the jury could reasonably conclude that a round wooden object had been left lying in the aisle and because of the reduced lighting in the area Mr. Rowell stepped on the object with his right foot and then caught his left foot on the two-by-six that was protruding into the walkway causing him to fall and injure himself.
It would have also been reasonable for the jury to have concluded that the area of construction was blocked off by the loaded buggies but no effort had been made to block off the walkway Rowell was using to get to the other parts of the store. And, it would also have been reasonable for the jury to have concluded from the evidence that appellant had failed to keep the walkways outside the construction area free of building materials and equipment so as not to present a hazard to its customers. Furthermore, the jury could have reasonably concluded that appellant had not maintained the walkways free and clear of hazards to customers and as a result of this failure, Mr. Rowell was injured.
The tendencies of the evidence being as outlined above, we conclude that the scintilla rule has been met; hence, the affirmative charges with hypothesis were properly refused as they applied to the negligence aspect of this case.
Appellant's sixth assignment of error is bottomed on the premise that the trial court erred in refusing to give to the jury the following written requested charge:
"I charge you that the fact, if it be a fact, that the plaintiff suffered an accident and injury to his person while on the premises of the defendant, and that fact standing alone, does not authorize you to be reasonably satisfied from the evidence that the defendant was guilty of negligence in and about the operation of its store on the occasion complained of in the complaint."
Appellant argues, and correctly so, that the doctrine of res ipsa loquitur does not apply in fall down cases and injury alone in such a case does not give rise to a presumption of negligence. See Delchamps, Inc. v. Stewart, supra. It further contends that the trial court's oral charge to the jury did not adequately cover this proposition. We disagree.
The trial court very carefully defined the duty owed to a business invitee and stated that the material averments of the complaint included an averment that the negligent stacking of building materials in a walkway of the store and negligently lighting the store proximately caused the injury, and the court then proceeded to define for the jury negligence and proximate cause. It specifically pointed out to the jury that the mere fact that Rowell had fallen in appellant's store and sustained an injury was not sufficient in itself to support a recovery. The court stated that the burden of proof was on the plaintiff to prove its allegation that appellant had been guilty of negligence in the maintenance of its premises. The trial court was not in error in refusing this requested charge.
The basis for assignment of error eight is the refusal to give the following written requested charge:
"If you are reasonably satisfied from the evidence that on the occasion complained of the defendant store was closed for business and if you are also reasonably satisfied from the evidence that the plaintiff was not expressly or impliedly invited to come into the store to transact business on said occasion, then your verdict should be for the defendant."
We conclude that the oral charge defining an invitee and licensee adequately *791 presented to the jury the question of whether the appellant's store was open for business on the occasion of Rowell's accident therein.
Assignments of error ten, eleven and thirteen are grouped together for argument and contend the trial court erred in not giving to the jury three written requested charges which in substance were a directive that the jury could not find appellant negligent if the substance on the floor presented an open and obvious situation to a reasonable and prudent person.
In support of these assignments of error, appellant relies on the case of Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388. In that case the Supreme Court said that an occupier of premises is duty bound to use reasonable diligence to maintain the said premises in a safe condition for those invited to come there for purposes beneficial to him and by the same token the invitee is under a duty to use reasonable care so as to conserve his own safety.
In the instant case, the court in its oral charge to the jury adequately covered these principles when it said, in effect, the mere fact that plaintiff was injured in appellant's store does not give rise to a right of recovery but he must prove that he was an invitee at the time of his injury and that his injury resulted from the negligence of the appellant in stacking lumber in an aisle of the store where customers walked, i.e., the duty to use reasonable care in the maintenance of the premises was breached; and appellant's defense that plaintiff was under a duty to keep a reasonable lookout for his own safety also must be proved if it is to prevail. In defining negligence the trial court said that it is all based on what a reasonable and prudent person would have done under the same or similar circumstances or such person failed to do that which a reasonable and prudent person would have done under similar circumstances.
The evidence tended to show that Rowell went in the opened front door and followed his normal path to get into the store proper. The manager and assistant manager were at the cash registers, the lighting was not as good as usual, there were workmen about, one workman had left a two-by-six board sticking out in a walkway of the store about a foot at the site of Rowell's fall and there was a round object that looked like a mop or shovel handle in the vicinity of the fall. These objects were not seen by Mr. Rowell.
After a careful examination of the trial court's oral charge and the evidence submitted to the jury, we cannot say that the court erred in refusing to give to the jury these three charges.
Assignment of error twelve is based on the refusal of the trial court to give to the jury the following written requested charge:
"I charge you that on the occasion complained of plaintiff Rowell did not have the right to assume that the floor of defendant's store was clear of any foreign substance on the surface of same."
This charge is closely related to the ones which were the subject of assignments ten, eleven and thirteen, i.e., it emphasizes the duty of the plaintiff to maintain a reasonable lookout for his own safety. What was said about assignments ten, eleven and thirteen applies equally to this assignment and it was properly refused.
Assignment of error fourteen is premised on the refusal of the trial court to give written requested charge fourteen which in effect charged that the occupier of the premises was not to be held strictly liable for the condition of the premises.
The substance of this charge was adequately covered by the oral charge as it related *792 to the duty of the occupier of the premises and therefore it was properly refused. Pure Oil Co. v. Cooper, 248 Ala. 58, 26 So.2d 249.
Assignments of error five and nine were not argued and are deemed waived. Supreme Court Rule 9.
No reversible error having been argued, this case is affirmed.
Affirmed.
WRIGHT, P. J., and HOLMES, J., concur.
ON REHEARING
In its application for rehearing appellant says that this court failed to consider and dispose of assignments of error four, seven, fifteen and sixteen.
The court did consider these four assignments but did not write to them for the reason that the argument made in support of them did not comply with Supreme Court Rule 9. Gorum v. Mott, 33 Ala.App. 525, 35 So.2d 381.
The Supreme Court has said that mere insistence of error without mention of authority does not amount to an argument. Alabama Elec. Co-operative v. Partridge, 284 Ala. 442, 225 So.2d 848. And, this court, in conformity with the holdings of the Supreme Court, has enforced Rule 9 in this regard. Ruby Grant v. J. M. Grant, Civ. 228, (Ms.) Nov. 28, 1973.
Opinion extended.
Application for rehearing overruled.
WRIGHT, P. J., and HOLMES, J., concur.
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22 F.2d 577 (1927)
BRUER
v.
WOODWORTH, Collector of Internal Revenue.
No. 8494.
District Court, E. D. Michigan, S. D.
September 26, 1927.
MacKay, Wiley, Streeter, Smith & Tucker, of Detroit, Mich., for relator.
William W. Potter, Atty. Gen., Chas. B. W. Aldrich, Asst. U. S. Atty., of Detroit, Mich., and Harry A. Metcalf, Asst. Atty. Gen., for respondent.
DAWKINS, District Judge.
Plaintiff, a duly licensed osteopathic physician under the laws of Michigan, on June 30, 1927, applied to the collector of internal revenue of the United States for this district for registration and a permit to dispense narcotic drugs, offering to pay the federal tax therefor. The collector declined to receive the money, or to *578 allow the registration and to issue the permit, upon the ground that the Attorney General for the state of Michigan had ruled that a practitioner of osteopathy is not a physician within the meaning of Act No. 92 of the Public Acts of 1923 (state narcotic law), entitling him to prescribe drugs and narcotics. Thereupon relator filed this suit for a writ of mandamus to compel the collector to comply with his demand.
Respondent answered, admitting substantially all of the allegations of fact, but denying that the petitioner was a physician within the meaning of said statute, or was entitled to register and dispense narcotics or other drugs under the law. At the same time a motion to dismiss was filed, in which it was alleged, first, that this court is without jurisdiction in any "original action for mandamus"; and, second, for the reason that paragraph 4, § 1, of the Harrison Narcotic Law, as amended (26 USCA § 211 [Comp. St. § 6287g]), permits the registration only of such practitioners as are lawfully entitled to dispense such drug, which is a question "for determination in the state courts for the state of Michigan."
On Motion to Dismiss.
The constitutionality of the statute commonly known as the Harrison Narcotic Law has been upheld by the Supreme Court of the United States solely upon the ground that it is a revenue measure, and that the restrictions placed upon the distribution of such drugs therein were reasonably calculated to insure the collection of the tax. The Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, is given power to make all necessary rules and regulations for the carrying of the act into effect. However, I take it that this does not and could not give to the Commissioner, or any one else, the power to do what Congress itself could not do, and that is to police the traffic in narcotics upon purely moral or arbitrary grounds. It would hardly be contended that the national lawmaking body could absolutely prohibit the traffic.
Hence it seems to me that, when an applicant for registration has met all the reasonable requirements of the law intended to insure collection of the tax, to say that the Commissioner, or his agent, the collector, can arbitrarily refuse that right, is to hold that the instrumentality for administering the statute is more powerful than its creator (Congress), and, if a citizen is without remedy in such circumstances, the government becomes one by men, and not of laws. In my opinion, no such condition exists or was intended. Being a matter concerning the revenue, I think this court undoubtedly has jurisdiction, even though the sole relief is an original writ of mandamus to compel performance of a legal duty.
The issue is one of law, and, Congress having given no definition of what is meant in section 1 of the Harrison Act by the phrase "physicians * * * and other practitioners lawfully entitled to distribute, dispense, give away, or administer any of the aforesaid drugs to patients upon whom they in the course of their professional practice are in attendance, * * *" we must look to the state law where the applicant resides to determine who may distribute the drug. Besides, I hardly think that it (Congress) would have the power to say who is or is not a physician; for this, it seems, would be to enter the realm of police regulation reserved to the states.
The Anti-Narcotic Law of the state of Michigan, Act No. 92 of the Public Acts for the year 1923, bears the title: "An act to regulate the sale, disposition, distribution and possession of certain habit forming drugs, to provide a procedure for the discovery of evidence of the violation of this act and to provide for penalties for the violation hereof."
By section 1 it is made unlawful for any one to sell, distribute, or dispense, or to have in his possession, any of the said drugs, except as provided in that act, and sections 4 and 7 read as follows:
"Sec. 4. Any person holding an unexpired certificate as a registered pharmacist or registered druggist under the laws of this state may dispense any drug or drugs mentioned in Section 1 of this Act upon a written prescription or order of a physician, veterinarian or dentist duly qualified to practice under the laws of this state, which prescription shall be retained in the pharmacy or store in which the same was dispensed, by the proprietor thereof or his successor for a period of two years. Said prescription shall be filled but once and no copy of it shall be taken by or furnished to any person, except the same be required for the enforcement of this act."
"Sec. 7. Nothing in this act contained shall be construed to forbid or regulate the dispensing or distribution of any of the drugs mentioned in section one of this act by or under the instructions of a lawfully practicing physician, dentist or veterinarian in the course of his professional practice, and not *579 for the purpose of evading the provisions of this act."
It appears, therefore, that a physician is permitted under the law of Michigan to prescribe and dispense narcotics, and the crucial question is as to whether a practitioner of osteopathy is a physician, within the fair meaning of this statute.
Section 2 of Act 162 of the Public Acts of 1903 (Michigan), as amended (Pub. Acts 1913, No. 305), regulating the practice of osteopathy in this state, read as follows:
"Any person before engaging in the practice of osteopathy in this state, shall upon the payment of a fee of twenty-five dollars, make application for a certificate to practice osteopathy to the board of osteopathic registration and examination, on a form prescribed by the board, giving first his name, age (which shall not be less than twenty-one years) and residence; second, evidence that such applicant shall have, previous to the beginning of his course in osteopathy, a diploma from a high school, academy, college or university, approved by aforesaid board or in lieu thereof, its equivalent credentials to be approved by the board; third, the name of the school or college of osteopathy from which he was graduated, and which shall have been in good repute as such at the time of the issuing of his diploma, as determined by the board; fourth, the date of his diploma, and evidence that such diploma was granted on personal attendance and completion of a course of study of not less than four years of eight months each, and such other information as the board may require: Provided, that the said provisions applying to the course of study changing said course of study from three years of nine months each to four years of eight months each shall not take effect until February 1, nineteen hundred sixteen. The board may in its discretion accept as the equivalent of any part or all of the second and third requirements, evidence of five or more years' reputable practice of osteopathy, by an osteopathic physician located in the state at the time of the passage of this act: Provided, that such substitution be specified in the certificate. If the facts thus set forth, and to which the applicant shall be required to make affidavit, shall meet the requirements of the board, as laid down in its rules, then the board shall require the applicant to submit to an examination as to his qualifications for the practice of osteopathy, which shall include the subjects of anatomy, physiology, chemistry, toxicology, pathology, bacteriology, histology, neurology, diagnosis, obstetrics, gynecology, surgery, hygiene, public health laws of Michigan, medical jurisprudence, principles and practices of osteopathy and such other subjects as the board may require. If such examination be passed in a manner satisfactory to the board, then the board shall issue its certificate granting him the right to practice osteopathy in the state of Michigan, in all its branches as taught and practiced in the recognized colleges and schools of osteopathy. Any person failing to pass such examination may be re-examined at any regular meeting of the board within a year from the time of such failure without additional fee: Provided further, that the board may, in its discretion, dispense with an examination of the case, first, of an osteopathic physician duly authorized to practice osteopathy in any other state or territory, or the District of Columbia, who presents a certificate or license issued after an examination by the legally constituted board of such state, territory or District of Columbia, accorded only to applicants of equal grade with those required in Michigan; or, second, an osteopathic physician who has been in legal practice of osteopathy for five years, who is a graduate of a reputable school of osteopathy, who may desire to change his residence to Michigan, and who makes application on a form to be prescribed by the board, accompanied by a fee of twenty-five dollars. The board of osteopathic registration and examination shall refuse to issue a certificate of registration provided for in this section to any person guilty of grossly unprofessional and dishonest conduct."
Section 4 is also as follows:
"The certificate provided for in section two of this act shall entitle the holder thereof to practice osteopathy in the state of Michigan in all of its branches as taught and practiced by the recognized colleges or schools of osteopathy, but it shall not authorize him to practice medicine within the meaning of act number two hundred thirty-seven of the Public Acts of eighteen hundred ninety-nine, or acts amendatory thereto: Provided, that nothing in this act shall be construed as to prohibit any legalized osteopathic physician in this state from practicing medicine and surgery after having passed a satisfactory examination before the state board of medical examiners in the state of Michigan. Osteopathic physicians shall observe and be subject to the state and municipal regulations relating to the control of contagious diseases, the reporting and certifying of births and *580 deaths, and shall have the right to certify to births and deaths."
The collector takes the position that he will grant or withhold a permit to physicians and particularly to osteopathic practitioners, according to whether or not the highest legal adviser of the state (the Attorney General) finds that they are permitted to dispense narcotics under the state law. There has been no ruling upon the question, in so far as osteopaths are concerned, by the court of last resort of the state of Michigan, but the predecessor of the present Attorney General held that the law did permit them to dispense such drugs and accordingly this applicant was granted a permit by the collector for the year 1926-27, and was only refused renewal for the current year because of the ruling of the present Attorney General.
It is proved by the applicant, and no contradictory evidence offered by the respondent, that all recognized schools of osteopathy teach anatomy, physiology, chemistry, toxicology, pathology, bacteriology, histology, neurology, diagnosis, obstetrics, gynecology, surgery, hygiene, etc., and that they have well-organized hospitals and clinics where nearly all of human ills are diagnosed and treated, although they give no internal medicine; that it is a part of their regular practice to handle obstetrical cases and others involving intense pain and suffering, where it is essential to afford temporary relief by the use of anæsthetics. Besides, the provisions of the law above quoted affecting osteopathy in several places refer to them as "osteopathic physicians." It is true that section 6732 of the Compiled Laws of the State of Michigan of 1915 (Medical Practice Act) defines the practice of medicine in the state as follows:
"The term `practice of medicine' shall mean the actual diagnosing, curing or relieving in any degree, or professing or attempting to diagnose, treat, cure, or relieve any human disease, ailment, defect, or complaint, whether of physical or mental origin, by attendance or by advice, or by prescribing or furnishing any drug, medicine, appliance, manipulation or method, or by any therapeutic agent whatsoever."
Yet, if this section were literally construed in its application to osteopaths, it would prevent them from "diagnosing, curing or relieving, * * * or professing or attempting to diagnose, treat, cure or relieve any human disease, ailment, defect, or complaint, whether of physical or mental origin, by attendance or by advice, or * * * appliance, manipulation or method." This would make it impossible for them to pursue their profession.
I think the reasonable, sensible view to take is that the Legislature intended to prevent the practice of medicine, surgery, osteopathy, etc., except by those who were qualified to do so, according to well-recognized methods used by their respective schools of practice, and that it did not purport to draw any fine and narrow distinction between them such as would prevent the use of any usual and recognized agency for the accomplishment of their respective ends. Modern thought abhors the idea that a prospective mother shall be denied the alleviation to be had from the use of some kind of narcotic in childbirth, and if an osteopathic physician is permitted to attend and render his professional services on such occasions, both by law and the recognized limits of his profession, it appears to me unreasonable to say that he should be denied the use of those agencies which would permit him to do so according to modern and humane standards. In my opinion, nothing short of positive prohibition would suffice to sustain that contention.
My conclusion is that the relator is entitled to relief, and that a writ of mandamus should issue to respondent, directing him to register and grant to petitioner a permit authorizing him to dispense narcotics in the practice of his profession according to law, as interpreted herein. Waldo v. Poe (D. C.) 14 F.(2d) 749; Bandel v. Department of Health of the City of New York, 193 N. Y. 133, 85 N. E. 1067, 21 L. R. A. (N. S.) 49. See, also, People v. Phippin, 70 Mich. 6, 37 N. W. 888; Locke v. Judge, 184 Mich. 535, 151 N. W. 623; Howerton v. District of Columbia, 289 F. 628, 53 App. D. C. 230; People ex rel. Gage v. Siman, 278 Ill. 256, 115 N. E. 817; State v. Schmidt, 138 Wis. 53, 119 N. W. 647; Towers v. Gilder & Levin, 101 Conn. 169, 125 A. 366, 40 A. L. R. 1263.
A decree in accordance with these views may be presented.
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397 So.2d 1041 (1981)
Jesse Lamar HALL, Appellant,
v.
STATE of Florida, Appellee.
No. 80-1069.
District Court of Appeal of Florida, Fifth District.
May 13, 1981.
James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for appellee.
COWART, Judge.
The Public Defender has filed an Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), motion and brief representing to this court that no reversible error appears and requesting leave to withdraw as counsel for appellant. This court gave appellant thirty days within which to file a brief in his own behalf. None was filed. We have reviewed counsel's brief and examined the record and find the appeal is without merit. Appellant entered a negotiated plea of nolo contendere with no reservation of any right of appeal; then, without any effort to withdraw his plea, he promptly filed this appeal. He cannot appeal under these circumstances. Section 924.06(3), Florida Statutes (1979); Fla.R.App.P. 9.140(b); Robinson v. State, 373 So.2d 898 (Fla. 1979); Cassiani v. State, 384 So.2d 47 (Fla. 1st DCA 1980); Counts v. State, 376 So.2d 59 (Fla.2d DCA 1979).
The Public Defender's motion to withdraw is granted and the appeal is DISMISSED.
COBB and FRANK D. UPCHURCH, Jr., JJ., concur.
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222 S.W.3d 213 (2006)
Rikko SMITH, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 05-1039.
Supreme Court of Arkansas.
January 12, 2006.
Sandra Trotter Phillips, for appellant.
No response.
PER CURIAM.
Sandra Trotter Phillips, a full-time, state-salaried public defender for the Eleventh Judicial District, was appointed by the trial court to represent appellant, Rikko Smith, an indigent defendant. An appeal was filed, and a request for the transcribed record has been lodged in this court. This court denied the motion to be relieved that was submitted on December 8, 2005.
Ms. Phillips now moves again to withdraw as counsel on appeal based upon Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000), which held that full-time, state-salaried public defenders were ineligible for compensation for their work on appeal. Since Rushing, the General Assembly had passed legislation providing that only those full-time, state-salaried public defenders who do not have state-funded secretaries may seek compensation for their work on appeal. See Ark.Code Ann. § 19-4-1604(b)(2)(B)(Supp.2003).
Ms. Trotter states in her motion and affidavit that she is provided with a full-time, *214 state-funded secretary who maintains her office. We grant her motion to withdraw.
Mr. Chad Green will be substituted as counsel for appellant in this matter. The Clerk will establish a new briefing schedule.
A motion for extension of time was also filed. The motion is granted and the time is extended thirty days from the date of this order.
It is so ordered.
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133 Ill. App.2d 673 (1971)
273 N.E.2d 706
THE VILLAGE OF ARLINGTON HEIGHTS et al., Plaintiffs-Appellants,
v.
COUNTY OF COOK et al., Defendants-Appellees.
No. 54718.
Illinois Appellate Court First District.
July 14, 1971.
Rehearing denied September 9, 1971.
Jack M. Siegel, of Chicago, for appellants.
Edward V. Hanrahan, State's Attorney, and Fleck & Pollack, both of Chicago, (Daniel P. Coman and James A. Rooney, Assistant State's Attorneys, and Charles J. Fleck, of counsel,) for appellees.
Order affirmed.
Mr. JUSTICE DIERINGER delivered the opinion of the court:
This is an appeal arising from an order of the Circuit Court of Cook County dismissing an amended complaint for declaratory judgment and for an injunction instituted by plaintiffs, Village of Arlington Heights, and others, alleging the rezoning of certain property by the County of Cook in an unincorporated area contiguous to the Village was invalid, illegal and unconstitutional. The original and amended complaint also sought to restain defendant owners from subdividing the property without receiving prior approval from the Village.
On appeal the following are the issues raised: Do municipal corporations and their officials have any power or authority, express or implied, under the State statutes, to challenge and attack express authority of a county rezoning unincorporated territory contiguous to the village? Do allegations by a village of grievances and procedural defects in the zoning actions of the county, in a complaint against a county, give the village implied power or authority, under the State statutes, to bring an action against a county?
The facts may be summarized from the pleadings and show that on October 9, 1967, the Cook County Zoning Board of Appeals held a public hearing at which the plaintiff, Village of Arlington Heights, appeared in opposition to the rezoning application. On January 22, 1968, the Cook County Zoning Board of Appeals recommended the application be approved, and on January 26, 1968, the County Board of Commissioners *674 of Cook County approved the recommendations and rezoned the property.
On January 5, 1968, the plaintiffs filed their complaint in the Circuit Court. The plaintiffs are the Village of Arlington Heights, John G. Woods, Village President of the Village of Arlington Heights, John White, John J. Walsh, Roy Bressler, Francois Palmatier, Charles O. Bennett and George Burlingame, as Village Trustees.
The defendants are the County of Cook, Herbert C. Wenske, Building Commissioner of Cook County, Bernard J. O'Brien, Zoning Administrator of Cook County, Bulk Petroleum Company, contingent purchaser of subject property, Ronald L. Bradley, owner of the subject property, and Sidney R. Olsen, Recorder of Deeds of Cook County.
The subject matter of the amended complaint involves the rezoning by the County of Cook of certain property outside the corporate limits of the Village of Arlington Heights, but contiguous to the Village, in an unincorporated area.
The Village of Arlington Heights and its elected officials allege the Village had adopted an official comprehensive plan within a mile and one-half of its corporate limits and that the official plan affects the subject property; that according to the plan the recommended classification of the subject property was for single-family dwelling use; that the Village adopted a formal resolution in opposition to the zoning classification; that the Zoning Board of Appeals recommended the rezoning notwithstanding the Village's objections; that the County did rezone said property from an R-3 single-family residence district to B-2 restricted service district; that the purported hearing by the zoning board was invalid because of various procedural errors; that the County Board failed to vote by ayes or nays upon a specific motion to adopt the rezoning ordinance or resolution; that the subject property is in all respects suitable for single-family development and the trend of development in said area is for single-family residential use; that the rezoning of the subject property would adversely affect other properties within the corporate limits of the Village, lower the taxable values of said property, injuring and damaging the Village, in that municipal revenues would suffer by reason of loss of assessed valuation and tax receipts and that it would further create traffic hazards, water hazards, sewer hazards, fire hazards, and health hazards; that the rezoning is highly detrimental to the surrounding single-family residential areas and residential uses of the Village; that the reclassification is not consistent with the public health, safety, comfort, morals and general welfare; that the rezoning is void and in violation of the Constitution of the State of Illinois and the Constitution of the United States of America; that a court of equity *675 should entertain that action under the constitutional right of all persons to be heard in matters in which they are wronged; that the Cook County Recorder be enjoined from recording any plat or subdivision without the approval of the Village of Arlington Heights.
The motions to strike and dismiss allege that the Village of Arlington Heights and the individually named elected officials as parties plaintiffs have no right or authority to bring the action on behalf of the residents and taxpayers of the Village of Arlington Heights against the County of Cook; that the Village lacks the statutory power to challenge the exercise of the expressly granted statutory powers of the County of Cook; that the individually named Village officials plaintiffs' residences were located approximately one and three-eighths miles to two and five-eighths miles from the subject property, and were not directly affected by the rezoning and an affidavit to this effect was attached to the motions to strike and dismiss. This affidavit was uncontroverted. Finally, that the subdivision statute does not apply, especially where no alleys, streets, sewer and water lines are being plotted or even contemplated.
After hearings were held, the court dismissed the amended complaint on October 16, 1969, and the notice of appeal was filed November 13, 1969. This case must be decided according to the law as it was at the time, under the Constitution of 1870.
This is a matter involving a zoning dispute between the Village of Arlington Heights and its officials and the County of Cook. Since the Village and County are creatures of the legislature and were organized, and are now existing, by virtue of certain described powers delegated to them by the legislature, the conflict of the Village and County necessarily must be resolved under the various powers delegated to each.
Primarily, the question involved is whether or not under the various statutes delegating powers, the Village of Arlington Heights and its officials have any power or authority to challenge or attack rezoning by the County of Cook of premises in an unincorporated area contiguous to the Village.
There are three recent cases covering the points raised in the case at bar. In the case of the Village of Bensenville v. County of DuPage (1961), 30 Ill. App.2d 324, the court held that municipal corporations are creatures of the State and have only those powers delegated to them by the legislature. Municipal corporations derive their existence and powers wholly from the legislature and have no inherent powers. The court said:
"Since Municipalities have no inherent powers and derive all of their powers from the Legislature, statutes granting powers to Municipal corporations are strictly construed, and any fair and *676 reasonable doubt as to the existence of power must be resolved against the Municipality. Barnard & Miller v. City, 316 Ill. 519, 522."
In the instant case, the plaintiffs argue that the Bensenville case did not touch upon the procedural defects raised in the case at bar. However, in the Bensenville case the court said:
"`* * * that the recommendation of the zoning board was invalid because no such findings were made, the meetings of the board were not open to the public, no minutes of the board's proceedings were kept, and members of the board who were not present when the evidence was taken, voted favorably on the recommendation; and that the purported amendment of the ordinance rezoning the property was invalid and unconstitutional because such amendment was by resolution rather than by ordinance. Plaintiff prayed that the Court declare the meetings and recommendation of the Zoning Board ineffectual and the special use provisions and the amendment of the zoning ordinance illegal and unconstitutional, and that an injunction issue restraining the county, etc.'"
These appear to be the same points raised in the instant case. The Bensenville case held specifically that the Village lacked any standing whatsoever in court to attack or challenge County zoning of unincorporated territory contiguous to the Village. Procedural irregularities or not, a Village cannot bring an action against a County in a zoning dispute, lacking statutory authority to do so. The remedy of the Village is in the legislature and not in the courts. The court went on to say as to delegated powers:
"The Village of Bensenville concedes that the General Assembly has not expressly granted Municipalities the right to attack the rezoning of land in unincorporated territory; but it contends that its right to attack the rezoning of such land contiguous to its boundary is derived from one or more of the sixteen provisions of the Revised Cities and Villages Act, viz.: Sections 8-1, 8-2, 8-5, 23-73, 23-74, 23-81, 23-88, 23-105, 40-9, 53-2, 60-2, 72-1, 74-2, 75-3, and 78-1 (ch. 24, Ill. Rev. Stat. 1959). Some of these sections confer extraterritorial powers upon municipalities for various purposes, but none of them contains any reference to zoning beyond the corporate limits."
In the case of Village of Mount Prospect v. County of Cook (1969), 113 Ill. App.2d 336, the court thoroughly reviewed the legislative action with respect to land planning and zoning and said:
"We review the legislative action with respect to land use planning *677 and zoning to ascertain any apparent change of legislative intent since the Bensenville opinion * * *.
Plaintiff alleges that a Village plan was adopted in 1943, ch. 24, sec. 53-2, Ill. Rev. Stat. 1943, set forth certain powers which authorized a municipal plan commission to establish reasonable requirements with reference to streets, alleys and public grounds in `unsubdivided land' situated within the Corporate limits of any contiguous territory not more than one and one-half miles beyond the Corporate limits, but not included in any municipality."
The court further said:
"As argued by plaintiff, upon adoption of a comprehensive plan by Mount Prospect, existing County zoning would pass from control of the County and await annexation of the contiguous property by the Village, as suggested in LaSalle National Bank v. Village of Palatine (1968), 92 Ill. App.2d 327, 236 N.E.2d 1, Mount Prospect might not succeed in annexing the contiguous property, and it would then be unable to apply its proposed zoning recommendation. The proposition argued by plaintiff would permit Mount Prospect to effectively control the zoning in, if not zone, the area theretofore zoned by the County without ever being called upon to attempt annexation."
The Illinois Supreme Court denied leave to appeal the Mount Prospect case.
The latest case to review the subject is Krembs v. County of Cook (1970), 121 Ill. App.2d 148, wherein our court followed the Mount Prospect case. We are convinced the law is well settled, and the joinder of the Village officials as individuals does not change the law, for the individuals have no greater rights than the Village they represent.
Plaintiffs rely upon Township of River Vale v. Town of Orangetown, 403 F.2d 684. The River Vale case involved an action for damages and declaratory relief filed by a New Jersey township against a contiguous town in New York, which had rezoned an area from residential to office park district. This case crossed state lines and was determined in the Federal court and obviously is not applicable to the case at bar.
We hold the plaintiffs had no standing and were without authority to challenge the procedure of the Cook County Zoning Board of Appeals or the County Board of Commissioners, or to litigate against the County of Cook and the other defendants in the instant case.
The trial court was correct in dismissing the amended complaint, and the order is affirmed.
Order affirmed.
ADESKO, P.J., and BURMAN, J., concur.
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Matter of Neeman v Town of Warwick (2020 NY Slip Op 03113)
Matter of Neeman v Town of Warwick
2020 NY Slip Op 03113
Decided on June 3, 2020
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on June 3, 2020
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
ALAN D. SCHEINKMAN, P.J.
COLLEEN D. DUFFY
BETSY BARROS
PAUL WOOTEN, JJ.
2018-05756
(Index No. 7757/17)
[*1]In the Matter of Giora Neeman, et al., appellants,
vTown of Warwick, et al., respondents.
Zarin & Steinmetz, White Plains, NY (Michael D. Zarin and Jody T. Cross of counsel), for appellants.
Blustein, Shapiro, Rich & Barone, LLP, Goshen, NY (Jay R. Myrow of counsel), for respondents Town of Warwick, Town of Warwick Zoning Board of Appeals, and Town of Warwick Town Board.
The Kleister Law Group, Washingtonville, NY (Christopher B. Kleister of counsel), for respondents Black Bear Family Campground, Inc., Rita Zelda Smith, and Rita P. Smith Living Trust.
DECISION & ORDER
In a hybrid proceeding pursuant to CPLR article 78 to review determinations of the respondent/defendant Town of Warwick Zoning Board of Appeals dated March 27, 2017, and August 28, 2017, granting the application of the respondent/defendant Black Bear Family Campground, Inc., for an area variance, and action, inter alia, for a judgment declaring that the respondent/defendant Town of Warwick Zoning Board of Appeals segmented its environmental review in violation of 6 NYCRR 617.3(g), the petitioners/plaintiffs appeal from a judgment of the Supreme Court, Orange County (Elaine Slobod, J.), dated February 22, 2018. The judgment denied the petition and, in effect, dismissed the proceeding/action.
ORDERED that the judgment is reversed, on the law, with one bill of costs, the petition is granted, the determinations dated March 27, 2017, and August 28, 2017, are annulled, and the matter is remitted to the Supreme Court, Orange County, for the entry of an appropriate amended judgment, inter alia, declaring that the respondent/defendant Town of Warwick Zoning Board of Appeals segmented its environmental review in violation of 6 NYCRR 617.3(g).
The background facts as to this hybrid proceeding and action and a related hybrid proceeding and action commenced by the petitioners/plaintiffs are set forth in this Court's decision and order on a related appeal (see Matter of Neeman v Town of Warwick, ___ AD3d ___ [Appellate Division Docket No. 2018-05755; decided herewith]). The petitioners/plaintiffs commenced this hybrid proceeding pursuant to CPLR article 78 to annul determinations of the respondent/defendant Town of Warwick Zoning Board of Appeals (hereinafter the ZBA) granting the application of the respondent/defendant Black Bear Family Campground, Inc. (hereinafter BBFC), for an area variance, and action, inter alia, for a judgment declaring that the ZBA segmented its environmental review in violation of 6 NYCRR 617.3(g). The Supreme Court denied the petition and, in effect, dismissed the proceeding/action. The petitioners/plaintiffs appeal.
Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Switzgable v Board of Zoning Appeals of the Town of Brookhaven, 78 AD3d 842). In determining an application for an area variance, a zoning board must engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the area variance is granted (see Matter of Sasso v Osgood, 86 NY2d 374, 384). A zoning board must consider (1) whether granting the variance would result in an undesirable change in the character of the neighborhood, or a detriment to neighboring properties, (2) whether the benefit sought can be achieved by some method other than an area variance, (3) whether the requested variance is substantial, (4) whether granting the variance will have an adverse impact upon the physical or environmental conditions in the neighborhood, and (5) whether the alleged difficulty is self-created (see Town Law § 267-b[3][b]).
Here, the determination of the ZBA granting the application of BBFC for the area variance was arbitrary and capricious and an abuse of discretion. The prior placement of illegal or nonconforming campsites and structures within a 100-foot setback adjacent to the petitioners/plaintiffs' property cannot support the issuance of an area variance (see Matter of Switzgable v Board of Zoning Appeals of the Town of Brookhaven, 78 AD3d 842). The ZBA discounted the petitioners/plaintiffs' evidence that granting the variance would have an adverse impact on their property. Furthermore, the benefit sought by BBFC could have also been achieved by some method other than the grant of the requested area variance. In addition, BBFC failed to present any evidence of the cost of moving campsites and failed to offer any engineering data showing that the open spaces at the campground were too steep to serve as viable campsites. There also existed the possibility that BBFC could have leased or purchased additional land on the adjoining property owned by the petitioners/plaintiffs (see Matter of Chandler Prop., Inc. v Trotta, 9 AD3d 408). In any event, BBFC would not have been denied the ability to make productive use of its property (see Matter of Ifrah v Utschig, 98 NY2d 304).
Moreover, the requested area variance from the 100-foot setback requirement was substantial. Importantly, no studies, analyses, or tests were performed showing that the addition of campsites for recreational vehicles with utility hookups within the 100-foot setback would have no adverse effect on the environmental condition of the neighborhood. Additionally, the alleged difficulty was entirely self-created. Under the circumstances of this case, the ZBA should have given more weight to the factor of self-created hardship since BBFC illegally expanded the campsites in disregard of the applicable zoning requirements (see Matter of Switzgable v Board of Zoning Appeals of the Town of Brookhaven, 78 AD3d 842).
Finally, the failure to review the area variance request in the context of the overall campsite expansion project constituted an improper segmented review (see Matter of Teich v Buchheit, 221 AD2d 452).
Accordingly, the determinations of the ZBA to grant the area variance should be annulled, and the matter is remitted to the Supreme Court, Orange County, for the entry of an appropriate amended judgment, inter alia, declaring that the ZBA segmented its environmental review in violation of 6 NYCRR 617.3(g).
SCHEINKMAN, P.J., DUFFY, BARROS and WOOTEN, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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108 F.Supp. 567 (1952)
UNITED STATES
v.
WEINBERG.
Cr. 829-52.
United States District Court D. Columbia.
November 21, 1952.
*568 Charles M. Irelan, U. S. Atty., and William Hitz, Asst. U. S. Atty., Washington, D. C., J. Frank Cunningham, Special Asst. to Atty. Gen., for United States.
Harry I. Rand and J. A. Fanelli, Washington, D.C., for defendant.
KIRKLAND, District Judge.
In the present proceedings the defendant was indicted by a District of Columbia Grand Jury on September 8, 1952, and charged with perjury under Title 22, Section 2501 of the District of Columbia Code. Specifically, the defendant is alleged to have testified falsely as to his communistic affiliations, while appearing before the House of Representatives Committee on Un-American Activities, investigating, among other things, the leakage of certain atomic secrets.
Defendant has filed the following motions: (1) Dismissal of the indictment on various grounds; (2) suppression of certain evidence allegedly illegally obtained; (3) a bill of particulars as to matters surrounding the indictment; (4) production and inspection of various documents and transcripts related to the allegations in the indictment; (5) inspection of the Grand Jury minutes; (6) a hearing to ascertain bias on the part of the Grand Jurors.
The Government has also moved to quash subpoenas served on the Attorney General of the United States and the Director of the Federal Bureau of Investigation. All motions have been disposed of save two herein discussed by the court:
Counsel for the defendant has devoted the greater part of his oral argument to the motion seeking the suppression of evidence allegedly obtained directly or indirectly through the use of illegal methods. The basis for the motion, sifted from the affidavits and argument, is that the evidence was illegally obtained by the interception of telephonic communications, the interception of mail, and the recording of conversations in private homes.
Defendant, by way of affidavits, claims Government agents intercepted a telephone conversation occurring on a particular evening in March of 1943 between "Joe" and a Mrs. Nelson, and that "Joe" later was identified by the House Committee as "Scientist X" or the defendant herein, Joseph Weinberg. Dr. Weinberg contends this interception was what inspired the F. B. I. agents to commence a surveillance of his activities. The affiant also states he has reason to believe Government agents intercepted mail "allegedly" sent by defendant.
One of counsel for the defendant has filed an affidavit reciting a chance colloquy with a Washington taxicab driver, who had been a member of a local District of Columbia Grand Jury in 1950, which had considered evidence against the defendant, but had not returned an indictment. A conversation was alluded to between the taxicab driver and the head of a division of the Department of Justice as to the type of evidence available for possible prosecution. *569 However, testimony was taken in open court and upon consideration of the testimony and the affidavits filed herein, this court found, as a matter of fact, that there was no breach of the grand jury oath, that the incident was remote and had no bearing on the matter at hand, and that there was no showing of illegal evidence being presented to the grand jury on which the taxicab driver was sitting as a juror.
There is filed in the record documents indicating the defendant has denied knowing Steve Nelson, a notorious communist, or his wife any time prior to 1949; nor does he admit being a party to any telephone conversation made to the Nelson home at any time, much less the month of March in the year 1943. In his memorandum defendant's counsel refers to the communication as an "alleged" phone call. It is also to be noted that the indictment filed herein was returned by a Grand Jury impaneled on March 3, 1952, and sworn in on March 4, 1952.
The law involving wiretapping has been a controversial theme among the courts in recent years. However, the legal sediments are beginning to settle and from the several Supreme Court decisions following The Nardone case (Nardone v. United States) 308 U.S. 338, 60 S.Ct. 266, 268, 84 L.Ed. 307, there is emerging decided and clearer law on the subject.
In the Nardone decision the procedural approach to attack the misuse of illegal wiretapping was outlined as follows:
"The burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wiretapping was unlawfully employed. Once that is established as was plainly done here the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin."
And the very following paragraph added these comments:
"Dispatch in the trial of criminal causes is essential in bringing crime to book. * * * Therefore claims that taint attaches to any portion of the Government's case must satisfy the trial court with their solidity and not be merely a means of eliciting what is in the Government's possession before its submission to the jury."
The defendant's affidavits do not allege that there is, in fact, any evidence whatever that will be offered by the Government based on intercepted telephone messages. There is an entire lack of definitiveness as to any particular interception. Cf. United States v. Frankfeld, D. C.1951, 100 F.Supp. 934. The defendant's conclusions have mere suspicions and innuendos as their premises. This is not the "solidity" and affirmative proof necessary and therefore does not merit a hearing under the Nardone Rule. Courts need a reasonable assurance that the evidence challenged is tainted or is "a fruit of the poisonous tree"; mere conjecture will not suffice. United States v. Fujimoto, D.C. 1952, 102 F.Supp. 890; United States v. Flynn, D.C.1951, 103 F.Supp. 925.
In no instance, has defendant advanced one scintilla of proof that there was any impropriety or illegal evidence presented to the Grand Jury returning the indictment herein. Furthermore, the Special Assistant to the Attorney General, who is prosecuting this case, unequivocally and categorically, in his affidavit declares:
"That no evidence was presented to the grand jury which returned this indictment, and the prosecution does not intend to offer any evidence at the trial, which was obtained directly or indirectly from intercepted telephonic communications, interceptions of the mails, searches or seizures, wiretaps, microphones, dictaphones, or by any illegal or improper methods."
Even assuming, arguendo, there was illegal evidence submitted to a previous Grand Jury, of which the taxicab *570 driver was a member, the inference does not necessarily follow that a Grand Jury impaneled two years later also had presented for their consideration the same or similar unlawful evidence. In United States v. Pillon, D.C., 36 F.Supp. 567, two prior indictments had been dismissed because they were based upon intercepted telephone communications. A petition was filed calling the court's attention to the two previous proceedings and resulting dismissal of the indictment. On page 568 of 36 F.Supp. of the opinion, Judge Byers answered the petitioners contention:
"* * * having suffered the dismissal of the earlier indictments for the reason stated, it is manifestly improbable that the Government would do such an idle thing as to again rely upon evidence which the Supreme Court has condemned in plain and unmistakable terms."
The defendant is further precluded from the relief he presently seeks because he is not in a position to assert this right. The measure of the straits in which the defendant has placed himself becomes apparent at this point. Defendant denies he knew the Nelsons at any time prior to 1949; yet he is now seeking to have the evidence suppressed, because there was an interception of an "alleged" telephone call between "Joe" and Mrs. Nelson in March of 1943. This is the only telephone call alluded to by the defendant. The court asked counsel for Dr. Weinberg if the latter was admitting he made such a telephone call. Counsel replied no such admission was being made. Thus, the record does not disclose, as a matter of fact, that the defendant was a participant in any intercepted telephone conversation. In Goldstein v. United States, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312, the Supreme Court was petitioned to extend Sec. 605 of the Federal Communications Act, 47 U.S. C.A. § 605, so as to make available to one, not a party to the intercepted communication, the standing to object to the divulgence of such evidence. The Supreme Court refused to be so persuaded and by analogy on page 121 of 316 U.S., on page 1004 of 62 S.Ct. of the opinion explained:
"No court has ever gone so far in applying the implied sanction for violation of the Fourth Amendment. While this court has never been called upon to decide the point, the federal courts in numerous cases, and with unanimity, have denied standing to one not the victim of an unconstitutional search and seizure to object to the introduction in evidence of that which was seized. A fortiori the same rule should apply to the introduction of evidence induced by the use or disclosure thereof to a witness other than the victim of the seizure. We think no broader sanction should be imposed upon the Government in respect of violations of the Communications Act. The court below was of the view that a divulgence of the intercepted messages might lawfully be made with the consent of the sender, and we agree. The court further thought that, as the sender might make such divulgence lawful by his consent, none but he was intended to be protected against divulgence by the statute. Again we agree."
The same reasoning quoted from the Goldstein case, supra, apply to the facts surrounding the alleged interception of mail in this case. Defendant once more is saddled to his position and so long as he refuses to affirmatively identify himself as the sender of the letter he is not within the purview of the Fourth Amendment protecting victims against unlawful search and seizure.
Although defendant requests suppression of all recordings of conversation in private homes he indicates no knowledge of any such recordings ever having been made. Even if there were a basis, in fact, upon which the court might proceed there is serious question whether the defendant's legal theory has any support in light of Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 and On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967.
Defendant's motion to suppress the evidence on the grounds that it was illegally obtained and the motion to dismiss based *571 on the alleged use of unlawful evidence are, accordingly, denied.
There is remaining one additional matter. Apparently, the defendant presupposed a hearing would be granted to enable him to prove his belief regarding alleged wiretapping. The hearing having been denied and the subpoenas, served on the Director of the F.B.I. and the Attorney General of the United States, having no independent standing, they are hereby quashed. United States v. Hiss, D.C., 9 F.R.D. 515; United States v. Frankfeld, supra; and United States v. Flynn, supra.
Although the present motion seeking a hearing is overruled, the order to that effect will be without prejudice to any subsequent motion, based on knowledge of a particular intercepted message, wherein the defendant is the sender.
Let an order be submitted accordingly.
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[Cite as State v. Colston, 2020-Ohio-3879.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin,, J.
:
-vs- :
: Case No. CT2019-0076
ANTHONY R. COLSTON, JR. :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court of Common Pleas, Case No.
CR2017-0026
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 27, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX JAMES A. ANZELMO
Prosecuting Attorney 446 Howland Drive
By: TAYLOR BENNINGTON Gahanna, OH 43230
Assistant Prosecutor
Muskingum County
27 North Fifth St., Box 189
Zanesville, OH 43701
[Cite as State v. Colston, 2020-Ohio-3879.]
Gwin, P.J.
{¶1} Defendant-appellant Anthony R. Colston, Jr., aka Dough [“Colston] appeals
his convictions and sentences after a jury trial in the Muskingum County Court of Common
Pleas.
Facts and Procedural History
{¶2} The Muskingum County Sheriff's Department used a confidential informant
to set up controlled drug deals on September 6 and 15, 2016.
{¶3} Detective Matt Wilhite from the Muskingum County Sheriff’s Office and the
Central Ohio Drug Enforcement Task Force testified that his confidential informant [“CI”]
spoke to him about meeting an individual named Mario Martinez Claytor, a.k.a. “Casino”
while the pair were incarcerated in the Muskingum County Jail. 1T. at 1741. Detective
Wilhite had knowledge of Claytor and had been investigating him since 2005. Detective
Wilhite asked the CI to make contact with Claytor and arrange to make some controlled
drug buys from him. 1T. at 174.
{¶4} The CI began by sending a “friend” request to Claytor’s Facebook page.
Within minutes, Claytor responded with a telephone number and a request for the CI to
contact him. 1T. at 175. While at the sheriff’s office, Detective Wilhite monitored and
recorded the telephone call between the CI and Claytor. 1T. at 176. (State’s Exhibit B2).
Detective Wilhite verified that Claytor had been in the Muskingum County Jail at the time
the CI was in the jail. 1T. at 178. He further verified the telephone number and address
of Claytor. 1T. at 179.
1 For clarity sake, the Transcript of the jury trial will be referred to by volume and page number as
“T.”
Muskingum County, Case No. CT2019-0076 3
{¶5} On September 9, 2016, the CI informed Detective Wilhite that he, the CI,
could purchase one ounce of cocaine from Claytor for $1,225. Detective Wilhite and the
CI met to set up a controlled buy from Claytor. 1T. at 179. The CI was given the buy
money and an undercover police vehicle. The CI made a telephone call to Claytor that
the detective monitored and recorded. 1T. at 180. (State’s Exhibit C1). The CI was
equipped with audio and visual recording devices and given a camera. 1T. at 181.
Undercover detectives from the Muskingum County Sheriff’s Office followed the CI to his
home which was the agreed meeting place for the transaction. The CI remained on the
porch in view of the undercover officers.
{¶6} The CI received a telephone call and gave the caller directions to the CI’s
home. 1T. at 183. A short time later, a white Chrysler 300 with Pennsylvania license
plates pulled up to the house. The CI left the porch and got inside the backseat of the car.
The entire time, detectives were listening and recording the events in real time. (State’s
Exhibit D17). The CI initially tells the driver of the car that he, the CI, forgot his scales. 1T.
at 188. The CI can be seen returning to the car with scales in hand. Inside the car was
Colston. Colston handed the CI cocaine and the CI gave Colson $1,225. 1T. at 189.
{¶7} Detective Wilhite produced still pictures made from the video of the
transaction. Among the pictures are pictures of Colston’s face, and the tattoo on his right
arm. State’s Exhibit D3, D4, D6, D7, D8, D9, D10, and D11. State’s Exhibit D12 is a
picture of a hand with what appears to be a bag of cocaine. 1T. at 194-195. State’s
Exhibit D13 is a picture of a hand, a bag of cocaine, and money. State’s Exhibits D14,
D15 and D16 show Colston’s face. 1T. at 195. Approximately 27 grams of cocaine was
Muskingum County, Case No. CT2019-0076 4
recovered from the CI from the transaction that took place on September 6, 2016. 1T. at
186. State’s Exhibit E1.
{¶8} Detective Wilhite was able to find booking photographs and tattoo records
from law enforcement databases that matched those he saw in the video. The records
identified Colston as the driver of the white Chrysler 300. Upon arriving at the residence
listed for Colston from the dataset records, Detective Wilhite found the white Chrysler 300
parked in front of the residence. 1T. at 196.
{¶9} A second controlled buy took place on September 15, 2016. 1T. at 198. The
CI informed Detective Wilhite that the CI could purchase four ounces of cocaine from
Mario Claytor. The CI and Detective Wilhite met at a prearranged meeting pace. The CI
was given $4,500 in buy money and outfitted with visual and audio recording devices.
The buy was again to take place at the CI’s residence. Surveillance was set up around
the residence by detectives from the Muskingum County Sheriff’s Office. After waiting for
over one hour the CI received a telephone call from Claytor discussing the terms of the
deal. 1T. at 204. Approximately ten minutes later, Colston arrived driving a silver Toyota.
1T. at 205. The CI got into the front passenger seat. Claytor telephoned the CI while the
CI was inside the car. Apparently, there was a discrepancy in the amount of money the
CI was to pay for the cocaine. This was resolved by the CI agreeing to pay an additional
$300 at a later time. 1T. at 205. Colston gave the CI four ounces of cocaine in exchange
for receiving $4,500. 1T. at 205. Detective Wilhite was able to pull up next to the silver
Toyota while the cars were stopped at a traffic light. Detective Wilhite observed Colston
driving the silver Toyota. 1T. at 206. No one else was inside the Toyota.
Muskingum County, Case No. CT2019-0076 5
{¶10} Colston is seen in the video handing cocaine to the CI and the CI is seen
on the video giving Colston $4,500. 1T. at 207. State’s Exhibit G1. Stills taken from the
video of Colston’s face and tattoos were received into evidence. State’s Exhibit’s H8 –
H13. 1T. at 211- 213.
{¶11} At trial, upon the request of the prosecution, and over the objection of
Colston's trial counsel, the trial judge had Colston show the jury a tattoo he had on his
arm and hands. 2T. at 241-242; 267.
{¶12} In January 2017 multiple search and arrest warrants were issued. 1T. at
219. Detective Wilhite testified that the identity of the CI was determined by those
involved by the end of that day. 1T. at 219-220. Colston was arrested in the state of
Alabama nearly one year later. He was extradited to Ohio.
{¶13} Colston was indicted with one count of conspiracy to trafficking in drugs, a
first degree felony, in violation of R.C. 2923.03, and one count of engaging in a pattern of
corrupt activity, a first degree felony, in violation of R.C. 2923.32. The charges contained
major drug offender specifications under R.C. 2941.141.
{¶14} Before jury deliberations, the trial court instructed the jury that it heard
testimony that Colston fled the state and that this conduct can evince a consciousness of
guilt. 2T. at 397. Trial counsel objected to the instruction arguing there was no testimony
that Colston left the state under an awareness that he was being charged with a crime.
2T. at 370.
{¶15} The jury found Colston guilty of conspiracy to drug trafficking as well as
engaging in a pattern of corrupt activity. The jury also found that the offenses pertained
to trafficking cocaine in an amount greater than 100 grams. The prosecution dismissed
Muskingum County, Case No. CT2019-0076 6
the major drug offender specification attached to the trafficking charge, but kept the
specification attached to the engaging in a pattern of corrupt activity charge. The issue of
whether Colston was a major drug offender was for the trial court to make, and it found
that Colston was a major drug offender. The trial court therefore sentenced Colston to a
mandatory term of seven years on the conspiracy to trafficking count and a mandatory
term of eleven years on the engaging in a pattern of corrupt activity count. The court
ordered the sentences to be served consecutively for an aggregate prison term of 18
years.
Assignments of Error
{¶16} Colston raises eight Assignments of Error,
{¶17} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
COLSTON'S MOTION FOR A CONTINUANCE, IN VIOLATION OF COLSTON'S DUE
PROCESS RIGHTS PURSUANT TO THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.
{¶18} “II. THE TRIAL COURT ERRED BY REQUIRING COLSTON TO DISPLAY
HIS TATTOO TO THE JURY, IN VIOLATION OF HIS RIGHT AGAINST SELF-
INCRIMINATION GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.
{¶19} “III. THE TRIAL COURT PLAINLY ERRED BY FAILING TO INSTRUCT
THE JURY THAT IT MUST UNANIMOUSLY AGREE ON THE SAME SPECIFIC
INCIDENT OF COMPLICITY [SIC.]2 TO DRUG TRAFFICKING AND ENGAGING IN A
2 Colston incorrectly refers to his conviction in Count 1 of the Indictment as “complicity” when in
fact Colston was indicted and convicted of conspiracy to trafficking in cocaine pursuant to R.C. 2923.01.
See, Appellant’s Brief at 6.
Muskingum County, Case No. CT2019-0076 7
PATTERN OF CORRUPT ACTIVITY, EACH ALLEGED IN SINGLE COUNTS IN THE
INDICTMENT AGAINST COLSTON, IN VIOLATION OF HIS RIGHTS TO DUE
PROCESS OF LAW, A FAIR TRIAL, JURY UNANIMITY, AND THE DOUBLE
JEOPARDY PROTECTIONS PURSUANT TO THE FIFTH, SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I,
SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.
{¶20} “IV. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT IT
COULD CONSIDER THAT COLSTON FLED THE STATE AS EVIDENCE OF A
CONSCIOUSNESS OF GUILT.
{¶21} “V. COLSTON’S CONVICTIONS ARE BASED ON INSUFFICIENT
EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION.
{¶22} “VI. COLSTON'S CONVICTIONS ARE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF
THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION.
{¶23} “VII. THE TRIAL COURT LACKED AUTHORITY TO FIND COLSTON A
MAJOR DRUG OFFENDER, PURSUANT TO THE SIXTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.
{¶24} “VIII. THE TRIAL COURT UNLAWFULLY ORDERED COLSTON TO
SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE
PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO
Muskingum County, Case No. CT2019-0076 8
CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.
I.
{¶25} In his First Assignment of Error, Colston contends that the trial court abused
its discretion and violated his right to present a meaningful defense by denying his fifth
motion to continue the trial date that he filed on February 27, 2019.
1.1 Standard of Appellate Review.
{¶26} Every criminal defendant has a constitutional right to present a meaningful
defense. Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636(1986).
Ordinarily a reviewing court analyzes a denial of a continuance in terms of whether the
court has abused its discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11
L.Ed.2d 921(1964). If, however, the denial of a continuance is directly linked to the
deprivation of a specific constitutional right, some courts analyze the denial in terms of
whether there has been a denial of due process. Bennett v. Scroggy, 793 F.2d 772(6th
Cir.1986). A defendant has an absolute right to prepare an adequate defense under the
Sixth Amendment of the United States Constitution and a right to due process under the
Fifth and Fourteenth Amendments. United States v. Crossley, 224 F.3d 847, 854(6th
Cir.2000). The United States Supreme Court has recognized that the right to offer the
testimony of witnesses and compel their attendance is constitutionally protected.
Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019(1967). The
Ohio Supreme Court recognized that the right to present a witness to establish a defense
is a fundamental element of due process of law. Lakewood v. Papadelis, 32 Ohio St.3d
1, 4–5, 511 N.E.2d 1138(1987). A trial court's failure to grant a continuance to enable a
Muskingum County, Case No. CT2019-0076 9
defendant to exercise his constitutionally protected right to offer the testimony of
witnesses and compel their attendance may, in some circumstances, constitute a denial
of due process. Mackey v. Dutton, 217 F.3d 399, 408(6th Cir.2000); Bennett v. Scroggy,
supra, 793 F.2d at 774. See also, State v. Wheat, 5th Dist. No. 2003-CA-00057, 2004–
Ohio–2088, ¶16.
1.2. Issue for Appellate Review: Whether the trial court abused its discretion and
denied Colston due process of law by failing to grant the February 27, 2019 motion to
continue the March 5, 2019 trial date.
{¶27} On May 14, 2018, Colston’s trial counsel filed a notice of appearance and
a demand for discovery. (Docket Entries Nos. 5, 6, 7).
{¶28} By Journal Entry filed May 16, 2018, Colston’s case was originally
scheduled for a jury trial on July 19, 2018. (Docket Entry No. 11).
{¶29} On July 11, 2018, Colston filed a motion for continuance. (Docket Entry No.
14). The trial court granted the request and continued the trial to September 6, 2018.
(Docket Entry No. 15).
{¶30} On August 16, 2018, Colston filed a second motion for continuance.
(Docket Entry No. 16).
{¶31} On August 27, 2018, Attorney Derek Farmer filed a notice of appearance
as co-counsel for Colston and motion to continue trial date. (Docket Entry No. 19).
{¶32} On August 31, 2018, the trial court granted the request and continued the
trial until September 18, 2018. (Docket Entry No. 30).
{¶33} On September 13, 2018, a bench warrant was issued for Colston. (Docket
Entry No. 42; 45).
Muskingum County, Case No. CT2019-0076 10
{¶34} On September 14, 2018, Colston filed a third motion for continuance of the
trial date. (Docket Entry No. 44). Among the reasons given by Colston for requesting the
continuance was that he needed time to locate the other person shown in the video
footage taken of the CI’s home during the drug transactions. Motion to Continue Trial
Date, Filed Sept. 14, 2018 at 2-3. (Docket No. 45). Counsel for Colston set forth the
names of seven individuals that they claimed were necessary to locate and interview.
Motion at 3.
{¶35} On September 17, 2018, Colston filed a motion to continue. Counsel for
Colston informed the trial court that he was scheduled to begin a jury trial in the Franklin
County Court of Common Pleas on September 17, 2018. Motion for Continuance, filed
Sept. 17, 2018. (Docket No. 48).
{¶36} On October 18, 2018, the trial court continued the trial date previously set
for September 18, 2018 to December 18, 2018. (Docket Entry No. 58).
{¶37} On December 13, 2018, Colston filed a fourth motion for continuance
combined with a Motion to appoint an Investigator, and Motion to Appoint Counsel, or in
the alternative, permit Colston’s co-counsel to withdraw.(Docket No. 70). The state also
filed for a continuance when its witness suffered a medical emergency that week. (Docket
Entry No. 73).
{¶38} The trial court granted the motion and the trial was continued until March 5,
2019. Docket No. 77). The trial court granted co-counsel’s motion to withdraw and denied
Colston’s request to appoint an investigator. (Docket No. 75).
{¶39} On February 27, 2019, Colston filed a fifth motion for continuance. (Docket
No. 85). Colston had filed a motion to compel the state to provide addresses of the other
Muskingum County, Case No. CT2019-0076 11
individuals seen in the video footage. (1T. at 7). The state responded that it did not
possess any addresses and was not intending to call any of the individuals to testify at
trial. (1T. at 7; 9-11). The trial court denied the motion noting that the motion to continue
was filed four days before trial. (1T. at 8).
{¶40} Among the factors to be considered by the court in determining whether the
continuance was properly denied are: (1) the length of the requested delay, (2) whether
other continuances had been requested and granted, (3) the convenience or
inconvenience to the parties, witnesses, counsel and court, (4) whether the delay was for
legitimate reasons or whether it was “dilatory, purposeful or contrived”, (5) whether the
defendant contributed to the circumstances giving rise to the request, (6) whether denying
the continuance will result in an identifiable prejudice to the defendant's case, and (7) the
complexity of the case. Powell v. Collins, 332 F.3d 376, 396(6th Cir.2003); State v. Unger,
67 Ohio St.2d 65, 67–68, 423 N.E.2d 1078, 1080(1981); State v. Wheat, 5th Dist. No.
2003-CA-00057, 2004–Ohio–2088, at ¶ 17.
{¶41} In Wheat, supra, the appellant argued that the trial court erred when it failed
to continue his trial to secure witnesses he had subpoenaed. This court found no abuse
of discretion because the request for a continuance did not demonstrate the amount of
time necessary to secure the attendance of the witnesses, or the nature of their testimony.
2004–Ohio–2088 at ¶21. Citing State v. Brooks, 44 Ohio St.3d 185, 542 N.E.2d
636(1989), we held that because defense counsel failed to proffer what the desired
testimony of the absent witnesses would have been and how it was relevant to the
defense, we could not find prejudice from the denial of the motion to continue. Id. at ¶ 22–
24, 542 N.E.2d 636.
Muskingum County, Case No. CT2019-0076 12
{¶42} “When the reason for a continuance is to secure the attendance of a
witness, ‘it is incumbent upon the moving party to show that such witnesses would have
given substantial favorable evidence and that they were available and willing to testify.’”
State v. Komadina, 9th Dist. No. 02CA008104, 2003–Ohio–1800, ¶32, quoting State v.
Mills, 5th Dist. No. 01–COA–01444, 2002–Ohio–5556. Because Colston’s counsel did not
make a timely proffer of any anticipated testimony, the trial court could not have known
how or why said testimony was vital to Colston’s defense when it denied the continuance.
State v. Snowden, 49 Ohio App.2d 7, 17, 359 N.E.2d 87(1st Dist. 1976) (not an abuse of
discretion to deny continuance due to absence of purportedly “critical defense witness”
where no proffer made of witness' anticipated testimony at the time of decision). In the
case at bar, the trial court was not told the nature of any witness’s testimony or the length
of time it would take to produce any witness.
{¶43} Given that the trial court was never specifically advised as to the purported
content of any purported witness’s testimony, we do not have anything by way of evidence
by which to demonstrate that Colston was prejudiced by the failure to present testimony
during his trial. Further, the state presented audio and video evidence, still pictures, the
testimony of the CI and Detective Wilhite to prove that Colston exchanged cocaine for
money. No explanation, facts, or details has been suggested by Colston as to what
evidence, facts, or support any of the other individuals seen in the video footage could
have provided that would have exculpated Colston. Further Colston had been aware of
the names of the individuals from at least September 14, 2018.
{¶44} Colston’s First Assignment of Error is overruled.
II.
Muskingum County, Case No. CT2019-0076 13
{¶45} In his Second Assignment of Error, Colston argues the trial court erred by
requiring him to show his tattoos in front of the jury thereby violating his right against self-
incrimination.
2.1 Standard of Appellate Review.
{¶46} “[A] trial court is vested with broad discretion in determining the admissibility
of evidence in any particular case, so long as such discretion is exercised in line with the
rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d
1056 (1991). “‘When a court’s judgment is based on an erroneous interpretation of the
law, an abuse-of-discretion standard is not appropriate. See Swartzentruber v. Orrville
Grace Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6;
Huntsman v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL
2572598, ¶ 50.’ Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496,
909 N.E.2d 1237, ¶ 13.” State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d
440, ¶6.
{¶47} Colston frames the evidentiary issue as a violation of a constitutional right.
We review de novo evidentiary rulings that implicate the Constitution. See, State v.
McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶97 (Confrontation
Clause); See also, United States v. Blackwell, 459 F.3d 739, 752 (6th Cir. 2006) (noting
that the abuse of discretion standard generally applicable to a district court’s evidentiary
rulings is not at odds with de novo review of constitutional questions because district
courts do “not have the discretion to rest [their] evidentiary decisions on incorrect
interpretations of the Constitution”).
Muskingum County, Case No. CT2019-0076 14
{¶48} However, insofar as factual issues must be determined by the trial court as
a predicate to resolving the legal question of the privilege against self-incrimination, such
factual determinations should be accorded deference. MA Equip. Leasing I, LLC v. Tilton,
10th Dist., 2012-Ohio-4668, 980 N.E.2d 1072, ¶ 18; Block Communications, Inc. v.
Pounds, 2015-Ohio-2679, 34 N.E.3d 984, ¶ 44; Hurt v. Liberty Township, Delaware
County, OH, 5th Dist. Delaware No. 17 CAI 05 0031, 2017-Ohio-7820, ¶ 32.
2.2 Issue for Appellate Review: Whether having Colston roll up his right sleeve
and display his arm and hand tattoos to the jury violated Colston’s right to be free from
compelled self-incrimination.
{¶49} During the re-direct of Detective Wilhite, the state requested that Colston,
who did not testify during his trial, display his hand and arm tattoos. 2T. at 266-267. The
trial judge order Colston to step up toward the jury, roll up his right sleeve and display his
tattoos. 2T. at 267. Colston argues that this violated his right against self-incrimination.
[Appellant’s brief at 5].
{¶50} The Fifth Amendment to the United States Constitution provides in part that
no person “shall be compelled in any criminal case to be a witness against himself.” U.S.
Const. Amend. V. The right against self-incrimination bars only “compelled incriminating
communications...that are ‘testimonial’ in character.” United States v. Hubbell, 530 U.S.
27, 34, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000). Put differently, to qualify for protection
under the Fifth Amendment, a statement or other communication must be: (1) testimonial;
(2) incriminating; and (3) compelled. Hiibel v. Sixth Judicial Dist. Ct., 542 U.S. 177, 189,
124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). “The prohibition of compelling a man in a
criminal court to be a witness against himself is a prohibition of the use of physical or
Muskingum County, Case No. CT2019-0076 15
moral compulsion to extort communications from him, not an exclusion of his body as
evidence when it may be material.” Schmerber v. California, 384 U.S. 757, 763, 86 S.Ct.
1826, 16 L.Ed.2d 908 (1966) (quoting Holt v. United States, 218 U.S. 245, 252–53, 31
S.Ct. 2, 54 L.Ed. 1021 (1910)).
{¶51} The sole support that Colston’s cites to support his contention is State v.
Naylor, 70 Ohio App.2d 233, 436 N.E.2d 539(9th Dist. 1980). We find Naylor to be
inapposite because it involved an in-court voice identification which took place in the
presence of the jury. The court in Naylor noted that Naylor was required to repeat the
“emotion-inspiring words used during the commission of the crimes” and that the
witnesses merely testified that the voice sounded like the voice of one burglar-rapist but
failed to make a positive voice identification. However, in its decision, the court
distinguished cases where the voice identification occurs during trial from those where
the identification is a pre-trial procedure. The court stated that the latter has been upheld
as lawful. State v. Kidd, 8thDist. Cuyahoga No. 47281, 1984 WL 5023 (Mar 29, 1984) at
*3. This issue was addressed by the United States Supreme Court in United States v.
Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149(1967). The court ruled that requiring
a defendant to speak within hearing distance of witnesses, solely for the purpose of
identifying a voice, does not violate the defendant’s Fifth Amendment right against self-
incrimination.
{¶52} The privilege does not protect a criminal suspect from being compelled to
exhibit physical characteristics for inspection. United States v. Hubbell, 530 U.S. 27, 34-
35, 120 S.Ct. 2037, 147 L.EEd.2d 24(2000). See, also, United States v. Wade, 388 U.S.
218, 221-23 (1967) (lineup; voice recording); Schmerber v. California, 384 U.S. 757, 760-
Muskingum County, Case No. CT2019-0076 16
65, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (blood-alcohol test); Holt v. United States, 218
U.S. 245, 252-53, 31 S.Ct. 2, 54 L.Ed. 21 (1910) (putting on clothing used in crime). For
that reason, the Fifth Amendment is not offended where a witness relies on a tattoo to
identify a defendant. United States v. Greer, 631 F.3d 608, 612(2nd Cir. 2011); United
States v. McCarthy, 473 F.2d 300, n.3 (2nd Cir. 1972); United States v. Velasquez, 881
F.3d 314, 338 (5th Cir. 2018); State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735,
70 N.E.3d 508, ¶ 195-196; State v. Buck, 1st Dist. Hamilton No. C-160320, 2017-Ohio-
8242, 100 N.E. 3d 118, ¶111; State v. Doan, 12th Dist. Clinton No. CA97-12-014, 2000
WL 221963, *14 (Feb. 28, 2000).
{¶53} In the case at bar, the CI did not know Colston. 2T. at 290. Detective Wilhite
was able to find booking photographs and tattoo records from law enforcement databases
that matched those he saw in the video. The records identified Colston. Colston’s tattoos
are visible in the video and photographic evidence showing him exchange cocaine for
money with the CI. Colston concedes that showing the tattoos to the jury was for the
purpose of identifying Colston as the person in the video and photographic evidence.
[Appellant’s brief at 5].
{¶54} Showing the tattoos to the jury is analogous to displaying other physical
characteristics of the accused. In this case the tattoo was only used to identify Colston.
Accordingly, in that situation, evidence regarding the identifying tattoo falls outside the
scope of the privilege to be free from compelled self-incrimination.
{¶55} Colston’s Second Assignment of Error is overruled.
III.
Muskingum County, Case No. CT2019-0076 17
{¶56} In the case at bar, Colston contends that the prosecution alleged that
Colston participated in two drug transactions on two separate days. However, the
prosecution only indicted Colston on one count of “complicity”3 to drug trafficking and one
count of engaging in a pattern of corrupt activity based on drug trafficking. In his Third
Assignment of Error, Colston contends that the trial court erred in not instructing the jury
that they must unanimously agree on which transaction or transactions Colston
participated. [Appellant’s Brief at 6-7]. Colston concedes he did not object to the jury
instructions or proffer the trial court a jury instruction on this issue4.
{¶57} Colston does not cite any statutory, case law or learned treaties from this or
any other jurisdiction to support his argument. Accordingly, Colston’s brief does not
comply with App.R. (A)(7), which provides,
The appellant shall include in its brief, under the headings and in the
order indicated, all of the following: * * * An argument containing the
contentions of the appellant with respect to each assignment of error
presented for review and the reasons in support of the contentions, with
citations to the authorities, statutes, and parts of the record on which
appellant relies. The argument may be preceded by a summary.
{¶58} “If an argument exists that can support [an] assignment of error, it is not
this court's duty to root it out.” Thomas v. Harmon, 4th Dist. Lawrence No. 08CA17, 2009-
Ohio-3299, at ¶14, quoting State v. Carman, 8th Dist. Cuyahoga No. 90512, 2008-Ohio-
3 Colston incorrectly refers to his conviction in Count 1 of the Indictment as “complicity” when in
fact Colston was indicted and convicted of Conspiracy to trafficking in cocaine pursuant to R.C. 2923.01.
See, Appellant’s Brief at 6.
4 Nor does he assign as error on appeal that trial counsel was ineffective in failing to raise this issue
in the trial court.
Muskingum County, Case No. CT2019-0076 18
4368, at ¶31. “It is not the function of this court to construct a foundation for [an
appellant's] claims; failure to comply with the rules governing practice in the appellate
courts is a tactic which is ordinarily fatal.” Catanzarite v. Boswell, 9th Dist. Summit No.
24184, 2009-Ohio-1211, at ¶16, quoting Kremer v. Cox, 114 Ohio App.3d 41, 60, 682
N.E.2d 1006(9th Dist. 1996). Therefore, “[w]e may disregard any assignment of error that
fails to present any citations to case law or statutes in support of its assertions.” Frye v.
Holzer Clinic, Inc., 4th Dist. Gallia No. 07CA4, 2008-Ohio-2194, at ¶12. See, also, App.R.
16(A)(7); App.R. 12(A)(2); Albright v. Albright, 4th Dist. Lawrence No. 06CA35, 2007-
Ohio-3709, at ¶16; Tally v. Patrick, 11th Dist. Trumbull No. 2008-T-0072, 2009-Ohio-
1831, at ¶21-22; Jarvis v. Stone, 9th Dist. Summit No. 23904, 2008-Ohio-3313, at ¶23;
State v. Paulsen, 4th Dist. Hocking Nos. 09CA15, 09CA16, 2010-Ohio-806, ¶6; State v.
Norman, 5th Dist. Guernsey No. 2010-CA-22, 2011-Ohio-596, ¶29; State v. Untied, 5th
Dist. Muskingum No. CT20060005, 2007 WL 1122731, ¶141.
{¶59} An appellate court may rely upon App.R. 12(A) in overruling or disregarding
an assignment of error because of "the lack of briefing" on the assignment of error.
Hawley v. Ritley, 35 Ohio St.3d 157, 159, 519 N.E.2d 390, 392-393(1988); Abon, Ltd. v.
Transcontinental Ins. Co., 5th Dist. Richland No. 2004-CA-0029, 2005 WL 1414486,
¶100; State v. Miller, 5th Dist. Ashland No. 04-COA-003, 2004-Ohio-4636, ¶41. "Errors
not treated in the brief will be regarded as having been abandoned by the party who gave
them birth.” Uncapher v. Baltimore & Ohio Rd. Co., 127 Ohio St. 351, 356, 188 N.E. 553,
555(1933).
{¶60} In the interests of justice we will proceed to consider this assignment of
error.
Muskingum County, Case No. CT2019-0076 19
3.1 Standard of Appellate Review.
{¶61} In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d
35(1999) the United States Supreme Court held that because the failure to properly
instruct the jury is not in most instances structural error, the harmless-error rule of
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 applies to a failure to
properly instruct the jury, for it does not necessarily render a trial fundamentally unfair or
an unreliable vehicle for determining guilt or innocence.
{¶62} Crim.R. 52(B) provides that, “[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.” “Notice
of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53
Ohio St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus. In order to find
plain error under Crim.R. 52(B), it must be determined, but for the error, the outcome of
the trial clearly would have been otherwise. Id. at paragraph two of the syllabus. The
defendant bears the burden of demonstrating that a plain error affected his substantial
rights. United States v. Olano, 507 U.S. at 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d
308(1993); State v. Perry, 101 Ohio St.3d 118, 120 802 N.E.2d 643, 646(2004). Even if
the defendant satisfies this burden, an appellate court has discretion to disregard the error
and should correct it only to ‘prevent a manifest miscarriage of justice.’” State v. Barnes,
94 Ohio St.3d 21, 27, 759 N.E.2d 1240(2002), quoting State v. Long, 53 Ohio St.2d 91,
372 N.E.2d 804(1978), paragraph three of the syllabus. Perry, supra, at 118, 802 N.E.2d
at 646.
Muskingum County, Case No. CT2019-0076 20
{¶63} An erroneous jury instruction does not constitute plain error unless, but for
the error, the outcome of the trial clearly would have been otherwise. State v.
Cunningham, 105 Ohio St.3d 197, 824 N.E.2d 504, 2004–Ohio–7007, ¶ 56. See, also,
State v. Adams, 62 Ohio St.2d 151, 154, 404 N.E.2d 144(1980) (holding that a trial court’s
failure to specifically charge the jury on every element of an offense is not per se plain
error, but could result in plain error if the failure substantially prejudiced the defendant).
Appellate courts notice plain error “‘with the utmost caution, under exceptional
circumstances [,] and only to prevent a manifest miscarriage of justice.’” State v. Barnes,
94 Ohio St.3d 21, 27, 759 N.E.2d 1240, 2002–Ohio–68, quoting State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus.
3.2 Issue for Appellate Review: Whether the trial court committed a manifest
miscarriage of justice by failing to specifically instruct the jury that they must unanimously
agree on the same specific incident of conspiracy to trafficking in cocaine and engaging
in a pattern of corrupt activity of trafficking in cocaine.
{¶64} In the case at bar, the jury unanimously convicted Colston of conspiracy to
drug trafficking as well as engaging in a pattern of corrupt activity. The jury also found
that the offenses pertained to trafficking cocaine in an amount greater than 100 grams.
{¶65} In the case at bar, the trial court instructed the jury:
One or more of the offenses I have defined for you provide alternative
ways of committing the crime. For example, conspiracy to traffic in drugs
can be committed by the planning of trafficking in drugs, or by facilitating
the trafficking in drugs. Before you can find the Defendant guilty of an
offense involving alternative ways of commission, you must all agree that at
Muskingum County, Case No. CT2019-0076 21
least one of the alternatives has been proven beyond a reasonable doubt.
However, you need not be unanimous as to which alternative is established
beyond a reasonable doubt.
2T. at 403. The trial court’s instructions to the jury taken as a whole correctly stated the
law. We have reviewed the record of this case and find the evidence of Colston’s guilt
to be substantial. We find the trial court’s instruction did not rise to level of plain error
because the outcome of the trial would not have been otherwise absent the instruction.
See, State v. Broucker, 5th Dist. Stark No. 2007CA00315, 2008–Ohio–2946, ¶ 38.
{¶66} Evidence was presented that on two occasions the CI arranged to purchase
specific amounts of cocaine from Claytor. The pair arranged the price, amount and
location for the transaction. Colston arrived on both occasions to deliver the cocaine and
collect the money. Video and photographic evidence was submitted to corroborate the
fact that Colston exchanged cocaine for money on both occasions.
{¶67} We decline to find plain error in the trial court’s jury instructions because no
manifest miscarriage of justice occurred.
{¶68} Colston’s Third Assignment of Error is overruled.
IV.
{¶69} In his Fourth Assignment of Error, Colston argues that the trial court erred
in giving the jury an instruction on flight from the jurisdiction. Colston did object to the
instruction on the record.
4.1 Standard of Appellate Review.
{¶70} “[A]fter arguments are completed, a trial court must fully and completely give
the jury all instructions which are relevant and necessary for the jury to weigh the evidence
Muskingum County, Case No. CT2019-0076 22
and discharge its duty as the fact finder.” State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d
640(1990), paragraph two of the syllabus.
{¶71} In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d
25(1999), the United State Supreme Court held that because the failure to properly
instruct the jury is not in most instances structural error, the harmless-error rule of
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705(1967) applies to a
failure to properly instruct the jury, for it does not necessarily render a trial fundamentally
unfair or an unreliable vehicle for determining guilt or innocence.
{¶72} It is well established that evidence of flight is admissible, as it tends to show
consciousness of guilt. Sibron v. New York, 392 U.S. 40, 66, 88 S.Ct. 1889, 20 L.Ed.2d
917(1967). Further, a jury instruction on flight is appropriate if there is sufficient evidence
in the record to support the charge. See United States v. Dillon, 870 F.2d 1125(6th
Cir.1989). The decision whether to issue a flight instruction rests within the sound
discretion of the trial court and will not be reversed absent an abuse of discretion. State
v. Sims, 13 Ohio App.3d 287, 289, 469 N.E.2d 554(1st Dist.1984). Abuse of discretion
requires more than simply an error in judgment; it implies unreasonable, arbitrary, or
unconscionable conduct by the court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,
450 N.E.2d 1140(1983).
{¶73} “Harmless error is ‘[a]ny error, defect, irregularity, or variance which does
not affect substantial rights’ and ‘shall be disregarded.’ ” State v. Wolford, 10th Dist.
Franklin No. 19AP-284, 2020-Ohio-888, ¶ 10, quoting Crim.R. 52(A). “Overcoming
harmless error requires a showing of undue prejudice or a violation of a substantial right.”
Id., quoting State v. Koss, 10th Dist. Franklin No. 13AP-970, 2014-Ohio-5042, ¶ 41; In re
Muskingum County, Case No. CT2019-0076 23
P.T., 9th Dist. Summit No. 24207, 2008-Ohio-4690, ¶ 17. “Reviewing courts normally
disregard trial errors that are harmless.” O’Neal v. McAninch, 513 U.S. 432, 434, 115
S.Ct. 992, 130 L.Ed.2d 947 (1995).
4.2 Issue for Appellate Review: Whether but for the instruction on flight, the
verdict would have been different.
{¶74} Evidence was presented that on two occasions the CI arranged to purchase
specific amounts of cocaine from Claytor. The pair arranged the price, amount and
location for the transaction. Colston arrived on both occasions to deliver the cocaine and
collect the money. Video and photographic evidence was submitted to corroborate the
fact that Colston exchanged cocaine for money on both occasions.
{¶75} It appears “beyond a reasonable doubt that the jury instruction on “flight”
did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24, 87
S.Ct. 824, 17 L.Ed .2d 705 (1967); see Delaware v. Van Arsdall, 475 U.S. 673, 681, 106
S.Ct. 1431, 89 L.Ed.2d 674 (1986) (“[A]n otherwise valid conviction should not be set
aside if the reviewing court may confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable doubt”).
{¶76} Thus we find that even if it was error to instruct the jury on flight was error,
we would conclude that it was harmless error beyond a reasonable doubt.
{¶77} Colston’s Fourth Assignment of Error is overruled.
V. & VI.
{¶78} In his Fifth Assignment of Error, Colston argues that there is insufficient
evidence to support his convictions for conspiracy to trafficking in cocaine and engaging
Muskingum County, Case No. CT2019-0076 24
in a pattern of corrupt activity. In his Sixth Assignment of Error, Colston contends that his
convictions are against the manifest weight of the evidence.
5.1 Standard of Appellate Review – Sufficiency of the Evidence.
{¶79} The Sixth Amendment provides: “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in
conjunction with the Due Process Clause, requires that each of the material elements of
a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570
U.S. __, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616,
621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a
question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409,
2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements
of the charged offense and a review of the state's evidence.” State v. Richardson, 150
Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.
{¶80} When reviewing the sufficiency of the evidence, an appellate court does not
ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus; Walker, ¶30. “The relevant inquiry 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.” Jenks at paragraph two of the syllabus. State v. Poutney, 153 Ohio
St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency
we do not second-guess the jury's credibility determinations; rather, we ask whether, ‘if
believed, [the evidence] would convince the average mind of the defendant's guilt beyond
a reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001),
Muskingum County, Case No. CT2019-0076 25
quoting Jenks at paragraph two of the syllabus; Walker, ¶31. We will not “disturb a verdict
on appeal on sufficiency grounds unless ‘reasonable minds could not reach the
conclusion reached by the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-
5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d
1096 (1997); State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180,
¶74.
5.2 Issue for Appeal: Whether, after viewing the evidence in the light most
favorable to the prosecution, the evidence, if believed, would convince the average mind
of Colston’s guilt on each element of the crimes for which he was convicted beyond a
reasonable doubt.
{¶81} Specifically, Colston argues that “there is insufficient evidence that the
drugs obtained from the confidential informant, did, in fact, come from Colston.”
[Appellant’s brief at 10].
5.2.1 Conspiracy.
{¶82} To be convicted of conspiracy to trafficking in cocaine in an amount greater
than 100 grams the jury would need to find beyond a reasonable doubt that Colston,
with purpose to commit or to promote or facilitate the commission
of…a felony drug trafficking, manufacturing, processing, or possession
offense…
(1) With another person or persons, plan or aid in planning the
commission of any of the specified offenses;
Muskingum County, Case No. CT2019-0076 26
(2) Agree with another person or persons that one or more of them
will engage in conduct that facilitates the commission of any of the specified
offenses.
(B) No person shall be convicted of conspiracy unless a substantial
overt act in furtherance of the conspiracy is alleged and proved to have
been done by the accused or a person with whom the accused conspired,
subsequent to the accused’s entrance into the conspiracy. For purposes of
this section, an overt act is substantial when it is of a character that
manifests a purpose on the part of the actor that the object of the conspiracy
should be completed.
R.C. 2923.01. Trafficking in cocaine in Colston’s case is defined as, knowingly sell or
offer to sell cocaine in an amount equaling 100 grams. R.C. 2925.03(A)(1)(C)(4)(g).
{¶83} In the case at bar, the CI testified that he would telephone Claytor. The CI
and Claytor would discuss the amount, price, and where the exchange would occur. At
the scheduled time and place Colston would arrive with the agreed to amount of cocaine
and would ask for the agreed upon amount of money. Colston’s tattoos are visible in the
video and photographic evidence showing him exchange cocaine for money with the CI.
Detective Wilhite corroborated the CI’s testimony. Video and photographic evidence was
presented showing Colston exchange cocaine and discussing possible future drug
transactions with the CI. 1T. at 188-189; 207.
{¶84} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Colston conspired with Claytor to sell cocaine in a greater than 100 grams. We hold,
Muskingum County, Case No. CT2019-0076 27
therefore, that the state met its burden of production regarding each element of the crimes
of conspiracy to trafficking in cocaine and, accordingly, there was sufficient evidence to
support Colston’s conviction.
5.2.2. Engaging in a Pattern of Corrupt Activity.
{¶85} R.C. 2923.32(A) (1), provides “No person employed by, or associated with,
any enterprise shall conduct or participate in, directly or indirectly, the affairs of the
enterprise through a pattern of corrupt activity or the collection of an unlawful debt.”
“Enterprise” is defined as including,
Any individual, sole proprietorship, partnership, limited partnership,
corporation, trust, union, government agency, or other legal entity, or any
organization, association, or group of persons associated in fact although
not a legal entity. “Enterprise” includes illicit as well as licit enterprises.
R.C. 2923.31(C). As the Ohio Supreme Court has observed,
A RICO offense is dependent upon a defendant committing two or
more predicate offenses listed in R.C. 2923.31(I). However, a RICO offense
also requires a defendant to be “employed by, or associated with” an
“enterprise” and to “conduct or participate in” an “enterprise through a
pattern of corrupt activity.” R.C. 2923.32(A)(1). “Such pattern must include
both a relationship and continuous activity, as well as proof of the existence
of an enterprise. Thus, the conduct required to commit a RICO violation is
independent of the conduct required to commit [the underlying predicate
offenses].” State v. Dudas, 11th Dist. Lake Nos. 2008–L–109 and 2008–L–
110, 2009-Ohio-1001, ¶ 46. * * * The intent of RICO is “‘to criminalize the
Muskingum County, Case No. CT2019-0076 28
pattern of criminal activity, not the underlying predicate acts.’ ” State v.
Thomas, 3d Dist. Allen Nos. 1–11–25 and 1–11–26, 2012-Ohio-5577, ¶ 61,
quoting State v. Dodson, 12th Dist. Butler No. 2009–07–1147, 2011-Ohio-
6222, ¶ 68.
State v. Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d 603, ¶ 13. The Supreme
Court of Ohio has emphasized, “merely committing successive or related crimes is not
sufficient to” prove there was a pattern of corrupt activity. State v. Schlosser, 79 Ohio
St.3d 329, 333, 681 N.E.2d 911 (1997).
{¶86} Pursuant to R.C. 2923.31(E), “ ‘[p]attern of corrupt activity’ means two or
more incidents of corrupt activity * * * that are related to the affairs of the same enterprise,
are not isolated, and are not so closely related to each other and connected in time and
place that they constitute a single event.” R.C. 2923.32 requires that the defendant be
“associated” with an “enterprise.” R.C. 2923.32(A)(1); State v. Sparks, 12th Dist., 2014-
Ohio-1130, 10 N.E.3d 755, ¶ 19, citing State v. Campbell, 5th Dist. No. 07-CA-A-08-0041,
2008-Ohio-2143, ¶23. Under R.C. 2923.31(C), “ ‘[e]nterprise’ includes any individual,
sole proprietorship, partnership, limited partnership, corporation, trust, union, government
agency, or other legal entity, or any organization, association, or group of persons
associated in fact although not a legal entity.” The state has “to prove that each defendant
was voluntarily connected to the pattern [of corrupt activity comprising the enterprise],
and performed two or more acts in furtherance of it.” State v. Sieferd, 151 Ohio App.3d
103, 783 N.E.2d 591, 2002-Ohio-6801, ¶ 43, quoting State v. Schlosser, 79 Ohio St.3d
329, 334, 681 N.E.2d 911 (1997).
{¶87} In State v. Groce, the 10th District Court of Appeals observed,
Muskingum County, Case No. CT2019-0076 29
In Boyle v. United States, 556 U.S. 938, 129 S.Ct. 2237, 173 L.Ed.2d
1265 (2009), the United States Supreme Court set forth a test for
determining when there is an association-in-fact enterprise. Appellate
courts of this state have concluded the Boyle test applies to the definition of
enterprise utilized in R.C. 2923.31(C). See State v. Dodson, 12th Dist. No.
CA2010-08-191, 2011-Ohio-6222, 2011 WL 6017950, ¶ 20; State v.
Yavorcik, 8th Dist., 2018-Ohio-1824, 113 N.E.3d 100, ¶ 80; State v.
Christian, 2d Dist. No. 25256, 2016-Ohio-516, 56 N.E.3d 391, ¶ 26; State
v. Kozic, 7th Dist. No. 11 MA 135, 2014-Ohio-3807, 2014 WL 4347618, ¶
105-07; State v. Birdsong, 11th Dist. No. 2013-L-003, 2014-Ohio-1353,
2014 WL 1348846, ¶ 46. Under the Boyle test, “an association-in-fact
enterprise must have at least three structural features: a purpose,
relationships among those associated with the enterprise, and longevity
sufficient to permit these associates to pursue the enterprise’s purpose.”
Boyle at 946, 129 S.Ct. 2237.
10th Dist. Franklin No. 18AP-51, 2019-Ohio-007, ¶ 21. “The existence of an enterprise,
sufficient to sustain a conviction for engaging in a pattern of corrupt activity under R.C.
2923.32(A)(1), can be established without proving that the enterprise is a structure
separate and distinct from a pattern of corrupt activity.” State v. Beverly, 143 Ohio St.3d
258, 2015-Ohio-219, 37 N.E.3d 116, syllabus.
{¶88} In the case at bar, the “purpose” of the criminal enterprise was to sell
cocaine. An “association-in-fact enterprise is a ‘group of persons associated together for
a common purpose of engaging in a course of conduct.’ ” Boyle v. United States, 556
Muskingum County, Case No. CT2019-0076 30
U.S. 938, 946, 129 S.Ct. 2237 (2009), quoting United States v. Turkette, 452 U.S. 576,
583, 101 S.Ct. 2524 (1981). In the case at bar, Claytor set-up the sale of cocaine to the
CI on September 9, 2016 and September 15, 2016. Colston arrived on each occasion
with the cocaine, which he exchanged for money with the CI. On September 15, 2016,
Claytor telephoned the CI while in Colston’s car to discuss a discrepancy in price. 1T. at
204-205. Detective Wilhite was able to pull alongside Colston’s car while it was at a red
light.
{¶89} Accordingly, in the case at bar, the pattern of corrupt activity under R.C.
2923.32(A)(1) included both a relationship and continuous activity, as well as proof of the
existence of an enterprise.
{¶90} Viewing the evidence in the case at bar in a light most favorable to the
prosecution, we conclude that a reasonable person could have found beyond a
reasonable doubt that Colston committed the crime of engaging in a pattern of corrupt
activity as alleged in the Indictment. We hold, therefore, that the state met its burden of
production regarding each element of the crime of engaging in a pattern of corrupt activity
as alleged in the Indictment and, accordingly, there was sufficient evidence to submit the
charge to the jury and to support Colston’s’ conviction.
6.1 Standard of Appellate Review – Manifest Weight.
{¶91} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,
678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as
Muskingum County, Case No. CT2019-0076 31
stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.
Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with
the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶92} The reviewing court must bear in mind, however, that credibility generally is
an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d
904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.
Because the trier of fact sees and hears the witnesses and is particularly competent to
decide whether, and to what extent, to credit the testimony of particular witnesses, the
appellate court must afford substantial deference to its determinations of credibility.
Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In
other words, “[w]hen there exist two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province to
choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–
Muskingum County, Case No. CT2019-0076 32
Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th
Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the
evidence to the fact finder, as long as a rational basis exists in the record for its decision.
State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.
{¶93} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “ ‘the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional
case in which the evidence weighs heavily against the conviction.” Id.
6.2. Issue for Appellate Review: Whether the jury clearly lost their way and
created such a manifest miscarriage of justice that the convictions must be reversed and
a new trial ordered.
{¶94} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. “While the trier of
fact may take note of the inconsistencies and resolve or discount them accordingly * * *
such inconsistencies do not render defendant’s conviction against the manifest weight or
sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996
WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’
testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin
No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197
Muskingum County, Case No. CT2019-0076 33
N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,
citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although
the evidence may have been circumstantial, we note that circumstantial evidence has the
same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574
N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
684 N.E.2d 668 (1997).
{¶95} In the case at bar, the jury heard the witnesses and viewed the evidence.
The jury saw the CI and Detective Wilhite subject to cross-examination. The jury was also
able to see the events in real time via video, audio and photographic evidence. The jurors
were able to view Colston’s tattoos. The jury heard Colston’s attorney’s arguments and
explanations about the CI’s credibility, his actions, and the lack of view available to the
undercover law enforcement officers who were monitoring the transactions. Thus, a
rational basis exists in the record for the jury’s decision.
{¶96} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678
N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon
the foregoing and the entire record in this matter we find Colston’s convictions are not
against the sufficiency or the manifest weight of the evidence. To the contrary, the jury
appears to have fairly and impartially decided the matters before them. The jury heard
the witnesses, evaluated the evidence, and was convinced of Colston’s guilt. The jury
neither lost his way nor created a miscarriage of justice in convicting Colston of the
offenses.
Muskingum County, Case No. CT2019-0076 34
{¶97} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crimes for which Colston was convicted.
{¶98} Colston’s Fifth and Sixth Assignments of Error are overruled.
VII.
{¶99} In his Seventh Assignment of Error, Colston argues the trial court lacked
authority to find that he was a major drug offender. Specifically, Colston maintains R.C.
2941.141 is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000) because it requires judicial fact-finding that increases a
defendant's mandatory minimum sentence.
{¶100} Because Colston did not raise this issue in the trial court, we are limited to
reviewing his contention for plain error. In re M.D., 38 Ohio St.3d 149, 151, 527 N.E.2d
286(1988).
7.1. Standard of Appellate Review.
{¶101} Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain errors or
defects affecting substantial rights” notwithstanding an accused’s failure to meet his
obligation to bring those errors to the attention of the trial court. However, the accused
bears the burden to demonstrate plain error on the record, State v. Quarterman, 140 Ohio
St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a
deviation from a legal rule” that constitutes “an ‘obvious’ defect in the trial proceedings,”
State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).
{¶102} Even if the error is obvious, it must have affected substantial rights, and
“[w]e have interpreted this aspect of the rule to mean that the trial court’s error must have
Muskingum County, Case No. CT2019-0076 35
affected the outcome of the trial.” Id. The Ohio Supreme Court recently clarified in State
v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, that the accused is
“required to demonstrate a reasonable probability that the error resulted in prejudice—
the same deferential standard for reviewing ineffective assistance of counsel claims.” Id.
at ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74, 81–83, 124 S.Ct. 2333,
159 L.Ed.2d 157 (2004). Accord, State v. Thomas, ___ Ohio St.3d ___, 2017-Ohio-8011,
___N.E.3d ____ (Oct. 4, 2017), ¶32-34.
{¶103} If the accused shows that the trial court committed plain error affecting the
outcome of the proceeding, an appellate court is not required to correct it; the Supreme
Court has “admonish[ed] courts to notice plain error ‘with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.’” Barnes
at 27, 759 N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus. Accord, State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-
8011, 92 N.E.3d 821, ¶32-34.
7.2 Issue for Appellate Review: Whether the trial court increased the penalty for
Colston’s crimes beyond the statutory maximum based upon facts not found by the jury.
{¶104} R.C. 2929.01 provides,
(W) “Major drug offender” means an offender who is convicted of or
pleads guilty to the possession of, sale of, or offer to sell any drug,
compound, mixture, preparation, or substance that consists of or contains
at least one thousand grams of hashish; at least one hundred grams of
cocaine; at least one thousand unit doses or one hundred grams of heroin;
at least five thousand unit doses of L.S.D. or five hundred grams of L.S.D.
Muskingum County, Case No. CT2019-0076 36
in a liquid concentrate, liquid extract, or liquid distillate form; at least fifty
grams of a controlled substance analog; at least one thousand unit doses
or one hundred grams of a fentanyl-related compound; or at least one
hundred times the amount of any other schedule I or II controlled substance
other than marihuana that is necessary to commit a felony of the third
degree pursuant to section 2925.03, 2925.04, 2925.05, or 2925.11 of the
Revised Code that is based on the possession of, sale of, or offer to sell the
controlled substance. (Emphasis added).
{¶105} R.C. 2941.1410, provides, in relevant part,
(A) Except as provided in sections 2925.03 and 2925.11 and division
(E)(1) of section 2925.05 of the Revised Code, the determination by a court
that an offender is a major drug offender is precluded unless the indictment,
count in the indictment, or information charging the offender specifies that
the offender is a major drug offender. The specification shall be stated at
the end of the body of the indictment, count, or information, and shall be
stated in substantially the following form:
“SPECIFICATION (or, SPECIFICATION TO THE FIRST COUNT).
The Grand Jurors (or insert the person’s or prosecuting attorney’s name
when appropriate) further find and specify that (set forth that the offender is
a major drug offender).”
***
(C) The court shall determine the issue of whether an offender is a
major drug offender.
Muskingum County, Case No. CT2019-0076 37
(D) As used in this section, “major drug offender” has the same
meaning as in section 2929.01 of the Revised Code. (Emphasis added.
{¶106} R.C. 2925.03(A)(1)(C), Trafficking Offenses, provides, in relevant part,
(4) If the drug involved in the violation is cocaine or a compound,
mixture, preparation, or substance containing cocaine, whoever violates
division (A) of this section is guilty of trafficking in cocaine. The penalty for
the offense shall be determined as follows:
***
(g) If the amount of the drug involved equals or exceeds one hundred
grams of cocaine and regardless of whether the offense was committed in
the vicinity of a school or in the vicinity of a juvenile, trafficking in cocaine is
a felony of the first degree, the offender is a major drug offender, and the
court shall impose as a mandatory prison term a maximum first degree
felony mandatory prison term.
{¶107} In United States v. Haymond, the United States Supreme Court observed,
In Apprendi, [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435(2000)] for example, a jury convicted the defendant of a gun
crime that carried a maximum prison sentence of 10 years. But then a judge
sought to impose a longer sentence pursuant to a statute that authorized
him to do so if he found, by a preponderance of the evidence, that the
defendant had committed the crime with racial bias. Apprendi held this
scheme unconstitutional. “[A]ny fact that increases the penalty for a crime
beyond the prescribed statutory maximum,” this Court explained, “must be
Muskingum County, Case No. CT2019-0076 38
submitted to a jury, and proved beyond a reasonable doubt” or admitted by
the defendant. 530 U. S., at 490. Nor may a State evade this traditional
restraint on the judicial power by simply calling the process of finding new
facts and imposing a new punishment a judicial “sentencing enhancement.”
Id., at 495. “[T]he relevant inquiry is one not of form, but of effect—does the
required [judicial] finding expose the defendant to a greater punishment
than that authorized by the jury’s guilty verdict?” Id., at 494.
__U.S.__, 139 S.Ct. 2369, 204 L.Ed.2d 897(2019).
{¶108} Unlike Apprendi, the jury in the case at bar was instructed that if they found
Colston guilty of conspiracy to trafficking in cocaine and engaging in a pattern of corrupt
activity, they must also decide whether the state proved beyond a reasonable doubt that
the amount of cocaine involved was greater than 100 grams. 2T. at 399; 401. The jury
specifically made this finding on its verdict form. Accordingly, the trial judge did not make
any factual finding. The jury found the facts necessary to sentence Colston as a Major
Drug Offender.
{¶109} R.C. 2941.1410 does not increase the statutory maximum sentence for any
crime based upon facts not submitted to a jury, and proven beyond a reasonable doubt.
State v. Elkins, 148 Ohio App.3d 370, 2002-Ohio-2914, 773 N.E.2d 593, ¶20; State v.
McDermott, 6th Dist. Lucas No. L-03-1110, 2005-Ohio-2095, ¶ 53.
{¶110} Colston’s Seventh Assignment of Error is overruled.
VIII.
Muskingum County, Case No. CT2019-0076 39
{¶111} In his Eight Assignment of Error, Colston challenges the imposition of the
consecutive terms on the ground that the record does not support the imposition of
consecutive sentences.
8.1 Standard of Appellate Review.
{¶112} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 22;
State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31.
{¶113} In State v. Gwynne, a plurality of the Supreme Court of Ohio held that an
appellate court may only review individual felony sentences under R.C. 2929.11 and R.C.
2929.12, while R.C. 2953.08(G)(2) is the exclusive means of appellate review of
consecutive felony sentences. ___ Ohio St.3d ___, 2019-Ohio-4761, ¶16-18; State v.
Anthony, 11th Dist. Lake No. 2019-L-045, 2019-Ohio-5410, ¶60.
{¶114} R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or
vacate a sentence and remand for resentencing where we clearly and convincingly find
that either the record does not support the sentencing court’s findings under R.C.
2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is
otherwise contrary to law. See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–
3177, 16 N.E.2d 659, ¶ 28; State v. Gwynne, ¶16.
{¶115} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the
degree of proof required to sustain an issue must be clear and convincing, a reviewing
Muskingum County, Case No. CT2019-0076 40
court will examine the record to determine whether the trier of facts had sufficient
evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477
120 N.E.2d 118.
{¶116} In the case at bar, Colston does not contest the length of his individual
sentences; rather his arguments center upon the trial court’s decision to make the
sentences consecutive. [Appellant’s brief at 14]. As the Ohio Supreme Court noted in
Gwynne,
Because R.C. 2953.08(G)(2)(a) specifically mentions a sentencing
judge’s findings made under R.C. 2929.14(C)(4) as falling within a court of
appeals’ review, the General Assembly plainly intended R.C.
2953.08(G)(2)(a) to be the exclusive means of appellate review of
consecutive sentences. See State v. Vanzandt, 142 Ohio St.3d 223, 2015-
Ohio-236, 28 N.E.3d 1267, ¶ 7 (“We primarily seek to determine legislative
intent from the plain language of a statute”).
While R.C. 2953.08(G)(2)(a) clearly applies to consecutive-
sentencing review, R.C. 2929.11 and 2929.12 both clearly apply only to
individual sentences.
2019-Ohio-4761, ¶¶16-17(emphasis in original).
{¶117} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry[.]” State v. Bonnell, 140 Ohio St.3d
209, 2014-Ohio-3177, ¶37. Otherwise, the imposition of consecutive sentences is
contrary to law. See Id. The trial court is not required “to give a talismanic incantation of
Muskingum County, Case No. CT2019-0076 41
the words of the statute, provided that the necessary findings can be found in the record
and are incorporated into the sentencing entry.” Id.
{¶118} Colston agrees that the trial judge in his case made the requisite findings to
impose consecutive sentences under R.C. 2929.14(C)(4). [Appellant’s Brief at 14].
8.2 Issue for Appellate Review: Whether the trial court’s decision to impose
consecutive sentences in Colston’s case is supported by the record.
{¶119} According to the Ohio Supreme Court, “the record must contain a basis
upon which a reviewing court can determine that the trial court made the findings required
by R.C. 2929.14(C)(4) before it imposed consecutive sentences.” Bonnell, ¶28. “[A]s
long as the reviewing court can discern that the trial court engaged in the correct analysis
and can determine that the record contains evidence to support the findings, consecutive
sentences should be upheld.” Id. at ¶29. The plurality of the Ohio Supreme Court in
Gwynne held that appellate courts may not review consecutive sentences for compliance
with R.C. 2929.11 and R.C. 2929.12. See 2019-Ohio- 4761, ¶18.
{¶120} Colston’s sole arguments are that the record does not support consecutive
sentences because he did not cause physical harm to others when he committed his
offenses and that the offenses did not involve an egregious amount of drugs. [Appellant’s
brief at 14].
{¶121} The trial court heard arguments made by the parties and reviewed the pre-
sentence investigation. At sentencing, the trial court found:
Upon review of the presentence investigation, the Court would note
that you had a prior conviction with the federal government back in 2003,
served five years and had six years of parole.
Muskingum County, Case No. CT2019-0076 42
There were separate events indicated on the video. These are
separate type of charges in regards to the engaging in a pattern of corrupt
activity, including conspiracy to distribute drugs, but the amount involved
needed to get to this is a hundred grams and that involved the two
transactions actually combined to get to that amount.
Based on the video testimony at the trial, you were delivering for
somebody else. And that's what the court saw. That's what the jury saw. But
you were still participating in the crime.
Sentencing transcript, Sept. 11, 2019 at 6.
{¶122} The record demonstrates and Colston agrees that the trial court made the
findings required in order to impose consecutive sentences. Upon review, we find that the
trial court's sentencing on the charges complies with applicable rules and sentencing
statutes. The sentence was within the statutory sentencing range. Further, the record
contains evidence supporting the trial court’s findings under R.C. 2929.14(C)(4).
Therefore, we have no basis for concluding that it is contrary to law.
{¶123} Colston’s Eighth Assignment of Error is overruled.
Muskingum County, Case No. CT2019-0076 43
{¶124} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur
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Platt v. State
IN THE
TENTH COURT OF APPEALS
No. 10-93-144-CR
ALFRED GERALD PLATT,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Criminal Court at Law No. 2
Harris County, Texas
Trial Court # 9232666
O P I N I O N
Appellant Platt appeals from his conviction for driving while intoxicated, for which he was
sentenced to ninety days in jail, probated, and a $400 fine.
About 2:00 a.m. on July 7, 1992, Appellant was stopped by Officer Gray in the 12400 block
of Memorial Drive. Officer Gray testified Appellant was traveling 53 miles-per-hour; that
Appellant smelled of alcoholic beverage; that Appellant's speech was slurred; that he observed
Appellant had some physical problems; that he gave Appellant a field-sobriety test at the scene that
involved putting one foot in front of the other; that, in his opinion, Appellant failed the test; and
that he took Appellant to the Village Police Department. At the police station a videotape was
made of Appellant performing sobriety tests. Officer Gray testified that seeing the video, he was
of the opinion that Appellant lost the normal use of his mental and physical faculties by reason of
the induction of alcohol into his body.
Officer Gray further testified that Appellant's license plate indicated he was a disabled
veteran; that Appellant told him he had been injured in the Viet Nam war when, as a pilot, he had
been shot down and his plane crashed; that he did not know what was normal for Platt; that when
he placed Platt under arrest he believed Platt had lost normal use of his mental and physical
faculties without knowing what was normal for him; and that seeing Appellant on video, there was
no doubt in his mind that Appellant was intoxicated.
Officer Keys testified he arrived at the scene when Appellant was starting a field-sobriety test;
that Appellant did not pass the test; that, in his opinion, Appellant had lost the normal use of his
physical and mental faculties; that his opinion was based on what a person should be able to do.
He further testified that the next day he learned that Appellant had a problem with his spine and
neck; that this would probably affect Appellant's ability to walk; that he had never asked someone
who was seriously injured, or handicapped, to walk a straight line; that he recalled seeing a cane,
a neck brace or a back brace in Appellant's car; that the brace was an indication Appellant had a
physical disability; and that he did not know of Appellant's handicaps.
Officer Truss testified he was on duty at the Village Police Department when he first saw
Appellant; that he was in the video room when Appellant was being videotaped; that he could
smell alcohol; that Appellant was unsteady on his feet and had slurred speech; that, in his opinion,
Appellant had lost the normal use of his mental and physical faculties; that his opinion was based
"essentially compared to what we consider a normal operation of everybody."
Appellant called four witnesses to testify, plus himself:
Billy Martin (chaplain of the Montgomery County Training Academy, a commissioned police
officer, and a contract teacher for law enforcement agencies and U.S. military units) testified that
he had known Appellant for many years; that he observed the sobriety test administered to
Appellant on the video; that the tests were not proper because of Appellant's injuries; that he had
personal knowledge of Appellant's physical condition; that Appellant uses a cane to walk and uses
pain-reducing electrical equipment called a "TENS unit"; that he had lunch with Appellant on July
6 and that Appellant had two drinks; that he spoke to Appellant around midnight July 6 and
appellant was not intoxicated; that he knows Appellant's normal range of mental and physical
faculties; that he viewed the video and, in his opinion, Appellant had not lost his mental and
physical faculties and was not intoxicated.
James Bradley (special agent for the U.S. Drug Enforcement Administration) testified that he
has known Appellant 20 years; that he knows Appellant's normal, everyday-mental and physical
faculties and is aware of Appellant's physical handicaps; that he viewed the videotape and
Appellant looked 100% normal and was not intoxicated; that he had lunch with Appellant on July
6 and the only difference between Appellant's appearance during lunch and on the videotape was
he looked "a bit tired" in the video.
David Conrad (special agent for 21 years with the U.S. Customs Service) testified that he had
known Appellant since 1973, and has frequent contact with him; that he had lunch with Appellant,
and others, on July 6; that he is familiar with Appellant's drinking habits and that Appellant never
has more than two drinks at a time; that he would be able to determine if Appellant was
intoxicated; that he had seen the videotape and he knows Appellant's normal ranges of physical
and mental ability; that based on such knowledge and what he saw on the videotape, his opinion
was that Appellant had lost no functions. He further testified he is familiar with Appellant's
physical disabilities; that he cannot walk very fast, uses a cane, is in pain frequently, and is
physically impaired, and he has never seen Appellant engage in any activity similar to a field-sobriety test.
Ronald Tonkin (attorney and former Assistant U.S. attorney) testified that he has known
Appellant 20 years; that he had lunch with Appellant, and others, on July 6; that Appellant has
been declared 100% disabled by the United States Air Force and the Social Security
Administration; that he spoke with Appellant at 3:45 a.m. on July 7 and Appellant was not
slurring his words and, in his opinion, was not intoxicated; that he is familiar with Appellant's
physical difficulties; that he has seen the video and, in his opinion, Appellant had not lost the
normal use of his mental and physical faculties, and was not intoxicated.
Appellant testified he retired on disability from the U.S. Air Force in 1992; that he had one
drink about midnight; that he was driving to the grocery store and was driving his normal route
with his cruise control set on 35 miles-per-hour; that after he saw the police unit with flashing
lights, he stopped at the side of the road, left his cane in the back seat so the officer would not feel
threatened, and walked out behind the car; that he did not stagger but he had a little difficulty
standing up and walking straight; that he pointed out to the officer the blue handicap decal on the
back of his car and the disabled-veteran's license plate, and told the officer he could not do the
test; that he reached into his pocket to show the officer a synopsis of a medical report and the
officer said he did not want to see it; that he was placed under arrest for refusing to take a
breathalyzer test; and that he asked to see a supervisor and was told he could see a supervisor at
the jail.
Appellant's counsel asked Appellant what happened in the Air Force to cause him to become
permanently disabled. The prosecutor objected and the court sustained the objection. Appellant
was then asked what caused his injuries and the prosecutor again objected. After a brief bench
conference, Appellant was permitted to testify that his neck was separated from the top of his spine
in his last airplane crash. An objection was sustained to Appellant testifying about the crash but
he was permitted to testify what limitations the injuries he sustained presented for him. He
testified that "It causes a limitation. I can move within a 15-degree arch with my head. I don't
have full range of motion in my head, arms or legs. I have a loss of upper-body strength or
control, constant muscle spasms resulting in migraine headaches." He further testified he could
not perform the exercises the officer requested at the scene; that he had not lost his normal use of
his mental or physical faculties, and that he was not intoxicated.
Appellant appeals on seven points of error. Point two contends "the evidence was insufficient
to sustain the jury verdict." In reviewing the sufficiency of the evidence, we must determine
whether, considering all of the evidence in the light most favorable to the verdict, any rational trier
of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson
v. Virginia, 99 S.Ct. 2781, 2789; Jones v. State, 833 S.W.2d 118÷, 122 (Tex. Crim. App. 1992).
The three officers testified they did not know what the normal range of physical and mental
faculties were for Appellant, yet they testified he had lost the use of his normal physical and
mental faculties. Appellant has a different range based on the limitations imposed because of his
specific physical handicap. The officers further testified that the video of the sobriety test at the
police station showed that Appellant was unsteady on his feet, that he staggered, and his speech
was slurred. This court has reviewed the videotape (State's Exhibit #2) and knows that Appellant
did not have slurred speech, did not stagger, was not unsteady on his feet, and we think that,
within his physical limitations, did pass the physical tests performed.
The police officers knew that Appellant was physically handicapped (i.e., the disabled-veteran's license plate, the handicap sticker; the cane and the brace; Appellant's statement that he
had physical disabilities), yet despite this knowledge, testified that he did not have normal use of
his physical faculties. One officer testified that he based his opinion "essentially compared to what
we consider a normal operation of everybody."
Applying the criterion stated and reviewing all evidence in the light most favorable to the
verdict, we hold that no rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Point two is sustained.
Under our view of the case we do not reach Appellant's remaining points. The judgment is
reversed and judgment is here rendered acquitting Appellant.
FRANK G. McDONALD
Chief Justice (Retired)
Before Justice Cummings,
Justice Vance, and
Chief Justice McDonald (Retired)
Reversed and rendered
Opinion delivered and filed September 27, 1995
Do not publish
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J-S60042-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
STEVEN PAUL SCOTT, :
:
Appellant : No. 618 MDA 2018
Appeal from the Judgment of Sentence March 14, 2018
in the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001063-2002
BEFORE: SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 20, 2018
Steven Paul Scott (Appellant) appeals from his March 14, 2018
judgment of sentence, which the trial court imposed after revoking
Appellant’s probation. We affirm.
The trial court summarized the procedural history as follows.
On January 16, 2003, [A]ppellant pled guilty to two counts
of involuntary deviate sexual intercourse (IDSI), two counts of
aggravated indecent assault, one count of indecent assault, one
count of endangering the welfare of children, and one count of
corruption of minors. [Appellant] committed these crimes
against a [ten-year-old] child. On March 13, 2003, [A]ppellant
was sentenced to an aggregate term of five to ten years’
incarceration followed by seventeen years of special probation ….
… [A]ppellant’s supervision was subject to the conditions
governing special probation and parole, the standard special
conditions for sex offenders, and optional special conditions for
sex offenders.
*Retired Senior Judge assigned to the Superior Court.
J-S60042-18
On December 28, 2017, [A]ppellant came before the [trial]
court for a Gagnon I[1] or preliminary probation violation
hearing. … On March 14, 2018, [A]ppellant came before the
[trial] court for a Gagnon II or a final probation violation
[(VOP)] hearing. The [trial] court found that [A]ppellant violated
the conditions of his supervision. The court revoked [A]ppellant’s
probationary sentences and resentenced him to an aggregate
term of three to eight years’ incarceration….
Trial Court Opinion, 7/6/2018, at 1-2 (citation omitted).
Appellant timely filed this appeal.2 Both Appellant and the trial court
have complied with Pa.R.A.P. 1925.
On appeal, Appellant’s first issue challenges the sufficiency of the
evidence produced by the Commonwealth at the probation revocation
hearing, which presents a question of law subject to our plenary review.
Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014). In
examining these issues, “[w]e must determine whether the evidence
admitted at [the hearing] and all reasonable inferences drawn therefrom,
when viewed in the light most favorable to the Commonwealth as the verdict
winner, is sufficient to support all elements of the offenses.” Id. We may
____________________________________________
1 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
2 After the Gagnon II hearing, Appellant filed a motion for reconsideration.
This filing did not toll the 30–day appeal period. See Pa.R.Crim.P. 708(E).
Because the trial court did not expressly grant reconsideration or vacate the
sentence within 30 days, it was divested of jurisdiction to rule upon
Appellant’s motion. See id., Comment; Commonwealth v. Swope, 123
A.3d 333, 337 (Pa. Super. 2015). However, Appellant filed the notice of
appeal within 30 days of his judgment of sentence, rendering his appeal
timely filed.
-2-
J-S60042-18
not weigh the evidence or substitute our judgment for that of the trial court.
Id. Further, we bear in mind that a hearing regarding a probation violation
is different from a criminal trial. “The reason for revocation of probation
need not necessarily be the commission of or conviction for subsequent
criminal conduct.” Commonwealth v. Ortega, 995 A.2d 879, 886 (Pa.
Super. 2010). Rather, the Commonwealth establishes a probation violation
by showing, by a preponderance of the evidence, “that the conduct of the
probationer indicates the probation has proven to have been an ineffective
vehicle to accomplish rehabilitation and not sufficient to deter against future
antisocial conduct.” Id.
Appellant admits that he was unsuccessfully discharged from sex
offender treatment at Commonwealth Clinical Group, Inc. (CCG), but
nevertheless argues that the evidence presented during his probation
revocation hearing was insufficient to prove that probation has been
ineffective in deterring future antisocial behavior and/or incapable of
meeting his rehabilitative needs. Appellant’s Brief at 14. Appellant argues
that many of his behaviors ceased after a warning, demonstrating the
effectiveness of probation. Id. at 13-26. Furthermore, he claims that the
conduct relied upon by CCG to support his discharge from therapy and later
by the Commonwealth to support the probation revocation was too remote
in time or too minor to support a discharge from therapy and/or revocation
of probation. Id.
-3-
J-S60042-18
Our review of the record reveals that at the VOP hearing, the
Commonwealth introduced evidence demonstrating Appellant’s long history
of noncompliance with the terms and conditions of his probation, which
culminated in the filing of a petition seeking revocation of Appellant’s
probation in December 2017.3
In March 2017, Appellant’s probation officer, Agent Michael Daub,
discovered that Appellant had searched for pornographic videos and the
websites Backpage and Craigslist for casual sexual encounters. N.T.,
3/14/2018, at 32-33. This conduct violated the terms and conditions of
Appellant’s probation. However, in lieu of sanctions, Agent Daub chose to
give Appellant a warning at that time. Id. at 39-40.
Appellant was required to attend weekly group therapy, but he failed
to attend consistently in 2017. He had fourteen unexcused absences in
2017, including one in November 2017. Id. at 3-4. Although he made up
ten sessions, many of his makeup sessions were prompted by his probation
officer’s continual reminders. Id. at 33-34. Appellant also missed three
scheduled psychiatric evaluations in August and September 2017 before he
finally attended. Appellant also did not take his medications as prescribed.
____________________________________________
3 This petition does not appear in the certified record.
-4-
J-S60042-18
In December 2017, as part of his treatment, Appellant took a
polygraph test and was deemed as having failed.4 Appellant then completed
a written assignment as part of his group therapy, wherein he described his
assessment of why he may have failed the test. Id. at 28. Appellant’s
written assignment was read into the record at the VOP hearing. Id. at 14-
15. In the written assignment, Appellant revealed that he had engaged in a
sexual encounter with a woman he had met through Craiglist. 5 Id.
Appellant admitted that she had told him to stop, but he persisted with his
advances, and ultimately coerced her into having sexual intercourse. Id.
Around this same time, Appellant revealed6 that his wife was engaging
in prostitution, and despite his alleged opposition to her behavior, he
accepted cigarettes purchased with her illegal proceeds. Id. at 16. Finally,
Appellant admitted that he and his wife had driven a seventeen-year-old co-
worker home from work, despite such contact violating his prohibition
against contact with minors. Id. at 17-18.
____________________________________________
4 Neither the specific questions asked nor the results of the test were
admitted into evidence.
5Appellant later told his probation officer that this incident had occurred in
early 2016.
6 Appellant referenced some of these incidents in his written statement
without detail. It appears that Appellant may have disclosed these other
incidents in therapy, but the record is not clear exactly how and when the
program learned about these other incidents.
-5-
J-S60042-18
On December 21, 2017, CCG discharged Appellant from the sex
offender treatment program. During the VOP hearing, CCG’s assistant
director testified that the discharge was based upon numerous ongoing
concerns of CCG, which included the concerns referenced supra. Id. at 10.
Furthermore, based upon Appellant’s disclosures after the polygraph
examination, CCG believed Appellant was not being open and honest in
therapy and was retroactively confessing to behaviors instead of proactively
working out his issues in therapy. Id. at 16-17. This was particularly
concerning because these types of retroactive disclosures were similar to the
behavior that caused Appellant to be discharged from sex offender
treatment in 2015.7 Accordingly, the assistant director of CCG provided a
clinical recommendation that Appellant receive treatment in a secure setting
instead of on an outpatient basis. Id. at 20.
From our review of the record, it is apparent that some of CCG’s
concerns were ongoing, and others only arose after Appellant failed the
polygraph test and disclosed the Craigslist sexual encounter, his wife’s
prostitution, and his unsupervised contact with a minor. Similarly, Agent
Daub testified that although Appellant had a long history of probation
violations for which Agent Daub could have sought revocation, Agent Daub
____________________________________________
7 This discharge in 2015 resulted in the trial court finding’s that Appellant
violated the terms and conditions of his probation. At that time, the trial
court declined to revoke Appellant’s probation, but amended the conditions
of supervision. Order, 10/20/2015, at 1.
-6-
J-S60042-18
decided to seek revocation for the most serious violation: Appellant’s
discharge from CCG. Id. at 47-48. Moreover, this was Appellant’s second
discharge from sex offender treatment.
As put by the trial court in its re-sentencing order, “the evidence was
remarkably undisputed, and it would be narrow minded for the [c]ourt to
consider the tip of the iceberg instead of the totality of the circumstances
and [Appellant’s] entire history of behaviors.” Order, 3/20/2018, at 1.
Looking at Appellant’s conduct as a whole, we conclude that the trial court
correctly determined that the Commonwealth proved by a preponderance of
the evidence “that the conduct of the probationer indicates the probation has
proven to have been an ineffective vehicle to accomplish rehabilitation and
not sufficient to deter against future antisocial conduct.” Ortega, 995 A.2d
at 886. Thus, his first issue does not entitle him to relief.
In his second issue, Appellant contends that our Supreme Court has
held that the results of a therapeutic polygraph examination may not be
used as the sole basis of a revocation petition. Appellant’s Brief at 27 (citing
Commonwealth v. A.R., 80 A.3d 1180 (Pa. 2013)). Appellant posits that
despite the Commonwealth’s claim that it sought revocation based upon his
unsuccessful discharge from his sex offender treatment at CCG, the facts
and circumstances demonstrate that the revocation was actually sought due
to his failed polygraph. Id. In support, Appellant argues that because many
of the underlying incidents relied upon by the Commonwealth occurred long
-7-
J-S60042-18
before the polygraph test, but the Commonwealth did not file a petition to
revoke his probation until just five days after his failed polygraph test, the
timing suggests that the Commonwealth’s sole reason for seeking revocation
of probation was his failed test. Id. at 28-29.
Appellant misstates our Supreme Court’s holding in A.R. in a failed
attempt to use the polygraph test as a shield. In that case, A.R. admitted to
videotaping his 13-year-old step-daughter undressing. He claimed that he
did so to embarrass and admonish her, but the trial court did not find this
explanation to be credible and found him guilty of, inter alia, sexual abuse of
children, which contains a mens rea element of sexual gratification. As part
of Appellant’s probation, he was ordered to undergo a sex offender
evaluation and to follow all recommendations, which included participating in
mandated sex offender treatment. A.R., 80 A.3d at 1181-82.
After A.R. continued to deny his sexual motivation for his conduct, “a
therapeutic polygraph was administered to confront [A.R.] with his
disingenuous behavior and attempt to steer him back to proper treatment,
which required he admit the sexual nature of his actions as established by
the trial court’s conclusions of fact, reflected in his conviction.” Id. at 1182.
The program concluded A.R. provided deceitful answers to the polygraph,
which demonstrated that he continued to “engag[e] in cognitive distortions
for the purpose of reasoning away his behavior” and was not making
progress in treatment. Id. Accordingly, the program discharged him. The
-8-
J-S60042-18
trial court found such discharge to violate A.R.’s probation requirements and
revoked his probation.
On appeal, A.R. claimed, inter alia, that the trial court erred in
admitting the results of his therapeutic polygraph examination into evidence
at his VOP hearing. This Court disagreed, holding that
the results obtained from the administration of a therapeutic
polygraph examination in a sexual offenders’ treatment program
are admissible at a probation revocation hearing as evidence to
support the underlying violation, i.e., a sexual offender’s lack of
amenability to treatment, so long as [(1)] the results of that
examination are not the sole basis for the revocation petition;
[(2)] they do not reveal uncharged criminal conduct on the part
of the defendant; and [(3)] they are not used for purposes of the
investigation of criminal conduct.
Id. at 1182 (citing Commonwealth v. A.R., 990 A.2d 1, 7 (Pa. Super.
2010) (emphasis in original)). Thus, this Court affirmed the trial court,
stating “the administration of the therapeutic polygraph examination was a
‘last ditch’ attempt to keep [A.R.] in treatment, rather than having been the
reason for his ultimate discharge.” Id. (citing A.R., 990 A.2d at 7). Judge
Colville dissented based upon Commonwealth v. Gee, 354 A.2d 875, 883
(Pa. 1976) (plurality), overruled on other grounds by Commonwealth v.
Brady, 507 A.2d 66 (Pa. 1986), which held that the results of a polygraph
examination are inadmissible for any purpose due to the scientific
unreliability of such tests.
A.R. appealed to our Supreme Court. Noting that Gee was not binding
precedent, our Supreme Court distinguished Gee on the basis that Gee’s
-9-
J-S60042-18
prohibition related to admission of a polygraph at trial, not a VOP hearing.
Id. at 1183. Thus, the Court concluded that
[d]espite prior case law excluding polygraph results from
evidence, the admission here was not improper because the
results were offered not as evidence of [A.R.’s] probation
violation, but as background evidence to explain the actions
taken by program staff. The record supports the
Commonwealth’s contention that [A.R.’s] polygraph results were
offered, not for the truth of whether [A.R.] received sexual
gratification from his act, but to help explain the program’s
actions and treatment procedures. That [A.R.’s] refusal to admit
his sexual motivation for making the videotapes reflected a lack
of candor was established at trial when the court discredited
[A.R.’s] testimony and found him guilty of the offense charged.
The polygraph evidence was simply offered by the
Commonwealth to assist the court in attaining a full picture of
why [A.R.] was dismissed from treatment. This information
helped establish the somewhat collateral point that those
administering the program had tried, albeit unsuccessfully, to
keep [A.R.] in the rehabilitative regime. Thus, this case does not
implicate the general reservations and concerns expressed
concerning the admissibility of polygraph evidence into evidence,
as [A.R.’s] results were proffered not for their accuracy, but to
help explain the actions of others involved.
Accordingly, we affirm the Superior Court’s holding that
[A.R.’s] therapeutic polygraph examination results were
admissible at his VOP hearing for purposes of helping explain the
program’s actions and the treatment procedures.
Id. at 1183-84. In arriving at this holding, our Supreme Court explicitly
declined to reach this Court’s “conclusion that therapeutic polygraph
examination results cannot serve as the sole basis for probation revocation.”
Id. at 1184 n.6. Our Supreme Court reasoned that
the value to be accorded to evidence is a matter for the fact-
finder with a well-settled appellate standard of review. [A.R.’s]
probation violation was supported by testimony from several
treatment specialists involved in his therapy in addition to the
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results of his therapeutic polygraph, and we decline to require
specific types of evidence in every case.[8]
Id.
Thus, contrary to Appellant’s argument, our Supreme Court did not
hold “that the results of a ‘therapeutic’ polygraph examination may be
submitted as evidence supporting an underlying violation of probation
requirements, only when the results … are not used as the sole basis of the
revocation petition.” Appellant’s Brief at 27 (emphasis in original).
Moreover, we find Appellant’s case to be indistinguishable from A.R. Like
A.R., Appellant was required to participate in sex offender treatment, and as
part of that treatment, he was required to undergo therapeutic polygraph
examinations to test whether he was being active and honest in treatment.
In both cases the polygraph examination led to a revelation of underlying
concerns with the efficacy of and honest participation with treatment, which
prompted discharge from treatment. The polygraph examination was not
the reason the Commonwealth sought revocation or why Appellant was
found in violation of probation; instead, he was found in violation because he
did not remain in sex offender treatment and did not benefit from CCG’s
____________________________________________
8 The Court also declined to state an opinion regarding the Superior Court’s
Fifth Amendment analysis, i.e., whether the polygraph examination evidence
revealed a commission of an offense or was used as an investigative tool to
ferret out any uncharged criminal conduct in violation of the Fifth
Amendment, because A.R. did not allege a Fifth Amendment violation. Id.
(citing A.R., 990 A.2d at 7). Likewise, Appellant does not raise a Fifth
Amendment claim in the instant case.
- 11 -
J-S60042-18
attempts to rehabilitate him. Any testimony about the polygraph results
“was simply offered by the Commonwealth to assist the court in attaining a
full picture of why [Appellant] was dismissed from treatment.” A.R., 80
A.3d at 1183-84. Thus, the trial court did not err in concluding that the
Commonwealth established that Appellant violated the terms and conditions
of his probation.
Appellant’s final issue asks us to review whether the trial court abused
its discretion when it imposed his sentences consecutively, resulting in three
to eight years of incarceration. Appellant’s Brief at 30. We review this issue
mindful of the following. “An appellant wishing to appeal the discretionary
aspects of a probation-revocation sentence has no absolute right to do so
but, rather, must petition this Court for permission to do so.”
Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008).
Before this Court can address such a discretionary challenge, an appellant
must invoke this Court’s jurisdiction by establishing that (1) the appeal was
timely filed; (2) the challenge was properly preserved by objecting during
the revocation sentencing or in a post-sentence motion; (3) his or her brief
includes a concise statement of the reasons relied upon for allowance of
appeal of the discretionary aspects of the sentence pursuant to Pa.R.A.P.
2119(f); and (4) the concise statement raises a substantial question that the
sentence is inappropriate under the Sentencing Code. Commonwealth v.
Swope, 123 A.3d 333, 338 (Pa. Super. 2015).
- 12 -
J-S60042-18
Instantly, Appellant has satisfied the first three requirements by timely
filing a post-sentence motion challenging the excessiveness of his sentence,
timely filing a notice of appeal, and including a Rule 2119(f) concise
statement in his brief. Thus, we examine whether Appellant has presented a
substantial question for our review.
Appellant asks this Court to review the discretionary aspects of his
sentence based upon the trial court’s imposition of a sentence that he
argues is “manifestly excessive in relation to his criminal conduct,
rehabilitative needs, behavior under supervision, and mental disabilities[,]”
resulting in a sentence that is too severe. Appellant’s Brief at 11. Appellant
further argues that the trial court relied upon the ineffectiveness of
probation as a tool for his rehabilitation, but such ineffectiveness is not
supported by the record. Id.
A court’s exercise of discretion in imposing a sentence concurrently or
consecutively does not ordinarily raise a substantial question.
Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010).
However, this Court has held that a challenge to the excessiveness of
consecutive sentences imposed following revocation of probation, together
with a claim that a trial court failed to consider rehabilitative needs and
mitigating factors upon fashioning the sentence, presents a substantial
question. Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super.
2015). Furthermore, “a claim that a particular probation revocation
- 13 -
J-S60042-18
sentence is excessive in light of its underlying technical violations can
present a question that we should review.” Commonwealth v. Malovich,
903 A.2d 1247, 1253 (Pa. Super. 2006); see also Commonwealth v.
Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (“The imposition of a
sentence of total confinement after the revocation of probation for a
technical violation, and not a new criminal offense, implicates the
‘fundamental norms which underlie the sentencing process.’”). Therefore,
we conclude that Appellant presents a substantial question for our review.
As we have explained,
[t]he imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court,
which, absent an abuse of that discretion, will not be disturbed
on appeal. An abuse of discretion is more than an error in
judgment—a sentencing court has not abused its discretion
unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.
Commonwealth v. Simmons, 56 A.3d 1280, 1283–84 (Pa. Super. 2012).
Upon revoking probation, “the sentencing alternatives available to the
court shall be the same as were available at the time of initial sentencing,
due consideration being given to the time spent serving the order of
probation.” 42 Pa.C.S. § 9771(b). Thus, upon revoking probation, the trial
court is limited only by the maximum sentence that it could have imposed
originally at the time of the probationary sentence. Commonwealth v.
Infante, 63 A.3d 358, 365 (Pa. Super. 2013). However, once probation has
been revoked,
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J-S60042-18
the court shall not impose a sentence of total confinement unless
it finds that
(1) the defendant has been convicted of another
crime; or
(2) the conduct of the defendant indicates that it is
likely that he will commit another crime if he is
not imprisoned; or
(3) such a sentence is essential to vindicate the
authority of the court.
42 Pa.C.S. § 9771(c). In all cases where the trial court resentences an
offender following revocation of probation, the trial court must place its
reasons for the sentence on the record. 42 Pa.C.S. § 9721(b);
Commonwealth v. Cartrette, 83 A.3d 1030, 1040–1041 (Pa. Super.
2013). “A trial court need not undertake a lengthy discourse for its reasons
for imposing a sentence or specifically reference the statute in question, but
the record as a whole must reflect the sentencing court’s consideration of
the facts of the crime and character of the offender.” Crump, 995 A.2d at
1282–1283.
In its Rule 1925(b) opinion,9 the trial court offered the following
explanation for its re-sentencing of Appellant:
[Appellant’s] actions showed that he was unwilling or
unable to take advantage of his treatment opportunities while on
probation. Treatment is only effective if the individual
____________________________________________
9 This explanation is consistent with the remarks made by the trial court at
the re-sentencing hearing and in its sentencing order. N.T., 3/14/2018, at
97-98; Order, 3/20/2018, at 1-3.
- 15 -
J-S60042-18
consistently attends his therapy sessions and follows the
recommendations of his therapist. [Appellant] was not doing
that. Instead of attending therapy every week as scheduled,
[A]ppellant was missing therapy sessions for no apparent
reason. Furthermore, he was not taking his psychotropic
medications as directed. He [was not] using therapy to help him
work through his issues and avoid engaging in prohibited
behaviors. Instead, he was confessing after the fact, and then
sometimes only after he was “caught” not being truthful such as
the incident with the female from Craigslist that was only
revealed after [A]ppellant failed his therapeutic polygraph.
***
[A]ppellant also asserts that the imposition of consecutive
periods of total incarceration for each of the remaining
probationary sentences was manifestly excessive and an abuse
of discretion. … The court did not impose consecutive sentences
because it had any partiality, prejudice, bias or ill will against
[A]ppellant. The court imposed consecutive sentences due to the
nature of the offenses, the need to protect the public, and
[A]ppellant’s supervision history. The court found that the need
to protect the public greatly outweighed [A]ppellant’s
rehabilitation needs in this case. Probation was not rehabilitating
[A]ppellant. … According to [A]ppellant’s own testimony, he was
re-paroled on December 24, 2015 and by early 2016 he had met
a [woman] on Craigslist and had a sexual encounter with her
despite the [woman] saying “Stop, I can’t do this.” Although
[A]ppellant stopped briefly, he kept making sexual advances
until the [woman] relented and had sex with him. In March of
2017, [A]ppellant was viewing pornography and again was
seeking casual sexual encounters through websites such as Back
Pages and Craigslist. He [did not] discuss his urges to view
pornography or these websites in his group therapy sessions to
try to avoid violating the conditions of his probation nor did he
address these issues immediately after he was caught. How
could he? He missed four sessions between January 16, 2017
and March 10, 2017[,] and then, once Agent Daub found the
pornography and websites in the browser history on
[A]ppellant’s phone on March 29, 2017, [A]ppellant missed his
group therapy sessions on April 7, 2017; April 14, 2017; and
April 25, 2017.
This also was not the first time that [A]ppellant’s sexual
encounters resulted in violations of his supervision. He was
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J-S60042-18
unsuccessfully discharged from treatment with CCG and his
parole was violated in 2015 due to hitting a partner prior to and
after intercourse. He was before the court in 2015 for a
probation violation hearing as well, but the court declined to
revoke [A]ppellant’s probationary sentences at that time.
[A]ppellant’s resumption of treatment with CCG in 2016 was his
second chance at rehabilitation outside of a secure setting, but
[A]ppellant failed to take advantage of it.
[A]ppellant was originally sentenced to a period of state
incarceration followed by a lengthy term of probation.
Unfortunately, [A]ppellant’s conduct while on supervision
showed that probation was not an effective rehabilitation tool.
[A]ppellant continued to engage in conduct that created an
undue risk that he would commit another crime. The
consecutive sentences imposed by the court were necessary to
protect the public.
[A]ppellant also contends the court had no further
obligation to consider the impact on the original victim because
there was neither an allegation that [A]ppellant participated in
any misconduct involving the original victim nor any sexual
behaviors toward any children. The court cannot agree. …
Although his probation violations did not involve the original
victim or sexual behaviors toward children, his violations
involved high-risk behaviors. He viewed pornographic videos
and visited inappropriate websites, he had contact with a minor
without getting approval from Agent Daub and without an
authorized supervisor being present, and he persisted in sexual
advances toward an adult female despite her saying “Stop, I
can’t do this.” All of these behaviors show that [A]ppellant was
going down a slippery slope toward committing another offense.
Based on the foregoing [o]pinion, there was ample
evidence to support the … imposition of consecutive sentences….
Trial Court Opinion, 7/6/2018, at 8-11.
Upon review, we conclude that the trial court’s analysis thoroughly
addresses all of Appellant’s arguments regarding the discretionary aspects of
his sentence, and we discern no abuse of discretion in the court’s decision to
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J-S60042-18
impose a sentence of total confinement in consecutive sentences.
Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2018
- 18 -
| {
"pile_set_name": "FreeLaw"
} |
NUMBER 13-14-00110-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
RICARDO VAIZ, Appellant,
v.
FEDERAL NATIONAL
MORTGAGE ASSOCIATION, Appellee.
On appeal from the County Court at Law No. 2
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Longoria
Memorandum Opinion by Justice Garza
Ricardo Vaiz appeals from a summary judgment rendered against him in a forcible
detainer action filed by appellee, Federal National Mortgage Association (“Fannie Mae”).
By four issues, appellant contends: (1) the justice and county courts lacked jurisdiction
because Fannie Mae did not establish that the action was filed in the justice court of the
precinct where the property was located; (2) the trial court abused its discretion in denying
his request for discovery; (3) the trial court erred in granting summary judgment in favor
of Fannie Mae; and (4) the trial court erred in finding that Fannie Mae presented evidence
that proper notice to vacate was sent to Vaiz. We affirm.
I. BACKGROUND
Fannie Mae filed its forcible detainer action on June 6, 2013 against Vaiz and all
occupants in justice of the peace court “Precinct 5, Position 3” in Cameron County, Texas.
Fannie Mae sought to evict Vaiz from certain property located at “22329 FM 2556, La
Feria, T[exas] 78559 a/k/a West Cantu Road, Santa Rosa, T[exas] 78593.” Appellant
filed an answer and plea to the jurisdiction, in which he asserted various affirmative
defenses and argued that title was at issue because he did not receive notice of
foreclosure or notice of eviction. The justice court entered judgment awarding possession
to Fannie Mae in July 2013. Vaiz appealed de novo to Cameron County Court-at-Law
Number 2.
In County Court-at-Law Number 2, Fannie Mae filed a motion for summary
judgment on its claim for forcible detainer. Fannie Mae attached as summary judgment
evidence: (1) a business records affidavit from its law firm regarding documents relating
to the Vaiz file; (2) a Substitute Trustee’s Deed showing that Fannie Mae purchased the
Vaiz property at a foreclosure sale on November 6, 2012; and (3) a 2007 Deed of Trust
signed by the Vaizes securing a loan on the property. Following a December 18, 2013
hearing, the county court granted summary judgment in favor of Fannie Mae. This appeal
followed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review summary judgments de novo. Joe v. Two Thirty Nine Joint Venture,
2
145 S.W.3d 150, 156 (Tex. 2004); Nalle Plastics Family Ltd. P’ship v. Porter, Rogers,
Dahlman & Gordon, P.C., 406 S.W.3d 186, 199 (Tex. App.—Corpus Christi 2013, pet.
denied). The movant must establish that no fact issue exists and it is entitled to judgment
as a matter of law. TEX. R. CIV. P. 166a(c). In reviewing a summary judgment, we must
consider whether reasonable and fair-minded jurors could differ in their conclusions in
light of all of the evidence presented. See Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 755 (Tex. 2007) (per curiam). We must view all the evidence in the light
most favorable to the nonmovant, indulging every reasonable inference in favor of the
nonmovant and resolving any doubts against the motion. See id. at 756. We must affirm
the summary judgment if any of the theories presented to the trial court and preserved for
appellate review are meritorious. Joe, 145 S.W.3d at 157.
“In an action of forcible detainer, the only issue shall be as to the right to actual
possession, and the merits of the title shall not be adjudicated.” U.S. Bank Nat'l Ass'n v.
Freeney, 266 S.W.3d 623, 625 (Tex. App.—Dallas 2008, no pet.) (citing TEX. R. CIV. P.
746; Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.)). “‘To prevail
in a forcible detainer action, a plaintiff is not required to prove title, but is only required to
show sufficient evidence of ownership to demonstrate a superior right to immediate
possession.’” Id. (quoting Rice, 51 S.W.3d at 709). By statute, a claim for forcible
detainer requires the plaintiff to prove that it gave proper notice to the tenant at will or by
sufferance and that the tenant refused to vacate the premises. TEX. PROP. CODE ANN. §§
24.002, 24.005 (West, Westlaw through 2015 R.S.); see Freeney, 266 S.W.3d at 625;
see also Heckendorn v. First Mortgage Co., No. 13-12-00451-CV, 2013 WL 5593520, at
*3 (Tex. App.—Corpus Christi July 29, 2013, no pet.) (mem. op.) In order to prevail on
its forcible detainer action, Fannie Mae was required to show: (1) the substitute trustee
3
conveyed the property by deed to Fannie Mae after the foreclosure sale, (2) the persons
against whom action is sought are tenants at sufferance, (3) Fannie Mae gave the
persons against whom action is sought proper notice requiring them to vacate the
premises, and (4) the persons against whom action is sought have refused to surrender
possession of the property. See TEX. PROP. CODE ANN. § 24.002; Elwell v. Countrywide
Home Loans, Inc., 267 S.W.3d 566, 568–69 (Tex. App.—Dallas 2008, pet. dism'd w.o.j.);
Freeney, 266 S.W.3d at 625.
III. DISCUSSION
A. Jurisdiction
By his first issue, appellant contends that both the justice and county courts lacked
jurisdiction because it was not established that the subject property is located within the
county precinct where the forcible detainer action was filed. See TEX. PROP. CODE ANN.
§ 24.004(a) (West, Westlaw through 2015 R.S.); Gonzalez v. Wells Fargo Bank, N.A.,
441 S.W.3d 709, 712 (Tex. App.—El Paso 2014, no pet.); see also TEX. R. CIV. P. 510.3(b)
(“[A forcible detainer action] must be filed in the precinct where the premises is located.
If it is filed elsewhere, the judge must dismiss the case.”). Specifically, appellant
complains that “[f]rom the beginning, it was known that the property was located in the
justice of the peace precinct 7 in Cameron County, Texas. However, the complaint was
filed in Precinct 5.” Appellant raised this complaint in his response to Fannie Mae’s motion
for summary judgment.
On June 22, 2015, this Court abated the appeal and ordered the county court to:
(1) hold a hearing, (2) submit a supplemental reporter’s record of the hearing, and (3)
submit a supplemental clerk’s record showing the geographical delineation of Precinct 5,
4
Place 3 and the location of the subject property within the boundaries of Precinct 5, Place
3.
On August 3, 2015, the county court held a hearing. Counsel for Vaiz appeared in
person and counsel for Fannie Mae appeared by telephone on “CourtCalls.” Fannie
Mae’s counsel explained that, in response to this Court’s order, she had identified
Cameron County “Resolution 2011R”,1 which adopted new justice of the peace precincts.
The resolution notes, in pertinent part, that: “Presiding Judge Adam Gonzales, sitting in
La Feria before the merger as Justice of the Peace Precinct 7, Place 1, shall continue to
serve in La Feria with the new designation of Justice of the Peace, Precinct 5, Place 3,
hereafter.” At the hearing, the county court asked whether a copy of the resolution had
been provided to this Court; Fannie Mae’s counsel responded that she had done so. A
copy of the resolution was included in a supplemental clerk’s record filed on August 7,
2015. On September 3, 2015, Fannie Mae’s counsel filed a letter and an accompanying
map with this Court. The map purports to show the geographical boundaries of the justice
of the peace precincts of Cameron County and reflects that the subject property, located
at “22329 FM 2556, La Feria, Texas, 78559” is, in fact, within the boundaries of Precinct
5.
On August 24, 2015, appellant filed an objection to this Court’s consideration of
Cameron County Resolution 2011R. Appellant complains, among other things, that: (1)
he did not receive a copy of the resolution until after the hearing; (2) Resolution 2011R
states that it is effective conditioned on the approval of the United States Department of
Justice, and there is no evidence of the Justice Department’s approval; and (3) Texas
1 Although counsel referred to the resolution at the hearing as “the 2012 order,” Cameron County
Resolution 2011R was passed and approved by the Cameron County Commissioner’s Court on November
23, 2011.
5
Rule of Appellate Procedure 34.5 does not permit the creation of a new trial court record.
See TEX. R. APP. P. 34.5.
“We have an independent duty to determine sua sponte whether we have the
authority to hear an appeal[.]” Castle & Cooke Mortgage, LLC v. Diamond T Ranch Dev.,
Inc., 330 S.W.3d 684, 687 (Tex. App.—San Antonio 2010, no pet.); Gardner v. Stewart,
223 S.W.3d 436, 438 (Tex. App.—Amarillo 2006, pet. denied) (“As a matter of first
consideration, any court has the duty to determine, sua sponte, whether it has jurisdiction
to hear the case.”). The determination of the jurisdictional issue depends on the extent
of the county court at law’s appellate jurisdiction. See Aguilar v. Weber, 72 S.W.3d 729,
731 (Tex. App.—Waco 2002, no pet.). The appellate jurisdiction of a statutory county
court is confined to the jurisdictional limits of the justice court, and the county court has
no jurisdiction over an appeal unless the justice court had jurisdiction. Id. We may
consider materials outside the record to determine whether we have jurisdiction. See
TEX. GOV'T CODE ANN. § 22.220(c) (West, Westlaw through 2015 R.S.) (“Each court of
appeals may, on affidavit or otherwise, as the court may determine, ascertain the matters
of fact that are necessary to the proper exercise of its jurisdiction.”); Jones v. Griege, 803
S.W.2d 486, 488 (Tex. App.—Dallas 1991, no writ) (relying on attorney's letter to court in
determining jurisdiction). Where this Court’s jurisdiction is unclear, we may require further
facts and briefing. Willard v. Davis, 881 S.W.2d 907, 910 (Tex. App.—Fort Worth 1994,
orig. proceeding).
We find that the documents submitted to this Court, including Cameron County
Resolution 2011R and the map showing the boundaries of Cameron County Precinct 5
and the location of the subject property within those boundaries, are sufficient to establish
that the forcible detainer action was filed in the justice court of the precinct where the
6
property is located. See TEX. PROP. CODE ANN. § 24.004; Aguilar, 72 S.W.3d at 731.
Accordingly, the justice court had jurisdiction, the county court had jurisdiction, and we
have jurisdiction. See Aguilar, 72 S.W.3d at 731. We overrule appellant’s first issue.
B. Discovery
By his second issue, appellant contends that the trial court abused its discretion
by denying his request for discovery. Specifically, appellant argues that “the trial court
abused its discretion for not granting the protective order and for not following Rule 245
of the Texas Rules of Civil Procedure.” Fannie Mae responds that the trial court did not
abuse its discretion by denying appellant’s discovery requests because the requests: (1)
were unrelated to the single issue of possession before the court and (2) were untimely.
We conclude, however, that nothing is preserved for review because the issue is
inadequately briefed. See TEX. R. APP. P. 38.1(i) (providing that a brief must contain a
clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record). Here, appellant has not provided a single citation to the
record regarding his discovery requests. There is no cogent argument or citation to
applicable legal authorities. Failure to cite legal authority or provide substantive analysis
results in waiver of the complaint. See Fulgham v. Fischer, 349 S.W.3d 153, 158 (Tex.
App.—Dallas 2011, no pet.). Appellant’s second issue is overruled.
C. Summary Judgment
By his third issue, appellant contends the trial court erred in granting summary
judgment “in that Appellant had never received any notice of eviction nor was he ever
informed of the eviction through any other means as allowed by law.” Appellant asserts
that he is “challenging the factual sufficiency of the evidence,” but does not identify any
particular element that he is challenging on the basis of evidentiary sufficiency. He argues
7
that he “may rely on circumstantial evidence” “to defeat a motion for summary judgment.”
He further asserts that he has “presented more than enough evidence to defeat any
motion for the summary judgment.”
Here, Fannie Mae presented sufficient evidence of ownership to establish a
superior right to possession without relying upon the ultimate resolution of title. See
Freeney, 266 S.W.3d at 625. By summary judgment proof attached to its motion, Fannie
Mae presented: (1) the Substitute Trustee’s Deed showing it purchased the property at
the foreclosure sale; (2) the Deed of Trust containing a tenant at sufferance clause; (3)
the notice to vacate; and (4) the business records affidavit asserting the notice was sent
to appellant. These documents are sufficient to establish Fannie Mae’s superior right to
immediate possession of the property. See TEX. PROP. CODE ANN. § 24.002; Freeney,
266 S.W.3d at 625. Appellant did not submit any evidence creating a fact issue as to
whether Fannie Mad had a superior right to possession. We overrule appellant’s third
issue.
D. Notice
By his fourth issue, appellant contends the trial court abused its discretion because
“there is no evidence that shows that [Fannie Mae] sent Appellant notice to vacate nor
used any alternative method for giving notice prior to filing the eviction suit[.]” Appellant
argues that the notice in this case was “not realistic” and that Fannie Mae “should have
looked for alternative methods of notification.”
Fannie Mae’s summary judgment evidence includes copies of the notice to vacate
sent to appellant by certified mail at several addresses, including “22329 FM 2556, La
Feria, TX 78559” and “West Cantu Road, Santa Rosa, TX 78593.” The notices were
returned with the designation “No such number, unable to forward.” Fannie Mae’s
8
business records affidavit states that notice was sent to “22329 FM 2556, La Feria, Texas
a/k/a West Cantu Road, Santa Rosa, Texas 78593.” The “Property Address” listed in the
Deed of Trust is “West Cantu Road, Santa Rosa, Texas 78593.”
Paragraph 15 in the Deed of Trust provides that notice is “deemed to have been
given to the [b]orrower when mailed by first class mail” to the borrower at the Property
Address provided in the Deed of Trust. It further provides that the borrower shall promptly
notify the lender of any change of address. Pursuant to the terms of the deed, appellant
became a tenant at sufferance at the time of the foreclosure. Section 24.005 of the
property code provides that Fannie Mae was required to give only three days’ “written
notice to vacate” before filing suit. See TEX. PROP. CODE ANN. § 24.005(b).2 Fannie Mae
provided the required notice to the Property Address as stated in the Deed of Trust.
Although appellant argues that Fannie Mae should have sought an alternative means of
notification, he has directed us to no authority, and we have found none, requiring such
action. We overrule appellant’s fourth issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS GARZA,
Justice
Delivered and filed the
5th day of November, 2015.
2 The statute provides, in pertinent part: “If the occupant is a tenant at will or by sufferance, the
landlord must give the tenant at least three days' written notice to vacate before the landlord files a forcible
detainer suit unless the parties have contracted for a shorter or longer notice period in a written lease or
agreement.” TEX. PROP. CODE ANN. § 24.005(b) (West, Westlaw through 2015 R.S.).
9
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Case: 15-30101 Document: 00513480883 Page: 1 Date Filed: 04/26/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-30101 FILED
Summary Calendar April 26, 2016
Lyle W. Cayce
Clerk
ZZEUNDRE JACOBS,
Plaintiff-Appellant
v.
JAMES M. LEBLANC, Secretary; DARREL VANNOY, Warden; KEVIN
BENJAMIN, Assistant Warden, III; JIMMY SMITH, Assistant Warden, II;
SHIRLEY VALENTINE, Sergeant,
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:10-CV-271
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Plaintiff-Appellant Zzeundre Jacobs, Louisiana prisoner # 447048, filed
a 42 U.S.C. § 1983 lawsuit against the Defendants-Appellees, alleging that
they violated his constitutional rights by failing to enforce the prison’s no-
smoking policy, resulting in his exposure to unreasonable amounts of
environmental tobacco smoke (ETS). The district court dismissed James M.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-30101 Document: 00513480883 Page: 2 Date Filed: 04/26/2016
No. 15-30101
LeBlanc before trial and dismissed Burl Cain and Jimmy Smith following the
presentation of Jacobs’s case to the jury, which returned a verdict in favor of
the remaining defendants, Kevin Benjamin and Shirley Valentine.
Jacobs first contends that the district court erred in denying his motions
for summary judgment. The case proceeded through a trial on the merits,
however, so Jacobs cannot now appeal the district court’s ruling on his
previously filed summary judgment motions. See Ortiz v. Jordan, 562 U.S. 180,
184 (2011).
Jacobs next asserts that the district court improperly excluded three of
his exhibits pursuant to the defendants’ motion in limine: (1) a letter, copies of
which he mailed to different organizations that he says proves he was telling
people about the policy violations; (2) a letter he received from the American
Nonsmokers’ Rights Foundation that he says proves Louisiana correctional
centers are supposed to be smoke-free; and (3) an article from the 2006 U.S.
Surgeon General’s Report that he says proves there is no safe level of or
exposure to secondhand smoke. The district court excluded these exhibits
because they were irrelevant and constituted inadmissible hearsay. Jacobs has
failed to show that the district court abused its discretion because he fails to
argue, must less show, that his substantial rights were affected by their
exclusion. See Buford v. Howe, 10 F.3d 1184, 1188 (5th Cir. 1994); Kelly v.
Boeing Petroleum Servs., Inc., 61 F.3d 350, 361 (5th Cir. 1995).
Jacobs also contends that the district court abused its discretion in
denying his motion to appoint a medical expert, namely, an otolaryngologist,
which is an ear, nose, and throat specialist. Under Federal Rule of Evidence
706(a), the district court may appoint an expert witness to aid the court, not
for a party’s benefit. See Hannah v. United States, 523 F.3d 597, 600 (5th Cir.
2008). The district court denied the motion because Jacobs was seeking the
2
Case: 15-30101 Document: 00513480883 Page: 3 Date Filed: 04/26/2016
No. 15-30101
appointment of the expert for his own benefit. Jacobs has failed to show that
the appointment would aid the court or the jury in understanding his claims
or the evidence; and the evidence in the record included the kind of evidence
that an expert would be expected to give. Jacobs has provided nothing to show
that the district court abused its discretion in denying his motion to appoint
an expert. See Hannah, 523 F.3d at 600. Furthermore, because the jury
determined that Jacobs did not satisfy his burden of proof with respect to the
first element of his claim—that he was exposed to unreasonable levels of ETS—
it never reached the third element of his claim—whether the defendants’ acts
or omissions caused Jacobs’s injuries. Testimony from an otolaryngologist
would have been irrelevant.
Jacobs next maintains that the district court abused its discretion when
it denied his motions for the appointment of counsel. Relying on the factors
discussed in Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982), the district
court determined that the appointment of counsel was not warranted. On
appeal, Jacobs merely rehashes, in an abbreviated and conclusional fashion,
his previously asserted arguments. He has failed to show that the district court
abused its discretion in denying his motions to appoint counsel. See
Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007).
Finally, Jacobs complains of the jury’s verdict in favor of the remaining
defendants. His failures to preserve this issue by filing a Rule 50 motion for
directed verdict at trial or to produce a transcript of the trial prevent us from
disturbing the jury’s verdict. See FED. R. APP. P. 10(b)(2).
AFFIRMED.
3
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J -S19040-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee
v.
RAMON LUIS BENITEZ,
Appellant : No. 2014 EDA 2018
Appeal from the PCRA Order Entered June 13, 2018
in the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0003359-2001
BEFORE: LAZARUS, J., KUNSELMAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 12, 2019
Ramon Luis Benitez (Appellant) appeals pro se from the order entered
on June 13, 2018, dismissing his petition filed under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. In addition, Appellant has filed an
application for leave to file post -submission communication. We affirm the
order and deny Appellant's application.
On October 20, 2001, Appellant shot and killed Tyrone Gattis. Appellant
was arrested and charged with, inter a/ia, homicide and criminal conspiracy to
commit homicide. On June 20, 2002, a jury found Appellant guilty of first -
degree murder and criminal conspiracy. On June 24, 2002, Appellant was
sentenced to a term of life imprisonment on the murder conviction, and a term
of 20 to 40 years of imprisonment on the conspiracy conviction. This Court
affirmed Appellant's judgment of sentence on April 25, 2003.
* Retired Senior Judge Assigned to the Superior Court.
J -S19040-19
Commonwealth v. Benitez, 828 A.2d 393 (Pa. Super. 2003) (unpublished
memorandum). Appellant did not file a petition for allowance of appeal to our
Supreme Court.
On August 29, 2012, Appellant filed pro se his first PCRA petition.
Counsel was appointed and an evidentiary hearing was held. The PCRA court
denied Appellant's petition on January 3, 2013. Appellant did not file an
appeal.
On May 3, 2018, Appellant filed pro se the instant PCRA petition. On
May 14, 2018, the PCRA court issued notice of its intent to dismiss the petition
without a hearing pursuant to Pa.R.Crim.P. 907. Appellant filed a response
on June 8, 2018, and the PCRA court dismissed the petition on June 13, 2018.
Appellant timely filed a notice of appeal, and both Appellant and the PCRA
court complied with Pa.R.A.P. 1925.1
On appeal, Appellant raises one issue, which we recite verbatim:
"Whether this pro se brief upon appeal merit redress is a question of
jurisdiction -and -the law." Appellant's Brief at III. In the argument section
of his brief, Appellant mentions the jurisdiction of the PCRA court, a "public
record safeguard" under Commonwealth v. Burton, 158 A.3d 618 (Pa.
2017), his speedy trial rights pursuant to Pa.R.Crim.P. 600, an equal
1 In its Rule 1925(a) opinion, the PCRA court directs us to its May 14, 2018
notice of intent to dismiss.
-2
J -S19040-19
protection violation due to his inability to speak English, a purported "fatal
variance" by the prosecution during trial, allegedly inconsistent evidence at
trial, and allegedly improper jury charges. Id. at Leaf 1-3.2
Before we may address the merits of Appellant's claim, we must
determine whether this PCRA petition was timely filed as it implicates our
jurisdiction. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Any PCRA petition, including second and subsequent petitions, must either (1)
be filed within one year of the judgment of sentence becoming final, or (2)
plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b). Furthermore,
the petition "shall be filed within one year of the date the claim could have
been presented." 42 Pa.C.S. § 9545(b)(2).3
"For purposes of [the PCRA], a judgment [of sentence] becomes final at
the conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review." 42 Pa.C.S. § 9545(b)(3).
Here, Appellant was sentenced in 2002. This Court affirmed his
judgment of sentence in 2003, and his judgment of sentence became final
after the expiration of time for seeking review with our Supreme Court.
2 Appellant uses unconventional pagination.
3 On October 24, 2018, the General Assembly amended subsection 9545(b)(2)
in order to extend the time for filing a petition from 60 days to one year from
the date the claim could have been presented. See 2018 Pa.Legis.Serv.Act
2018-146 (S.B. 915), effective December 24, 2018.
-3
J -S19040-19
Appellant then had one year to file a timely PCRA petition. Thus, Appellant's
petition filed on May 3, 2018, nearly 14 years later, is facially untimely, and
he was required to plead and prove an exception to the timeliness
requirement.
In his petition and on appeal, Appellant attempts to plead the newly -
discovered facts exception set forth in 42 Pa.C.S. § 9545(b)(ii) ("Any petition
under this subchapter, including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final, unless the petition
alleges and the petitioner proves that ... the facts upon which the claim is
predicated were unknown to the petitioner and could not have been
ascertained by the exercise of due diligence[.]"). PCRA Petition, 5/3/2018, at
8 (pagination supplied); Appellant's Brief at Leaf 1.
The timeliness exception set forth in [subs]ection 9545(b)(1)(ii)
requires a petitioner to demonstrate he did not know the facts
upon which he based his petition and could not have learned those
facts earlier by the exercise of due diligence. Due diligence
demands that the petitioner take reasonable steps to protect his
own interests. A petitioner must explain why he could not have
obtained the new fact(s) earlier with the exercise of due diligence.
This rule is strictly enforced.
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010)
(citations omitted).
-4
J -S19040-19
Appellant relies on Burton4 in claiming he has met this exception.
Appellant's Brief at Leaf 1. However, nowhere in his brief does Appellant
reference or explain the newly -discovered facts upon which he relies to satisfy
the PCRA's timeliness exception. Regardless, Appellant waived this issue by
failing to raise it in his Pa.R.A.P. 1925(b) statement or the statement of
questions involved section of his brief. Commonwealth v. Lord, 719 A.2d
306, 309 (Pa. 1998) ("Any issues not raised in a 1925(b) statement will be
deemed waived."); see also Rule 1925(b) Statement, 7/5/2018 (raising
claims relating to a speedy trial violation and Appellant's belief that "he meets
the rationale[]" of Commonwealth v. Edwards, 177 A.3d 963 (Pa. Super.
2018) and Commonwealth v. Diaz, 183 A.3d 417 (Pa. Super. 2018))5.
Based on the foregoing, we conclude that Appellant's petition was filed
untimely, and he has not pleaded and proven an exception to the timeliness
requirements. Thus, he is not entitled to relief. See Albrecht, 994 A.2d at
1095 (affirming dismissal of PCRA petition without a hearing because the
appellant failed to meet burden of establishing timeliness exception).
4 In Burton, our Supreme Court held that "the presumption that information
which is of public record cannot be deemed 'unknown' for purposes of
subsection 9545(b)(ii) does not apply to pro se prisoner petitioners." 158
A.3d at 638 (emphasis in original).
5 Neither Edwards nor Diaz involved the newly -discovered facts exception to
an untimely PCRA petition. Edwards involved a direct appeal. 177 A.3d at
967. Diaz involved the Commonwealth's appeal from the PCRA court's grant
of Diaz's timely PCRA petition and a new trial based upon trial counsel's per
se ineffective handling of Diaz's need for a translator at trial. 183 A.3d at 418,
421-424.
-5
J -S19040-19
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/12/19
-6
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77 F.3d 378
Joel TINNEY, Lisa Tinney, Plaintiffs-Appellees,v.Edith SHORES, Defendant,Bill Franklin, as Sheriff of Elmore County and in hisindividual capacity, Paul Henderson, as DeputySheriff of Elmore County and in hisindividual capacity,Defendants-Appellants,Elmore County, Alabama, Defendant.
No. 94-6889.
United States Court of Appeals,Eleventh Circuit.
March 8, 1996.
Bart Gregory Harmon, Kendrick E. Webb, Montgomery, AL, for appellants.
Paul Christian Sasser, Jr., Montgomery, AL, Ben A. Fuller, Prattville, AL, for appellees.
Appeal from the United States District Court for the Middle District of Alabama.
Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and JOHNSON, Senior Circuit Judge.
PER CURIAM:
1
In this appeal from the Middle District of Alabama, Bill Franklin, Sheriff of Elmore County, and Paul Henderson, Chief Deputy Sheriff of Elmore County (collectively, "Appellants"), appeal the district court's denial of their motion for summary judgment with respect to the claims of Joel and Lisa Tinney under the Due Process Clause of the Fourteenth Amendment and 42 U.S.C.A. § 1983 (West 1994) and under various state laws. We reverse the denial of summary judgment on the substantive and procedural due process claims. We also reverse the denial of summary judgment on the state law claims, based on Appellants' sovereign immunity.
I. STATEMENT OF THE CASE
A. Factual Background
2
Joel and Lisa Tinney lived in their house-trailer with their two young children on land leased from Edith Shores. On or about July 13, 1991, Shores told the Tinneys that their rent was approximately $400 in arrears. After they failed to pay, the Tinneys received an eviction notice, and the landlord instituted eviction proceedings.
3
On August 8, 1991, Appellants served Mr. Tinney with eviction papers. Mr. Tinney told them that the house-trailer would be moved by noon that day. Shortly thereafter, however, Henderson returned and informed the Tinneys that, over the telephone, a bank had given Shores a lien on the house-trailer and that the Tinneys were not permitted to move it. The Tinneys were not served with any official attachment papers. Nevertheless, they were told that they would have until noon to remove their personal possessions from the house-trailer. After moving one load of possessions in a small automobile, the couple returned to find the house-trailer padlocked; they were unable to remove any more of their possessions.
4
Soon thereafter, the Tinneys received a letter from Shores' attorney, informing them that the house-trailer would be sold unless they paid the rent in arrears. Shores did not file suit to recover either the unpaid rent or payments on the house-trailer. Nonetheless, Shores sold the house-trailer and the Tinneys' possessions were not returned.
B. Procedural History
5
In June 1993, the Tinneys filed this action in federal district court naming as defendants Shores, Appellants, and Elmore County. The Tinneys asserted state law claims for conversion and trespass and Section 1983 claims based on deprivations of their 14th Amendment substantive and procedural due process rights and their Fourth Amendment right to be free from unreasonable searches and seizures. In July 1993, the Tinneys amended their complaint to sue Appellants in both their individual and their official capacities.
6
In December 1993, the district court dismissed all claims against Elmore County and all claims against Appellants in their official capacities. In June 1994, Appellants moved for summary judgment on the remaining claims, both on the merits and on qualified, quasi-judicial and state sovereign immunity grounds. In August 1994, the district court granted Appellants' motion with regard to the Fourth Amendment claim but denied it with regard to the due process claims and the state law claims. Appellants timely filed their notice of interlocutory appeal.
II. DISCUSSION
7
On appeal, Appellants contend (1) that the district court erred in denying summary judgment based on Appellants' qualified immunity from the Tinneys' substantive due process and procedural due process claims, and (2) that the district court erred in denying summary judgment on the state law claims based on state sovereign immunity.
A. Qualified Immunity
8
Because qualified immunity provides the right not to be burdened by trial, and not simply a defense to liability, this Court has jurisdiction to review interlocutory appeals from orders denying summary judgment based on qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). Ansley v. Heinrich, 925 F.2d 1339, 1345 (11th Cir.1991). We review this question of law de novo. Oladeinde v. City of Birmingham, 963 F.2d 1481, 1487 (11th Cir.1992), cert. denied, 507 U.S. 987, 113 S.Ct. 1586, 123 L.Ed.2d 153 (1993). In so doing, our inquiry is confined to whether the record, viewed in the light most favorable to the party opposing summary judgment, reveals violations of clearly established law. Rogers v. Miller, 57 F.3d 986 (11th Cir.1995).
9
Qualified immunity protects government actors in their individual capacities from civil damage claims, provided that their conduct does not violate clearly established constitutional rights. Lassiter v. Alabama A & M Univ., Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir.1994). The Supreme Court has stated that "[a] necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is 'clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all." Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Accordingly, we first examine whether the Tinneys have asserted a cognizable constitutional claim. See Wooten v. Campbell, 49 F.3d 696, 699 (11th Cir.1995). Jordan v. Doe, 38 F.3d 1559, 1564 (11th Cir.1994).
1. The Substantive Due Process Claim
10
Relying on Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), Appellants contend that the district court erred by denying them summary judgment on the Tinneys' substantive due process claim, arguing that the Fourth Amendment provides whatever protection, if any, the constitution guarantees in a seizure case like this one. In Graham, the Supreme Court held that where a particular amendment "provides an explicit textual source of constitutional protection" against a particular sort of government behavior, "that Amendment, not the more generalized notion of 'substantive due process' must be the guide for analyzing" the claim. Id. at 395, 109 S.Ct. at 1871. Graham involved a claim that law enforcement officers used excessive force during an investigatory stop. The Court held that all cases involving allegations of the use of excessive force in an arrest, an investigatory stop, or any other seizure, should be analyzed under the Fourth Amendment. Id.
11
More recently, in Albright v. Oliver, the Supreme Court held that an allegation of prosecution without probable cause must also be analyzed under the Fourth Amendment, without reference to the more general considerations of substantive due process. --- U.S. ----, ----, 114 S.Ct. 807, 817, 127 L.Ed.2d 114 (1994). "The protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation and the right to bodily integrity ..." Albright, --- U.S. at ----, 114 S.Ct. at 812.
12
Soldal v. Cook County makes clear that the Fourth Amendment is the textual source of the Tinneys' constitutional protection. In Soldal, the Supreme Court held that police officers' participation in the seizing and carrying away of a family's mobile home was a seizure under the Fourth Amendment. 506 U.S. 56, 71-72, 113 S.Ct. 538, 549, 121 L.Ed.2d 450 (1992). Thus, the Tinneys' substantive due process claim is foreclosed by Albright and Soldal. Because the Tinneys have failed to assert a cognizable constitutional claim, the district court erred by denying Appellants summary judgment.
2. The Procedural Due Process Claim
13
The Tinneys assert, and the district court held, that Appellants' failure to adhere to Alabama's pre-deprivation takings procedure constituted a procedural due process violation. Conversely, Appellants contend that the district court erred in denying them summary judgment on the procedural due process claim because adequate post-deprivation remedies were available under state law. In other words, Appellants maintain that the deprivation in this case was not complete because a property deprivation does not occur until the state has been given the opportunity to remedy the state employees' error and has failed to do so.
14
Appellants' contention rests on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part not relevant by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986). Parratt involved a prisoner's loss of property due to the random, negligent act of a state employee. The Supreme Court held that the state tort remedies available to the prisoner satisfied the prisoner's due process rights because due process does not require a pre-deprivation hearing where such a hearing would be impracticable--i.e., where the deprivation results from an employee's negligent act. In Hudson v. Palmer, 468 U.S. 517, 531, 104 S.Ct. 3194, 3202, 82 L.Ed.2d 393 (1984), the Court extended Parratt 's reasoning and held that "an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the 14th Amendment if a meaningful post-deprivation remedy for the loss is available." The state's action is not complete unless and until it refuses to provide a post-deprivation remedy. Id.
15
The Tinneys contend that application of the Parratt rule in cases like this one amounts to a requirement that a Section 1983 plaintiff seeking to redress a violation of procedural due process must exhaust his or her state remedies before suing in federal court. The Supreme Court rejected such a requirement in Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). However, the Tinneys' contention lacks merit. In a recent public employment case brought under Section 1983, this Court, sitting en banc, explained the difference between Patsy 's import and Parratt 's:
16
In Patsy the Supreme Court held that section 1983 plaintiffs were not required to avail themselves of available state remedies before suing in federal court; the Court's holding presumed the presence of a valid constitutional claim. In this case, McKinney cannot state a valid constitutional claim under Parratt and Bishop because Florida provides an adequate process to remedy McKinney's alleged injury....
17
McKinney v. Pate, 20 F.3d 1550, 1563 n. 20 (1994) (en banc ), cert. denied, --- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995).
18
As in McKinney, Patsy is inapplicable here. Under Parratt and Hudson, the Tinneys have failed to state a valid procedural due process claim because they have not alleged that Alabama law provided them with an inadequate post-deprivation remedy.1 Thus, the district court erred by denying summary judgment.2
B. State Sovereign Immunity
19
Appellants also contend that the district court erred in denying them summary judgment on the state law claims. Appellants maintain that they are entitled to state sovereign immunity under Alabama law. Both parties invoke this Court's jurisdiction under Griesel v. Hamlin, 963 F.2d 338, 341 (11th Cir.1992), which held that denials of sovereign immunity under Georgia law are immediately appealable. See also, Cummings v. DeKalb County, 24 F.3d 1349, 1352 (11th Cir.1994). Griesel reasoned that sovereign immunity in Georgia is immunity from suit, not merely a defense from liability. Id. This same rationale applies equally to a claim of sovereign immunity under Alabama law.
20
Alabama grants sovereign immunity to its state executive officers pursuant to Article I, Section 14 of the Alabama Constitution of 1901. Section 14 states that "the State of Alabama shall never be made a defendant in any court of law or equity." Under Alabama law, both sheriffs and deputy sheriffs are considered executive officers of the state, immune from suit under Section 14.3 See Parker v. Amerson, 519 So.2d 442, 443 (Ala.1987). Parker v. Williams, 862 F.2d 1471, 1475 (11th Cir.1989). Drain v. Odom, 631 So.2d 971, 972 (Ala.1994). Like Georgia, then, Alabama intended for its state officers to be immune from suit. As such, the denial of summary judgment based on sovereign immunity is properly before us on interlocutory appeal.
21
Sovereign immunity is a question of law we review de novo. Cummings, 24 F.3d at 1353. Under Alabama law, sheriffs and deputy sheriffs, in their official capacities and individually, are absolutely immune from suit when the action is, in effect, one against the state. Phillips v. Thomas, 555 So.2d 81, 83 (Ala.1989). The district court noted, though, that Phillips and Gill v. Sewell, 356 So.2d 1196, 1198 (Ala.1978) identify a number of exceptions to Section 14 immunity. Specifically, the district court held that sovereign immunity does not protect state officials who act under a mistaken interpretation of law. Based on this exception, the district court found that Appellants were not entitled to sovereign immunity.
22
Recent Alabama case law makes it clear, however, that the exception relied upon by the district court is inapplicable in this case. In Alexander v. Hatfield, 652 So.2d 1142, 1143 (Ala.1994), the plaintiff sued the sheriff for negligence and bad faith service of process. The Alabama Supreme Court explained that under Article I, § 14, the only exceptions to a sheriff's immunity from suit are actions brought to enjoin the sheriff's conduct. Id. at 1143.4 See also Carr v. City of Florence, 916 F.2d 1521, 1525 (11th Cir.1990). Because the sheriff in Alexander was being sued for damages and not injunctive relief, the court held that the exceptions to Section 14 were inapplicable and therefore the sheriff was immune from suit. Id.
23
Like Alexander, Appellants in this case are being sued for damages, based upon claims of conversion and trespass, and not for injunctive relief. Therefore, Appellants are entitled to sovereign immunity from the state law claims. Accordingly, we reverse the district court's denial of summary judgment on these claims.
III. CONCLUSION
24
For the foregoing reasons, we REVERSE the district court's denial of summary judgment on the Tinneys' substantive due process and procedural due process claims. We also REVERSE its denial of summary judgment based on Appellants' sovereign immunity from the state law claims.
1
In holding that Parratt was inapplicable to the instant case, the district court relied upon Fetner v. City of Roanoke, 813 F.2d 1183, 1185 (11th Cir.1987), wherein we wrote "[t]he touchstone in Parratt was the impracticability of holding a hearing prior to the claimed deprivation." On the basis of this language, the district court held: "[a]ttachment is a daily occurrence and because the State has pre-deprivation procedures in place, [Appellants] cannot maintain that pre-deprivation process was impracticable." The district court misconstrued the notion of "impracticability" as it is used in Parratt. The question is whether the state can anticipate and therefore control the action of a state employee. See Hudson, 468 U.S. at 533, 104 S.Ct. at 3203. Once a state has established procedures for the effectuation of an attachment--which Alabama undisputedly has--it cannot predict whether or not, in a given situation, those procedures will be followed or ignored. Thus, as with an employee's negligence or an employee's intentional wrongful act, Appellants' actions in this case were not preventable beforehand by the state. Therefore, under Parratt and Hudson, no procedural due process violation occurs unless the state fails to provide the opportunity to redress the situation after the fact. The Tinneys argue only that the due process violation was complete at the time of the attachment, without regard to the availability of post-attachment remedies, and thus they have failed to establish a procedural due process violation. Because the Tinneys have not challenged the adequacy of Alabama's post-deprivation remedies, we have no occasion to decide whether Alabama law does in fact provide adequate avenues for making the Tinneys whole
2
Appellants also challenge the district court's denial of summary judgment on the basis of absolute quasi-judicial immunity. Because we decide that summary judgment was proper on other grounds, we need not reach this issue
3
Alabama law affords § 14 immunity to state officers sued in both their official and individual capacities. See Phillips v. Thomas, 555 So.2d 81, 83 (Ala.1989). Gill v. Sewell, 356 So.2d 1196, 1198 (Ala.1978)
4
The court stated:
Under Article I, Sec. 14, of the Alabama Constitution of 1901, the only exceptions to the sovereign immunity of sheriffs are actions brought
(1) to compel him to perform his duties, (2) to compel him to perform ministerial acts, (3) to enjoin him from enforcing unconstitutional laws, (4) to enjoin him from acting in bad faith, fraudulently, beyond his authority, or under mistaken interpretation of the law, or (5) to seek construction of a statute under the Declaratory Judgment Act if he is a necessary party for the construction of the statute. (citations omitted).
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785 F.2d 310
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 E. STEWART; ROY MARTIN; JAMES BOLDEN, Plaintiffs-Appellees,v.JAMES RHODES; GEORGE DENTON; T. E. HASKINS; NEAL KETTE;DAVID McKEEN; ROGER OVERBERG; DOROTHY ARN; ARNOLDJAGO; TED ENGLE; WILLIAM H. DALLMAN; E.P. PERINI; FRANK GRAY,Respondents-Appellants.
85-3151
United States Court of Appeals, Sixth Circuit.
1/14/86
Before: ENGEL and MILBURN, Circuit Judges; and WOODS, District Judge.*
PER CURIAM.
1
Defendants appeal the order entered in the United States District Court for the Southern District of Ohio awarding attorneys' fees for work performed by plaintiffs' counsel in the compliance phase of this prisoner's civil rights action. This action was commenced in 1978 by several inmates at the Columbus Correctional Facility (CCF) on behalf of all persons incarcerated at the prison. The inmates alleged that prison officials unlawfully segregated prisoners by race, used impermissible methods of physical restraint, and challenged other alleged unconstitutional conditions of their confinement. The prisoners sought declaratory and injunctive relief.
2
On July 13, 1979, the district court issued a preliminary injunction prohibiting the further use of physical restraints and the segregation of prisoners by race. In December, 1979, the parties signed a comprehensive consent decree controlling virtually every aspect of prison conditions at CCF as they relate to the inmates. After entry of the consent decree, plaintiffs' counsel moved for an award of attorneys' fees. The district court granted fees in the amount of $117,020.34 for approximately 1,850 hours of work. The district court's award was upheld by this court in Stewart v. Rhodes, 656 F.2d 1216 (1981), cert. denied, 455 U.S. 991 (1982), which held under Northcross v. Bd. of Education of Memphis City Schools, 611 F.2d 624 (6th Cir. 1979), cert. denied, 447 U.S. 911 (1980), that the district court's award of fees did not constitute an abuse of discretion.
3
The breadth of the consent decree ran from enjoining prison officials from refusing to develop indoor and outdoor recreational activities to enjoining them from refusing to provide psychiatric care. It covered sanitation and hygiene, the maintenance of heating, ventiliation, lighting, plumbing, and water systems, fire safety, medical care, disciplinary procedures, and the treatment of newly received prisoners. The consent decree included a timetable for phasing out double-celling and, most significantly, it included a timetable for closing CCF altogether. See Consent Decree, Sec. I (Jt. App. at A 711).
4
This appeal concerns fees awarded by the district court on the basis of the report and recommendation of two Special Masters for work performed between December 12, 1979 and October 28, 1983 by five attorneys from the American Civil Liberties Union of Ohio and the Legal Aid Society of Columbus. On September 17, 1984, the Special Masters filed a recommendation to the district court that attorneys' fees be awarded totaling $107,336.80. On January 17, 1985, Judge Robert M. Duncan issued an order adopting the Master's recommendation in full. The defendants argue on appeal that the district court improperly applied the standards for awarding attorneys' fees contained in Blum v. Stenson, ---- U.S. ----, 104 S. Ct. 1541 (1984), and Hensley v. Eckerhart, 461 U.S. 424 (1983).
5
The award of attorneys' fees ultimately approved by the district court came only after an extensive evidentiary hearing had been held before the Special Master and had been thoroughly reviewed by the same district judge who was intimately familiar with the nature and extent of the underlying litigation. While each of the appellant's allegations had been vigorously argued in the briefs and before us in oral argument, we find from an examination of the record as a whole that the determinations made by the Special Master and approved by the district court are supported by substantial and credible evidence, and we are unwilling to substitute our judgment for that of the district court.
6
Accordingly, the judgment of the district court is AFFIRMED.
*
The Honorable George E. Woods, United States District Court for the Eastern District of Michigan, sitting by designation
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00129-CR
TIMOTHY EARL JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court
Gregg County, Texas
Trial Court No. 42004-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Timothy Earl Johnson had some outstanding arrest warrants which Longview police
served on him. The arresting officers confronted Johnson at his front door and were invited by
him into the house. The police testified that once they were inside the house, they saw Johnson
take actions which they perceived as being an attempt to conceal a gun which they believed had
been in his possession. Johnson was convicted of unlawful possession of a firearm by a felon
and was sentenced to seventeen years’ confinement. See TEX. PENAL CODE ANN. § 46.04(a)
(West 2011). 1
On appeal, Johnson alleges several grounds for reversal. The points raised by Johnson
regard his claims (1) that the trial court erred in admitting evidence of various statements he
made at the time of his arrest, (2) that his trial counsel rendered ineffective assistance, (3) that
there was impropriety of the content of certain arguments made by the State during the trial, and
(4) that the legality of the sentencing phase of his trial was flawed (this last complaint being
based on the fact that the trial court allowed the State to re-open the punishment evidence to
prove its enhancement allegation). We overrule Johnson’s points of error and affirm the trial
court’s judgment.
I. Custodial Statements by Johnson
In his first point of error, Johnson argues that the trial court erred in allowing the
admission into evidence of statements made by Johnson to police when Johnson was effectively
in custody. Longview Detectives Lanie Smith and Terry Lofties were assigned to arrest Johnson
1
The State alleged and proved an enhancement allegation. See TEX. PENAL CODE ANN. § 12.42(a) (West Supp.
2013).
2
on five misdemeanor warrants. They went to a house where they believed they would find
Johnson and were met at the front door by him. Johnson indicated that he was aware of the
existence of the arrest warrants and asked to be allowed to put on shoes and a shirt before
accompanying them. The police officers consented and Smith followed Johnson into the house.
Smith watched Johnson bend over between the coffee table and couch, then heard something
strike the floor. When Johnson moved out of the way, Smith saw the handle of a pistol on the
floor in the same area that he had heard the impact with the floor. Smith secured the weapon,
and Johnson was allowed to dress before leaving the house. Although Johnson moved to
suppress the statements made by Johnson during this encounter, the trial court allowed those
statements into evidence.
We review a trial court’s ruling on a motion to suppress for an abuse of discretion and
overturn that ruling “only if it is outside the zone of reasonable disagreement.” Martinez v.
State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). We apply two different standards in
reviewing such a ruling, “giving almost total deference to a trial court’s determination of historic
facts and mixed questions of law and fact that rely on the credibility of a witness, but applying a
de novo standard of review to pure questions of law and mixed questions that do not depend on
credibility determinations.” Id. at 922–23. In a determination that presents a mixed question of
law and fact, appellate courts afford almost total deference to questions of historical fact that turn
on credibility and demeanor but otherwise conduct a de novo review. Herrera v. State, 241
S.W.3d 520, 526–27 (Tex. Crim. App. 2007).
3
During the encounter concerning the serving of the misdemeanor warrants, Smith said
that Johnson was not free to leave; Johnson had already said he was aware that the officers had
warrants for him. We agree with the trial court’s finding that Johnson was in custody. See TEX.
CODE CRIM. PROC. ANN. art. 15.22 (West 2005); Shiflet v. State, 732 S.W.2d 622, 629 (Tex.
Crim. App. 1985).
“[U]nwarned statements that are otherwise voluntary within the meaning of the Fifth
Amendment must nevertheless be excluded from evidence under Miranda.” 2 Oregon v. Elstad,
470 U.S. 298, 307 (1985); see also Carter v. State, 309 S.W.3d 31, 35–36 (Tex. Crim. App.
2010) (“Failure to provide the warnings and obtain a waiver prior to custodial questioning
generally requires exclusion of statements obtained.”). 3 Custodial interrogation refers to
“(1) express questioning and (2) ‘any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.’” Alford v. State, 358 S.W.3d 647, 653 (Tex.
Crim. App. 2012) (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). That said,
statements made voluntarily and not in response to custodial interrogation are admissible.
Arizona v. Mauro, 481 U.S. 520, 525–26, 529 (1987); Miranda, 384 U.S. at 478 (“Volunteered
statements of any kind are not barred by the Fifth Amendment . . . .”); Stevens v. State, 671
S.W.2d 517, 520 (Tex. Crim. App. 1984); Hutchinson v. State, 424 S.W.3d 164, 178 (Tex.
App.—Texarkana 2014, no pet.).
2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
Carter addressed situations where an unwarned statement is obtained and police subsequently administer the
required warnings; in some situations, the unwarned statement may become admissible owing to the subsequent
warning. Such is not the situation here.
4
A. Statement About Hiding Gun
When the State first questioned Smith during the suppression hearing, it asked no
questions about statements made by Johnson. Johnson brought up the statements, and the State
then asked redirect questions that pertained to those statements. At no point did Smith advise
Johnson of his Miranda4 rights. Smith stated that he “wasn’t questioning about any crimes at the
time.” According to Smith, when he noticed the pistol on the floor, Johnson stated that
he was afraid that if he picked up the gun, -- if -- if we saw him pick up the gun,
then obviously we would have an issue with that. And -- and he -- he told us he
was afraid he was going to get shot if he picked up the gun. And he didn’t want
to get beat or anything like that, so that’s why he tried to hide the gun real quick.
Smith said this statement was not in response to a question; rather, Johnson “just told us that.”
Smith also said, “No, I did not question him -- question him specifically why he moved the gun.”
Apparently in contradiction of these statements, just a few minutes earlier, under cross-
examination by Johnson’s attorney, Smith indicated that he had questioned Johnson upon seeing
the gun.
[Defense counsel] But you did question him when you saw the gun?
[Detective Smith] Sure.
“[T]he trial court is sole trier of fact and judge of the credibility of the witnesses and the weight
to be given their testimony.” State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Smith
gave apparently conflicting answers about whether Johnson’s statement as quoted above was
made in response to a question. The trial court made the following ruling:
4
Miranda, 384 U.S. at 445, 469–72 (suspect’s rights before custodial interrogation to be informed of constitutional
right to remain silent, any statements could be used against suspect in court, and suspect’s right to consult with
lawyer).
5
The statement of -- after the defendant put down the handgun, that he brought up
on his own, that he didn’t want to get shot or tackled or -- with the gun, he
brought that up on his own; that was not the result of custodial interrogation.
Therefore, that statement is admissible.
It is not irrefutably clear that Johnson’s statement that he hid the gun because he was afraid of
getting shot or “beat or anything like that,” was uttered in response to a question from Smith.5
The trial court was able to hear the exchange of questions and answers and evaluate the witness’
answers and their demeanor while responding; we will defer to the trial court’s determination
that this statement was not the result of custodial interrogation.
B. Statement Regarding Pill and Pistol
After Johnson’s statement about moving the pistol, he and the officers engaged in “small
talk,” while Johnson made telephone calls to locate someone who could come lock up the house
after he was removed from the house by the police. As Smith unloaded the gun, he noticed a
pill. He asked Johnson, “Whose pill is this?” and Johnson answered, “Hey, that’s not my gun,
that’s not my pill. You can throw that away.” The trial court ruled on this statement: “The
further statement that he added that, ‘That’s not my gun, that’s not my pill,’ that was not the
result of custodial interrogation. That is admissible.”
“The State may not use a defendant’s statements, whether exculpatory or inculpatory,
stemming from a custodial interrogation unless the State demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.” White v. State, 395
S.W.3d 828, 834 (Tex. App.—Fort Worth 2013, no pet.) (citing Miranda, 384 U.S. at 444). We
5
Detective Lofties also said that Johnson said he hid the gun because he did not want to get hurt by the officers.
Lofties was not questioned specifically and did not indicate whether this statement was in response to express
questioning.
6
disagree with the trial court’s determination that Johnson’s disavowal of the ownership of both
the pill and the gun was not the product of custodial interrogation. Smith initiated the exchange
by asking Johnson the express question regarding the identity of the owner of the pill. 6 While
there was no testimony whether the pill was eventually shown to be a prohibited controlled
substance, that appears from the context to have been one of Smith’s considerations. Also,
Smith should have known this question was reasonably likely to elicit an incriminating response
(even though it did not). Johnson’s response that neither the gun nor the pill belonged to him
were responses to custodial interrogation and should not have been admitted.
C. Statement on Front Porch
After Johnson’s brother arrived to take charge of the house, Smith took Johnson outside
and asked, “Look, I’ve got this gun and everything. Is there any more guns in the house or
narcotics in the house, and would you mind me searching the house?” According to Smith,
Johnson said that “there may be more firearms or -- or guns in the house; and that he does smoke
weed, so there may be some weed in the house; and he does not want to incriminate himself.
And he did not consent to search the house.” The trial court’s ruling on this statement was,
“Asking for consent to search is not custodial interrogation. All the defendant had to say was no.
His statement that there may be more guns or -- is admissible.”
The trial court was correct, requesting consent to search is not a custodial interrogation.
Jones v. State, 7 S.W.3d 172, 175 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). However,
6
To be absolutely precise, Smith described this part of the encounter, “I’m unloading, taking the -- the clip out of the
gun, the magazine out of the gun, that he stated -- because there was also a pill down here. I’m like, ‘Whose pill is
this?’ And he stated, ‘Hey, that’s not my gun, that’s not my pill. You can throw that away.’”
7
Smith asked two questions of Johnson, not one. The first question was whether there were any
other weapons or drugs in the house, and the second question was whether Johnson would
consent to a search of the house. The first question was reasonably likely to elicit incriminating
information. When the Jones court reached the above conclusion, it pointed out that when the
appellant signed the consent form, the act of signing “was not, in and of itself, an incriminating
statement.” Id. Incident to reaching its conclusion, the Houston First Court in Jones examined
United States v. McClellan, 165 F.3d 535, 539–40 (7th Cir. 1999). The McClellan court said that
“because the giving of such consent is not a self-incriminating statement,” requesting consent to
search does not constitute interrogation in the Miranda context. Id. at 544 (citing United States
v. Shlater, 85 F.3d 1251, 1256 (7th Cir. 1996)).
In the case at bar, Smith did not restrict his question to ask for Johnson’s consent to
search the house; he also asked if any more weapons or narcotics were present in the house.
Having already found a pistol and a pill of unknown substance (at least based on the record
before us), Smith could reasonably anticipate that his question to Johnson was reasonably likely
to elicit an incriminating response. Indeed, Smith’s question did just that—Johnson told Smith
there might be marihuana or weapons in the house, and Johnson admitted he liked to smoke
marihuana. Smith’s question about the presence of guns or drugs in the house, particularly after
having completed the service of arrest warrants on Johnson, amounted to a custodial
interrogation. The trial court abused its discretion to allow Johnson’s responsive statement into
evidence.
8
II. Harmless Error
The admission into evidence of a statement taken in violation of Miranda rights is
constitutional error subject to harmless error review. See TEX. R. APP. P. 44.2(a); Jones v. State,
119 S.W.3d 766, 777 (Tex. Crim. App. 2003). When confronted with such an error, we must
reverse unless we conclude beyond a reasonable doubt that the error did not contribute to
appellant’s conviction or punishment. TEX. R. APP. P. 44.2(a); Snowden v. State, 353 S.W.3d
815, 818, 822 (Tex. Crim. App. 2011); Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App.
2007). “If there is a reasonable likelihood that the error materially affected the jury’s
deliberations, then the error is not harmless beyond a reasonable doubt.” McCarthy v. State, 65
S.W.3d 47, 55 (Tex. Crim. App. 2001) (citing Satterwhite v. Texas, 486 U.S 249, 256–57
(1988)). Our focus is on the error itself in the context of the trial as a whole, and the purpose of
that focus to determine the likelihood that the error “genuinely corrupted the fact-finding
process.” Snowden, 353 S.W.3d at 819; see also Clay, 240 S.W.3d at 904 (entire record must be
considered in harmless error analysis). We consider the nature of the error, the extent it was
emphasized by the State, the probable implications of the error, and the weight a juror would
probably place on the error. Snowden, 353 S.W.3d at 822.
Despite Smith’s somewhat inconsistent answers regarding whether he questioned
Johnson, he clearly described a specific sequence of events: (1) he followed Johnson into the
house, (2) Johnson bent over close to the floor near the coffee table and couch, (3) Smith heard
the sound of a metallic object hitting the floor, and (4) when Johnson moved so he was no longer
obstructing the view, Smith detected a pistol on the floor, beneath where Johnson had just bent
9
down. At some point before leaving the residence, Smith also saw a shotgun beneath the couch.
Johnson was the only person present in the house when the officers arrived. As discussed above,
the trial court was within its discretion to admit Johnson’s statement that he hid the pistol when
officers arrived. The State did not emphasize the two statements that we have determined should
not have been admitted into evidence. This was a fairly straightforward case in which the jury
had to answer a singular question: was Johnson in possession of a firearm? 7
The State placed no emphasis on Johnson’s statement regarding his use of marihuana, his
expression of concern that there might be other weapons in the house, or Johnson’s disavowal of
ownership of either the gun or the pill. Based on the entire record, we determine beyond a
reasonable doubt the trial court’s error in admitting the non-Mirandized statements did not
contribute to the conviction or judgment.
III. Prosecutor’s Arguments
Johnson complains of several statements made by the State during closing arguments.
Having lodged no objection to these statements before the trial court, we find any complaints
were not preserved for our review. See TEX. R. APP. P. 33.1. However, Johnson argues that the
State’s statements were so egregious and improper as to amount to fundamental error. 8 We will
briefly address the State’s comments of which Johnson makes appellate complaint, but find none
of them, individually or in the aggregate, amount to fundamental error.
7
Johnson does not challenge his status as a felon, or that the incident under review occurred within five years of his
release from parole.
8
We also point out that the Texas Court of Criminal Appeals has said that even where arguments are so egregious
that any instruction to disregard would not have been curative, a defendant must nonetheless object at trial in order
to raise an appellate complaint. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). In the interest of
justice, though, we will briefly address Johnson’s claims.
10
“Permissible jury argument falls into one of four areas: (1) summation of the evidence,
(2) reasonable deduction from the evidence, (3) an answer to the argument of opposing counsel,
or (4) a plea for law enforcement.” Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App.
2000).
Johnson raises quite a number of complaints about comments made by the State on
closing arguments, including assertions (1) that the State expressed a personal opinion as to
Johnson’s guilt, (2) that the attorney for the State injected new evidence (that the prosecutor had
seen other things written or said by a witness for the defense) which was not otherwise presented
at trial, (3) that the attorney for the State injected personal opinions as to the veracity of one of
the defense witnesses, (4) that the State attempted to inject evidence into its argument that had
not been adduced at trial when it posited that if the State had attempted to frame the defendant, it
could have concocted an even more ironclad story than was presented, (5) that the State has
accused the defendant of manufacturing evidence, and (6) that the State impermissibly
characterized the defendant and a defense witness as being gang members and praised a
testifying policeman as a “decent man.”
In the context in which the above statements were made, they were each permissible
under the circumstances and did not unduly prejudice Johnson’s case. We note that Johnson
made no objection to any of the statements made in closing argument, which he now raises on
appeal. Even had some valid objection been raised and the objection sustained, one questions
whether the nature of the comment would have been so egregious that a jury instruction would
not have been curative. Even viewing these statements with the most jaundiced eye in an effort
11
to view them as being improper, they would have amounted to only the most minor of
transgressions. Even so, the Texas Court of Criminal Appeals has said that even where things
said during argument are so egregious that not even an instruction to disregard would cure the
offense, “a defendant’s failure to object to a jury argument or a defendant’s failure to pursue to
an adverse ruling his objection to a jury argument forfeits his right to complain about the
argument on appeal.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). We also
note that (despite the number of objections to argument raised on appeal concerning the jury
argument by the State) there is “no authority holding that non-errors may in their cumulative
effect cause error.” Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999).
IV. No Showing of Ineffective Assistance of Counsel
Johnson claims his trial counsel provided deficient representation. 9 This requires a
showing of both deficient performance and prejudice. Strickland, 466 U.S. at 687; Thompson v.
State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Fox v. State, 175 S.W.3d 475, 485 (Tex.
App.—Texarkana 2005, pet. ref’d). Ineffective assistance of counsel claims cannot “be built on
retrospective speculation” but must be firmly rooted in the record, with the record itself
affirmatively demonstrating the alleged ineffectiveness. Bone v. State, 77 S.W.3d 828, 835 (Tex.
Crim. App. 2002). First, Johnson must show that trial counsel’s representation fell below an
objective standard of reasonableness. See Fox, 175 S.W.3d at 485 (citing Tong v. State, 25
S.W.3d 707, 712 (Tex. Crim. App. 2000)). We indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable, professional assistance, and was motivated by
9
We review claims of ineffective assistance of counsel using the two-step analysis described by the United States
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1986).
12
sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). “If
counsel’s reasons for his conduct do not appear in the record and there is at least the possibility
that the conduct could have been legitimate trial strategy, we will defer to counsel’s decisions
and deny relief on an ineffective assistance claim on direct appeal.” Ortiz v. State, 93 S.W.3d
79, 88–89 (Tex. Crim. App. 2002) (Thompson, 9 S.W.3d at 813–14). 10 Failure to satisfy either
of the Strickland prongs is fatal to a claim of ineffective assistance. Ex parte Martinez, 195
S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006).
Johnson alleges the following failures of trial counsel amounted to ineffective assistance:
(1) failure to allege or move that the statements of Johnson upon his arrest did not comply with
the requirements of Article 38.22 of the Texas Code of Criminal Procedure; (2) failure to object
to the prosecutor’s closing arguments (discussed above); (3) failure to object to admission of
evidence Johnson refused to consent to search of the house; (4) failure to make a Rule 403 11
objection to evidence of Johnson’s involvement in a gang; (5) failure to object to evidence of
convictions of other gang members; (6) failure to object to photographs from Johnson’s
10
The record on direct appeal is frequently insufficiently developed to support a claim of ineffective assistance of
counsel; the best way to make a sufficient record to support such a claim is by a hearing on a motion for new trial or
a hearing on a petition for habeas corpus. Jackson, 877 S.W.2d at 772–73 (Baird, J., concurring). When facing a
silent record as to defense counsel’s strategy, an appellate court will not speculate as to counsel’s tactics or reasons
for taking or not taking certain actions. Id. at 771. Because the trial record is directed to the issues of
guilt/innocence and punishment (or in this case, punishment alone), an additional record focused specifically on the
conduct of counsel, such as a record of a hearing on a motion for new trial asserting ineffective assistance of
counsel, is generally needed. Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).
Only when “‘counsel’s ineffectiveness is so apparent from the record’” will an appellant prevail on direct appeal
absent a hearing on a motion for new trial asserting an ineffective assistance of counsel claim. Freeman v. State,
125 S.W.3d 505, 506–07 (Tex. Crim. App. 2003) (quoting Massaro v. United States, 538 U.S. 500, 508 (2003));
Kemp, 892 S.W.2d at 115.
11
Rule 403 of the Texas Rules of Evidence requiries exclusion of relevant evidence where probative value is
substantially outweighed by the danger of unfair prejudice, inter alia. TEX. R. EVID. 403.
13
Facebook internet account; and (7) failure to move to withdraw until the punishment phase of
trial.
No motion for new trial was filed. We find nothing in the record attempting to secure
testimony from trial counsel regarding his decisions and strategies at trial. We are highly
deferential to trial counsel’s performance and indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable, professional assistance and was motivated by
sound trial strategy. See Strickland, 466 U.S. at 689; Jackson, 877 S.W.2d at 771. “If counsel’s
reasons for his conduct do not appear in the record and there is at least the possibility that the
conduct could have been legitimate trial strategy, we will defer to counsel’s decisions and deny
relief on an ineffective assistance claim on direct appeal.” Ortiz, 93 S.W.3d at 88–89 (citing
Thompson, 9 S.W.3d at 813–14).
Many of the bases for these claims of ineffective assistance have been addressed already.
Most of the closing arguments we have found either were not improper or, if potentially
improper, were not of such magnitude as to be harmful. Johnson’s counsel did attempt to keep
out evidence Johnson would not consent to a search of the house by way of his motion to
suppress and arguments made in support of the motion. The gang membership was admitted to
demonstrate possible witness bias in favor of the defendant, and the Facebook photographs were
provided incident to that gang evidence. While objecting to Johnson’s statements on the basis of
Article 38.22 of the Texas Code of Criminal Procedure or to the gang evidence citing Rule 403
of the Texas Rules of Evidence may have been successful, such is only speculation.
14
Even assuming deficient performance, we find that Johnson cannot show a reasonable
probability that the outcome of his trial would have been different but for the purported
deficiencies he cites. 12 As summarized earlier, the State’s burden of proof was neither
complicated nor onerous. It only had to prove that Johnson, a convicted felon, had the care,
custody, or control over a firearm. Johnson was in a house alone where he had been found by
police officers. He was seen bending over toward the floor beside some furniture and a
distinctive bump on the floor was heard as he bent. When Johnson moved in such a fashion that
he was no longer blocking the view of the floor, a pistol was observed in the place where he had
bent over and in the area where the bump was heard. A shotgun was in the same vicinity. Even
if Johnson did not own the pistol, there was strong evidence that he exercised care, custody, or
control over it. This is not even considering Johnson’s statement to one of the police officers
that he had moved the gun. 13
V. Substitution of Counsel
The trial court recessed the case for just over a month after the jury returned its verdict.
When the court reconvened for sentencing, Johnson’s retained counsel, Daryll Bennett,
announced that Johnson expressed discontentment with his representation:
Judge, I’ve talked to my client today and his family out here. And it seems like
they are upset with me that I couldn’t change the facts on this case. And I mean,
they had nothing but praise for me during the trial, and now they show up today
mad at me. He’s accused me of a lot of things and all this stuff.
12
See Strickland, 466 U.S. at 694.
13
As pointed out above, at one point Smith said he asked about the gun; at another he said he did not. Even if that
statement should have been excluded, Smith saw Johnson bend over and heard something hit the floor and, further,
the pistol was where Johnson had bent over.
15
Johnson told the trial court he was unhappy that Bennett had not spoken to Johnson since the
verdict. After saying he intended to hire another attorney, the trial court asked Johnson why he
had not done so. Johnson replied,
Oh, I didn’t know -- I didn’t know that we were going to talk about this today. I
really -- I ain’t had the chance to talk to him. I really wanted him to come and
talk to me at least while I was in jail. I haven’t even talked to him to even -- I
tried to write, too; I had my family write, too. It was just I wanted to talk to him
that he could talk to you or something, and let you know how I was feeling in
there. But I haven’t even talked to him. So I just feel like the whole -- I feel like
the whole case -- the whole case has been soured.
The trial court denied Johnson’s request. 14
The United States Supreme Court has long recognized that an accused “should be
afforded a fair opportunity to secure counsel of his own choice.” Powell v. Alabama, 287 U.S.
45, 53 (1932); see also Chandler v. Fretag, 348 U.S. 3, 10 (1954). “However the right to obtain
counsel of one’s own choice is neither unqualified nor absolute.” Ex parte Windham, 634
S.W.2d 718, 720 (Tex. Crim. App. 1982) (citing United States v. Barrentine, 591 F.2d 1069 (5th
Cir. 1979)); Gandy v. Alabama, 569 F.2d 1318 (5th Cir. 1978). Thus, that right must be
balanced with a trial court’s need for the prompt and efficient administration of justice.
Johnson relies on United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), in which the
United States Supreme Court held that a defendant was denied his Sixth Amendment right to
counsel where the trial court precluded him from being represented by the retained counsel of his
choice. Id. Gonzalez-Lopez hired an attorney, but the trial court denied that attorney’s
pro hac vice motion to appear in the trial court; Gonzalez-Lopez then had to retain another
14
The State told the trial court a detective witness was present, who was missing a training class to testify.
16
attorney. Id. at 142–43. The Court found the violation structural error, not susceptible to a harm
analysis. Id. at 150, 152. The Court pointed out, however, that nothing in its holding “casts any
doubt or places any qualification upon [its] previous holdings that limit the right to counsel of
choice and recognize the authority of trial courts to establish criteria for admitting lawyers to
argue before them.” Id. at 151. The Supreme Court “recognized a trial court’s wide latitude in
balancing the right to counsel of choice against the needs of fairness . . . and against the demands
of its calendar.” Id. at 152 (citations omitted).
We find important distinctions between the circumstance in Gonzalez-Lopez and in
Johnson’s situation. In Gonzalez-Lopez, the State conceded that the trial court had erroneously
precluded the defendant’s chosen attorney from representing him at trial. That attorney was
hired and ready to participate at trial. Johnson, on the other hand, made only an ephemeral
assertion of desire to retain another counsel and has provided no record of any concrete steps
taken by him to achieve that result. Based on the record, it seems likely Johnson was unhappy
with having been found guilty and had a month to dwell on the outcome of his trial. Other than
blanket complaints about Bennett’s lack of contact with him during the trial’s interregnum, he
offered no specific complaints about Bennett’s representation. Bennett could not be said to have
been unprepared for the punishment phase. After the hearing on the withdrawal motion, Bennett
presented Johnson and four others as witnesses. A defendant cannot simply wait until the day of
trial and then demand different counsel and still expect the result he seeks. Robles v. State, 577
S.W.2d 699, 704 (Tex. Crim. App. [Panel Op.] 1979) (citing Webb v. State, 533 S.W.2d 780, 784
(Tex. Crim. App. 1976)) (“[A]n accused’s right to represent himself or select his own counsel
17
cannot be manipulated so as to obstruct the orderly procedure in the courts or to interfere with
the fair administration of justice.”).
We find no error in the trial court’s refusal to allow Johnson to hire a different attorney
on the morning of the punishment trial.
VI. Re-Opening Punishment Evidence
Although the State had filed a pretrial notice of its intention to seek an enhanced
punishment range because of Johnson’s prior felony conviction as permitted by Section 12.42(a)
of the Texas Penal Code, during the punishment phase of trial, the State failed to offer evidence
of a prior felony conviction. 15 After the defense had rested its case-in-chief on punishment, the
trial court allowed the State to re-open and prove up a prior felony conviction. Johnson
complains that this ruling was error, citing Article 36.02 of the Texas Code of Criminal
Procedure, which allows testimony to be introduced at any time before the conclusion of
argument. TEX. CODE CRIM. PROC. ANN. art. 36.02 (West 2007).
The punishment phase was tried to the court, not the jury. As the Texas Court of
Criminal Appeals has pointed out, Article 36.02 is found in Chapter 36 of the Code of Criminal
Procedure entitled “The Trial Before the Jury.” TEX. CODE CRIM. PROC. ANN. arts. 36.01–.14
(West 2007), arts. 36.15–.33 (West 2006). “On the face of it, then, it would seem that the reach
of Article 36.02 would be limited to regulating the admission of evidence proffered at the jury
trial itself.” Black v. State, 362 S.W.3d 626, 634 n.38 (Tex. Crim. App. 2012). Johnson argues
that Article 36.02 applies to nonjury proceedings as well as trials to juries and cites Stout v. State,
15
The State alleged a different felony conviction for enhancement purposes than the jurisdictional felony alleged in
the indictment.
18
500 S.W.2d 153 (Tex. Crim. App. 1973), where the trial court allowed the State to re-open
evidence after the State closed its case in a probation revocation hearing. There was no
indication in Stout whether argument had been concluded, but the court cited caselaw and Article
36.02 for the “well established” doctrine that the court may allow the introduction of testimony
“at any time before the argument of the cause is concluded.” Id. at 154 (citations omitted). The
Stout court found no abuse of discretion. Id. In Black, after concluding that Article 36.02 seems
to be limited to jury trials, the Texas Court of Criminal Appeals acknowledged its Stout decision,
where the court “cited two cases that do not mention Article 36.02, but then gave a ‘cf.’ cite to
Article 36.02,” the notation “cf.” “conventionally mean[ing] that the named authority ‘supports a
proposition different from the main proposition but sufficiently analogous to lend support.’”
Black, 362 S.W.3d at 634, n. 38 (quoting THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION 55
(Columbia Law Review Ass’n et al. eds., 19th ed. 2010)).
The Black court’s reasoning makes sense—Article 36.02 is in the chapter controlling
trials before a jury. The limitation on allowing testimony before the conclusion of arguments is
germane to jury trials, where the parties’ arguments are presented following the conclusion of
evidence and the trial court’s charge to the jury. It is presumed that the court ignores improper
testimony; consequently, error, if any, was harmless. Ozack v. State, 646 S.W.2d 941, 943 (Tex.
Crim. App. 1983). Likewise, it is unlikely in a trial or proceeding before the bench that the trial
court would be confused by testimony adduced subsequent to closing arguments. We find that
Article 36.02 is not controlling in nonjury proceedings. The trial court did not err to allow the
19
State to re-open evidence to offer proof on the prior felony conviction alleged for enhancement
purposes. 16
Even if there were error in the trial court’s decision, it would be harmless. In its ruling,
the trial court pointed out it had been aware “that this has been an enhanced case from the
beginning.” The court pointed out the presentence investigation report and Johnson’s testimony
at the punishment phase had established prior convictions. Johnson admitted having been
sentenced to the penitentiary after an unsuccessful deferred adjudication community supervision
for a possession case out of Longview. He admitted having been to the penitentiary for two
offenses, one of which was proved up during the guilt/innocence phase of the trial for the
jurisdictional element of the charged unlawful possession of firearm by a felon. Johnson
identified that conviction as having been for a Harris County offense, which accords with the
felony conviction alleged in the indictment. These pieces of testimony were not sufficient to
prove the enhancement allegation, but support the trial court’s reasoning that it was aware the
case involved enhancement, and the admission of evidence of that conviction was anticipated.
16
Johnson cites Stout and Smith v. State, 290 S.W.3d 368, 373–75 (Tex. App.—Houston [14th Dist.] 2009, pet.
ref’d), which relied on Stout to find 36.02 applied to revocation proceedings, and concluded the trial court erred to
allow testimony after the conclusion of arguments. Black post-dates Smith and was rendered by the State’s highest
criminal court. We find our holding is required by Black, and Smith is not applicable.
20
We find no reversible error. We overrule the appellant’s points of error and affirm the
trial court’s judgment and sentence.
Bailey C. Moseley
Justice
Date Submitted: July 22, 2014
Date Decided: August 7, 2014
Do Not Publish
21
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474 F.3d 477
Deborah A. MAYER, Plaintiff-Appellant,v.MONROE COUNTY COMMUNITY SCHOOL CORPORATION, et al., Defendants-Appellees.
No. 06-1993.
United States Court of Appeals, Seventh Circuit.
Argued December 1, 2006.
Decided January 24, 2007.
Michael L. Schultz (argued), Indianapolis, IN, for Plaintiff-Appellant.
Thomas E. Wheeler, II (argued), Locke Reynolds LLP, Indianapolis, IN, for Defendants-Appellees.
Before EASTERBROOK, Chief Judge, and RIPPLE and MANION, Circuit Judges.
EASTERBROOK, Chief Judge.
1
Deborah Mayer worked for one year as a probationary elementary-school teacher in Monroe County, Indiana. When the school district did not renew her contract for a second year, Mayer filed this suit under 42 U.S.C. § 1983, maintaining that the school system let her go because she took a political stance during a current-events session in her class, thus violating the first amendment. The district court granted summary judgment to the defendants, so we must accept Mayer's version of events — which is that she answered a pupil's question about whether she participated in political demonstrations by saying that, when she passed a demonstration against this nation's military operations in Iraq and saw a placard saying "Honk for Peace", she honked her car's horn to show support for the demonstrators. Some parents complained, and the school's principal told all teachers not to take sides in any political controversy. Mayer believes that this incident led the school system to dismiss her; we must assume that this is so.
2
The district court concluded that, because military intervention in Iraq is an issue of public importance, Mayer had a right to express her views on the subject, but that the right is qualified in the work-place by the requirement that expression not disrupt an employer's business unduly. This is the method of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). After concluding that the employer's interests predominate, the district court gave judgment for the defendants. Mayer contends on appeal that the balance under Pickering weighs in her favor. For their part, defendants contend that interest balancing plays no role when the speech in question is part of the employee's official duties. See Garcetti v. Ceballos, ___ U.S. ___, ___, 126 S.Ct. 1951, 1960, 164 L.Ed.2d 689 (2006) ("[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."); Mills v. Evansville, 452 F.3d 646 (7th Cir.2006). Mayer concedes that the current-events session, conducted during class hours, was part of her official duties; if Garcetti supplies the rule of decision, then the school district prevails without further ado. Mayer insists, however, that principles of academic freedom supersede Garcetti in classrooms, and she relies on a statement in Piggee v. Carl Sandburg College, 464 F.3d 667, 672 (7th Cir.2006), that Garcetti was "not directly relevant" to the college instructor's speech in that case.
3
Whether teachers in primary and secondary schools have a constitutional right to determine what they say in class is not a novel question in this circuit. We held in Webster v. New Lenox School District No. 122, 917 F.2d 1004 (7th Cir.1990), that public-school teachers must hew to the approach prescribed by principals (and others higher up in the chain of authority). Ray Webster wanted to teach his social-studies class that the world is much younger than the four-billion-year age given in the textbook the class was using; he proposed that the pupils consider the possibility of divine creation as an alternative to the scientific understanding. We held that Webster did not have a constitutional right to introduce his own views on the subject but must stick to the prescribed curriculum — not only the prescribed subject matter, but also the prescribed perspective on that subject matter. Following Palmer v. Board of Education, 603 F.2d 1271 (7th Cir.1979), we held in Webster that "those authorities charged by state law with curriculum development [may] require the obedience of subordinate employees, including the classroom teacher." 917 F.2d at 1007. See also Boring v. Buncombe County Board of Education, 136 F.3d 364 (4th Cir.1998).
4
This is so in part because the school system does not "regulate" teachers' speech as much as it hires that speech. Expression is a teacher's stock in trade, the commodity she sells to her employer in exchange for a salary. A teacher hired to lead a social-studies class can't use it as a platform for a revisionist perspective that Benedict Arnold wasn't really a traitor, when the approved program calls him one; a high-school teacher hired to explicate Moby-Dick in a literature class can't use Cry, The Beloved Country instead, even if Paton's book better suits the instructor's style and point of view; a math teacher can't decide that calculus is more important than trigonometry and decide to let Hipparchus and Ptolemy slide in favor of Newton and Leibniz.
5
Beyond the fact that teachers hire out their own speech and must provide the service for which employers are willing to pay — which makes this an easier case for the employer than Garcetti, where speech was not what the employee was being paid to create — is the fact that the pupils are a captive audience. Education is compulsory, and children must attend public schools unless their parents are willing to incur the cost of private education or the considerable time commitment of home schooling. Children who attend school because they must ought not be subject to teachers' idiosyncratic perspectives. Majority rule about what subjects and viewpoints will be expressed in the classroom has the potential to turn into indoctrination; elected school boards are tempted to support majority positions about religious or patriotic subjects especially. But if indoctrination is likely, the power should be reposed in someone the people can vote out of office, rather than tenured teachers. At least the board's views can be debated openly, and the people may choose to elect persons committed to neutrality on contentious issues. That is the path Monroe County has chosen; Mayer was told that she could teach the controversy about policy toward Iraq, drawing out arguments from all perspectives, as long as she kept her opinions to herself. The Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials. To the extent that James v. Board of Education, 461 F.2d 566 (2d Cir.1972), and Cockrel v. Shelby County School District, 270 F.3d 1036, 1052 (6th Cir.2001), are to the contrary, they are inconsistent with later authority and unpersuasive.
6
Piggee supports the school district rather than Mayer. An instructor at a community college, Piggee had argued that the first amendment allowed her to promote a religious perspective on homosexuality to students in a cosmetology class. We held, to the contrary, that a college may demand that instructors limit their speech to topics germane to the educational mission. A germaneness rule does not entail balancing under Pickering; Piggee could not conduct "just a little" proselytizing on the theory that it did not do "very much" harm to the educational mission. Our remark that Garcetti was "not directly relevant" did not reflect doubt about the rule that employers are entitled to control speech from an instructor to a student on college grounds during working hours; it reflected, rather, the fact that Piggee had not been hired to buttonhole cosmetology students in the corridors and hand out tracts proclaiming that homosexuality is a mortal sin. The speech to which the student (and the college) objected was not part of Piggee's teaching duties. By contrast, Mayer's current-events lesson was part of her assigned tasks in the classroom; Garcetti applies directly.
7
How much room is left for constitutional protection of scholarly viewpoints in post-secondary education was left open in Garcetti and Piggee and need not be resolved today. Nor need we consider what rules apply to publications (scholarly or otherwise) by primary and secondary school teachers or the statements they make outside of class. See Vukadinovich v. North Newton School Corp., 278 F.3d 693 (7th Cir.2002). It is enough to hold that the first amendment does not entitle primary and secondary teachers, when conducting the education of captive audiences, to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system.
8
AFFIRMED.
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-3378
___________________________
Antonnette A. Hopkins, individually and on behalf of all others similarly situated
lllllllllllllllllllll Plaintiff - Appellant
v.
The City of Bloomington
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: October 9, 2014
Filed: December 22, 2014
____________
Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.
____________
BYE, Circuit Judge.
Antonnette A. Hopkins filed this 42 U.S.C. § 1983 action against the City of
Bloomington (the City), alleging Minnesota’s vehicle forfeiture statute violated her
due process rights under the Fifth Amendment and article I, section 7, of the
Minnesota Constitution, and amounted to an unreasonable seizure in violation of the
Fourth Amendment and article I, section 10, of the Minnesota Constitution. The
district court1 dismissed Hopkins’s complaint, and she appeals. We affirm.
I
After Hopkins was arrested for driving while impaired, her third driving while
impaired offense in ten years, police officers towed and impounded her vehicle under
Minnesota Statute § 169A.63, subdivision 1(e)(1) (2009). Hopkins received a notice
of seizure and intent to forfeit her vehicle from the officers. Hopkins was thereafter
charged with one count of second-degree driving while impaired. Hopkins made her
initial appearance in the case on March 17, 2011, the day after being arrested, and
was released with conditions after posting bond.
On March 30, 2011, Hopkins filed a demand for a judicial determination
pursuant to Minnesota Statute § 169A.63, subdivision 9 (2009), challenging the
vehicle forfeiture and requesting the immediate return of her vehicle. The court
administrator, however, did not schedule a hearing on the demand because according
to subdivision 9(d), “[a] judicial determination . . . must not precede adjudication in
the criminal prosecution of the designated offense without the consent of the
prosecuting authority.” Hopkins neither requested a decision on her demand prior to
the resolution of her underlying criminal case nor utilized the procedures offered by
subdivision 4, which allow an owner to give security or post bond in exchange for the
vehicle. On September 5, 2012, Hopkins voluntarily withdrew her demand for
judicial determination. Hopkins pled guilty on January 30, 2013.2
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
2
The resolution of Hopkins’s criminal case was delayed after she moved for
and received a continuance pending the outcome of separate litigation relating to the
breathalyzer utilized for Hopkins and other individuals.
-2-
Hopkins then filed this § 1983 claim, alleging the Minnesota vehicle forfeiture
statute violated both the federal and state constitutions by depriving Hopkins of
procedural due process and by unreasonably seizing her vehicle. The City moved for
dismissal of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The
district court granted the City’s motion to dismiss for all four of Hopkins’s claims,
finding the claim for a lack of pre-deprivation procedural due process failed as a
matter of law, the claim for a lack of post-deprivation procedural due process was
barred because Hopkins failed to exhaust available state remedies, the Fourth
Amendment claim was not cognizable, and Hopkins conceded to dismissal of her
state constitutional claims. Hopkins appeals.
II
We “review[ ] de novo the grant of a motion to dismiss for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6).” Levy v. Ohl, 477 F.3d 988,
991 (8th Cir. 2007). We will affirm the dismissal if the complaint fails to allege facts
sufficient to “state a claim to relief that is plausible on its face.” Walker v. Barrett,
650 F.3d 1198, 1203 (8th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Factual allegations contained in the complaint are assumed true.
Levy, 477 F.3d at 991. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A pleading that offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do.” Id. (internal quotation marks and citation
omitted).
Hopkins’s sole argument on appeal is the district court erred by finding she
needed to exhaust state remedies prior to filing her § 1983 claim for post-deprivation
procedural due process. Generally, a plaintiff is not required to exhaust state
administrative remedies as a prerequisite to bringing an action pursuant to § 1983.
-3-
Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 516 (1982); see also Barry v. Barchi,
443 U.S. 55, 63 n.10 (1979) (“Under existing authority, exhaustion of administrative
remedies is not required when the question of the adequacy of the administrative
remedy . . . is for all practical purposes identical with the merits of the plaintiff’s
lawsuit.” (internal quotation marks and citation omitted)). The Eighth Circuit,
however, has “recognized an exception to Patsy’s general rule that exhaustion of state
remedies prior to bringing a section 1983 claim is not required.” Keating v. Neb.
Pub. Power Dist., 562 F.3d 923, 929 (8th Cir. 2009). “Under federal law, a litigant
asserting a deprivation of procedural due process must exhaust state remedies before
such an allegation states a claim under § 1983.” Wax ‘n Works v. City of St. Paul,
213 F.3d 1016, 1019 (8th Cir. 2000), see also Christiansen v. W. Branch Cmty. Sch.
Dist., 674 F.3d 927, 935-36 (8th Cir. 2012) (affirming the dismissal of a complaint
alleging post-deprivation procedural due process because the plaintiff failed to pursue
available post-termination administrative remedies); Crooks v. Lynch, 557 F.3d 846,
848 (8th Cir. 2009) (“[T]his requirement is distinct from exhaustion requirements in
other contexts. Rather, this requirement is necessary for a procedural due process
claim to be ripe for adjudication.”).
In Hopkins’s case, she did not exhaust available state administrative remedies
offered pursuant to Minnesota Statute § 169A.63 (2009) prior to bringing her § 1983
claim, and she makes no argument she exhausted those available remedies.
Nonetheless, citing Lathon v. City of St. Louis, 242 F.3d 841 (8th Cir. 2001), and
King v. Fletcher, 319 F.3d 345 (8th Cir. 2003), Hopkins argues it was unnecessary
for her to exhaust the administrative remedies and the court should instead consider
her challenges to the adequacy of the administrative remedies. Hopkins additionally
cites Ali v. Ramsdell, 423 F.3d 810, 814 (8th Cir. 2005), which quotes Justice Sandra
Day O’Connor’s concurring opinion in Hudson v. Palmer, 468 U.S. 517, 539 (1984):
“[I]n challenging a property deprivation, the claimant must either avail himself of the
remedies guaranteed by state law or prove that the available remedies are
inadequate.”
-4-
Hopkins’s reliance on Lathon and King is not persuasive because, although the
courts considered the adequacy of available remedies, the remedies analyzed, state
replevin actions, are distinguishable from the administrative remedies available in
Hopkins’s case and the exhaustion of administrative remedies was not at issue in
either of those cases. See Lathon, 242 F.3d at 844 (“In any event, we believe there
is no adequate postdeprivation state remedy. Mr. Lathon’s recourse would not be
under Mo. Rev. Stat. § 542.301, but in an action for replevin.”); King, 319 F.3d at
350 (affirming the denial of summary judgment because a genuine issue of material
fact existed as to whether the appellees’ suit in state court to recover their vehicles
constituted an adequate post-deprivation remedy). Further, Hopkins’s cite to Ali is
misplaced for the same reasons. 423 F.3d at 813-14. Accordingly, because Hopkins
voluntarily ceased pursuing available state administrative remedies, she waived her
ability to pursue a post-deprivation procedural due process claim and the district court
did not err by dismissing her claim. See Krentz v. Robertson Fire Prot. Dist., 228
F.3d 897, 904 (8th Cir. 2000) (finding that a plaintiff who was “aware of the available
administrative procedures, yet . . . did not pursue relief thereunder” had waived due
process).
III
For the foregoing reasons, we affirm.
______________________________
-5-
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted November 13, 2018 Decided April 9, 2019
No. 17-3031
UNITED STATES OF AMERICA,
APPELLEE
v.
CALEB GRAY-BURRISS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cr-00178-1)
Eric H. Kirchman, appointed by the court, was on the brief
for appellant.
David Rybicki, Deputy Assistant Attorney General, and
Vincent J. Falvo, Jr., Attorney, U.S. Department of Justice, were
on the brief for appellee. Elizabeth Trosman, Assistant U.S.
Attorney, entered an appearance.
Before: GARLAND, Chief Judge, and GRIFFITH and
WILKINS, Circuit Judges.
1
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: A jury convicted Caleb Gray-
Burriss of fraud and embezzlement stemming from his
management of the National Association of Special Police and
Security Officers. We previously affirmed the convictions in
most respects. In accordance with this circuit’s practice,
however, we remanded Gray-Burriss’ ineffective-assistance-of-
counsel claims because he had not previously raised them in the
district court. That court conducted the remand proceedings in
an exemplary fashion, leaving little for us to do other than
recount its conclusions and express our agreement that Gray-
Burriss’ claims lack merit.1
I
In 1993, Caleb Gray-Burriss founded the National
Association of Special Police and Security Officers (NASPSO),
a union for private security officers working in federal buildings.
Gray-Burriss held various high-ranking positions in the union,
including executive director, secretary-treasurer, and president.
By the early 2000s, Gray-Burriss’ financial management of the
union began to draw legal scrutiny. In 2007, he entered into a
consent decree with the Department of Labor to pay more than
$100,000 in restitution for funds siphoned from NASPSO’s
pension and health plans. In June 2010, a grand jury indicted
Gray-Burriss for again misappropriating funds intended for the
pension plan. The grand jury returned a second superseding
indictment in August 2012.
1
This case was considered on the record from the United States
District Court for the District of Columbia and on the briefs filed by
the parties. See FED. R. APP. P. 34(a)(2); D.C. CIR. R. 34(j).
2
The second superseding indictment alleged two schemes.
In the first, Gray-Burriss deposited employer contributions to a
NASPSO-sponsored pension plan into an ordinary checking
account, from which he “would expend the funds of the
NASPSO Pension Plan for himself, for NASPSO, and for third
parties not entitled to those funds.” Second Superseding
Indictment ¶ 9 (J.A. 88). In the second scheme, Gray-Burriss
embezzled more than $200,000 in union funds by, inter alia,
directing the union’s payroll company to increase his salary and
bonus payments without authorization. For those actions, Gray-
Burriss faced charges of mail fraud (counts 1-6), embezzlement
(counts 7-12), and other related offenses.2
The district court set the case for trial in November 2012.
Two attorneys represented Gray-Burriss at trial. Heather Shaner
was appointed by the district court as Gray-Burriss’ Criminal
Justice Act (CJA) attorney in early July 2010, shortly after the
first grand jury indictment. Patrick Christmas was retained by
Gray-Burriss as primary trial counsel in July 2012.
The defense’s principal strategy was to argue that Gray-
Burriss had acted in good faith and that he was the victim of
vindictive prosecution. During the trial, Shaner attempted to
introduce testimony from David Levinson, a NASPSO attorney.
According to her proffer, Levinson would have testified that he
heard NASPSO general counsel Bruce Goodman tell a
Department of Labor investigator that he had advised Gray-
Burriss that it was permissible to use money from the union’s
2
The other counts charged Gray-Burriss with conspiracy to
embezzle (count 13), destruction of subpoenaed documents (count 15),
witness tampering (count 16), and Labor-Management Reporting and
Disclosure Act violations (counts 17-19). He was also charged with
criminal contempt for failing to comply with the 2007 consent decree
(count 14).
3
pension fund to pay for union operating expenses. The district
court excluded the proposed testimony as hearsay.
On December 4, 2012, the jury convicted Gray-Burriss on
eighteen of the nineteen counts of the indictment, acquitting him
only of a witness-tampering charge. Material submitted to the
jury included evidence and testimony that Gray-Burriss illegally
wrote checks to himself from the pension fund, invested
pension-fund monies in Brazilian junk bonds, and used union
funds to make an initial payment of $1,399 on a Las Vegas
condominium in his own name. In April 2013, the court
sentenced him to serve 76 months in prison and to pay
restitution and forfeiture in the amount of approximately
$250,000 each, subtracting from the restitution obligation any
money paid pursuant to the 2007 consent decree with the
Department of Labor.
In Gray-Burriss’ first appeal to this court, we affirmed the
district court’s judgment with only one exception. United States
v. Gray-Burriss, 791 F.3d 50, 65 (D.C. Cir. 2015).3 Following
this circuit’s usual practice, we remanded Gray-Burriss’ newly
raised claims of ineffective assistance by his trial counsel for
initial consideration by the district court. Id. at 64.4
3
We found error only in the court’s decision to exclude from
evidence the defendant’s 2009 employment contract. 791 F.3d at 56.
Although we held that error was harmless with respect to Gray-
Burriss’ convictions, we remanded for the court to determine whether
consideration of the document would reduce the defendant’s sentence
or restitution and forfeiture obligations. Id. at 58-59. On remand, the
district court determined that the same sentence was warranted, and
Gray-Burriss has not raised that issue on this appeal.
4
In so doing, we rejected Gray-Burriss’ claim that his attorneys
had a conflict of interest, recharacterized it as an ineffective-assistance
claim, and included it in the remand. 791 F.3d at 64.
4
On remand, represented by new counsel, Gray-Burriss
moved for a new trial and resentencing based on his claims of
ineffective assistance. Those claims principally relate to counts
1-6, involving Gray-Burriss’ conduct with respect to the pension
fund. In August 2016, the district court conducted a two-day
evidentiary hearing, in which it heard testimony by all of the
relevant witnesses: Gray-Burriss, attorneys Shaner and
Christmas, and former union general counsel Goodman.
Thereafter, it denied Gray-Burriss’ motions, rejecting all of his
arguments. United States v. Gray-Burriss, 251 F. Supp. 3d 13
(D.D.C. 2017). Gray-Burriss now appeals, raising what amounts
to three claims of ineffective assistance.
II
As we explained in our previous opinion in this case, when
an ineffective-assistance claim is first raised on appeal, this
circuit’s practice in most instances is to remand the claim to the
district court:
Due to the fact-intensive nature of the [ineffective-
assistance] inquiry and the likelihood, when a
defendant asserts his sixth amendment claim for the
first time on direct appeal, that the relevant facts will
not be part of the trial record, . . . this court’s general
practice is to remand the claim for an evidentiary
hearing unless the trial record alone conclusively
shows that the defendant either is or is not entitled to
relief.
United States v. Gray-Burriss, 791 F.3d at 60 (quoting United
States v. Rashad, 331 F.3d 908, 909-10 (D.C. Cir. 2003)). The
bar to obtain a remand is relatively low: “[A]ll that is required
for a remand is ‘a colorable and previously unexplored claim of
5
ineffective assistance.’” United States v. Murray, 897 F.3d 298,
310 (D.C. Cir. 2018) (quoting Rashad, 331 F.3d at 908).
In order to establish a claim of ineffective assistance on
remand, however, a defendant must show (1) “that counsel’s
performance was deficient,” and (2) “that the deficient
performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984). The first, “deficiency” prong of
Strickland requires a showing that the lawyer’s performance
“fell below an objective standard of reasonableness.” Id. at 688.
The second, “prejudice” prong “requires the defendant to
demonstrate that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.’” United States v. Eli, 379 F.3d
1016, 1019 (D.C. Cir. 2004) (quoting Strickland, 466 U.S. at
694).
On appeal after a remand, “[w]e review de novo the District
Court’s denial of [the defendant’s] claim of ineffective
assistance of counsel, including the question whether [he] was
prejudiced by [his] counsel’s allegedly deficient performance.”
United States v. Nwoye, 824 F.3d 1129, 1134-35 (D.C. Cir.
2016) (citing United States v. Abney, 812 F.3d 1079, 1086-87
(D.C. Cir. 2016)). We “review for clear error any findings of
historical fact embedded in the District Court’s conclusions on
deficient performance and prejudice.” Id. at 1135 n.4. We
address the defendant’s three allegations of ineffective
assistance below.
A
Gray-Burriss’ first contention is that his trial counsel
rendered ineffective assistance by failing to lay a proper
foundation for an advice-of-counsel defense at trial. Gray-
Burriss explains that his counsel had “contemplated advancing”
6
the argument that he “lack[ed] criminal intent and acted in good
faith in handling Union funds.” Gray-Burriss Br. 12. “Part of
this included the defense that [Gray-Burriss] had been acting
pursuant to advice of counsel in his dealing with the Union
Pension funds.” Id.
According to Gray-Burriss, former union general counsel
Goodman would have testified that Goodman “had given [him]
legal advice that the Union could borrow pension funds.” Id. at
10. Although trial counsel did not call Goodman to testify at
trial, Shaner sought to introduce Goodman’s advice through
David Levinson, another union attorney who heard Goodman
tell a Department of Labor investigator about this alleged
advice. The court excluded the proffered Levinson testimony as
hearsay, not subject to an exception because there was no
showing that Goodman was himself unavailable to testify. See
FED. R. EVID. 804(a). Thereafter, trial counsel did not request
an advice-of-counsel jury instruction.
Gray-Burriss maintains that his attorneys’ conduct
represented a triple failure of effective assistance: they failed to
take reasonable steps to procure Goodman as a witness, failed to
lay a foundation for a hearsay exception to cover Levinson’s
testimony, and failed to request an advice-of-counsel instruction.
For a number of reasons, the district court correctly found that
those “failures” did not constitute deficient performance by the
attorneys. See 251 F. Supp. 3d at 21-22.5
5
The court found, for example, that “[d]eclining to locate and call
Goodman would have been a perfectly competent tactical decision
under the circumstances, even if no other avenues existed for the
admission of his testimony.” 251 F. Supp. 3d at 21. This was because
[s]ubjecting Goodman to cross-examination would have been a
treacherous proposition: Soon before Gray-Burriss’s trial, he had
7
But Gray-Burriss’ bigger Strickland problem, also set out
in the district court’s opinion, is the test’s “prejudice” prong.
Gray-Burriss maintains that, if Goodman had testified or if his
statement had come in through a hearsay exception, the court
would have granted a request for an advice-of-counsel
instruction. Moreover, he insists, “[h]ad the jury been given the
advice of counsel instruction there is . . . a reasonable
probability that the result would have been different” -- in the
form of a not-guilty verdict on some or all of the counts. Gray-
Burriss Br. 42-43.
As the court explained, the flaw in this theory is that “there
would have been no evidentiary basis for issuing an
advice-of-counsel instruction even with Goodman’s testimony.”
251 F. Supp. 3d at 21. A defendant is not entitled to a jury
instruction on that defense unless he introduces evidence that
(1) “he relied in good faith on the counsel’s advice that his
course of conduct was legal,” and (2) “he made full disclosure
of all material facts to his attorney before receiving the advice
at issue.” United States v. DeFries, 129 F.3d 1293, 1308 (D.C.
Cir. 1997). Goodman’s testimony would not have satisfied
either requirement.
lost his Maryland law license for placing client funds in his
personal account, failing to pay clients’ medical bills from
settlement proceeds that he held in trust, failing to maintain a
client trust account, and failing to keep required financial records.
These actions clearly bear on Goodman’s trustworthiness; Ms.
Shaner may have understandably wanted to deemphasize any
association between him, NASPSO, and Gray-Burriss.
Id. (citation omitted). The court also noted that Shaner’s investigator
had been unable to locate Goodman during the “critical months of
2012,” and that “halting these efforts when she did was a perfectly
reasonable decision under the circumstances and in light of her limited
resources.” Id. at 22.
8
When he testified at the evidentiary hearing on remand,
“Goodman recounted his specific legal advice to Gray-Burriss
as follows: ‘I advised him that I saw no impediment for the
union to borrow the monies [from the pension fund] for [a
particular Valentine’s Day] dance.’” 251 F. Supp. 3d at 21
(quoting Evid. Hr’g Tr. 141 (J.A. 321)); see also Evid. Hr’g Tr.
137 (J.A. 317) (Goodman’s testimony that “my only real foray
into [ERISA matters] was my discussion with Mr. Burriss with
respect to the borrowing of monies by the union to hold that
Valentine’s Day dance”). Of course, Gray-Burriss took more
than just the $1,200 needed for the Valentine’s Day dance from
the pension fund. He also took substantial amounts for other
operational purposes, as well as for personal and third-party
use.6 Nor did Gray-Burriss identify any “effort he made to
return a dime of the ‘borrowed’ funds -- with or without
interest -- before he agreed to do so in a 2007 consent decree
with the union.” 251 F. Supp. 3d at 21. Thus, even if Goodman
had testified, Gray-Burriss could not have shown that “he relied
6
See Evid. Hr’g Tr. 196-98, 210-12 (J.A. 376-78, 390-92) (Gray-
Burriss’ testimony admitting cash withdrawals from the pension fund,
the use of pension fund monies for a “bad investment” in Brazilian
junk bonds, and the use of “union money” for a Las Vegas apartment
payment); id. at 94-95 (J.A. 274-75) (Shaner’s testimony
acknowledging cash payments from the pension fund to Gray-Burriss
without loan documentation); id. at 333 (J.A. 513) (acknowledgment
by Gray-Burriss’ new counsel on remand that there was evidence
Gray-Burriss spent pension funds for his “personal use”); see also,
e.g., 11/19/12 Trial Tr. 57-58 (J.A. 696-97) (prosecution witness’
testimony estimating $25,000 in withdrawals from the pension fund
to cash or to Gray-Burriss); 6/22/06 Interview with Dep’t of Labor
¶ 55 (J.A. 1644) (Gray-Burriss’ admission that he withdrew
“approximately $30,000 total in fees” from the pension plan).
9
in good faith on the counsel’s advice.” DeFries, 129 F.3d at
1308.7
Moreover, Gray-Burriss “also failed to show that he
disclosed all material facts to Goodman before the advice was
rendered.” 251 F. Supp. 3d at 21. As the court recounted,
“Goodman testified that at the time he gave the advice,
Gray-Burriss had failed to inform him that he had already
withdrawn substantial sums of money from the pension
account.” Id.; see Evid. Hr’g Tr. 146 (J.A. 326). And if a
statement by Goodman had come in only through Levinson, the
latter would have been wholly unable to testify as to whether
Gray-Burriss had disclosed all material facts to Goodman.
(There was no proffer that Levinson knew anything about that
issue.) Thus, for this reason, too, there would have been “[no]
foundation in the evidence sufficient to bring the [advice-of-
counsel defense] into the case.” DeFries, 129 F.3d at 1308
(internal quotation marks omitted). Accordingly, there is no
“reasonable probability that, but for counsel’s [allegedly]
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694.
7
The district court acknowledged that “Gray-Burriss remembers
[Goodman’s] advice more expansively; he testified that Goodman told
him ‘that it was okay to use the pension fund’ for union expenses
generally -- ‘that as long as we returned the money with interest, it
wouldn’t be a problem.’” 251 F. Supp. 3d at 21 (quoting Evid. Hr’g
Tr. 160 (J.A. 340)). But the court held that it “cannot conclude that
the defense would have been able to introduce evidence that
Gray-Burriss relied in good faith on whichever version of the legal
advice Goodman might have given.” Id. In any event, Gray-Burriss’
recollection of Goodman’s advice is not at issue with respect to this
claim; what matters is what Goodman would have said had counsel
been able to obtain his testimony.
10
B
Gray-Burriss’ second contention is that counsel was
ineffective by “fail[ing] to secure the testimony of an expert
witness on account[ing] to review the books and records to
support the defense that [he] acted in good faith in dealing with
the Union fund.” Gray-Burriss Br. 11. As the court recounted:
Shaner had retained an accountant, who contacted the
government in September 2011 seeking to review
NASPSO’s financial records. The accountant declined
to continue indefinitely in the case without satisfactory
compensation. In the months before trial, the Court
denied Gray-Burriss’s request for payment of an expert
accountant at public expense, and also granted the
government’s motion to preclude the defense’s use of
experts, because the deadline for disclosing expert
witnesses had passed.
251 F. Supp. 3d at 22 (citation omitted). With respect to this
claim, the deficient-performance prong of Strickland poses the
bigger problem for the defendant.
The district court concluded that it was not objectively
unreasonable for trial counsel to fail to secure the testimony of
an accountant because that failure was largely the result of Gray-
Burriss’ own choices. Gray-Burriss was present in court when
the trial judge declined to authorize the use of public funds until
he filed an affidavit showing financial necessity.8 9/6/12 Status
Hr’g Tr. 3, 10-14 (J.A. 623, 630-34). At the same hearing,
Shaner stated -- in Gray-Burriss’ presence -- that she would “ask
8
Gray-Burriss’ ability to pay for retained counsel (Christmas)
was part of the reason the trial court required him to demonstrate
financial need.
11
that Mr. Burriss . . . go back to the Office of the Federal
Defender and fill out another affidavit” so that the funds could
be authorized. Id. at 13 (J.A. 633). Gray-Burriss further
“admitted at the evidentiary hearing that Shaner informed him
that he could file an affidavit in support of his claimed financial
need for use of CJA funds to hire a forensic accountant. He
never did.” 251 F. Supp. 3d at 23. Likewise, Christmas testified
at the evidentiary hearing that he “talk[ed] to [Gray-Burriss]
about him having to pay.” Evid. Hr’g Tr. 278 (J.A. 458).
Nonetheless, Gray-Burriss failed to take any further action.
Under these circumstances, the court correctly concluded that,
“[w]hile his counsel perhaps could have done more to assist
Gray-Burriss in retaining an expert forensic accountant, their
performance was hardly deficient because Gray-Burriss knew
what needed to be done but did not take the necessary steps to
obtain one.” 251 F. Supp. 3d at 23; see Strickland, 466 U.S. at
681 (noting that “[l]imitations of time and money . . . may force
early strategic choices, often based solely on conversations with
the defendant and a review of the prosecution’s evidence”).
Moreover, given the potential for seriously damaging cross-
examination, the district court further concluded that a “decision
not to call such an expert then -- even if Gray-Burriss had
qualified for CJA funding -- would have been a perfectly
reasonable trial strategy, considering how severely it might have
backfired.” 251 F. Supp. 3d at 23; see Strickland, 466 U.S. at
681 (holding that “[a]mong the factors relevant to deciding
whether particular strategic choices are reasonable are . . . the
potential for prejudice from taking an unpursued line of
defense”). As the court explained:
[G]overnment counsel demonstrated at the evidentiary
hearing [that] any expert accountant testifying on
Gray-Burriss’s behalf would have endured a blistering
cross-examination about the details of specific
12
questionable transactions. [The] government would
have asked the expert accountant if he or she believed
an individual could have a “good-faith” basis for
destroying records, failing to file tax returns, or
purchasing an apartment in Las Vegas, all of which the
evidence revealed Gray-Burriss had done.
Id. at 23 (citation omitted).
In short, because the failure to secure funds for an
accountant was Gray-Burriss’ fault rather than that of his
attorneys, and given the damaging cross-examination that an
accountant would have endured, the court correctly found that
trial counsel did not render deficient performance. Because
Gray-Burriss cannot satisfy Strickland’s first prong, we need not
consider the prejudice prong before rejecting this claim of
ineffective assistance.
C
Finally, Gray-Burriss contends that trial counsel “failed to
properly prepare [him] to testify on his own behalf at trial,” and,
as a result, that his “waiver of his right to testify was not fully
informed.” Gray-Burriss Br. 11. In particular, he argues that
trial counsel should have “subject[ed] him to mock cross-
examination so that they could have determined how he would
hold up and [he] could determine if he could respond
effectively.” Id. at 48. The district court found that this claim
failed both prongs of Strickland. 251 F. Supp. 3d at 24. Once
again, Strickland’s first prong poses the more difficult hurdle.
“For starters, the Court deem[ed] credible the independent
testimony of both Shaner and Christmas that they did discuss
with Gray-Burriss the advantages and disadvantages of
testifying on his own behalf,” including anticipated cross-
13
examination. 251 F. Supp. 3d at 24 (citing Evid. Hr’g Tr. 61,
118 (J.A. 241, 298) (Shaner); id. at 297 (J.A. 477) (Christmas)).
Indeed, “Gray-Burriss acknowledged as much at the evidentiary
hearing.” Id. (citing Evid. Hr’g Tr. 177 (J.A. 357)). We agree
with the district court that, “in these circumstances, trial counsel
acted ‘reasonabl[y] under prevailing professional norms’ in
declining to expend time and resources on mock examinations
that they believed would be fruitless.” Id. (quoting Strickland,
466 U.S. at 688).
With respect to Strickland’s second prong, the district court
found “it highly unlikely that testimony from Gray-Burriss
would have made an acquittal on one or more counts
substantially more likely.” Id. The court noted that Shaner
testified she had “advised Gray-Burriss to accept a plea because
of the ‘overwhelming evidence’ against him,” and that
“Christmas independently determined that certain evidence was
particularly ‘damning.’” Id. “Based on the magnitude of the
evidence against Gray-Burriss, and having witnessed his recent
cross-examination by the same government counsel who tried
the case,” the district court concluded that there was no
reasonable probability that the defendant’s testimony would
have led to a different outcome at the trial. Id.
Of course, even this assumes there was a reasonable
probability that a mock examination would have led Gray-
Burriss to take the stand. But this is a claim he does not
expressly make and that the preceding discussion suggests
would have been unlikely. Indeed, Gray-Burriss acknowledged
that Christmas had advised him that “the government was going
to just rake me over the coals” on cross-examination. Evid.
Hr’g Tr. 177 (J.A. 357). Hence, because neither Strickland
prong is satisfied, we reject Gray-Burriss’ final claim of
ineffective assistance.
14
III
For the foregoing reasons, we conclude that Gray-Burriss’
claims of ineffective assistance lack merit and affirm the district
court’s denial of his motion for a new trial.
So ordered.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-7429
WILLIE EARL TOWNSEND,
Petitioner - Appellant,
versus
RONALD ANGELONE,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior
District Judge. (CA-99-1164-AM)
Submitted: February 15, 2000 Decided: February 28, 2000
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Willie Earl Townsend, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Willie Earl Townsend seeks to appeal the district court’s
orders denying relief on his petition filed under 28 U.S.C.A.
§ 2254 (West 1994 & Supp. 1999) and his motion to alter or amend
judgment. We have reviewed the record and the district court’s
opinion and find no reversible error. Accordingly, we deny a cer-
tificate of appealability and dismiss the appeal on the reasoning
of the district court. See Townsend v. Angelone, No. CA-99-1164-AM
(E.D. Va. Sept. 8, 1999, Sept. 23, 1999). We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
2
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390 Mass. 103 (1983)
453 N.E.2d 1211
COMMONWEALTH
vs.
GEORGE EDGERLY.
Supreme Judicial Court of Massachusetts, Essex.
March 8, 1983.
September 9, 1983.
Present: HENNESSEY, C.J., WILKINS, LIACOS, NOLAN, & O'CONNOR, JJ.
*104 Robert I. Warner for the defendant.
Sharon D. Meyers, Assistant District Attorney, for the Commonwealth.
WILKINS, J.
The defendant appeals from his conviction of murder in the first degree, arguing that he was deprived of his constitutional right to a speedy trial and that the judge committed errors in the course of his trial. We affirm the conviction and find no reason to grant relief under G.L.c. 278, § 33E.
The circumstances of the crime are not essential to an understanding of the appellate issues. It is sufficient to note that the defendant was convicted of the murder of Frank Smith, an area service manager for the General Motors Corporation. There was evidence that the defendant, who had been employed by Butler Chevrolet in Lowell, had participated with others in submitting fraudulent warranty claims to General Motors. General Motors had assigned Smith, the victim, to monitor warranty claims at Butler Chevrolet. Smith, who had had previous dealings with the defendant and Butler Chevrolet, arrived at Butler Chevrolet on January 30, 1974. His body was found in a tidal creek in Danvers the next morning. There was evidence that the defendant had shot him in the head and pushed his body off a pier into the water.
1. The defendant was indicted on May 15, 1974. His trial commenced on June 5, 1978. Because of this delay of slightly more than forty-eight months, the defendant argues that he was denied his right to a speedy trial guaranteed by the Sixth Amendment to the Constitution of the United States, and by art. 11 of the Declaration of Rights of the Constitution of the Commonwealth. See Barker v. Wingo, 407 U.S. 514 (1972); Commonwealth v. Gove, 366 Mass. 351, 356 n. 6 (1974). We shall consider the relevant factors: the length of the delay, the reasons for the delay, the extent of the defendant's assertion of his right to a speedy trial, and the prejudice, if any, to the defendant. Barker v. Wingo, supra at 530. Commonwealth v. Rodriguez, 380 Mass. 643, 651-654 (1980).
*105 Although the forty-eight months' delay in this case does not automatically require the dismissal of the indictment, it certainly requires further inquiry into the defendant's claim of a denial of his constitutional right to a prompt trial. See Commonwealth v. Look, 379 Mass. 893, 898, cert. denied, 449 U.S. 827 (1980). Most of the delay is attributable to interlocutory appellate consideration of an issue in this case (Commonwealth v. Edgerly, 372 Mass. 337 [1977]), the trial and conviction of the defendant on other charges (see Commonwealth v. Edgerly, 13 Mass. App. Ct. 562 [1982] [rape]; Commonwealth v. Edgerly, 6 Mass. App. Ct. 241 [1978] [larceny]), and two changes in defense counsel.
The defendant points only to an aggregate of approximately twelve months of unexplained delay. These periods are from June, 1974, to January 13, 1975, two months in the summer of 1975, and the four months from February, 1978, until the commencement of the trial. The case was not a simple one, and in June, 1974, the defendant filed nineteen discovery and other pretrial motions. In the circumstances, the early period of delay does not appear to be unreasonable. With new defense counsel appointed in August, 1975, and subsequent new counsel appointed in December, 1977, we think that the latter two periods of delay are explained sufficiently to place no substantial responsibility for them on the Commonwealth.
Most of the delay is thus fully explained and the balance of the delay is not shown to be caused by the Commonwealth. The defendant asserted his right to a speedy trial with motions filed in December, 1975, and in November, 1977. However, in these circumstances, at the very least, the defendant must demonstrate significant prejudice from the delay. This he has not done. The two instances of alleged prejudice are trivial. The pathologist's failure to have any independent memory of the autopsy he performed did not prejudice the defendant. The unavailability of one Donald Tremblay, a former employee of Butler Chevrolet, required the defendant to offer in evidence Tremblay's prior recorded testimony. The reason why Tremblay was unavailable *106 was not shown, nor was it shown when he became unavailable. In any event, Tremblay would not have been an alibi witness, nor is there any suggestion that Tremblay would have provided testimony favorable to the defendant. His prior testimony read to the jury concerned fraudulent larceny schemes at Butler Chevrolet. We see no demonstrated or likely prejudice from Tremblay's absence. See Commonwealth v. Look, 379 Mass. 893, 901-902 (1980). We therefore reject the defendant's claim that he was denied his constitutional right to a speedy trial.
2. The defendant argues that the judge should have allowed his motion for a mistrial because members of the jury saw him in custody in the courthouse and that his right to due process of law was denied when the judge failed to take steps to protect him from the prejudice that resulted from that event. At a hearing without the jury, at the commencement of proceedings on the fifteenth day of trial, defense counsel asked that the defendant be permitted to explain that jurors had seen him in custody that morning. The defendant said that court officers had him in custody by the elevator when the jury were coming in the front door, and "two or three of them took a good look at me." The judge questioned the court officer in charge of the defendant who said that, when he saw the jury, he grabbed the defendant and hugged him so that "possibly nobody could see him with the cuffs on." He was positive no juror saw the defendant with handcuffs on. Defense counsel argued that jurors seeing a court officer grabbing the defendant and hugging him was as prejudicial as jurors seeing him in handcuffs. The judge denied the defendant's motion for a mistrial and declined his request that the judge ask the jurors what they had seen. He concluded that they had not seen the handcuffs and that to ask the jurors about it would only highlight the matter.
It is doubtful that the judge abused his discretion in the way he handled this single, brief, and accidental occurrence. See Commonwealth v. MacDonald (No. 2), 368 Mass. 403, 409-410 (1975); Commonwealth v. Ferguson, *107 365 Mass. 1, 12-13 (1974); Dupont v. Hall, 555 F.2d 15, 17 (1st Cir.1977). The judge might well have been warranted in concluding that no "serious question of possible prejudice" was raised and thus a voir dire examination of the jurors was not needed. See Commonwealth v. Jackson, 376 Mass. 790, 800 (1978).
Here, it is apparent, in any event, that the defendant was not prejudiced by any error. The jurors came to know that the defendant was in custody at the time of the trial and was serving sentences for serious crimes. He testified on cross-examination that on July 12, 1977, he pleaded guilty in the United States District Court for the District of Massachusetts to conspiracy and mail fraud charges and was sentenced to serve one year, concurrently with a Massachusetts sentence of not less than three nor more than five years he was then serving on a 1976 conviction for larceny. He similarly testified that, on September 21, 1977, he was convicted of rape and assault with intent to commit rape and sentenced to serve not less than eighteen nor more than thirty years in State prison. In light of these disclosures, the defendant could not have been significantly prejudiced in the estimation of the jury if some members of the jury did notice him in custody of a court officer. See Commonwealth v. Brown, 364 Mass. 471, 477 (1973). There was no prejudicial error in denying the motion for a mistrial or in declining to question the jury.
3. There is no merit to the defendant's argument that he was denied his constitutional right to the effective assistance of counsel. He claims that because his trial counsel, Mr. Brower, also represented one Alfio Lupo, a potential witness, on unrelated matters, there was a conflict of interest requiring a new trial. The record does not support such a claim of constitutional violation.
In a lobby conference on the twentieth day of trial, the prosecutor brought to the judge's attention that Mr. Brower represented Lupo, who might be called as a witness. Mr. Brower stated that, when he first considered representation of the defendant, he informed the defendant that Lupo was *108 a client. On the following day, Mr. Brower told the judge that he would not expect to call Lupo to testify but that there would be a problem in his conducting cross-examination if the Commonwealth called Lupo. Lupo, whom the defendant by his testimony implicated in the victim's death, testified on voir dire on the twenty-fourth day of trial that he had nothing to hide and would be willing to testify for the Commonwealth. However, the Commonwealth never called Lupo as a witness in rebuttal, nor did the defendant call him.
We are not concerned here with the conflict of interest inherent in defense counsel's simultaneous representation of a defendant and a significant witness for the prosecution. See Commonwealth v. Hodge, 386 Mass. 165, 169-170 (1982); Commonwealth v. Soffen, 377 Mass. 433, 437-438 (1979). Lupo never testified. The question is whether the defendant has shown that he was denied his constitutional right to the effective assistance of counsel because, during the time of the trial, Mr. Brower also represented Lupo. In this situation, the defendant must prove that he was materially prejudiced by Mr. Brower's simultaneous representation of Lupo. See Commonwealth v. Soffen, supra at 437; Miller v. United States, 564 F.2d 103, 106-107 (1st Cir.1977), cert. denied, 435 U.S. 931 (1978).
We shall assume, but do not decide, that the defendant has made a sufficient showing of Mr. Brower's duty of loyalty to Lupo to justify the conclusion that Mr. Brower's representation of Lupo could have affected his decision whether to call Lupo as a defense witness. There is, however, nothing in the record to show that calling Lupo was a "viable tactic." See Commonwealth v. Cote, 7 Mass. App. Ct. 150, 152 (1979). To the contrary, it appears that calling Lupo as a defense witness was likely to be counterproductive. It seems that the Commonwealth wanted Lupo to testify to rebut the defendant's accusatory testimony, that Lupo's expected testimony would be unfavorable to the defendant, and that, only because of defense counsel's conflict of interest, the Commonwealth decided not to call Lupo. *109 Consequently, on this record Mr. Brower's alleged conflict of interest may have benefited rather than harmed the defendant. There is no record support for the defendant's claim that, because his counsel also represented Lupo, he may have limited his questioning of the defendant.[1]
4. The defendant argues that the judge improperly charged the jury that, in determining whether the defendant was guilty beyond a reasonable doubt, they could consider whether the defendant testified falsely before them and thus showed a consciousness of guilt.[2] The judge stated that the defendant had no burden to prove anything. He said that the jury could consider false testimony of the defendant as consciousness of guilt, but that evidence of consciousness of guilt could only be considered with other evidence.
We have recognized that a defendant's wilfully untrue testimony as to a material fact "tends to show consciousness of guilt or liability on his part and has probative force in connection with other evidence on the issue of such guilt or liability." Boston v. Santosuosso, 307 Mass. 302, 349 (1940). *110 See Sheehan v. Goriansky, 317 Mass. 10, 16 (1944). False testimony by a criminal defendant as to a material fact may be considered as showing a consciousness of guilt. Commonwealth v. Corcoran, 332 Mass. 615, 619 (1955). Conceptually, there is no significant difference, in showing a defendant's consciousness of guilt, between wilfully false statements made before trial from which consciousness of guilt may be inferred and wilfully false statements made under oath during trial.
The defendant argues that the charge on consciousness of guilt unconstitutionally shifted the burden of proof to him, requiring him to persuade the jury of the truth of his testimony. Comment to a jury on the consequences of a criminal defendant's lying in the course of his testimony must be made with care, and customarily should be avoided because it places undue emphasis on only one aspect of the evidence. See People v. Green, 27 Cal. 3d 1, 40-41 (1980). The jury must not be led to conclude that, if they believe the defendant lied, the defendant should without more be found guilty. Such an instruction would reduce the Commonwealth's burden of proving every element of the crime beyond a reasonable doubt. See Sandstrom v. Montana, 442 U.S. 510 (1979); Mullaney v. Wilbur, 421 U.S. 684 (1975). The defendant makes a related argument that the charge improperly created a mandatory presumption of consciousness of guilt if the jury found that the defendant lied. See DeJoinville v. Commonwealth, 381 Mass. 246, 252 (1980).
We simply disagree with the defendant's claim that this charge reduced the Commonwealth's burden of proof. The judge told the jury that they could consider the falsity of the defendant's testimony, not that they had to, and that, in any event, consciousness of guilt alone would never be enough to convict the defendant. Reading the charge as a whole (Commonwealth v. Bradshaw, 385 Mass. 244, 278 [1982]), and noting the judge's charge concerning the presumption of innocence and reasonable doubt, we see neither a shifting of the Commonwealth's burden of proof nor a statement of a mandatory presumption.
*111 5. The defendant argues certain issues that were not preserved for appellate review, contending that the asserted errors demonstrate that the conviction is not consonant with justice (Commonwealth v. Davis, 380 Mass. 1, 15 n. 20 [1980]), and that we should grant him relief under G.L.c. 278, § 33E. We see no occasion to order a new trial under § 33E.
We discuss these § 33E issues briefly. (1) The judge did not abuse his discretion in denying the defendant's request for a two-week continuance in the commencement of trial. (2) After defense counsel argued to the jury in his closing argument that the defendant was fighting for his life and that conviction would put the defendant "in a cage for the rest of his life," the judge, with the concurrence of defense counsel, was warranted in telling the jury what the consequences were of convictions of murder in the first and second degrees. See Commonwealth v. Smallwood, 379 Mass. 878, 882-883 (1980); Commonwealth v. Burnett, 371 Mass. 13, 16-17 (1976). (3) We see no improper restriction on the cross-examination of the witness who testified that he saw the defendant shoot the victim and push him into the water. (4) The trial judge did not permit defense counsel to advise the jury that Donald Tremblay, in giving the testimony in a prior case that was read to the jury, did so under a grant of immunity. The significance of such a disclosure is not apparent. Even if the fact of the grant of immunity should have been disclosed to the jury, a point we need not decide, the defendant was not prejudiced by the omission.
We see no occasion pursuant to G.L.c. 278, § 33E, for a reduction in the verdict to a verdict of a lesser degree of guilt.
Judgment affirmed.
NOTES
[1] In view of this conclusion, we need not consider whether through his testimony the defendant intentionally created the alleged conflict by referring to Lupo's involvement, that is, as the judge suggested, whether he "contrived purposely to create a mistrial situation."
[2] The relevant portion of the charge is as follows (with the challenged language in italics):
"Now, in the ordinary case I tell juries, and I will here, that part of the presumption of innocence is that the defendant by taking the stand doesn't shift the burden. He doesn't have to convince you that his story that he told is the truth. Or that that's how it happened. On the other hand, what you do is you say in view of the Commonwealth's evidence, that part which you believe, in view of the story, the testimony of the defendant, are we convinced beyond a reasonable doubt that he did it? And you may in determining whether or not he is guilty beyond a reasonable doubt ask yourselves whether the defendant in any story he told or any testimony before you attempted to hide or to falsify anything before you, attempted to throw you or investigators in the course of the investigation off the track, attempted to place the blame without reason on another person. This is what the lawyers call evidence of consciousness of guilt, trying to manufacture evidence, telling a false story.
"But I caution you that you are never to convict this defendant or any other defendant on evidence tending to show consciousness of guilt alone. You may use it in connection with other evidence only."
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-4468
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROQUE ZUNIGA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Richmond. James R. Spencer, District Judge.
(CR-96-60)
Submitted: December 19, 1996 Decided: January 3, 1997
Before ERVIN and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Roque Zuniga, Appellant Pro Se. David T. Maguire, Assistant United
States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals from the district court's order dismissing
as untimely his appeal from his conviction and sentence imposed by
a magistrate judge. We have reviewed the record and the district
court's opinion and find no reversible error. An appeal from a
judgment of conviction or sentence by a magistrate judge must be
noted within ten days after entry of the judgment. Fed. R. Crim. P.
58(g)(2)(B). The time periods for filing notices of appeal are
"mandatory and jurisdictional." United States v. Robinson, 361 U.S.
220, 229 (1960) (applying Fed. R. App. P. 4(b)).
The magistrate judge entered his order on April 30, 1996;
Appellant's notice of appeal was filed on May 28, 1996. Because
Appellant failed to note a timely appeal or obtain an extension of
the appeal period, the district court was without jurisdiction to
consider the merits of Appellant's appeal.1 Accordingly, we deny
Appellant's motion for transcripts at government expense and affirm
the district court's dismissal of Appellant's appeal.2 We dispense
with oral argument because the facts and legal contentions are
1
We note that Rule 58(g) does not provide for an additional
thirty days within which to note an appeal upon a showing of
excusable neglect. Compare Fed. R. Crim. P. 58(g)(2)(B) with Fed.
R. App. P. 4(b). See United States v. Burgess, 602 F. Supp. 1329,
1331 (E.D. Va. 1985) (holding that Fed. R. App. P. not intended to
govern appeals to district court from magistrate judge's judgments
of conviction).
2
Appellant's motion to expedite is now moot and is dismissed
for that reason.
2
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
3
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1 rr> miU
'&V&™*
_ ;ATE 0
M 9'- 11
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Marriage of No. 68507-4-1
SARA STEPHENSON,
Appellant,
and
SHATA STEPHENSON, UNPUBLISHED OPINION
Respondent. FILED: April 1,2013
Verellen, J. — Sara Stephenson appeals the trial court's order of child support,
arguing the court did not follow the statutory scheme in chapter 26.19 RCW. Where
parents have a 50/50 shared residential schedule, the trial court is required to make the
standard child support calculation and then consider any requested deviation, expressly
analyzing whether a downward residential deviation would leave the household
receiving the reduced payment with insufficient funds to meet the needs of the children.
The trial court consulted the child support economic table as required by the statute,
and then reduced the transfer payment from Shata to Sara to account for Shata's equal
residential time. But the court recited that it was not applying the standard calculation,
and that the reduced transfer payment did not constitute a deviation. There is no
indication that the trial court considered whether the reduced transfer amount would
leave Sara's household with insufficient funds to meet the needs of the children.
No. 68507-4-1/2
Because the trial court failed to conduct the appropriate analysis under
RCW 26.19.075(1 )(d), we vacate the order of child support and remand for further
proceedings consistent with this opinion.
FACTS
Sara and Shata Stephenson divorced after nine years of marriage. Their two
children were eight and ten years old at the time of trial. The parties agreed to a shared
residential schedule, with the children spending equal amounts of time in each parent's
household.
Because of the shared residential schedule, Shata argued the basic support
obligation should be shared between the parties, with the monthly transfer amount set
so that each party paid half of the basic support obligation. Because he and Sara have
equivalent residential burdens, Shata contended it was "not possible to identify an
obligor or obligee for child support purposes."1 Sara argued that the court should not
deviate from the basic support obligation, as it would leave her with insufficient funds to
meet the basic needs of the two children.
For purposes of the child support transfer payment, the court imputed income of
$38,388 to Sara and income of $123,895 to Shata. Based on the child support
schedule in RCW 26.19.020, the court determined the basic child support obligation
was $1,866.00 ($933.00 for each of the two children). Based on the parties' income,
the court determined Shata's proportional share of the child support obligation was 75
percent, for a total of $1,399.50, and Sara's 25 percent, for a total of $466.50.
1Clerk's Papers at 40.
No. 68507^-1/3
The court identified Shata as the obligor on the monthly child support transfer
payments. Instead of ordering a monthly transfer payment by Shata to Sara of $933
(i.e., the standard calculation, which is the difference between his proportional share
and Sara's proportional share), the court determined Shata owed a total monthly
transfer payment of $500. The court explicitly stated its order was not a deviation from
the standard calculation. Rather, the court concluded the standard calculation did not
apply, so "the court's equal allocation of the [b]asic [s]upport [obligation between the
two households does not constitute a deviation."2 The court did not enter written
findings or conclusions. There is no indication in the record that the trial court
considered the impact of the reduced transfer payment on Sara's ability to meet the
needs of the two children.
Sara appeals the trial court's order of child support, contending the court's
analysis amounted to an improper deviation from the standard support calculation.
DISCUSSION
We review a trial court's decision on an order of child support for an abuse of
discretion.3 A trial court abuses its discretion if it the decision rests on unreasonable or
untenable grounds.4 Atrial court necessarily abuses its discretion if its ruling is based
on an erroneous view of the law or involves application of an incorrect legal analysis.5
2Clerk's Papers at 77.
3State ex rel. M.M.G. v. Graham. 159Wn.2d 623, 632, 152 P.3d 1005 (2007).
4]o\ at 633.
5Dix v. ICT Group. Inc.. 160 Wn.2d 826, 833, 161 P.3d 1016 (2007).
No. 68507-4-1/4
Deviation from the Standard Calculation
Chapter 26.19 RCW directs a specific process a trial court must follow before
entering an order of child support. The court must first apply the child support
schedule.6 The court begins by setting the basic child support obligation, which is the
"monthly child support obligation determined from the economic table based on the
parties' combined monthly net income and the number of children for whom support is
owed."7 The economic table is presumptive for combined monthly incomes of $12,000
or less.8
The court must allocate the child support obligation between the parents based
on each parent's share ofthe combined monthly income.9 The court then determines
the "standard calculation," which is the presumptive amount of child support owed by
the obligor parent to the obligee parent under the child support schedule, before
consideration ofeither an upward or downward deviation.10
The court next determines whether it is appropriate to deviate from the standard
calculation.11 The trial court may exercise its discretion and deviate from the standard
calculation based on a variety offactors, including the children's residential schedule.12
6 RCW 26.19.035(1 )(c) ("The child support schedule shall be applied .... [i]n al
proceedings in which child support is determined.").
7 RCW 26.19.011(1); see also RCW 26.19.020 (child support economic table);
Graham. 159 Wn.2d at 627.
8 RCW 26.19.020, .065.
9 RCW 26.19.080(1).
10 RCW 26.19.011(8); Graham. 159 Wn.2d at 627.
11 RCW 26.19.011(4), (8); Graham, 159 Wn.2d at 627.
12 RCW 26.19.075(d).
No. 68507-4-1/5
If the court considers a deviation based on the residential schedule, it must follow
a specific statutory analysis that takes into account whether and how a deviation will
affect both the parent receiving the support transfer payments and the parent making
the support transfer payment. The statute allowing for deviation provides:
Residential schedule. The court may deviate from the standard
calculation if the child spends a significant amount of time with the parent
who is obligated to make a support transfer payment. The court may not
deviate on that basis if the deviation will result in insufficient funds in the
household receiving the support to meet the basic needs of the child or if
the child is receiving temporary assistance for needy families. When
determining the amount of the deviation, the court shall consider evidence
concerning the increased expenses to a parent making support transfer
payments resulting from the significant amount of time spent with that
parent and shall consider the decreased expenses, if any, to the party
receiving the support resulting from the significant amount of time the child
spends with the parent making the support transfer payment.1133
This same process applies to a 50/50 shared residential schedule. In Graham.
our Supreme Court explained, "[T]he plain text of RCW 26.19.075 gives the trial court
discretion to deviate from the basic child support obligation based on a variety of
factors, one of which is the amount of residential time the children spend with the
parents."14 It further held that, because ofthe ability to deviate based on the facts of a
particular case, "a specific formula is neither necessary nor statutorily required to
ensure the parents' child support obligation is properly allocated."15 This court held that,
in a 50/50 shared residential context, "a trial court must calculate the basic child support
amount and may then deviate from that amount based on the amount of residential time
spent with the obligor parent, pursuant to RCW 26.19.075, so long as doing so will not
13 Id
14 Graham. 159 Wn.2d at 636.
15 Id.
No. 68507^-1/6
result in insufficient funds in the household receiving the support to meet the needs of
the children while they are residing in that household".16 The Supreme Court affirmed.17
Sara contends the trial court erred when it awarded her less than the standard
child support calculation. She contends the court failed to engage in the required
deviation analysis, resulting in a child support order that left her with insufficient funds to
meet the needs of her children. We agree.
The trial court properly determined the standard support obligation as $1,866.00,
or $933.00 per child, and allocated 75 percent of the support obligation ($1,399.50) to
Shata, and the remaining 25 percent to Sara ($466.50). Even though the court correctly
identified the standard support obligation, the court concluded the standard calculation
did not apply in this case, "because there is no primary residential parent who is entitled
to support based upon the [standard [calculation."18 While the statute explicitly allows
the court to deviate from the standard calculation based on residential time spent with
the obligor parent, the court "may not deviate on that basis if the deviation will result in
insufficient funds in the household receiving the support to meet the basic needs of the
child."19
Instead of engaging in the required statutory analysis to determine the propriety
of a downward residential deviation, the trial court simply ordered Shata to pay Sara
16 State ex rel. M.M.G. v. Graham. 123Wn. App. 931, 941, 99 P.3d 1248 (2004),
aff'd. 159Wn.2dat636.
17 Graham. 159 Wn.2d at 636.
18
Clerk's Papers at 77.
19 RCW 26.19.075(d).
No. 68507-4-1/7
$500 per month. The court stated the $500 transfer payment did not constitute a
deviation, because of the equal residential care each parent provided:
The [standard [calculation does not apply to this case[ ] because the
parties have a 50/50 shared residential schedule where each parent
provides an equal amount of residential care for the children. Therefore,
the court's equal allocation of the [b]asic [s]upport [obligation between the
two households does not constitute a deviation.[20]
There is no indication in the record on appeal that the trial court gave any consideration
to whether the reduction in transfer payment resulted in insufficient funds to meet the
children's needs.
The trial court erred in concluding the standard calculation did not apply to a
shared residential schedule. The trial court also failed to consider whether its support
order, which amounted to a downward deviation, would leave Sara's household with
insufficient funds. The court's failure to apply the standard calculation, as well as its
failure to conduct the analysis required under RCW 26.19.075(d),21 amounted to a
misapprehension ofthe law.22
20 Clerk's Papers at 77.
21 We need not address Sara's additional argument that the court also erred by
failing to justifywith written findings what amounted to a downward deviation from the
standard support calculation as required by RCW 26.19.075(3). On remand, the trial
court will give due consideration to any requirements of RCW 26.19.075(3).
22 We recognized in Graham that the shared residential arrangement requires the
parents to each provide a household to not just one, but to two or more children.
Dividing the basic child support by the number of children and splitting it between the
parents would qualitatively reduce the amount of funds available to the children in the
household that is less financially well off. Graham. 123 Wn. App. at 941. "This would
often result in not meeting the legislature's intent to satisfy the basic needs of the
children and to provide additional financial support commensurate with the parents'
income, resources and standard of living." Ja\ at 940 (citing RCW 26.19.001).
No. 68507^-1/8
Shata responds the trial court did not err, as chapter 26.19 RCW is silent
regarding the process for determining child support where each parent has the children
exactly half the time. As noted above, the Supreme Court rejected a similar argument
in Graham, where the obligor parent shared the residential schedule equally with the
obligee parent.23
Accepting Shata's argument would require us to ignore the holding of Graham,
as well as the clear statutory language requiring courts to follow the same process for
all determinations of child support. To the extent Shata advocates for equitable relief
from the statute, he cites no persuasive legal authority to support his argument.
We vacate the order of child support and remand for further proceedings
consistent with this opinion. During oral argument, Sara argued that Shata should be
precluded from pursuing a deviation on remand. Shata conceded that he had not
sought a deviation at trial, although Sara had advanced the argument that he was
required to request a downward deviation. The parties have not briefed the scope of
the remedy available after vacation of an order of child support. The trial court on
remand will be in the best position to consider any arguments on this issue.
23159 Wn.2d at 628. In Graham, the obligor parent asked the court to reduce his
support obligation to account for his shared residential burden, and urged the court to
follow the Arvev formula in the absence of specific direction from the legislature
regarding shared residential schedules. ]d at 633-36 (citing In re Marriage of Arvev, 77
Wn. App. 817, 825-26, 894 P.2d 1346 (1995)). The Arvev formula takes each parent's
support obligation and divides it in half to account for a split residence schedule (i.e.,
where each parent has full residential time with only one of the two children, rather than
split residential time with both children). Jd. at 626, 633-36; Arvev. 77 Wn. App. at 825-
26.
8
No. 68507-4-1/9
Attorney Fees
Sara requests attorney fees under RAP 18.1(a) and RCW 26.09.140. Sara
argues her disparate earning capacity entitles her to attorney fees. To support her
argument, she points to Shata's maintenance obligation, as well as to the fact that she
has not had time to get her real estate business off the ground. Sara submitted a
financial affidavit to support her request, as required under RAP 18.1(c). Her
declaration documents her need and inability to pay, and therefore, we grant Sara's
request for attorney fees on appeal, upon her timely compliance with RAP 18.1 (d).
WE CONCUR:
6*,j. %-ofceie,
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13 So.3d 1064 (2009)
GABRIEL
v.
STATE.
No. 3D09-968.
District Court of Appeal of Florida, Third District.
July 29, 2009.
Decision without published opinion. Affirmed.
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956 F.2d 1166
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Jack Lee CAMPBELL, Petitioner-Appellant,v.Jack McCORMICK, Warden, Montana State Prison, Respondent-Appellee.
No. 91-35642.
United States Court of Appeals, Ninth Circuit.
March 4, 1992.
Before HUG, NOONAN and DAVID R. THOMPSON, Circuit Judges.
1
MEMORANDUM**
2
Jack Lee Campbell appeals pro se the district court's grant of summary judgment in favor of the Warden of the Montana State Prison. The court denied Campbell's petition for writ of habeas corpus. Campbell challenges his conviction for homicide, robbery, theft, and tampering with or fabricating evidence, on the ground that prosecutorial misconduct during cross-examination and during closing arguments denied him a fair trial.
3
The Montana Supreme Court reviewed these claims on direct appeal and concluded that Campbell's right to a fair trial was not prejudiced. State v. Campbell, 241 Mont. 323, 330, 787 P.2d 329, 333 (1990). The district court denied Campbell's petition for writ of habeas corpus on the ground that the misconduct did not rise to a level of constitutional significance.
4
The district court had jurisdiction under 28 U.S.C. § 2254. A certificate of probable cause to appeal was granted after Campbell timely filed a notice of appeal. We have jurisdiction to review the judgment under 28 U.S.C. § 2253.
5
The district court's denial of a petition for writ of habeas corpus is reviewed de novo. McKenzie v. Risley, 842 F.2d 1525, 1531 (9th Cir.) (en banc ), cert. denied sub nom, 488 U.S. 901 (1988). The standard of review for a claim of prosecutorial misconduct in a petition for writ of habeas corpus is "the narrow one of due process, and not the broad exercise of supervisory power." Darden v. Wainwright, 477 U.S. 168, 181 (1986); Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974). We must distinguish between "ordinary trial error of a prosecutor and that sort of egregious misconduct ... amount[ing] to a denial of constitutional due process." Donnelly, 416 U.S. at 647-48 (citations omitted). We review on the merits claims for which proper objections were made at trial to determine whether, in light of the entire proceeding, the prosecutor's remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. at 643; Hall v. Whitley, 935 F.2d 164, 165 (9th Cir.1991).
6
Timely objections were made by Campbell's lawyer at trial when the prosecutor asked Campbell during cross-examination to characterize the testimony of another witness as a lie and when the prosecutor referred to Campbell's guilt during his closing argument.
1. Cross-Examination
7
Campbell claims that he was prejudiced by being "forced to characterize a highly respected law enforcement official ... as a liar in order to maintain his innocence." His objection at trial was overruled.
8
A prosecutor may not express his personal opinion of the defendant's guilt or the credibility of witnesses. United States v. McCoy, 771 F.2d 1207, 1210-11 (9th Cir.1985). However, to constitute grounds for habeas relief, the prosecutor's statements must have rendered the trial fundamentally unfair. Campbell v. Kincheloe, 829 F.2d at 1457. Mere improper argument does not necessarily violate a defendant's constitutional rights. Id.
9
The prosecutor is entitled to enough latitude to argue reasonable inferences based on the evidence. United States v. Molina, 934 F.2d 1440, 1445 (9th Cir.1991). Campbell's testimony was inconsistent with that of other witnesses at trial. He denied committing the crimes and presented an alibi. The prosecutor, on cross-examination, attempted to cast doubt on Campbell's account when he asked whether the sheriff would be "lying" if he contradicted Campbell's story. Although the court overruled the defense lawyer's objection to the prosecutor's question, the prosecutor did not require an answer from Campbell and discontinued that line of questioning. The prosecutor's question was a single inquiry during the eight-hour cross-examination of Campbell, was not repeated, was not used in the prosecutor's final argument.
10
Campbell relies upon United States v. Richter, in which the Second Circuit found that cross-examination that compelled a defendant to state that law enforcement officers lied in their testimony was improper. See 826 F.2d 206, 208 (2nd Cir.1987). However, the court expressly declined to rely on that alone as ground for reversal. The court's decision to grant a new trial was based on an accumulation of errors, including the prosecutor's calling a rebuttal witness to corroborate testimony that the defendant had actually labelled as false, and focusing in closing argument on the inconsistencies between the defendant's testimony and the Government agents' testimony. See id. at 208-210.
11
Campbell was not forced, as Richter was, to label another witness as a liar, and no similar accumulation of prejudicial errors existed in his trial. We find that the prosecutor's cross-examination did not violate Campbell's due process right to a fair trial.
2. Closing Argument
12
Campbell claims that he was prejudiced when the prosecutor argued in rebuttal that Campbell was lying. His objections at trial were overruled.
13
A prosecutor's comments must be evaluated in light of the defense argument that preceded it. Darden v. Wainwright, 477 U.S. 168, 179 (1986). The Campbell prosecutor's statements were made in response to the arguments of the defense attorney that Campbell was the most credible witness who had testified during the trial. The prosecutor's statement that Campbell lied about his mother was based on Campbell's own testimony, and did not "manipulate or misstate the evidence." Id. at 182. See United States v. Molina, 934 F.2d 1440, 1445 (9th Cir.1991) (in light of flatly contradictory testimony, government may properly argue that the jury should not believe defendant's version of facts); United States v. Hoelker, 765 F.2d 1422, 1426 (9th Cir.1985) (prosecutor may voice doubt about the veracity of defendant who has taken stand where supported by record).
14
The prosecutor's statement that the jury should not "turn this man loose" emphasized the evidence presented by the Government and could have been construed as a comment on the evidence rather than an expression of the prosecutor's personal belief. See United States v. Laurins, 857 F.2d 529, 539 (9th Cir1988), cert. denied, 492 U.S. 906 (1989). The statements to which Campbell objected pale in comparison to those in Darden, which were found not to have infected the trial with unfairness so as to make the conviction a denial of due process. 477 U.S. at 181 (improper remarks included calling defendant an "animal," implying that the death penalty was the only guarantee against a future similar act, expressing wish that defendant had been killed, id. at 180).
3. Failure to Object at Trial
15
Where a petitioner procedurally defaulted on a claim in state court, he must demonstrate cause for his procedural default and actual prejudice from the alleged constitutional violation in order to raise the claim in federal court. Reed v. Ross, 468 U.S. 1, 11 (1984). See Hall v. Whitley, 935 F.2d 164, 165 n. 1 (9th Cir.1991).
16
The Montana Supreme Court found that Campbell failed to object properly at trial to the prosecutor's statement that Campbell was a "pathological liar." State v. Campbell, 787 P.2d at 332. The court rejected Campbell's argument that he had a "continuing objection" from his objection during cross-examination to the use of the word "liar." Id.
17
We find that Campbell has failed to show cause or to demonstrate prejudice, and we decline to consider this claim.
4. Cumulative Effect of Errors
18
Campbell argues that the cumulative effect of the prosecutor's improper statements was to deny his constitutional right to a fair trial.
19
We disagree. The prosecutor's comments were "isolated moments" in the trial. See Hall, 935 F.2d at 166. The circumstantial evidence against Campbell was overwhelming. Id. His defense rested on his credibility. See State v. Campbell, 787 P.2d at 330-31, 333. When considered in the context of the entire trial, the prosecutor's comments were not "so fundamentally unfair as to deny him due process." See Donnelly, 416 U.S. at 645.
20
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
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327 Md. 106 (1992)
607 A.2d 935
WILLIAM TURNER
v.
KELLY A. WHISTED, ET AL.
No. 52, September Term, 1991.
Court of Appeals of Maryland.
June 22, 1992.
Brian S. Brown, argued and on brief (D'Alesandro, Miliman & Yerman, on brief), Baltimore, for petitioner.
Frederick J. Hatem, Jr., argued and on brief (Dewey Brian Stanley Reed, Feinberg & Hatem, on brief), Bel Air, for respondent.
Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.
CHASANOW, Judge.
On March 8, 1986, Kelly Whisted (Kelly) gave birth to a son and named him Jeffrey. Approximately five and a half months prior to Jeffrey's birth, Kelly married Danny Whisted (Danny). Before her marriage, Kelly was also involved in a relationship with William Turner (Turner). Jeffrey was conceived during the time Kelly was seeing Turner, and Kelly, on at least two occasions, wrote to Turner that he was her child's father. Despite these letters, Jeffrey was given the Whisted name and Danny Whisted was listed as father on Jeffrey's birth certificate. Six months after Jeffrey was born, Kelly left her husband and renewed her relationship with Turner. Despite the separation, Danny continued to visit Jeffrey on a regular basis and to pay support for his care and maintenance.
The relationship between Kelly and Turner continued for eighteen months, during which time Turner appears to have developed a relationship with Jeffrey. When Kelly and Turner broke up once again, Turner's contact with Jeffrey ended. Turner then filed a "Complaint for Visitation" in the Circuit Court for Harford County, naming Kelly Whisted as defendant and seeking visitation with Jeffrey. Pursuant to Maryland Code (1974, 1991 Repl.Vol.), Estates and Trusts Article, § 1-206(a), which provides that "[a] child born or conceived during a marriage is presumed to be the legitimate child of both spouses," Jeffrey is presumed to be the legitimate child of Danny Whisted. Apparently recognizing this presumption, Turner later amended his complaint naming Danny Whisted as an additional defendant.
In addition, Turner filed a "Motion for Blood Test" to establish that he was Jeffrey's biological father. The Whisteds, each by separate counsel, filed a Motion to Strike Turner's Motion for Blood Test. The circuit court assumed Turner's request for blood tests to be pursuant to Md.Code (1984, 1991 Repl.Vol.), Family Law Art., § 5-1029, (Family Law Article, Title 5, Subtitle 10 will hereinafter be referred to as the "paternity statute"). The court ruled that mandatory blood tests under § 5-1029 were not available to Turner for the purpose of rebutting Jeffrey's presumed legitimacy. Consequently, the court denied Turner's motion for blood tests and granted the Whisteds' motions to strike.
Thereafter, Danny Whisted filed a Motion for Summary Judgment on the ground of laches, in which Kelly Whisted joined. The circuit court granted the motion and Turner appealed to the Court of Special Appeals. The intermediate appellate court, in an unreported opinion, disagreed with the circuit court's dismissal of the action by summary judgment, finding that the issue of "whether [Turner had] delayed too long in seeking visitation was very much in dispute." Accordingly, that court remanded the case to the circuit court for a resolution of the conflicting evidence related to the extent of Turner's delay in bringing his action.
The Court of Special Appeals then looked to the remaining issue of whether Turner was entitled to have all of the parties submit to a blood test. Viewing the Motion for Blood Test in the same posture as did the circuit court, the intermediate appellate court agreed that Turner "may not initially use the blood test provisions of the paternity statute to overcome the presumption of legitimacy of the child herein." We granted Turner's petition for writ of certiorari to determine:
"Whether a male individual who claims to be the father of a child born to a married couple is entitled to petition a circuit court for a blood test to determine paternity for the purpose of determining whether said male individual is the biological father of the child when the child was conceived prior to the marriage of said married couple."
Initially we note that neither Turner's Complaint for Visitation nor his Motion for Blood Test contains a single reference to the paternity statute. Indeed, as a result of the State's Attorney's refusal to consent to Turner's action under the paternity statute, Turner invoked the equitable powers of the court to grant visitation. As grounds for his Motion for Blood Test, Turner cites § 1-208 of the Estates & Trusts Article and this Court's opinion in Thomas v. Solis, 263 Md. 536, 283 A.2d 777 (1971). Md.Code (1974, 1991 Repl.Vol.), Estates & Trusts Art., § 1-208 provides in relevant part:
"(b) Child of his father. A child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the child of his father only if the father
(1) Has been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings; or
(2) Has acknowledged himself, in writing, to be the father; or
(3) Has openly and notoriously recognized the child to be his child; or
(4) Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father."
In Thomas, an unwed father, wishing to protect his visitation rights and to assure entitlement to notice of any attempted adoption of the child, sought a declaratory judgment that he was the child's natural father. This Court held that compliance with any of the four methods set forth in § 1-208 of the Estates & Trusts Article was sufficient to achieve this end. 263 Md. at 544, 283 A.2d at 781.
Referring to § 1-208 of the Estates & Trusts Article, we have on several occasions
"indicated that a `liberal interpretation' of our legitimation statute was essential; that it was `not limited in its scope and application to matters of inheritance only' but was legally sufficient `to establish other rights, ... arising from the relationship existing between parent and legitimate issue,' ... and that the status sought by the father was afforded to him by compliance with the legitimation statute."
Bridges v. Nicely, 304 Md. 1, 7-8, 497 A.2d 142, 145 (1985), quoting Thomas, 263 Md. at 542, 283 A.2d at 780. See also Dawson v. Eversberg, 257 Md. 308, 262 A.2d 729 (1970). Consequently, we believe that Turner, alleging that Jeffrey was a child "born to parents who have not participated in a marriage ceremony with each other," quite properly cited § 1-208 of the Estates & Trusts Article as a basis upon which he could seek to establish his status as Jeffrey's natural father.
Most recently in Taxiera v. Malkus, 320 Md. 471, 578 A.2d 761 (1990), this Court implicitly recognized that paternity could be established by a statutory action in a paternity proceeding under the Family Law Article or in an equitable action under the Estates & Trusts Article. In Taxiera, we noted the reciprocal references in the two articles. Section 5-1005 of the Family Law Article states: "An equity court may determine the legitimacy of a child pursuant to § 1-208 of the Estates & Trusts Article." Conversely, § 1-208 provides that one way to legitimize a child is if the father "[h]as been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings." 320 Md. at 478-79, 578 A.2d at 764. Thus, the legislature offered a choice of actions by which one could seek to establish paternity.
Indeed, over two decades earlier, the Court acknowledged that one might seek a declaration of paternity under either the paternity statute or in equity. In Shelley v. Smith, 249 Md. 619, 241 A.2d 682 (1968), the Court could
"see no reason why the child's rights to inherit from M should in any respect depend on whether M's paternity was established in a paternity proceeding pursuant to [the paternity statute] or in an equity proceeding like the case at bar. And if that be so then the rules of evidence controlling the proof of paternity ought to be the same in either case." (Emphasis added).
Id. at 630, 241 A.2d at 688. See also Staley v. Staley, 25 Md. App. 99, 103-04, 335 A.2d 114, 118, cert. denied, 275 Md. 755 (1975). Consequently, we believe that § 1-208 of the Estates & Trusts Article provides an alternate avenue by which one could seek blood tests for the purpose of establishing paternity.
For the reasons set forth below, in those cases where two men each acknowledge paternity of the same child, we believe that an action to establish paternity is more appropriately brought under the Estates & Trusts Article. As advanced by this Court in Thomas and Dawson, the Estates & Trusts Article presents the "more satisfactory" and "less traumatic" means of establishing paternity. Thomas, 263 Md. at 544, 283 A.2d at 781; Dawson, 257 Md. at 314, 262 A.2d at 732. In Turner's attempt to establish paternity under the Estates & Trusts Article, he had to rebut the presumption that Jeffrey was the legitimate child of Kelly and Danny Whisted. See Md.Code (1974, 1991 Repl.Vol.), Estates & Trusts Art., § 1-206. A motion for blood tests made under the Estates & Trusts Article is best analyzed as a request for a physical examination under Maryland Rule 2-423,[1] and the court has discretion to grant or deny the blood tests.
As a discovery request, the court may order the blood tests on motion for good cause shown. The Whisteds' legitimate interests in privacy must be considered along with Turner's relationship with Jeffrey. In Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91, reh'g denied, 492 U.S. 937, 110 S.Ct. 22, 106 L.Ed.2d 634 (1989), the Supreme Court was presented with a factual situation analogous to the instant case. While married to Gerald D., Carol D. had an adulterous affair with Michael H. and sometime later a child, Victoria, was born. Michael H. and Carol D., without Gerald's knowledge, had blood tests performed which conclusively established that Michael H. was Victoria's biological father. Michael H. filed an action to establish paternity and for visitation. A California statute created a conclusive presumption that a child born to a married woman living with her husband is a child of the marriage, and the statute denied Michael H. the right to prove he was Victoria's father. Michael H. contended the California statute violated his due process rights by denying him the opportunity to rebut the presumption of legitimacy. A majority of the Supreme Court upheld the California presumption and held Michael H. had no constitutionally protected right to establish his paternity of Victoria. In a plurality opinion authored by Justice Scalia and joined by Chief Justice Rehnquist, and in part by Justice O'Connor and Justice Kennedy, the Court noted that there was a common law presumption of legitimacy and that society has historically protected the integrity of the marital family unit from claims of paternity by other men. The rationale was based on the promotion of family harmony, as well as a reluctance to declare the children of a married woman illegitimate. 491 U.S. at 125, 109 S.Ct. at 2343, 105 L.Ed.2d at 107. The opinion further pointed out that "to provide protection to an adulterous natural father is to deny protection to a marital father, and vice versa."[2] 491 U.S. at 130, 109 S.Ct. at 2345, 105 L.Ed.2d at 110.
Justice Brennan in a dissenting opinion noted that "[f]ive Members of the Court refuse to foreclose `the possibility that a natural father might ever have a constitutionally protected interest in his relationship with a child whose mother was married to and cohabiting with another man at the time of the child's conception and birth.'" 491 U.S. at 136, 109 S.Ct. at 2349, 105 L.Ed.2d at 114 (dissenting opinion). Justice Brennan pointed out that on four prior occasions, the Supreme Court had considered whether unwed fathers have a constitutionally protected interest in a relationship with their children. See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). Justice Brennan observed that these cases
"produced a unifying theme: although an unwed father's biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so. `When an unwed father demonstrates a full commitment to the responsibilities of parenthood by "com[ing] forward to participate in the rearing of his child," ... his interest in personal contact with his child acquires substantial protection under the Due Process Clause.'" (Citations and footnote omitted.)
Michael H., 491 U.S. at 142-43, 109 S.Ct. at 2352, 105 L.Ed.2d at 118-19, quoting Lehr, 463 U.S. at 261, 103 S.Ct. at 2993, 77 L.Ed.2d at 626, in turn quoting Caban, 441 U.S. at 392, 99 S.Ct. at 1768, 60 L.Ed.2d at 307.
We believe that a trial court ought to be able to consider and balance the different interests that were separately recognized by the majority and the dissent in Michael H. A discovery request for blood tests allows the court to weigh these competing interests. Most significantly, the determination of good cause allows the court discretion to consider the best interests of the child. Matter of Marriage of Ross, 245 Kan. 591, 783 P.2d 331, 338 (1989) ("Prior to ordering a blood test to determine whether the presumed parent is the biological parent, the district court must consider the best interests of the child...."); McDaniels v. Carlson, 108 Wash.2d 299, 738 P.2d 254, 261 (1987) (where child is presumed legitimate, best interests of the child should be considered before ordering blood tests).
While Jeffrey is not a party to the action, Rule 2-423 permits the physical examination of a party or a "person in the custody or under the legal control of a party." Consequently, the court might even appoint counsel to represent Jeffrey's interests if it believes that those interests might be compromised by the blood test. If Jeffrey's best interests would be jeopardized by submitting to a blood test, the child's representative may then request a protective order.
The criteria for determining the child's best interests in cases of disputed paternity include consideration of the stability of the child's current home environment, whether there is an ongoing family unit, and the child's physical, mental, and emotional needs. An important consideration is the child's past relationship with the putative father. Ross, 245 Kan. 591, 783 P.2d at 338; McDaniels, 738 P.2d at 262. Finally, other factors might even include the child's ability to ascertain genetic information for the purpose of medical treatment and genealogical history.
On remand, the trial court should consider the extent of Turner's commitment to the responsibilities of parenthood, and balance his interest in establishing his status as Jeffrey's natural father against the Whisteds' interest in protecting the integrity of the familial relationships already formed. This balance of interests should be considered in connection with the court's paramount concern of protecting Jeffrey's best interests.
Turner's motion for blood tests of all parties is impeded, but not absolutely precluded, by the presumption that Jeffrey is the legitimate child of Danny Whisted. Not being prohibited from granting the motion solely because of the presumption of legitimacy, the trial court could have, and should have, held a hearing to determine whether ordering the blood tests would be contrary to Jeffrey's best interests. See Traci Dallas, Rebutting the Marital Presumption: A Developed Relationship Test, 88 Colum.L.Rev. 369, 383 (1988) ("All putative fathers should be afforded a preliminary hearing to determine whether [a developed] relationship exists.") Accordingly, the Court of Special Appeals was in error in its determination that blood tests could not be used to rebut the legitimacy presumption. The issue of laches is not before us.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR HARFORD COUNTY AND TO REMAND THE CASE TO THE CIRCUIT COURT FOR HARFORD COUNTY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO BE PAID ONE-HALF BY THE PETITIONER AND ONE-HALF BY THE RESPONDENT.
ELDRIDGE, J., concurs in part and dissents in part, in which McAULIFFE, J., joins.
ELDRIDGE, Judge, concurring in part and dissenting in part:
I concur with the Court's judgment remanding this case for a determination of whether Mr. Turner is entitled to blood tests in order to establish his paternity. I do not agree, however, with the majority's statement that when two men claim paternity of a child, their dispute is more appropriately resolved under the Maryland Code (1974, 1991 Repl.Vol.), § 1-201 et seq. of the Estates and Trusts Article, rather than the Code (1984, 1991 Repl.Vol.), § 5-1001 et seq. of the Family Law Article. In addition, I dissent from the Court's position that Mr. Turner must prove that a declaration of paternity is in the child's best interests before blood tests pursuant to Maryland Rule 2-423 will be ordered.
I.
The majority states (at 113):
"in those cases where two men each acknowledge paternity of the same child, we believe that an action to establish paternity is more appropriately brought under the Estates & Trusts Article. As advanced by this Court in Thomas [v. Solis, 263 Md. 536, 544, 283 A.2d 777, 781 (1971)] and Dawson [v. Eversberg, 257 Md. 308, 314, 262 A.2d 729, 732 (1970)], the Estates & Trusts Article presents the `more satisfactory and less traumatic' means of establishing paternity."
In § 1-208(b) of the Estates and Trusts Article, the General Assembly set forth methods by which a natural father of a child born out of wedlock can legitimate his child. Section 1-208(b) provides:
"Child of his father. A child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the child of his father only if the father
(1) Has been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings; or
(2) Has acknowledged himself, in writing, to be the father; or
(3) Has openly and notoriously recognized the child to be his child; or
(4) Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father."
This portion of the statute presumes that the child being legitimated is in fact "[a] child born to parents who have not participated in a marriage ceremony with each other." That is, the child's natural parents are the mother and the man seeking to legitimate the child. It does not contemplate or provide a mechanism for the resolution of a dispute over who the natural parents are.
In prior cases, this Court has held that the legitimation statute, now codified in the Estates and Trusts Article, can provide a means for a man to establish legally a parent/child relationship. Nevertheless, each of the cases relied upon by the majority for the proposition that the legitimation statute is capable of securing rights other than inheritance, involve situations in which there was no dispute as to who was the natural father of the child, and in which the natural father sought to legitimate his children who were born out of wedlock.
For example, in Thomas v. Solis, supra, Thomas fathered three children out of wedlock. He sought to legitimate the children after their mother married another man in order to protect his visitation rights and to prevent the mother's husband from adopting Thomas' children without his consent. 263 Md. at 538, 283 A.2d at 778. At no point did anyone suggest that Thomas was not the children's natural father. It was in this context that the Court held that the legitimation statute "should certainly be of sufficient legal validity to establish other rights ... arising from the relationship existing between parent and legitimate issue." 263 Md. at 542, 283 A.2d at 780.
Similarly in Dawson v. Eversberg, supra, the natural father of children born out of wedlock had been declared to be their father in an action brought by the mother under the paternity statute, presently codified in the Family Law Article. In order to ensure that the children would be his legitimate heirs, the natural father filed an adoption proceeding. This Court suggested that when the objective was legitimation, the legitimation statute, rather than the adoption statute, provided a "less traumatic approach" for accomplishing that goal. 257 Md. at 314, 262 A.2d at 732. See also Bridges v. Nicely, 304 Md. 1, 497 A.2d 142 (1985) (natural father, declared to be the father in a paternity action, sought to adopt his child). In each of these cases, a paternity action had already determined that the child had been "born to parents who had not participated in a marriage ceremony with each other." § 1-208(b) of the Estates and Trusts Article. Thereafter, the natural father was able to use the Estates and Trusts provisions to legitimate the children and to secure the rights stemming from their legitimacy for himself and for the children.
None of these cases involved a dispute between two men, each of whom claimed to be the natural father. Cases of disputed paternity are more appropriately resolved under the Family Law Article. Cf. Taxiera v. Malkus, 320 Md. 471, 578 A.2d 761 (1990) (putative father's estate disputed paternity for purposes of inheritance, and the paternity action proceeded under the Family Law Article instead of the Estates and Trusts Article).
In this case, Mr. Turner and Mr. Whisted each has a basis under the Estates and Trusts Article for asserting that he is the child's father. Mr. Turner claims that the child, Jeffrey, was "born to parents who have not participated in a marriage ceremony with each other," i.e., Mr. Turner and Mrs. Whisted, and that he acknowledged the child as his own in compliance with § 1-208(b). By filing this action asserting that he is the father, seeking blood tests and seeking visitation, Mr. Turner satisfied the requirements of § 1-208(b)(2) in that he has acknowledged himself, in writing, to be the father. See Thomas v. Solis, supra, 263 Md. at 544, 283 A.2d at 781 (acknowledgment of child in pleading satisfied both § 1-208(b)(2) and (b)(3)); Hall v. Coates, 62 Md. App. 252, 260, 489 A.2d 41, 45-46 (1985); Skeens v. Paterno, 60 Md. App. 48, 58, 480 A.2d 820, 825, cert. denied, 301 Md. 639, 484 A.2d 274 (1984).
On the other hand, Mr. Whisted claims that Jeffrey was "born or conceived during the marriage" and, therefore, under § 1-206 of the Estates and Trusts Article, is "presumed to be the legitimate child" of Mr. and Mrs. Whisted. In order for § 1-208(b) of the Estates and Trusts Article to have a logical application, there cannot be a dispute as to whether the "parents" were married at the time of conception or birth. The provisions of the Estates and Trusts Article, because they were not designed to resolve an adversarial dispute between two men claiming paternity, require an assumption as to who is the natural father before a determination can be made concerning which section of the statute applies.
Because the Estates and Trusts Article presumes knowledge of the identity of the natural father before its legitimation procedures become meaningful, I cannot agree that the legitimation provisions of the Estates and Trusts Article are better suited to resolve a dispute between two men each claiming to be the natural father. It seems to me that the paternity provisions of the Family Law Article were better designed to resolve disputes over the identity of the natural father. Nonetheless, because the General Assembly clearly intended that there be a judicial mechanism for resolving disputes over paternity, and as no action was brought under the Family Law Article in this case, I do not dissent from the remand to afford Mr. Turner an opportunity to establish his paternity under the Estates and Trusts Article.
II.
According to the majority, in order to resolve this dispute between a man presumed to be the father and a man who has acknowledged his paternity under § 1-208(b), the man seeking paternity may ask for blood tests under Maryland Rule 2-423 to determine who is the natural father.[1]
In all other cases, blood tests, like other mental or physical examinations, are available upon a showing of "good cause." Rule 2-423; Hutzell v. Boyer, 252 Md. 227, 249 A.2d 449 (1969); Roberts v. Roberts, 198 Md. 299, 82 A.2d 120 (1951). In order to establish "good cause" the party requesting blood tests must demonstrate that the mental or physical character or condition of another party is material to an issue in the case. Roberts v. Roberts, supra, 198 Md. at 302, 82 A.2d at 122. Obviously, in the present case, the blood test results would be material to the determination of who is Jeffrey's natural father. Moreover, because the status of natural father gives rise to a presumption that the best interests of the child are served by allowing the natural father visitation, the information obtained by the blood tests is also material to Mr. Turner's request for visitation. Ross v. Hoffman, 280 Md. 172, 178, 372 A.2d 582, 586-587 (1977); Ross v. Pick, 199 Md. 341, 351, 86 A.2d 463, 468 (1952). See also Lipiano v. Lipiano, 89 Md. App. 571, 577-578, 598 A.2d 854, 857-858 (1991), cert. denied, 325 Md. 620, 602 A.2d 710 (1992).
The majority opinion, however, imposes a significant burden on a man who has acknowledged paternity as required by the Estates and Trusts Article, before blood tests can be performed. According to the majority, in order to prove "good cause" for blood tests, the alleged father must demonstrate, not that the results of the tests are material to a disputed issue, but rather that it is in the child's best interests for the court to make a determination as to paternity.
The majority has simply changed the law in a particular class of cases. The motivation for this departure apparently is the desire to avoid a result which the majority perceives as an evil, to be rectified by judicial fiat, namely the declaration that a man, other than a married woman's husband, is the father of her child. Because the determination of the identity of the natural father of this child could lead to the natural father having some rights with respect to that child, and because such rights may impinge upon the "integrity of familial relationships already formed," the majority has reconstructed the principles which govern the resolution of disputes.[2] Normally a dispute is resolved after the relevant facts are ascertained and the pertinent law is applied. Under the majority's construction, in this limited class of cases, sometimes the most relevant facts will not be ascertained in order to prevent an unsatisfactory resolution of the dispute. The father may bring an action to determine paternity but, in some cases, may not have access to the most germane evidence available to resolve this dispute, namely the results of the blood tests.
Nevertheless, according to the majority, if the man can prove that it is in the best interests of the child for him to be declared the father, blood tests will be provided. The majority has formulated a procedure whereby the trial court must determine the ultimate result, in order to discover whether that result is satisfactory, before it can ascertain the facts. If the court decides that it likes the predicted ultimate result, then the fact finding process continues. If the court decides that it does not like the predicted ultimate result, the process ends.
I cannot subscribe to the proposition that relevant, ascertainable evidence should be excluded because it may lead to a result which the court does not like. The trial court's conjecture over whether the result will be satisfactory should not determine whether facts relevant to that result are concealed. I simply cannot agree with the majority's view that the government (through its courts) is entitled to determine in a particular case that one will be better off by the perpetuation of a falsity and the suppression of relevant, unprivileged facts.
The notion that people's best interests are served by ignorance of the facts, enforced by a governmental entity, is reminiscent of the society portrayed in George Orwell's 1984. In that society, one of the slogans of the governing "Party," engraved on the "Ministry of Truth" building, was "IGNORANCE IS STRENGTH."[3] While concealment of the truth is a fundamental tenet of totalitarian regimes,[4] it should not be an operative principle in a free society.
I am aware of no other type of action where relevant and admissible evidence, unprotected by a recognized privilege against non-disclosure, is excluded. The majority's reasoning could lead to the exclusion of relevant admissible evidence in a number of cases. For example, in an incident recently publicized in the newspapers, two mothers gave birth to two girls in a Florida hospital. Either hospital negligence or unexplained circumstances led to the mothers returning to their homes with the wrong child. Under the majority's reasoning, in order to examine the hospital records to determine whether a switch had even occurred, the couples would have to prove that it was in the children's best interests for there to be a determination of who were their true biological parents. If a court found that each of the girls' best interests were served by remaining with the woman who took her home, the hospital records as well as any scientific evidence of parentage would be excluded.
Another example could arise in the surrogacy area.[5] It is possible with current scientific advances that an egg from one woman can, by in vitro procedures, be fertilized by the sperm of a man and then implanted into the uterus of another woman who promises to act as surrogate. Although the question of which woman is the "mother" may be a controversial one, the majority's holding would prevent the genetic background of the child from being considered in a dispute over the identity of the "mother" unless it was in the child's best interests for the court to make that determination. See John Lawrence Hill, What does it means to be a "Parent"? The Claims of Biology as the Basis for Parental Rights, 66 N.Y.U.L.Rev. 353, 363 (1991).
The suppression of relevant, admissible evidence promoted by the majority in this case is unprecedented. In certain situations, the General Assembly, after balancing the privacy interests involved, has provided for records to be sealed. For example, juvenile delinquency records are confidential so that the juvenile will not be stigmatized by a criminal record. Md.Rule 921. Likewise adoption records are sealed to protect the privacy interests of natural parents who choose to place their children for adoption. Code (1984, 1991 Repl.Vol.), § 5-309 of the Family Law Article. These instances, however, are readily distinguished from the attempt of the majority today to conceal facts material to a determination of paternity. In addition to being legislative policy determinations, these examples of sealed records prevent the future disclosure of previously ascertained facts for collateral purposes. They do not prevent the ascertainment of these facts in the primary litigation.[6]
Even if the majority's concern over the consequences of a paternity adjudication were justified, the majority's "big brother" approach would be indefensible. Nevertheless, the majority's concern over the consequences is overstated. The admission of the blood test results would do no more than establish the true paternity of the child.[7] The best interests standard would still control the determination of visitation and custody. See McCready v. McCready, 323 Md. 476, 481, 593 A.2d 1128, 1130 (1991); Domingues v. Johnson, 323 Md. 486, 498, 593 A.2d 1133, 1139 (1991).
The ultimate determination of visitation or custody, however, should only come after careful consideration of all relevant evidence, including biological parentage. The fact of biological parentage does not automatically entitle the natural father to visitation with his child. A determination of paternity would entitle the natural father to the presumption that the child's interests will best be served by allowing the father visitation. Yet, this presumption can be rebutted when "some exceptional circumstances render such custody [or visitation] detrimental to the best interests of the child." Ross v. Hoffman, supra, 280 Md. at 178, 372 A.2d at 586-587, quoting Ross v. Pick, supra, 199 Md. at 351, 86 A.2d at 468. See also Lipiano v. Lipiano, supra, 89 Md. App. at 577-578, 598 A.2d at 857-858.
One commentator explained the illogic of the majority's position as follows:
"The question of the child's best interests, however, does not arise until the putative father has first been accorded his procedural right to standing to establish his paternity. This is not to say that the best interests of the child are unimportant, but only that they are irrelevant to the preliminary and essential factual determination of paternity. A successful paternity action by a putative father does not automatically entitle him to custody, for example, nor even to visitation with his child." (Emphasis added).
Jean E. McEwen, R. McG. & C.W. v. J.W. & W.W.: The Putative Father's Right to Standing to Rebut the Marital Presumption of Paternity, 76 N.W.U.L.Rev. 669, 688 (1981). See Anonymous v. Anonymous, 472 So.2d 640, 642 (Ala. Civ. App. 1984), cert. quashed, 472 So.2d 643 (Ala. 1985) (putative father entitled to blood tests upon showing of good cause, and it is not necessary for him to prove his entire case prior to the ordering of blood tests).
The approach taken by the majority disregards the reality of the modern world in which blood tests are a reliable source of information for the determination of a fact that is relevant to the attempt by Mr. Turner to establish a relationship with Jeffrey. Justice Brennan criticized a similar head-in-the-sand approach while sitting on the New Jersey Superior Court stating (Cortese v. Cortese, 10 N.J. Super. 152, 156, 76 A.2d 717, 719 (1950)):
"In the field of contested paternity ... the truth is so often obscured because social pressures create a conspiracy of silence or, worse, induce deliberate falsity."
In my opinion, the majority's opinion today contributes to this conspiracy of silence by authorizing the concealment of a fact that is relevant to the determination of visitation and ascertainable with a high degree of accuracy.
Judge McAULIFFE has authorized me to state that he concurs with the views expressed herein.
NOTES
[1] Blood tests are clearly a permissible discovery request under Maryland Rule 2-423. Former Maryland Rule 420, from which 2-423 was derived, provided that the court may order an examination "[w]henever the mental or physical condition or the blood relationship ... is material...." (Emphasis added). Present Rule 2-423 permits the court to order an examination "[w]hen the mental or physical condition or characteristic of a party or of a person in the custody or under the legal control of a party is in controversy...." (Emphasis added). The amendment is explained in the Eighty-second Report of the Standing Committee on Rules of Practice and Procedure:
"This Rule is enlarged to cover characteristics, as well as conditions. The Committee believes this change is appropriate in light of the sophisticated testing procedures now available. `Characteristics' includes, but is not limited to, a person's blood group."
Maryland Register, Vol. 10, Issue 10, Page S-2 (May 13, 1983).
[2] It has even been suggested that to grant all putative fathers an absolute cause of action to rebut the marital presumption would interfere with the constitutionally protected right to "family integrity" of the husband, wife, and child. See Traci Dallas, Rebutting the Marital Presumption: A Developed Relationship Test, 88 Colum.L.Rev. 369, 372-77 (1988).
[1] Maryland Rule 2-423, "MENTAL OR PHYSICAL EXAMINATION OF PERSONS," provides in part:
"When the mental or physical condition or characteristic of a party or of a person in the custody or under the legal control of a party is in controversy, the court may order the party to submit to a mental or physical examination by a physician or to produce for examination the person in the custody or under the legal control of the party. The order may be entered only on motion for good cause shown and upon notice to the person to be examined and to all parties."
[2] Maj. at 117. The majority's concern for the integrity of familial relationships already formed ignores the reality of the present case. The Whisteds were married approximately five and a half months before Jeffrey's birth. They separated six months after Jeffrey was born, and Jeffrey and Mrs. Whisted lived with Mr. Turner for a year and a half. It is unclear whether it is possible to protect the "integrity of familial relationships already formed," as it is not evident that any such relationship exists.
[3] George Orwell, 1984, p. 7 (Signet ed., fourteenth printing 1956).
[4] As Lenin wrote, "[t]he Communists must be prepared ... to evade and conceal the truth...." Quoted in David Shub, Lenin, p. 171 (Mentor Book ed., fourth printing 1953).
[5] I note that a surrogacy dispute could arise in Maryland as the Governor vetoed Senate Bill 251 of the 1992 General Assembly session which would have rendered commercial surrogate parenting agreements unenforceable. Acts of 1992, Vetoes.
[6] For example, juvenile records are sealed to prevent the juvenile from being stigmatized. Nevertheless, in the primary litigation a determination is made concerning whether the juvenile in fact committed a crime. It is the record of this finding that is sealed. Applying the majority's rationale in this situation would require the trial court to determine whether a delinquency adjudication would be in the juvenile's best interests before determining whether to hear the victim's testimony about the crime. If the juvenile's best interests would not be furthered, the victim could not testify. If the juvenile's best interests would be furthered, the victim could testify and the juvenile could be adjudicated delinquent. Obviously, this result is preposterous. Nonetheless, this is precisely what the majority suggests should be the ground rules in a case of contested paternity under the Estates and Trusts Article.
[7] Moreover, the majority's opinion ignores the legitimate reasons why it may be beneficial, perhaps for medical or psychological reasons, for a child to ascertain his or her biological roots. For example, bone marrow transplants as well as kidney and other organ transplants are significantly more successful when parent or sibling donors are used. See Hobbs, "Displacement Bone Marrow Transplantation," 1990 J.Inherit. Metab.Dis. 572-596; Mickey, "Kidney Transplant Mortality Relationship," 1988 Clin. Transpl. 263-276.
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524 F.2d 1405
Austinv.Weinberger
75-1423
UNITED STATES COURT OF APPEALS Sixth Circuit
10/17/75
E.D.Tenn., 402 F.Supp. 1198
AFFIRMED
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30 Ill.2d 67 (1963)
195 N.E.2d 157
THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error,
v.
JAMES MASSIE CLARK, Plaintiff in Error.
No. 37571.
Supreme Court of Illinois.
Opinion filed November 26, 1963.
Rehearing denied January 20, 1964.
*68 JOEL J. SPRAYREGEN, of Chicago, appointed by the court, for plaintiff in error.
WILLIAM G. CLARK, Attorney General, of Springfield, and DANIEL P. WARD, State's Attorney, of Chicago, (FRED G. LEACH and E. MICHAEL O'BRIEN, Assistant Attorneys General, and ELMER C. KISSANE and RICHARD T. BUCK, Assistant State's Attorneys, of counsel,) for the People.
Judgment affirmed.
Mr. JUSTICE DAILY delivered the opinion of the court:
James Massie Clark, the defendant, was tried in the criminal court of Cook County and found guilty under an indictment wherein he was charged, jointly with William Byrd and Jessie Knox, with the crime of robbery. He was sentenced to the penitentiary for a term of two to five years and now prosecutes this writ of error contending that the evidence was insufficient to sustain the conviction, that the indictment was defective, and that he was not present at the arraignment, in violation of his right to be in attendance at all phases of his trial. Defendant's presentation here concedes that Byrd committed a robbery, and it is his theory under the evidence that he was an innocent bystander who did not participate in the crime, but in fact intervened to prevent further assault on the robbery victim.
The evidence on behalf of the People shows that Nicholas Unterreiner, the complaining witness, was fifty-nine *69 years old, had resided in this country less than five years, and spoke German and Yugoslavian but very little English. Testifying through an interpreter, he stated that as he was walking home from work at approximately 12:30 A.M. on June 17, 1961, he noticed four men who first walked behind him, and then passed him. As he neared an elevated railroad structure one of the men asked him a question, which he did not understand, then grabbed him by the hand and pulled him underneath the elevated structure. There, according to the witness, the men beat him about the head and kicked him after he had fallen down, inflicting severe lacerations and bruises. He called for help, became dazed and, it is to be gathered from his testimony, was unaware that a wallet and some keys were missing from his person until they were returned to him by a police officer under circumstances to be detailed. The witness could not identify his assailants, explaining that blood from cuts on his face obscured his vision.
Raymond Vahosky testified for the prosecution that he and two friends were across the street talking when he saw two men, whom he later identified as Byrd and Knox, beating and kicking Unterreiner. The defendant, he said, was standing "in the background." The witness and his friends ran across the street shouting, whereupon Knox and Byrd stopped the beating and ran off. However, they returned at once, Byrd becoming belligerent with Vahosky and Knox drawing a knife. At this time defendant stepped out of the shadows and stopped the altercation by telling his companions that he knew Vahosky and that the latter was a judo instructor. Meanwhile, Unterreiner was lying on the ground nearby with his coat over his head.
A Chicago police officer, Charles Levecke, passed the scene as he was driving home from duty and saw what he characterized as "two colored boys," whom he also identified as Byrd and Knox, fighting with a man. The officer parked his car down the street and walked back to the scene, arriving *70 at the time the quarrel with Vahosky was being concluded. When the officer approached, Knox fled from the scene and when defendant and Byrd started to walk away the officer stopped them and told them they were under arrest for fighting. He became aware of Unterreiner's presence at about this time, noting the latter was badly cut and bleeding, and upon being told by Vahosky that the boys "had been robbing the old man," searched Byrd and found some keys and a wallet which Unterreiner identified as his. While the officer was putting handcuffs on Byrd, the defendant slipped through a crowd that had gathered and escaped.
Defendant was subsequently apprehended and was identified by Vahosky from a line-up of prisoners. In a statement given to the police, defendant said that he was unemployed, that he had met Byrd and Knox about 11:30 P.M. of the night in question at the former's home, and that the three of them set out for a tap room "to get somebody to buy them a beer." After stating that they were walking behind a man in the vicinity of Halsted Street and North Avenue, the statement continued: "Byrd ran up and hit him and the man stumbled forward. At this time Byrd began hitting him with both fists and forcing him under the elevated tracks. After that I jumped in and hit him in the jaw. Knox hit him once and Byrd started back on him. Then the man went down. And when the man went down Byrd continued to hit him. Me and Knox felt sorry for this man and tried to drag Byrd off. At that time a man I know as Chest [Vahosky] came along and tried to break it up. Byrd went up to this man Chest to fight with him when the police came."
Testifying at the trial, defendant denied that Knox was at first involved and stated that as he and Byrd were walking along Byrd and Unterreiner exchanged words he could not understand, and that Byrd then struck Unterreiner and knocked him down. Defendant denied that he had struck or kicked the complaining witness, but testified that he had *71 struck Byrd and attempted to pull him off Unterreiner in order to break up the fight. When confronted with his statement he admitted making it but denied that he had read it in full, and said that he was referring to Byrd when he said he had "jumped in and hit him in the jaw." In addition, he testified that he had not seen the wallet, that Knox didn't arrive at the scene until Byrd was having words with Vahosky, and that he, defendant, had run away when officer Levecke started making arrests because he was on probation for another offense.
Knox, who was jointly tried with defendant, denied that he had been present when Unterreiner was being beaten, and testified that he had just happened along as Byrd was having trouble with Vahosky and that he drew his knife to give assistance to Byrd.
Although he had pleaded guilty to the robbery charge, Byrd appeared as a witness for the defense and testified that the affair was no more than a fight provoked when Unterreiner, whom he described as drunk, called him a "nigger" as they were passing in the street. Unterreiner, we interject, admitted that he had emerged from a tavern shortly before the attack, but denied that he had been drinking and said that he had gone in only to purchase cigarettes. Continuing with Byrd's testimony, he denied that Unterreiner had been kicked, or that he had gone into Unterreiner's pockets, and represented that Levecke had the wallet in his hand before he ever searched Byrd. On this point, however, Vahosky corroborated the testimony of the officer that the keys and wallet were discovered on and taken from Byrd's person. Concluding his testimony, Byrd stated that Knox was not present as he was fighting with Unterreiner, and that defendant had not struck Unterreiner, but had instead struck the witness in an effort to break up the fight.
We agree there is a puzzling inconsistency in the People's proof arising from the circumstance that defendant's written statement, given its plain, ordinary and grammatical *72 meaning, undoubtedly contains an admission that he struck the complaining witness, whereas Vahosky and Levecke testified that only Byrd and Knox participated in the attack. However, even if this ambiguity be resolved in defendant's favor, it is our opinion, under settled principles and the evidence, that there is still proof of guilt beyond a reasonable doubt.
While mere presence or negative acquiescence is not sufficient to constitute a person a principal to a crime, one may aid and abet without actively participating in the overt act, and if the proof shows he was present at the crime without disapproving or opposing it, the trier of fact may competently consider this conduct in connection with other circumstances and thereby reach a conclusion that such person assented to the commission of the criminal act, lent his countenance and approval and was thereby aiding and abetting the crime. (People v. Washington, 26 Ill.2d 207; People v. Thicksten, 14 Ill.2d 132.) Here, even if we assume defendant only "stood in the background" while the attack and robbery were taking place, the trial court, whose function it was to determine the credibility of the witnesses and to resolve the conflicts in their testimony, could justifiably find more than mere presence and negative acquiescence on defendant's part. In our opinion it is not a difficult choice to conclude that the assault on Unterreiner was pursuant to a plan to rob him, rather than a mere spontaneous fight resulting from insulting language. The manner in which Unterreiner was waylaid and pulled into the shadows under the elevated structure, and the dispatch with which the victim's wallet found its way into Byrd's pockets can lead to no other conclusion. And while defendant testified that he attempted only to prevent the assault on Unterreiner, such testimony was contradicted by his written statement and weakened by the circumstance of his flight when police authority appeared. It is true that Byrd corroborated defendant in this regard, but the trial court did not have to believe him and *73 could properly consider Bryd's motives in accepting all the blame and the inconsistency of his testimony with that of the eyewitness, Vahosky. From all of the facts and circumstances, the court could reasonably find defendant knew a robbery was to be committed, that he participated therein, and that he was guilty as a principal.
Although we think the indictment was sufficient to apprise defendant of the crime with which he was charged, (and certainly neither surprise nor confusion was exhibited at the trial,) his contention that it was indefinite and uncertain comes too late for the first time on appeal. Technical objections to an indictment cannot first be heard subsequent to trial, and having failed to raise this objection by an appropriate motion in the trial court defendant must be deemed to have waived it. People v. Barney, 15 Ill.2d 503; People v. Ostrowski, 402 Ill. 106.
Finally, we have examined the contention that defendant was not present at his arraignment and find it to be without merit. The record of the trial court, which imports verity and is unimpeachable evidence of the proceedings in the lower court, (People v. Pulliam, 352 Ill. 318,) recites that defendant was present with his counsel during arraignment, and we find nothing else within the record which impeaches such recital.
The judgment of the criminal court of Cook County is affirmed.
Judgment affirmed.
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In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-1316, 08-2255 & 08-2402
V INCENT E. STAUB,
Plaintiff-Appellee,
v.
P ROCTOR H OSPITAL, an Illinois corporation,
Defendant-Appellant.
Appeals from the United States District Court
for the Central District of Illinois.
No. 04 C 1219—John A. Gorman, Magistrate Judge.
A RGUED D ECEMBER 11, 2008—D ECIDED M ARCH 25, 2009
Before M ANION, E VANS, and T INDER, Circuit Judges.
E VANS, Circuit Judge. One would guess that the chances
are pretty slim that the work of a 17th century French
poet would find its way into a Chicago courtroom in 2009.
But that’s the situation in this case as we try to make sense
out of what has been dubbed the “cat’s paw” theory. The
term derives from the fable “The Monkey and the Cat”
penned by Jean de La Fontaine (1621-1695). In the tale, a
clever—and rather unscrupulous—monkey persuades an
unsuspecting feline to snatch chestnuts from a fire. The cat
burns her paw in the process while the monkey profits,
2 Nos. 08-1316, 08-2255 & 08-2402
gulping down the chestnuts one by one. As understood
today, a cat’s paw is a “tool” or “one used by another to
accomplish his purposes.” Webster’s Third New Interna-
tional Dictionary (1976). More on this a little later.
Vincent Staub sued the Proctor Hospital of Peoria,
Illinois, under the Uniformed Services Employment and
Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et
seq., after he was discharged from his position as an
angiography technologist. An Army reservist, Staub
alleged that the reasons given—insubordination, shirking,
and attitude problems—were just a pretext for discrimina-
tion based on his association with the military. A jury sided
with Staub, and the district court denied Proctor’s renewed
motion for judgment as a matter of law or for a new trial.
On appeal, Proctor argues that the court gave a faulty
instruction regarding the “cat’s paw” theory and, in
connection with that error, improperly admitted evidence
of animus by nondecisionmakers. The cat’s paw theory,
which we will discuss later in more detail, is a way of
proving discrimination when the decisionmaker herself is
admittedly unbiased; under the theory, the discriminatory
animus of a nondecisionmaker is imputed to the
decisionmaker where the former has singular influence
over the latter and uses that influence to cause the adverse
employment action. Brewer v. Board of Trustees of University
of Illinois, 479 F.3d 908 (7th Cir. 2007). In addition to
attacking the way the district court handled this theory,
Proctor says the evidence was insufficient to support a
verdict under it. Staub contests these arguments head-on,
but he also says the premise is flawed. We need not
analyze this as a cat’s paw case, Staub claims, because there
was evidence that there were two decisionmakers, one of
Nos. 08-1316, 08-2255 & 08-2402 3
whom was clearly prejudiced. We start with the facts
viewed in the light most favorable to the verdict.
Staub was a veteran member of the United States Army
Reserve. Like all reservists, he was a part-time soldier,
spending the bulk of his hours in the civilian world. For
Staub, that meant employment as an angio tech for
Proctor. Balancing work and military duties can be a
complicated task, but Staub apparently managed. For a
while, at least. In late 2000, some 10 years after he was
hired, things began to grow a little tense.1
It was around that time that Janice Mulally, second in
command of the Diagnostic Imaging Department, began to
prepare the department work schedules. Staub would
notify Mulally of his drill and training obligations, which
occupied one weekend per month and two weeks during
the summer. Before Mulally took over scheduling, Staub
1
Though we start our narrative in 2000—as that is when Staub
alleges his military-based problems arose—Staub’s employee file
was already thick by that date. In 1998, Proctor fired Staub
(temporarily, as it turns out) for refusing to work past his
scheduled shift. Staub was reinstated after filing a grievance, but
with certain conditions in place. Those conditions addressed
perceived weakness in availability, attitude, and communica-
tion. For instance, Staub was to communicate with his supervi-
sor whenever he left his work area, and he was warned that
“any insubordination, immature behavior, unprofessionalism
or lack of support of [a] management decision[] w[ould] be
grounds for immediate dismissal.” This is relevant, as we
shall see, because Proctor says Staub’s latest termination was
due to similar insubordination and shirking of duties.
4 Nos. 08-1316, 08-2255 & 08-2402
had weekends off. But Mulally placed Staub back in the
weekend rotation, creating conflicts with his drill schedule.
Mulally did this even though she had advance notice
of Staub’s military obligations, and when Staub ap-
proached her about the issue she became agitated. Begin-
ning in 2000, the scheduling conflicts were only “occa-
sional,” but Mulally’s attitude reflected a deeper prob-
lem. Mulally responded to Staub’s questions by throwing
him out of her office and saying she “didn’t want to deal
with it.” Staub found some relief by going to department
head Michael Korenchuk, yet it was far from complete.
Sometimes Mulally would change Staub’s schedule after
Korenchuk spoke with her, but other times she would post
a notice on the bulletin board stating that volunteers were
needed to cover the drill weekends, portraying Staub as
irresponsible. And occasionally Mulally made Staub use
his vacation time for drill days or scheduled him for
additional shifts without notice. Mulally made her reasons
plain: She called Staub’s military duties “bullshit” and said
the extra shifts were his “way of paying back the depart-
ment for everyone else having to bend over backwards to
cover [his] schedule for the Reserves.” And it came as no
surprise that Korenchuk did little to remedy the situation.
Although Korenchuk only commented about Staub’s
reserve duties on a “couple different occasions,” these
comments were none too subtle. Korenchuk characterized
drill weekends as “Army Reserve bullshit” and “a b[u]nch
of smoking and joking and [a] waste of taxpayers[’]
money.”
Bad as that was, things became worse in 2003. In Febru-
ary of that year, Staub was called to active duty for a
period of up to one year. Though unforeseen circum-
Nos. 08-1316, 08-2255 & 08-2402 5
stances cut the tour short at the 92-day mark, Staub’s
return home was less than pleasant. Korenchuk told one of
Staub’s coworkers, Amy Knoerle, that Mulally was “out to
get” Staub. Knoerle was at a loss because she saw
nothing in Staub but a hard worker and team player.
However, she noticed that whenever Staub approached
Mulally about drill obligations, Mulally would roll her
eyes and make sighing noises.
Knoerle left her post in July of 2003, to be replaced by
Leslie Sweborg. Two weeks into the job, Sweborg met
Mulally and another coworker, Angie Day, for drinks after
work. Expecting nothing more than casual chit-chat,
Sweborg was shocked when the conversation turned to
Staub. Mulally was blunt: “She said that [Staub’s] military
duty had been a strain on the[] department” and “she did
not like him as an employee.” So Mulally asked Sweborg
“to help her get rid of him.” Sweborg refused. In her
opinion, Staub was always competent and professional,
and there was no reason for such animosity.
Day, on the other hand, shared Mulally’s dislike of
Staub. In a departmental meeting on December 9, 2003,
Day said Staub failed to train her properly and always
seemed to “disappear” when help was needed. Sweborg
defended Staub—saying he was a solid trainer and “just as
available as any other tech in the department”—but
Mulally shot her down. Mulally told Sweborg she “didn’t
know what [she] was talking about.” 2
2
Apparently she did, at least to some degree. The very next
day, Korenchuk completed Staub’s annual evaluation, giving
(continued...)
6 Nos. 08-1316, 08-2255 & 08-2402
In any case, the tide was turning against Staub, and his
military obligations were at least peripherally involved. On
January 9, 2004, Staub received an order to report for
“soldier readiness processing,” a precursor to another
round of active deployment. Staub gave a copy of the
order to both Korenchuk and Mulally, and Korenchuk
became apprehensive. He asked Staub several times per
week when he would have to ship out. Day had resigned
by this point, leaving Sweborg and Staub as the only two
angio techs. If Staub went on active duty, Korenchuk
would have to use “rent-a-techs,” placing strain on the
department’s budget.
One might think this enhanced Staub’s job security, but
not so. On January 27, 2004, Mulally gave Staub a written
warning accusing him of shirking his duties. A bit of
background information is necessary to understand what
Staub allegedly failed to do, because it bore no connection
to angiography. The Diagnostic Imaging Department
(headed by Korenchuk) was divided into two units: one
unit for angiography, and a far larger unit for traditional
diagnostic imaging services like radiology, mammography,
ultra sounds, CAT scans, and MRIs. Though they normally
stuck to their speciality, angio techs were trained to work
in both units and therefore had the ability to help out
with radiology and the like when the need arose and the
2
(...continued)
him an impressive score of 97.53 out of 100. To be fair, though,
Staub’s evaluations from years past were not so sparkling; his
attitude, professionalism, and ability to work well with others
were noted as constant weaknesses. See supra n.1.
Nos. 08-1316, 08-2255 & 08-2402 7
circumstances permitted. According to Mulally, however,
Staub didn’t respect that arrangement.
On the morning of January 26, a worker from general
diagnostics called Mulally to see if any of the angio techs
were free to help out. Mulally in turn called Sweborg and
asked if she and Staub had any patients. Sweborg said they
didn’t and, according to Mulally, later admitted they were
completely free from 8:30 to 9:45 a.m. Nevertheless,
Sweborg and Staub failed to lend a hand. Mulally therefore
issued Staub a written warning—Sweborg received one
the next day—noting that he had already been warned
about this behavior several times. But Staub and Sweborg
dispute all that. They say they had an angio patient at
8:30 a.m., and although that case was ultimately cancelled
by the doctor, they learned of the cancellation only
15 minutes prior to the call for help in general diagnostics,
to which they immediately responded. Further, according
to Sweborg and Staub, they had never before been in-
structed to report automatically to general diagnostics
if they did not have angio cases. Staub thus refused to
sign the warning, and he asked Korenchuk (who ap-
proved the action) why he was being targeted. Korenchuk
said Mulally “had all of the pertinent facts,” and he just
signed the warning “to get her off of his back.” So the
warning stood, and so did its instructions for the future.
Going forward, Staub was to “report to Mike [Korenchuk]
or Jan [Mulally] when [he] ha[d] no patients and [the
angio] cases [we]re complete[d].” He would also “remain
in the general diagnostic area unless [he] specified to
Mike or Jan where and why [he would] go elsewhere.”
8 Nos. 08-1316, 08-2255 & 08-2402
This discipline of Staub emboldened Mulally. Shortly
afterwards she called Staub’s Reserve Unit Administrator,
Joseph Abbidini, in Bartonville, Illinois. Mulally had called
Abbidini on a prior occasion to confirm that Staub was
actually a member of the Reserves, but now she wanted
to know if Staub could be excused from some of his
military duties. Mulally asked Abbidini if Staub really
had to attend two-week training in the summer because
he was needed at work. Abbidini stated that the training
was mandatory. Most Reserve members have outside
employment, he explained, so excusing Staub would set
an ugly precedent. Mulally’s response? She called
Abbadini an “asshole” and hung up. (Again, we add that
we are, as we are required to do at this stage of the pro-
ceedings, taking all facts in the light most favorable to
Mr. Staub.)
After all this, there can be little dispute that Mulally
didn’t like Staub, and that part of this animus flowed from
his membership in the military. But it was Day’s beef with
Staub—not Mulally’s—that would ultimately get the ball
rolling towards termination. On April 2, 2004, Day had a
meeting with Korenchuk, Linda Buck (vice-president of
Human Resources), and R. Garrett McGowan (chief
operating officer). Day was upset with Korenchuk because
she complained to him about Staub and he did nothing
in response. Day said she had difficulty working with
Staub, he would “absent himself from the department,”
and he tended to be “abrupt.” After Day left the room,
Korenchuk, Buck, and McGowan discussed what they
should do. This wasn’t the first time McGowan had heard
about “availability” problems involving Staub, so he told
Nos. 08-1316, 08-2255 & 08-2402 9
Korenchuk to work with Buck to create a plan that
would solve the issue. They never found time to do
that—Staub ran into trouble again and was fired three
weeks later on April 20.3
The day of reckoning started out normally enough.
Staub and Sweborg worked together in the angio depart-
ment all morning, finishing up around lunchtime. Hungry,
yet mindful of the prior warning, Staub walked to
Korenchuk’s office to tell him that he and Sweborg
were going to lunch. But Korenchuk wasn’t there. So
Staub walked back to the angio suite, placed a call to
Korenchuk’s office, and left a voice mail informing him
they were off to the cafeteria. Staub and Sweborg re-
turned 30 minutes later and went to work on some left-
over filming. Korenchuk showed up a few moments
afterwards, demanding to know where they had been. He
said he was “looking all over” for Staub, and Staub’s
explanation—that they were only at lunch and left a voice
mail—appeased him little. Korenchuk escorted Staub
down to Buck’s office in Human Resources, picking up a
security guard along the way. Korenchuk had met
with Buck earlier in the day—informing her that Staub
3
Though it is clear Staub was fired on the 20th, there is
some ambiguity as to whether the triggering event oc-
curred that day. Staub, Sweborg, and Korenchuk said the event
occurred on the 20th, but Buck claimed it happened on the 19th
and said she mulled the situation over for a day before
settling on a decision. We find the collective recollection of
Staub, Sweborg, and Korenchuk more credible, but either way
it has no effect on the outcome of the case.
10 Nos. 08-1316, 08-2255 & 08-2402
failed to report in as instructed and couldn’t be lo-
cated—so the decision to terminate was already made. As
Staub walked into the room, Buck handed him his pink
slip. The guard then escorted him off the grounds. Sweborg
was not disciplined, though she resigned a few days
later out of disgust.
According to the written notice, Staub was discharged
for failing to heed the earlier warning instructing him
to report to Korenchuk whenever he had no more work
in the angio department and otherwise to remain in the
general diagnostics area. Without the January 27 write-up,
Day’s April 2 complaint, and the event on April 20—all
of which involved unavailability or “disappearances”—
Buck said she would not have fired Staub. Buck’s testi-
mony makes it clear that although she relied on
Korenchuk’s input, the ultimate decision was hers.
Korenchuk “reluctantly agreed” with her decision, but
it was her call to make.
Beyond consulting Korenchuk and reviewing the more
recent incidents, Buck relied on past issues with Staub in
making her decision. She said she heard “frequent com-
plaints” about Staub during her first year with Proctor,
2001. And she knew of two workers who resigned be-
cause of Staub in 2002: an angio tech quit because Staub
made her feel like “gum on the bottom of his shoe,” and a
registered nurse gave up for similar reasons. What’s more,
a recruiter told Buck she had difficulty attracting workers
to angio because Staub “had a reputation.” Among other
things, he was known for flirting with medical students.
Admittedly, however, Buck failed to speak with other
angio techs who worked with Staub, including Sweborg,
Nos. 08-1316, 08-2255 & 08-2402 11
and she had no idea that Mulally and Day wanted Staub
fired. But Buck did review Staub’s employee file, in-
cluding the good (like his most recent annual evaluation)
and the bad (like the January 27 write-up).
Staub filed a grievance following the termination. Staub
insisted that the January 27 write-up—containing the
command he allegedly violated—was fabricated by
Mulally to get him in trouble. Buck did not follow up with
Mulally about this claim—though she did discuss it with
another Human Resources official—and she did not
investigate Staub’s contention that Mulally was out to get
him because he was in the Reserves. Instead, Buck stuck
with her initial assessment: Staub, despite technical
competency, didn’t work well with others and deserved to
be fired for insubordination. Staub’s involvement with
the military played no role in her analysis.
Against this backdrop, Staub faced an uphill battle in
his USERRA discrimination suit. Like other employment
discrimination legislation, USERRA prohibits adverse
action based on a prohibited criterion, in this case military
status. 38 U.S.C. § 4311(a), (c)(1). But also as with other
discrimination legislation, a plaintiff suing under USERRA
does not win by showing prohibited animus by just
anyone. He must show that the decisionmaker harbored
animus and relied on that animus in choosing to take
action. Since Buck was the decisionmaker and there was
no evidence she had a problem with Staub on account of
his membership in the Reserves, Staub was out of luck
under the traditional rubric. But that doesn’t mean he
had no case at all.
12 Nos. 08-1316, 08-2255 & 08-2402
Deploying the cat’s paw theory, Staub sought to attribute
Mulally’s animus to Buck, and therefore to Proctor. He
posited that Mulally fed false information to Buck (i.e., that
he dodged work on January 26, 2004); that Mulally was
motivated to do this because he was a member of the
Army Reserves; and that Buck relied on this false informa-
tion (without vetting it any meaningful way) in deciding
to fire him. The case made it to trial on this theory, where
the jury apparently found it convincing, returning a
verdict in Staub’s favor. Pursuant to the parties’ stipula-
tion, Staub was awarded $57,640 in damages. The court
then denied Proctor’s renewed motion for a new trial
or judgment as a matter of law.
Proctor argues on appeal that the district court mis-
handled the cat’s paw theory (both in terms of instructing
the jury and admitting certain evidence), and also that the
evidence was insufficient. Before reaching those argu-
ments, however, we must address Staub’s invitation to
review this not as a cat’s paw case, but as a traditional
discrimination suit. Staub attempts to skirt the cat’s paw
analysis by arguing that Buck was not the only decision-
maker. Staub says Buck shared that responsibility with
Korenchuk, who admittedly made some anti-military
remarks. If that were the case, it would not matter
whether Buck acted as the cat’s paw, because the jury
could find that a decisionmaker himself was biased. See 38
U.S.C. § 4311(c)(1); Lewis v. City of Chicago, 496 F.3d 645,
651-52 (7th Cir. 2007); Maxfield v. Cintas Corp. No. 2, 427
F.3d 544, 552-53 (8th Cir. 2005). The problem with this
theory is neither its logic nor even its lack of record
support (though that’s doubtful as well). Rather, the
Nos. 08-1316, 08-2255 & 08-2402 13
problem is that Staub failed to present this theory below, so
it is waived on appeal. See Mote v. Aetna Life Ins. Co., 502
F.3d 601, 608 n.4 (7th Cir. 2007). Even if the evidence did
support this new theory, we would be disinclined to
assume the jury entertained it because Staub presented
his case only as a cat’s paw matter. See United States v.
Ienco, 92 F.3d 564, 570 (7th Cir. 1996) (“[W]hen there is
reason to doubt that the jury even considered the only
proper theory under which the defendant can be con-
victed, the verdict cannot be upheld merely because we
are confident that the jury would have convicted had it
considered that theory.”). If Staub wanted to pitch two
alternative theories at trial, he could have done so. But he
chose to stick with the cat’s paw, so now it sticks with
him. And with that, we turn to the applicability
of La Fontaine’s “cat’s paw” to 21st century federal anti-
discrimination law.
In Brewer, we applied the cat’s paw concept to discrimi-
nation law. That case dealt with the “Machiavellian world
of permit parking at the University of Illinois’s Urbana-
Champaign campus, and the ill fortune of a student who
became involved in it.” 479 F.3d at 909. The student,
Lonnell Brewer, was fired from his part-time job after he
was caught with a modified parking tag. Brewer said his
supervisor (Kerrin Thompson) gave him permission to
modify the tag, and she kept this fact a secret because he
was black and she wanted him fired. The evidence of
animus on the part of Thompson was significant, to say the
least. Just before Brewer got the boot, Thompson yelled,
“I have had it with you nigger, get my tag!” Thompson,
however, did not make the decision to terminate. The
14 Nos. 08-1316, 08-2255 & 08-2402
decision instead came from someone higher up the chain
of command—Denise Hendricks—and there was no
evidence that she harbored any racial animus. Under the
normal discrimination framework, that would have been
the end of the road for Brewer’s case. But we held that his
claim could survive if he showed Thompson used
Hendricks as her cat’s paw. We said,
where an employee without formal authority to materi-
ally alter the terms and conditions of a plaintiff’s em-
ployment nonetheless uses her “singular influence”
over an employee who does have such power to harm
the plaintiff for racial reasons, the actions of the em-
ployee without formal authority are imputed to the
employer and the employer is in violation of Title VII.
Id. at 917. And we noted that this influence may be exer-
cised by, among other things, “supplying misinformation
or failing to provide relevant information to the person
making the employment decision.” Id.
So Brewer’s case looked strong under this formula—there
was evidence that Thompson was racist, and that she
influenced Hendricks’s decision by withholding the fact
that she told Brewer he could park where he liked. But,
alas, we held against Brewer. It wasn’t fair to impute
Thompson’s animus to Hendricks, we concluded, because
Hendricks looked into the situation for herself; though
she “listened to the information Thompson relayed to her,”
she “did not simply rely on it.” Id. at 919. From this we
derived a simple rule to prevent the cat’s paw theory
from spiraling out of control:
Nos. 08-1316, 08-2255 & 08-2402 15
[W]here a decision maker is not wholly dependent on
a single source of information, but instead conducts
its own investigation into the facts relevant to the
decision, the employer is not liable for an employee’s
submission of misinformation to the decision maker.
Id. at 918. By asking whether the decisionmaker con-
ducted her own investigation and analysis, we respected
the role of the decisionmaker. We were, and remain to this
day, unprepared to find an employer liable based on a
nondecisionmaker’s animus unless the “decisionmaker”
herself held that title only nominally. If the decision-
maker wasn’t used as a cat’s paw—if she didn’t just take
the monkey’s word for it, as it were—then of course the
theory is not in play.
We affirmed this principle in Metzger v. Illinois State
Police, 519 F.3d 677 (7th Cir. 2008). Though we acknowl-
edged the cat’s paw as a viable theory in certain cases, we
held that it was wholly inappropriate in Metzger’s situa-
tion because there was neither evidence of singular influ-
ence nor proof that the decisionmaker’s review was
“anything but independent . . . .” Id. at 682.
Measured against this precedent, we find that there
was insufficient evidence to support a verdict against
Proctor under the cat’s paw theory. But before we
explain why, it is necessary to comment on the way the
trial court handled the matter. We do not fault the court
much for its approach—the judge certainly did an ad-
mirable job given the dearth of case law—but we agree
with Proctor that the division of labor between jury
and court, if not the jury instruction itself, was legally
defective.
16 Nos. 08-1316, 08-2255 & 08-2402
Just before the case went to trial, Proctor filed motions
in limine seeking to exclude evidence of military animus
on the part of individuals, principally Mulally, not in-
volved in the decision to terminate. The court denied the
motions, however, reasoning that the evidence was essen-
tial to the cat’s paw theory. But the court agreed that
animus by a nondecisionmaker is only relevant if she
exercised singular influence over the decisionmaker, and
it instructed the jury to that effect. The instruction read
as follows:
The Defendant is a corporation and can act only
through its officers and employees. Animosity of a co-
worker toward the Plaintiff on the basis of Plaintiff’s
military status as a motivating factor may not be
attributed to Defendant unless that co-worker exer-
cised such singular influence over the decision-maker
that the co-worker was basically the real decision
maker. This influence may have been exercised by con-
cealing relevant information from or feeding false
information or selectively-chosen information to the
person or persons who made the decision to dis-
charge Plaintiff.
If the decision maker is not wholly dependent on a
single source of information but instead conducts its
own investigation into the facts relevant to the deci-
sion, the Defendant is not liable for a non-decision
maker’s submission of misinformation or selectively
chosen information or failure to provide relevant
information to the decision maker. It does not matter
that much if the information has come from a single,
Nos. 08-1316, 08-2255 & 08-2402 17
potentially biased source, so long as the decision maker
does not artificially or by virtue of her role in the
company limit her investigation to information from
that source.
This instruction, we think, is unwieldy—a fact-driven
instruction would have been far more useful4 —but not
technically wrong. It captures the essence of Brewer, telling
the jury that it can only consider nondecisionmaker
animosity in the case of singular influence, and even then
that the employer is off the hook if the decisionmaker
did her own investigation. So we reject Proctor’s chal-
lenge to the instruction itself. But a court faced with the
cat’s paw theory case should not just give an instruction
and ask the jury to sort it all out. The court has a critical
task to perform before giving the instruction or admitting
evidence of nondecisionmaker animus—preferably at the
summary judgment or in limine stage of the proceedings.
Namely, the court should determine whether a reasonable
jury could find singular influence on the evidence to be
presented. If there is not sufficient evidence to support
such a determination, then the court has no business
admitting evidence of animus by nondecisionmakers.
Admitting this sort of evidence would not only be
technical legal error; it would likely be prejudicial due to
4
Instead of saying “the Defendant,” for instance, the court
could have said “Proctor,” replaced “decision maker” with
“Buck,” and so on. Just as juries are ill-equipped to construe
legalese—aren’t we all!—they are more likely to understand
instructions that use facts rather than abstract terms.
18 Nos. 08-1316, 08-2255 & 08-2402
the jury’s tendency to associate the nondecisionmaker’s
remarks with the employer, fairly or not.
As we say, however, we do not fault the court here for
failing to perform this task. Nothing in Brewer, Metzger, or
our other cases on the cat’s paw, see, e.g., Byrd v. Ill. Dep’t of
Pub. Health, 423 F.3d 696 (7th Cir. 2005); Schreiner v. Cater-
pillar, Inc., 250 F.3d 1096 (7th Cir. 2001), impart guidance as
to how a trial court should handle the theory. They say
what the cat’s paw requires, but nothing about the
division of labor between judge and jury. Nevertheless, the
approach we suggest—with the judge making a threshold
determination of whether a reasonable jury could find
singular influence before admitting evidence of nondeci-
sionmaker animus—is supported in the law. Allowing
the jury to entertain the cat’s paw theory and decide
whether there was singular influence, but only upon a
prior determination that there is sufficient evidence for
such a finding, is consistent with Federal Rule of Evidence
104(b). That rule instructs courts to admit conditionally
relevant evidence—here, animosity by a nondecision-
maker—“upon . . . the introduction of evidence sufficient
to support a finding of the fulfillment of the condition.” In
other words, the jury could only properly consider evi-
dence of animosity by Mulally (or any other nondeci-
sionmaker) if the court determined that there was suffi-
cient evidence to support a finding of singular influence
by Mulally (or another) over Buck.
Because the trial court in this case did not follow this
procedure, Staub’s abundant evidence of Mulally’s animos-
ity was erroneously admitted into evidence. And
Nos. 08-1316, 08-2255 & 08-2402 19
this error was prejudicial because the strongest proof of
anti-military sentiment came from the improperly ad-
mitted evidence.
The normal remedy for prejudicial evidentiary error
is a new trial. See United States v. Garcia, 528 F.3d 481, 485
(7th Cir. 2008). However, a new trial is not warranted
where the properly considered evidence is insufficient to
support the jury’s verdict. In that case—assuming the
losing party filed a Rule 50(b) motion for judgment as a
matter of law or a new trial after the verdict, as Proctor
did—judgment should be entered in its favor, see Fed. R.
Civ. P. 50(b); Tate v. Exec. Mgmt. Servs., Inc., 546 F.3d 528,
531 (7th Cir. 2008); Fuesting v. Zimmer, Inc., 448 F.3d 936,
939 (7th Cir. 2006) (citing Unitherm Food Sys., Inc. v. Swift-
Eckrich, Inc., 546 U.S. 394 (2006)). Of course, the standard
is steep. “A verdict will be set aside as contrary to the
manifest weight of the evidence only if no rational jury
could have rendered the verdict.” Moore ex rel. Estate of
Grady v. Tuelja, 546 F.3d 423, 427 (7th Cir. 2008) (internal
quotation marks omitted). Considering the evidence as a
whole, we conclude that Proctor is entitled to judgment.
USERRA states that “[a] person who . . . has
performed . . . service in a uniformed service shall not
be denied initial employment, reemployment, retention
in employment, promotion, or any benefit of employment
by an employer on the basis of that . . . performance of
service . . . .” 38 U.S.C. § 4311(a). A plaintiff suing under
this Act must “demonstrate that he suffered an adverse
employment action and that the adverse action was
motivated in part by his military service.” Maher v. City
20 Nos. 08-1316, 08-2255 & 08-2402
of Chicago, 547 F.3d 817, 824 (7th Cir. 2008). Cf. 38 U.S.C.
§ 4311(c)(1) (explaining that an employer is not liable if,
despite anti-military bias, it would have taken the
action just the same). Staub failed to clear this bar.
The story told by the evidence is really quite plain. Apart
from the friction caused by his military service, the evi-
dence suggests that Staub, although technically competent,
was prone to attitude problems. The fact that he made
some friends along the way (such as Sweborg) doesn’t
diminish the fact that he offended numerous others for
reasons unrelated to his participation in the Reserves. So,
when Staub ran into trouble in the winter and spring of
2004, he didn’t have the safety net of a good reputation.
Even if Staub behaved reasonably on the day of his dis-
charge and the January 27 write-up was exaggerated by
Mulally, his track record nonetheless supported Buck’s
action. Most importantly, Buck took this action free of any
military-based animus, which Staub admits. And the cat’s
paw is not applicable—even setting aside the evidentiary
error—because a reasonable jury could not find that
Mulally (or anyone else) had singular influence over
Buck. To the contrary, the evidence established that Buck
looked beyond what Mulally and Korenchuk said—
remember, Korenchuk supported the firing only “reluc-
tantly”—and determined that Staub was a liability to the
company. We admit that Buck’s investigation could have
been more robust, e.g., she failed to pursue Staub’s
theory that Mulally fabricated the write-up; had Buck done
this, she may have discovered that Mulally indeed bore a
great deal of anti-military animus. But the rule we devel-
oped in Brewer does not require the decisionmaker to be a
Nos. 08-1316, 08-2255 & 08-2402 21
paragon of independence. It is enough that the decision-
maker “is not wholly dependent on a single source of
information” and conducts her “own investigation into
the facts relevant to the decision” Brewer, 479 F.3d at
918. To require much more than that would be to ignore
the realities of the workplace. Decisionmakers usually
have to rely on others’ opinions to some extent because
they are removed from the underlying situation. But to
be a cat’s paw requires more; true to the fable, it requires
a blind reliance, the stuff of “singular influence.” Buck was
not a cat’s paw for Mulally or anyone else. Although
Mulally may have enjoyed seeing Staub fired due to his
association with the military, this was not the reason
he was fired. Viewing the evidence reasonably, it simply
cannot be said that Buck did anything other than exercise
her independent judgment, following a reasonable
review of the facts, and simply decide that Staub was
not a team player. We do not mean to suggest by all this
that we agree with Buck’s decision—it seems a bit harsh
given Staub’s upsides and tenure—but that is not
the issue. The question for us is whether a reasonable
jury could have concluded that Staub was fired because
he was a member of the military. To that question, the
answer is no.
We R EVERSE and R EMAND with instructions to enter
judgment in favor of Proctor.
3-25-09
| {
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} |
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-017-CV
DEBORAH FRAZIER APPELLANT
V.
WESLEY RODEN APPELLEE
------------
FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY
------------
MEMORANDUM OPINION 1
------------
I. INTRODUCTION
Appellant Deborah Frazier appeals a take-nothing judgment in favor of
Appellee Wesley Roden following a jury trial in a car accident case. In two
issues, Frazier argues that the trial court erred by including an instruction on
“emergency” in the jury charge and that the jury’s verdict is contradictory and
should be set aside. We will affirm.
1
… See Tex. R. App. P. 47.4.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
A. Roden’s Version of the Accident
Roden testified that on Friday, April 15, 2005, he was driving a Ford 250
truck north on Interstate 35E and was pulling a trailer with a horse in it. The
driving conditions were clear and dry. Traffic was slowing and starting to get
bumper to bumper. He was traveling at only twenty to twenty-five miles per
hour, following a dump truck that was approximately twenty-five feet in front
of him.
Roden had been traveling in the right-hand lane for approximately twenty
miles when Frazier’s vehicle entered his lane from the left, pulling in front of
him. Roden immediately braked and turned his steering wheel to the right to
avoid hitting Frazier, but he bumped the back of her vehicle, making minor
contact with the passenger-side tail light. Roden’s truck suffered no damage.
He testified that Frazier said that she was fine and that she told the police at
the scene that she was not injured.
Roden testified that there was nothing he could have done to prevent the
accident. He said that if he had jerked the steering wheel harder to the right,
he probably would have jack-knifed and flipped his truck and trailer. Roden said
that he did everything he could to avoid bumping Frazier’s vehicle; he felt like
Frazier should not have turned into his lane.
2
B. Frazier’s Version of the Accident
Frazier testified that she was traveling north on Interstate 35E in the right-
hand lane. She denied changing lanes in front of Roden. Frazier said that as
traffic slowed and started to back up, she was behind an eighteen-wheeler.
Frazier said that she looked in her rear-view mirror and saw Roden coming
towards her at a high rate of speed. Frazier said that she could not move to the
left because there was a car there. Frazier said that Roden hit her and that they
both moved to the shoulder.
Frazier claimed that she told the police that her left groin, knee, and
ankle, as well as her neck, were sore. She sought treatment from her family
doctor on the Monday following the Friday accident. Frazier’s family doctor
referred her to Advanced Physical Therapy. Frazier also underwent an MRI, met
with an orthopedic surgeon, and sought chiropractic care. Frazier’s medical
bills totaled $10,241.72. On cross-examination, Frazier admitted that all the
imaging studies had benign findings and that the MRI indicated some
degeneration in her neck. Frazier also admitted that she had told the police
dispatch that there were no injuries as a result of the accident, that no
ambulance came to the scene, and that her doctor has not placed any
restrictions on her activities.
3
C. Jury Charge and Verdict
Over Frazier’s objection, the trial court included an “emergency”
instruction in its charge to the jury. Ultimately, the jury returned a verdict
finding neither Frazier nor Roden negligent and awarding Frazier $416 in past
medical expenses. The trial court signed a take-nothing judgment in favor of
Roden, stating that it appeared that the jury’s verdict was for Roden and
against Frazier. This appeal followed.
III. E MERGENCY INSTRUCTION W AS P ROPER
In her first issue, Frazier argues that the trial court abused its discretion
by including the following emergency instruction in the jury charge:
If a person is confronted by an “emergency” arising suddenly and
unexpectedly, which was not proximately caused by any
negligence on his part and which, to a reasonable person, requires
immediate action without time for deliberation, his conduct in such
an emergency is not negligence or failure to use ordinary care if,
after such emergency arises, he acts as a person of ordinary
prudence would have acted under the same or similar
circumstances.
Frazier argues that submission of this instruction constituted error because no
evidence existed that Roden lacked time for deliberation before he took action.
To warrant the submission of an instruction on sudden emergency, there
must be evidence that (1) an emergency situation arose suddenly and
unexpectedly, (2) the emergency situation was not caused by the defendant’s
4
negligence, and (3) after the emergency situation arose, the defendant acted
as a person of ordinary prudence would have acted. Thomas v. Oldham, 895
S.W.2d 352, 360 (Tex. 1995); McDonald Transit, Inc. v. Moore, 565 S.W.2d
43, 44–45 (Tex. 1978). If evidence exists raising a fact issue regarding these
elements, the trial court should submit the requested instruction. Jordan v.
Sava, Inc., 222 S.W.3d 840, 848 (Tex. App.—Houston [1st Dist.] 2007, no
pet.); DeLeon v. Pickens, 933 S.W.2d 286, 294 (Tex. App.—Corpus Christi
1996, writ denied). Actions by other vehicles may create a sudden emergency.
See DeLeon, 933 S.W.2d at 294.
We review the trial court’s decision to include a sudden emergency
instruction in its charge for an abuse of discretion. See Dew v. Crown Derrick
Erectors, Inc., 208 S.W.3d 448, 456 (Tex. 2006). “If an instruction might aid
the jury in answering the issues presented to them, or if there is any support
in the evidence for an instruction, the instruction is proper.” Louisiana-Pacific
Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998).
Frazier focuses on the portion of the jury charge defining an emergency
as something that requires immediate action without time for deliberation and
argues that Roden’s testimony—that if he had jerked the steering wheel to the
right, he probably would have jack-knifed and flipped his truck and
trailer—establishes that Roden did have time to deliberate. Frazier argues that,
5
in light this deliberation by Roden, no emergency occurred and that the
emergency instruction should not have been submitted.
Roden, however, did not testify that he had time to deliberate or that he
did deliberate prior to the accident.2 Instead, Roden testified that Frazier’s
vehicle entered his lane from the left and that he “immediately put on [his]
brakes, and . . . turned the wheel to the right to try to avoid hitting her.”
Roden testified that he did not see Frazier’s vehicle until she came into his lane.
Roden agreed that there was nothing he could have done to prevent the
accident from occurring other than not be there.
This testimony by Roden, as well as the other evidence introduced at trial,
raises at least an issue of fact on every element of sudden emergency. See
DeLeon, 933 S.W.2d at 294; see also Carter v. Helicopter Ambulance Serv. of
N. Tex., Inc., No. 05-95-00468-CV, 1996 WL 403987, at *5 (Tex.
App.—Dallas July 19, 1996, writ denied) (not designated for publication).
Consequently, the trial court did not abuse its discretion by submitting the
sudden emergency instruction. See DeLeon, 933 S.W.2d at 288, 294 (holding
that trial court properly submitted sudden emergency instruction when
2
… The record reveals that Roden gave that answer—that he probably
would have jack-knifed and flipped his truck and trailer—in response to the
following question from plaintiff’s counsel at trial: “If you had just jerked it,
what would have happened?”
6
conflicting testimony existed regarding whether defendant was following
plaintiff’s vehicle too closely and rear-ended plaintiff’s vehicle or whether
negligence of truck driver created sudden emergency causing defendant to
swerve into plaintiff’s lane and rear-end her vehicle).3 We overrule Frazier’s
first issue.
IV. W AIVER OF C OMPLAINT T HAT J URY V ERDICT W AS C ONTRADICTORY
In her second issue, Frazier argues that the jury’s verdict was
contradictory because the jury found that neither Frazier nor Roden were
negligent yet awarded Frazier $416 for past medical care. If the jury’s verdict
is “incomplete, or not responsive to the questions contained in the court’s
charge, or the answers to the questions are in conflict, the court shall in writing
instruct the jury in open court of the nature of the incompleteness,
unresponsiveness, or conflict, provide the jury such additional instructions as
3
… The cases cited by Frazier did not involve conflicting evidence raising
an issue of fact on every element of sudden emergency like the evidence here;
therefore, those cases are not controlling. See Deviney v. McLendon, 496
S.W.2d 161, 163, 166 (Tex. Civ. App.—Beaumont 1973, writ ref’d n.r.e.)
(holding sudden emergency instruction erroneous when both parties testified
that defendant rear-ended plaintiff’s car, which was stopped on Loop 410, and
no evidence was presented raising sudden emergency); Petty v. Children’s
World Learning Ctrs., Inc., No. 05-94-00998-CV, 1995 WL 379522, at *4
(Tex. App.—Dallas May 31, 1995, writ denied) (not designated for publication)
(holding sudden emergency instruction erroneous but harmless when evidence
showed only that third party’s conduct was sole proximate cause of accident).
7
may be proper, and retire the jury for further deliberations.” See Tex. R. Civ.
P. 295. Frazier did not raise any contention concerning conflicting jury findings
in the trial court before the jury was discharged, so the trial court did not have
the opportunity to provide the jury such additional instructions as may have
been proper and the jury did not have the opportunity to retire for further
deliberations. Accordingly, because Frazier did not advise the trial court of this
alleged conflict in the jury’s verdict, this issue is not preserved for our review.
See Tex. R. Civ. P. 295; Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11,
24 (Tex. App.—Houston [14th Dist.] 2006, no pet.); Kitchen v. Frusher, 181
S.W.3d 467, 473 (Tex. App.—Fort Worth 2005, no pet.) (op. on reh’g);
Columbia Med. Ctr. of Las Colinas v. Bush, 122 S.W.3d 835, 861 (Tex.
App.—Fort Worth 2003, pet. denied).
Frazier argues in her reply brief that the Texas Supreme Court has never
applied the waiver or preservation doctrine to a purported conflict in jury
findings and that cases holding that waiver of an alleged conflict in jury findings
occurs if a party fails to object to the purported conflict before the jury is
discharged are erroneous and not well-founded. Frazier traces cases applying
this waiver doctrine and claims that they are not well-reasoned. However, the
origin of this waiver doctrine is Texas Rule of Civil Procedure 295, which was
promulgated by the Texas Supreme Court. See Tex. R. Civ. P. 295. That rule
8
requires the trial court to provide instructions to the jury and requires the jury
to redeliberate in the event of conflicting answers in their verdict. See id. A
trial court cannot comply with Rule 295 unless it knows that a party believes
the jury has returned conflicting answers in its verdict. Consequently, we
decline Frazier’s invitation to revisit existing case law requiring a party to object
in the trial court to an alleged conflict in the jury’s verdict in order to preserve
that issue for appellate review.
Finally, in any event, no conflict exists in the jury’s verdict. Frazier claims
a fatal conflict exists between the jury’s failure to find either Roden or Frazier
negligent in Question No. 1 (by answering “no” as to both Frazier and Roden
in the liability question) and the jury’s answer to Question No. 3 (the damage
question) awarding Frazier $416 in past medical expenses. But Question No.
3, the damage question, was not conditionally submitted; the jury was required
to answer it regardless of its answer to Question No. 1. See Turner v. Precision
Surgical, L.L.C., 274 S.W.3d 245, 249 (Tex. App.—Houston [1st Dist.] 2008,
no pet.) (explaining that a jury question is conditionally submitted when the jury
is instructed to answer the question contingent upon its answer to some other
question). Because the jury was required to answer Question No. 3 regardless
of its answer to Question No. 1, no conflict exists in the jury’s verdict; the jury
simply found that the accident was not proximately caused by Frazier or by
9
Roden and that Roden sustained past medical expenses of $416 as a result of
the accident that was not either party’s fault. See, e.g., Casualty Underwriters
v. Rhone, 134 Tex. 50, 54, 132 S.W.2d 97, 99 (1939) (explaining, “[i]t will
never be presumed that jurors intend to return conflicting answers, but the
presumption is always to the contrary. Courts properly refuse to strike down
answers on the ground of conflict, if there is any reasonable basis upon which
they may be reconciled”).
We therefore overrule Frazier’s second issue.
V. C ONCLUSION
Having overruled both of Frazier’s issues, we affirm the trial court’s take-
nothing judgment in favor of Roden.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: October 22, 2009
10
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"pile_set_name": "FreeLaw"
} |
90 B.R. 781 (1987)
In re D.A. KENNERLY, Debtor.
Robert F. ANDERSON, Trustee, Plaintiff,
v.
CHARLESTON CAPITAL CORPORATION, Augusta Roofing & Metal Works, Federal Deposit Insurance Corporation, Monsanto Corporation, and Southern Bell Telephone and Telegraph Company, Defendants.
Bankruptcy No. 79-345.
United States Bankruptcy Court, D. South Carolina.
September 29, 1987.
*782 Robert F. Anderson, P.A., Columbia, S.C., for plaintiff.
A. Arthur Rosenblum, Charleston, S.C., for Charleston Capital Corp.
MEMORANDUM AND ORDER
J. BRATTON DAVIS, Chief Judge.
The plaintiff, as trustee of the bankruptcy estate, seeks in this adversary proceeding *783 (1) a determination of the validity of certain liens on real property in Aiken County and (2) a determination of the validity of Charleston Capital Corporation's mortgage on said property.
The plaintiff alleges that Charleston Capital Corporation's mortgage is unenforceable against the plaintiff because it is an illegal contract in that the mortgage was obtained in violation of the regulations of the United States Department of Agriculture Farmers Home Administration and in violation of the Small Business Investment Company Regulations of the United States Small Business Administration. Arguing that no regulations have been violated, Charleston Capital Corporation asserts that the mortgage is valid and enforceable. In the alternative, Charleston Capital Corporation maintains that even if certain regulations have been violated, such violations may be enforced only by the United States of America.
FACTS
1. On August 16, 1979, D.A. Kennerly filed a petition for relief under chapter VII of the Bankruptcy Act of 1898 (the Act) and was adjudged a bankrupt.
2. The plaintiff is the trustee of the bankruptcy estate. He brings this adversary proceeding against Charleston Capital Corporation in his capacity as trustee under § 70(c) of the Act.
3. This adversary proceeding began on February 8, 1983. The complaint was amended pursuant to an order of this court dated November 18, 1983.
4. Pursuant to a consent order dated November 17, 1983, the plaintiff's causes of action against Charleston Capital Corporation were severed from and ordered for separate trial apart from the plaintiff's causes of action against the Federal Deposit Insurance Corporation. All other causes of action in this complaint against other named defendants had been resolved prior to the consent order of November 17, 1983.[1]
5. Charleston Capital Corporation, the remaining defendant in the present controversy, does business in the state of South Carolina and has its principal offices in Charleston, South Carolina.
6. Charleston Capital Corporation has been licensed as a Small Business Investment Company by the United States Small Business Administration since 1961.
7. Mr. Henry Yaschik has been the president and principal stockholder of Charleston Capital Corporation since its organization. At all times pertinent to this proceeding, Mr. Yaschik was also president of Yaschik Mortgage Company.
8. As of March 31, 1986, the shareholders of Charleston Capital Corporation were: Mr. Henry Yaschik (48,855 shares), Yaschik Mortgage Company (8,893 shares), Mr. Leonard Silver (1 share), and Mr. Howard Mitchell (1 share). As of March 31, 1977, the shareholders of Charleston Capital Corporation were: Mr. Henry Yaschik (53,889 shares), Yaschik Mortgage Company (9,809 shares), Mr. Leonard Silver (1 share) and Mr. Howard Mitchell (1 share).
9. On January 18, 1973, D.A. Kennerly both individually and as president of Southeastern Chemical and Insecticide Company, Inc. (Southeastern Fairfax) gave to Charleston Capital Corporation a $60,000. note secured by a mortgage on real property. The mortgage was recorded in the Office of Mesne Conveyances for Aiken County, South Carolina, on Mortgage Book 416 at page 295.
10. On or about January 18, 1973, Southeastern Fairfax issued 100 shares of preferred stock to Charleston Capital Corporation.
11. On November 20, 1975, Southeastern Fairfax borrowed an additional $25,000. from Charleston Capital Corporation. This *784 loan was partially secured by a mortgage on the same property.
12. Prior to March 1, 1976, D.A. Kennerly, through Yaschik Mortgage Company, applied to the United States Department of Agriculture, Farmers Home Administration (Farmers Home Administration) for a loan, guaranteed by Farmers Home Administration, for Southeastern Chemical Corporation of Bishopville, South Carolina, Inc. (Southeastern Bishopville), and for Southeastern Fairfax. Prior to March 1, 1976, the Farmers Home Administration loan was approved as two separate loans, each in the amount of $350,000., for a total loan package of $700,000. The Farmers Home Administration loans were to be privately placed, with the Farmers Home Administration guaranteeing all but ten (10%) percent $70,000. of the two loans.
13. The Farmers Home Administration loans were secured by the real estate, production plants and inventories of the two corporations, and by the personal guaranty of D.A. Kennerly.
14. When the Farmers Home Administration loans were approved, the parties agreed that Yaschik Mortgage Company would assign the guaranteed portion of the two loans to the Hartford Life Insurance Company. In other words, $630,000. of the $700,000. in loans were to be assigned to the Hartford Life Insurance Company. Because Yaschik Mortgage Company retained an interest only in the unguaranteed portion of the two notes, the extent of Yaschik Mortgage Company's participation in the loans equaled $70,000.
15. On March 1, 1976 before the closing of the Farmers Home Administration loans the outstanding balances on the 1973 and 1975 loans from Charleston Capital Corporation to Southeastern Fairfax totalled approximately $68,000.
16. While negotiating the loan, Charleston Capital Corporation, Yaschik Mortgage Company and D.A. Kennerly agreed that Yaschik Mortgage Company would assign to Charleston Capital Corporation the unguaranteed portion of the two loans which totalled $70,000. By this agreement, the $70,000. for the unguaranteed portion of the two loans would never be advanced to Southeastern Bishopville and Southeastern Fairfax. Instead, the $70,000. would be applied to satisfy the pre-existing debt of approximately $68,000. which Southeastern Fairfax owed to Charleston Capital Corporation. In that Yaschik Mortgage Company's participation in the unguaranteed portion of the two loans was to be assigned to Charleston Capital Corporation, the $70,000. was to remain a bookkeeping transaction only; no funds were to be transferred. The Farmers Home Administration was not notified of this agreement.
17. On March 1, 1976, the two loans guaranteed by the Farmers Home Administration were effectuated. On that day, D.A. Kennerly as president of Southeastern Fairfax, by note promised to pay Yaschik Mortgage Company the sum of $350,000.; and, Mr. Kennerly, as president of Southeastern Bishopville, by note promised to pay $350,000. to Yaschik Mortgage Company. Yaschik Mortgage Company assigned to Hartford Life Insurance Company the guaranteed portion (ninety (90%) percent) of the two notes.
18. Thereafter, by verbal agreement, Yaschik Mortgage Company assigned its participation in the unguaranteed portion (ten (10%) percent) of the two notes to Charleston Capital Corporation; no written assignment was executed.
19. Despite an original intent to the contrary, Charleston Capital Corporation subsequently advanced $45,000. of the unguaranteed portion of the loans to the bankrupt and retained the remaining $25,000. As Charleston Capital Corporation applied the remaining $25,000. to satisfy the 1975 note, the outstanding balance owed by the bankrupt to Charleston Capital Corporation on the 1973 note was approximately $43,000. on or about April 26, 1976.
20. In return for the $45,000. advance, the bankrupt, on April 26, 1976, gave to Charleston Capital Corporation a new mortgage securing $70,000. on the Aiken County property and other property. The new mortgage secured not only the unpaid amount ($43,000.), but served as additional *785 security on Charleston Capital Corporation's ten (10%) percent participation in the two loans which had been guaranteed by the Farmers Home Administration. Charleston Capital Corporation recorded the new mortgage in the office of the Register for Mesne Conveyances for Aiken County, South Carolina, in Mortgage Book 465 at page 647. In this adversary proceeding, the plaintiff alleges that the new mortgage is invalid.
21. Following the execution of the new mortgage on April 26, 1976, Charleston Capital Corporation held two mortgages on the Aiken County property the 1976 mortgage recorded in Mortgage Book 465 at page 647, and the 1973 mortgage recorded in Mortgage Book 416 at page 295.
22. By agreement dated August 25, 1976, Southeastern Fairfax, Southeastern Bishopville, Yaschik Mortgage Company and Charleston Capital Corporation agreed to increase the interest rate on the unguaranteed portion of the two notes from the original rate of ten (10%) percent to a rate of fifteen (15%) percent per annum. The new interest rate of fifteen (15%) percent applied only to the unguaranteed portion of the debt which Yaschik Mortgage Company had assigned to Charleston Capital Corporation; the agreement did not modify the interest rate under the guaranteed portion of the loans which had been assigned to the Hartford Life Insurance Company.
23. In February of 1979, the balance of the monies owed by Southeastern Fairfax on the initial 1973 loan and the dividends on the preferred stock were paid (See Fact 10). The preferred stock was returned to Southeastern Fairfax; and the 1973 note and mortgage which covered the Aiken County property were marked satisfied. As a result, Charleston Capital Corporation retained the $70,000. mortgage, executed on April 26, 1976, to secure the unguaranteed portion of the two loans which had been guaranteed by the Farmers Home Administration; the 1976 mortgage secured no other debt.
24. The assignment agreements between Yaschik Mortgage Company, the Farmers Home Administration and Hartford Life Insurance Company contain, on page 67, the following provision:
The lender will service the entire loan and will remain mortgagee and/or secured party of record, notwithstanding the fact that another may hold a portion of the loan. The entire loan will be secured by the same security with equal lien priority for the guaranteed and unguaranteed portions of the loan. The lender may charge the holder a servicing fee. The unguaranteed portion of the loan will not be paid first nor given any preferential priority over the guaranteed portion of the loan. (emphasis added).
25. Southeastern Fairfax, Southeastern Bishopville and the bankrupt defaulted on the two loans which had been guaranteed by the Farmers Home Administration, and, by action brought in federal court, the mortgages covering the properties in Fairfax and Bishopville were foreclosed. Although the judgments exceeded $650,000., the sale of the properties produced only $116,000. a deficiency of more than $500,000.
26. The United States Small Business Administration has filed a large claim against the bankruptcy estate as a priority creditor.
ISSUES
1. Whether the trustee has standing to assert the alleged violations of the Farmers Home Administration regulations and the Small Business Investment Company regulations of the Small Business Administration.
2. Whether Charleston Capital Corporation has violated the regulations of the United States Department of Agriculture Farmers Home Administration, by accepting a mortgage to secure the unguaranteed portion of the loans to Southeastern Fairfax and Southeastern Bishopville.
3. Whether Charleston Capital Corporation has violated the regulations of the United States of America, Small Business Administration, including the Small Business Investment Company regulations, as a *786 result of the transactions by and between Charleston Capital Corporation, Yaschik Mortgage Company, the bankrupt, Southeastern Fairfax and Southeastern Bishopville.
4. If Charleston Capital Corporation has violated the regulations of the Farmers Home Administration, or the Small Business Investment Company regulations of the Small Business Administration, whether the mortgage to Charleston Capital Corporation is unenforceable as an illegal contract.
DISCUSSION AND CONCLUSIONS OF LAW
I
The plaintiff argues that as a result of alleged violations of Farmers Home Administration and Small Business Administration regulations, Charleston Capital Corporation's mortgage on the property in Aiken County is an illegal contract which may not be enforced.
The Farmers Home Administration guaranteed ninety (90%) percent of two loans, each of which was personally guaranteed by the bankrupt. Yaschik Mortgage Company assigned the guaranteed portion of the two loans to the Hartford Insurance Company, and assigned the unguaranteed portion of the two loans to Charleston Capital Corporation. In March of 1976, at the time of the closing of the two loans guaranteed by the Farmers Home Administration, regulations governing the Farmers Home Administration Business and Industrial Loan Program were in effect and were applicable to various aspects of the two loans. These regulations, found at 7 C.F.R. §§ 1980.401-1980.453 (1976).[2], were specifically promulgated to apply to loans such as the two loans under discussion. The promulgation of these regulations is authorized by 7 U.S.C. § 1989 (1985).[3]
Charleston Capital Corporation is a licensed Small Business Investment Company. The Small Business Investment Act of 1958, as amended, (P.L. 85-699, 72 Stat. 689, which appears generally as 15 U.S.C. §§ 661, et seq.) (1985), provides the statutory basis for Small Business Investment Companies. In addition, specific regulations have been promulgated to govern Small Business Investment Companies. These regulations, which were in effect in March of 1976, are found in 13 C.F.R. §§ 107.1-107.1203 (1976). The Small Business Investment Company regulations have the force and effect of law. Hernstadt v. Programs for Television, Inc., 232 N.Y.S. 2d 683, 36 Misc.2d 628 (N.Y.Civ.Ct.1962); 45 Am.Jur.2d, Investment Companies, etc., Section 5. See also, Electronic Systems Investment Corporation v. Small Business Administration, 405 F.2d 188 (4th Cir.1968), cert. denied, 394 U.S. 1014, 89 S.Ct. 1633, 23 L.Ed.2d 41 (1969); United States v. Coleman Capital Corporation, 295 F.Supp. 1016 (D.N.D.Ill.1969). As Charleston Capital Corporation is a licensed Small Business Investment Company, both the Small Business Investment Company Act of 1958, as amended, (P.L. 85-699, 72 Stat. 689, which appears generally as 15 U.S.C. §§ 661 et seq.) (1985) and the corresponding regulations apply to Charleston Capital Corporation.
The issue arises as to whether the plaintiff has standing to assert the alleged violations of federal regulations. Responding to the plaintiff's contention that the alleged violations of federal regulations render the mortgage unenforceable as an illegal contract, Charleston Capital Corporation asserts that no private cause of action exists for the alleged violations. In support of its argument that the plaintiff has no cause of action under either set of regulations, Charleston Capital Corporation cites: Manufacturer's Hanover Mortgage Corporation *787 v. Snell, 370 N.W.2d 401 (Mich.App. Ct.1985); Roberts v. Cameron Brown, 556 F.2d 356 (5th Cir.1977); Perry v. Housing Authority of Charleston, 664 F.2d 1210 (4th Cir.1981); Rank v. Nimmo, 677 F.2d 692 (9th Cir.1982), cert. denied, 459 U.S. 907, 103 S.Ct. 210, 74 L.Ed.2d 168 (1982); and Bright v. Nimmo, 756 F.2d 1513 (11th Cir.1985). These cases, however, are inapposite here: each case involves the regulations of the Veterans Administration (V.A.) or the Department of Housing and Urban Development (H.U.D.). In each case, the regulations which the plaintiff attempts to enforce are discretionary in that the regulations set forth procedures under which the plaintiff, as the borrower under a federally assisted program, should be given opportunities to cure his or her defaults under the mortgage. The cited decisions do not involve a challenge to the validity of the mortgage contract; rather, the cases impliedly recognize the validity of the mortgage and focus instead upon administrative procedures preceding foreclosure.
The plaintiff in the proceeding at bar is not pursuing a private cause of action under the regulations. Nor is the plaintiff attempting to police violations of the regulations. Instead, the plaintiff seeks to avoid the validity of a mortgage obtained through alleged violations of the regulatory prohibitions when enforcement would be against property of the bankruptcy estate, ergo, to the detriment of creditors of the bankruptcy estate. Taking no position as to whether the Farmers Home Administration or the Small Business Administration should bring or take action against Charleston Capital Corporation for the alleged violations, the plaintiff argues that Charleston Capital Corporation is not entitled to benefit from its violations to the detriment of the bankruptcy estate and its creditors.
In reaching a decision in this case, the court is guided by Kaiser Steel Corporation v. Julius Mullins, 455 U.S. 72, 102 S.Ct. 851, 70 L.Ed.2d 833 (1982). In that case, one party sought to prevent the enforcement of a contract on the basis of a violation of federal anti-trust laws, while the other party argued that only the National Labor Relations Board (N.L.R.B.) can enforce violations of the anti-trust provisions. Holding that the anti-trust law violations could prevent the enforcement of the contract, the Supreme Court noted that, "It is well established, however, that a federal court has a duty to determine whether a contract violates federal law before enforcing it." Kaiser Steel Corporation v. Julius Mullins, 455 U.S. 72, 83, 102 S.Ct. 851, 859, 70 L.Ed.2d 833 (1982). By way of explanation, the Supreme Court stated:
While only the Board may provide affirmative remedies for unfair labor practices, a court may not enforce a contract provision which violated § 8(e). Were the rule otherwise, parties could be compelled to comply with contract clauses, the lawfulness of which would be insulated from review by any court.
Id., at 86, 102 S.Ct. at 861.
The decision in Kaiser reinforces Quinn v. Gulf & Western Corporation, 644 F.2d 89, 92-94 (2nd Cir.1981) in which the Court of Appeals for the Second Circuit held that a contract in violation of federal regulations is unenforceable as an illegal contract.
Here the plaintiff's argument is consistent with Kaiser and Quinn.
The plaintiff seeks to prevent the enforcement of a mortgage allegedly obtained in violation of federal regulations. The Supreme Court has stated that "[a] federal court has a duty to determine whether a contract violates federal law before enforcing it." Kaiser Steel Corporation v. Julius Mullins, 455 U.S. 72, 83, 102 S.Ct. 851, 859, 70 L.Ed.2d 833 (1982). Thus, it appears that the plaintiff has standing to raise the issues as to whether or not Charleston Capital Corporation has violated Farmers Home Administration Regulations and the Small Business Investment Company regulations of the Small Business Administration, and whether, as a result of the alleged violations, Charleston Capital Corporation's mortgage is an illegal and unenforceable contract.
*788 II
A
Farmers Home Administration Regulations
Seeking to have the mortgage declared null and void, the plaintiff alleges that Charleston Capital Corporation's mortgage is in violation of the regulations of the Farmers Home Administration which govern the Business and Industrial Loan Program. The regulations governing the Business and Industrial Loan Program of the Farmers Home Administration occur in 7 C.F.R. §§ 1980.401-1980.453 (1976), which is entitled Subpart E-Business and Industrial Loan Program. As stated in the introduction to Subpart E-Business and Industrial Loan Program:
This Subpart supplemented by Subpart A of this Part, contains regulations for Business and Industrial (B & I) loans guaranteed or insured by the Farmers Home Administration (FmHA), and applies to lenders, holders, borrowers, and other parties involved in making, guaranteeing, insuring, holding, servicing, or liquidating such loans.
7 C.F.R. § 1980.401(a) (1976).
Yaschik Mortgage Company, the lender of record in the two loans to Southeastern Fairfax and Southeastern Bishopville, is bound by these regulations.
Yaschik Mortgage Company is clearly a "lender".[4] It requested the loan guarantees on behalf of Southeastern Bishopville and Southeastern Fairfax.
The regulations found in Subpart E, which govern the Business and Industrial Loan Program, also apply to Charleston Capital Corporation. While Yaschik Mortgage Company is the "lender" as defined in footnote 1, and is the lender of record in the two loans to Southeastern Fairfax and Southeastern Bishopville, Yaschik Mortgage Company never advanced any funds to either Southeastern Fairfax or Southeastern Bishopville it assigned its participation in the two loans to Charleston Capital Corporation, and Charleston Capital Corporation loaned $45,000. to the bankrupt.
Therefore, Charleston Capital Corporation is a party "involved in making" a Business and Industrial loan guaranteed by the Farmers Home Administration within the meaning of 7 C.F.R. 1980.401(a) (1976)[5], and the regulations of the Farmers Home Administration apply with equal force and effect to Yaschik Mortgage Company and to Charleston Capital Corporation.
The plaintiff has alleged that Charleston Capital Corporation violated 7 C.F.R. § 1980.443(a)(3) (1976) which provides:
All collateral must secure the entire loan. The lender will not take separate collateral to secure only that portion of the loan or loss not covered by the guarantee. The lender will not require compensating balances or certificates of deposit as a means of eliminating the lender's exposure on the unguaranteed portion of the loan. However, compensating balances as used in the ordinary course of business may be used.
As previously discussed, for the purposes of loans guaranteed by the Farmers Home Administration, "lender" is defined at 7 C.F.R. § 1980.403(n) (1976) as:
The person or organization making and servicing the loan which is guaranteed under the provisions of this subpart. The lender is also the party requesting the loan guarantee.
While Yaschik Mortgage Company is the "lender" for the purposes of the two loans guaranteed by the Farmers Home Administration, Charleston Capital Corporation is also prohibited by 7 C.F.R. § 1980.443(a)(3) (1976) from taking "separate collateral to *789 secure only that portion of the loan or loss not covered by the guarantee." To find otherwise would allow Yaschik Mortgage Company and Charleston Capital Corporation to circumvent the regulation (7 C.F.R. § 1980.443(a)(3) (1976)) by a gratuitous assignment because both assignor and assignee are commonly owned and controlled (See Facts 7-8).
Charleston Capital Corporation's mortgage securing the unguaranteed portion of the two loans, but not securing the guaranteed portion of the two loans, violates 7 C.F.R. § 1980.443(a)(3) (1976)[6], which states that "All collateral must secure the entire loan. . . ." Charleston Capital Corporation argues that the mortgage served merely as "additional" security for the unguaranteed portion of the two notes; that the real purpose underlying the mortgage was to secure pre-existing indebtedness owed by Southeastern Fairfax to Charleston Capital Corporation. (See Facts 15-20, supra, at 784-785). This argument ignores the fact that even after the closing of the two Farmers Home Administration guaranteed loans in March of 1976, Charleston Capital Corporation held two loans against the property: the 1973 mortgage securing the 1973 note and preferred stock (See Facts 9-11, supra, at 783-784); and the 1976 mortgage.
In February of 1979, the 1973 note and preferred stock were paid in full, and the 1973 note was satisfied. As a result, Charleston Capital Corporation was entitled to payment only for the unguaranteed portion of the two notes made in 1976 to Southeastern Fairfax and Southeastern Bishopville. Therefore, Charleston Capital Corporation's mortgage now serves one purpose to secure the unguaranteed portion of the two notes.
Therefore, Charleston Capital Corporation obtained the 1976 mortgage through direct violation of 7 C.F.R. § 1980.443(a)(3) (1976).
II
Small Business Investment Company Regulations
Charleston Capital Corporation has been licensed as a Small Business Investment Company (S.B.I.C.) since 1961. As an S.B.I.C. licensee, Charleston Capital Corporation must comply with the regulations promulgated to govern Small Business Investment Companies.[7] The scope of the regulations which govern Small Business Investment Companies is described at 13 C.F.R. § 107.1 (1976) as follows:[8]
The regulations in this part implement the Small Business Investment Act of 1958, as amended. All Licensees, including section 301(d) Licensees, must comply with all regulations and appendices.
(Footnote omitted).
The plaintiff alleges that Charleston Capital Corporation, in obtaining its mortgage in 1976 against the Aiken County property, has violated Small Business Investment Company regulations which prohibit conflicts of interest and self-dealing. Specifically, *790 the plaintiff cites 13 C.F.R. § 107.1004 (1976) which states, in part:
(a) General. Self-dealing to the prejudice of the small concern, or of a Licensee or its shareholders; or of SBA, is prohibited.
(b) Prohibitions. Except where a written exemption may be granted by SBA in special instances in furtherance of the purposes of the Act:
(1) A Licensee shall not, directly or indirectly, provide Financing to any of its Associates.
The definitional section to the Small Business Investment Company regulations is found at 13 C.F.R. § 107.3 (1976); reference to this section is necessary when determining whether Charleston Capital Corporation has violated the regulations. In making such determination, the court must consider the definition of "Small Concern":
Small Concern. "Small Concern" means a small business concern as defined in section 103(5) of the Act (including affiliates as defined in § 121.3-2 of this chapter), which for purposes of size eligibility, meets the applicable criteria set forth in § 121.3-11 of Part 121 of this chapter.
In applying that definition to Southeastern Fairfax and Southeastern Bishopville, it should be noted that, as a Small Business Investment Company, one of Charleston Capital Corporation's functions is "to provide a source of equity capital for incorporated and unincorporated small business concerns. . . ." 15 U.S.C. § 684(a) (1985). The S.B.I.C. regulations use the term "small concern" in a manner that contemplates its application to the borrower. In prohibiting self-dealing and conflicts of interest by S.B.I.C. licensees, it is implicit that the prohibitions are intended to protect a Small Business Investment Company's borrowers. Southeastern Fairfax and Southeastern Bishopville were the borrowers in the context of the two loans made in 1976 and guaranteed by the Farmers Home Administration; therefore, Southeastern Fairfax and Southeastern Bishopville may be regarded as "small concerns" for the purpose of the matter presently before the court.[9]
A second definition of importance in this matter is the definition of "Associate of a Licensee":
Associate of a Licensee: "Associate of a Licensee" means [in part]:
(b) Any person owning or controlling, directly or indirectly, ten or more percent of any class of stock of such Licensee; or
* * * * * *
(d) Any Person which directly or indirectly Controls or is Controlled by, or is under common Control with, a Licensee or any Person described in paragraphs (a) and (b) of this section;. . . .
7 C.F.R. § 107.3 (1976).
For the purposes of the S.B.I.C. regulations, "person" is defined as "[a] natural person or legal entity."[10] Furthermore, "Control" is defined within the regulations to mean "the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Licensee or a Small Concern whether through the ownership or voting securities, by contract or otherwise."[11]
A
As defined above, it appears that Yaschik Mortgage Company was an "associate" of Charleston Capital Corporation, and was a "person" owning more than ten (10%) percent of Charleston Capital Corporation's stock at all times relevant to the present controversy.[12] Mr. Yaschik, as the *791 president and majority shareholder of both Charleston Capital Corporation and Yaschik Mortgage Company, held "Control" of both Charleston Capital Corporation and Yaschik Mortgage Company. Therefore, Yaschik Mortgage Company is an "associate" of Charleston Capital Corporation under either subparagraph (b) or subparagraph (d) of the definition of "associate" which appears above.
Application of these definitions to the present facts reveals that Charleston Capital Corporation has violated the provisions of 7 C.F.R. §§ 107.1004(a) and 107.1004(b)(1) (1976).
Although Southeastern Fairfax and Southeastern Bishopville together entered into loan agreements with Yaschik Mortgage Company whereby Yaschik Mortgage Company agreed to lend $70,000. to the two companies, the fact is that Yaschik Mortgage Company, by verbal agreement, assigned these loans to Charleston Capital Corporation, and in the end, Charleston Capital Corporation loaned only $45,000. to Southeastern Fairfax and Southeastern Bishopville. (See Facts 18-19, supra, at 784). However, in order to obtain even the $43,000. out of the total loan commitment of $70,000., Charleston Capital Corporation required a new mortgage from the bankrupt. As a result, Charleston Capital Corporation held two mortgages: a 1973 mortgage and a 1976 mortgage. Moreover, in August of 1976, Charleston Capital Corporation required an increase in the interest rate on the unguaranteed portion of the two loans from ten (10%) percent to fifteen (15%) percent per annum.
Such course of events is one of self-dealing to the detriment of Southeastern Fairfax and Southeastern Bishopville. The 1976 mortgage secured only the unguaranteed portion of the two loans which had been guaranteed by the Farmers Home Administration in direct violation of 7 C.F.R. § 1980.443(a)(3) (1976), a regulation which has as its clear purpose the prevention of self-dealing.
Southeastern Fairfax and Southeastern Bishopville were clearly prejudiced by Charleston Capital Corporation's self-dealing: (1) neither Southeastern Fairfax nor Southeastern Bishopville received the full amount of its Farmers Home Administration guaranteed loan; and (2) the granting of the 1976 mortgage by the bankrupt to Charleston Capital Corporation impaired the bankrupt's ability to borrow further by encumbering its collateral.
Charleston Capital Corporation's mortgage significantly decreases the assets available for the payment of creditors of the bankruptcy estate. The Small Business Administration is one of the largest creditors, and Charleston Capital Corporation's mortgage threatens to reduce the Small Business Administration's distribution from the bankruptcy estate.
B
Charleston Capital Corporation has also violated 13 C.F.R. § 107.1004(b)(1) (1976) which provides that a licensee shall not directly or indirectly provide financing to any of its associates. While Yaschik Mortgage Company is the lender of record in the 1976 loan transactions, it advanced no monies under the loans. The monies advanced for the unguaranteed portion of the two loans were advanced by Charleston Capital Corporation as the assignee of Yaschik Mortgage Company's participation in the loans.
Yaschik Mortgage Company is the second largest shareholder of Charleston Capital Corporation. Charleston Capital Corporation and Yaschik Mortgage Company are controlled by the same individual. (See Facts 7-8, supra, at 783). In that the loans were structured in such a way that Charleston Capital Corporation, not Yaschik Mortgage Company, would advance the loan proceeds, if any, the arrangement constitutes indirect financing of Yaschik Mortgage Company's obligation under the 1976 loans.
In summary, Charleston Capital Corporation violated the 13 C.F.R. §§ 107.1004(a) and 107.1004(b)(1) (1976).
*792 IV
Charleston Capital Corporation obtained the 1976 mortgage in issue by violating regulations which govern the Business and Industrial Loan Program of the Farmers Home Administration and by violating regulations which govern Small Business Investment Companies.[13] The question now becomes whether the mortgage is an illegal, and therefore, unenforceable contract.
As stated in McConnell v. Kitchens, 20 S.C. 430 (1884), "The general rule, undoubtedly, is, that a contract to do an act which is prohibited by statute, or which is contrary to public policy, is void, and cannot be enforced in a court of justice." See also, Grant v. Butt, 198 S.C. 298, 17 S.E.2d 689, 693 (1942); and Batchelor v. American Health Insurance Company, 234 S.C. 103, 107 S.E.2d 36 (1959). The law "will not promote in one form that which it declares wrong in another, and hence contracts which bring about results which the law seeks to prevent are unenforceable. . . ." 17 Am.Jur.2d, Contracts § 155 (footnotes omitted). See also, Kaiser Steel Corporation v. Mullins, 455 U.S. 72, 83, 102 S.Ct. 851, 859, 70 L.Ed.2d 833 (1982), and Quinn v. Gulf & Western Corporation, 644 F.2d 89, 92-94 (2nd Cir.1981), which involved violation of federal statutes and are discussed supra, at 787.
In the instant case, regulations have been violated. However, the existence of violations alone does not necessarily make a contract illegal; merely technical violations may require that the parties to a contract pursue other remedies. When statutes, or in this case, regulations have been violated, the court must review the nature of the violations and consider the object of the law. McConnell v. Kitchens, 20 S.C. 430 (1884).
McConnell v. Kitchens, supra, involved the violation of statutory provisions which governed the sale of fertilizers. In determining whether the violations rendered a contract illegal, and therefore, unenforceable, the court, after noting that the violation of a statute designed for raising revenue is generally not sufficient to make the contract illegal and unenforceable, observed that if the prohibition imposed by statute is for the purpose of prohibiting certain conduct or for compelling compliance with desirable conduct, then violation of the statute renders the contract illegal, and thus, unenforceable at law. McConnell v. Kitchens, 20 S.C. 430, 436 (1884).
The regulation of the Business and Industrial Loan Program of the Farmers Home Administration (7 C.F.R. § 1980.443(a)(3) (1976), which has been put into issue by this case, is clearly intended to prohibit conduct, and not generate revenue. The same can be said of 13 C.F.R. §§ 107.1004(a) and 107.1004(b)(1) (1976), the Small Business Investment Company regulations which have been violated by Charleston Capital Corporation.[14]
In this case, Charleston Capital Corporation would not have its mortgage but for its violation of the regulations. Enforcement of the mortgage in this court would be in furtherance of the violations. Accordingly, this court finds Charleston Capital Corporation's 1976 mortgage unenforceable as an illegal contract.
ORDER
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that Charleston Capital Corporation's mortgage, recorded in the Office of the Register of Mesne Conveyances for Aiken, South Carolina, in Mortgage Book 465 at page 647, is based on an illegal contract and, as to the plaintiff, is void and of no effect.
NOTES
[1] Defendant Southern Bell consented to relief sought by plaintiff (See, Answer filed March 2, 1983); Defendants Augusta Roofing & Metal Works and Monsanto Corporation failed to answer complaint (See, order for judgment filed March 24, 1983, and a settlement was subsequently reached with defendant Monsanto (See, order authorizing settlement filed July 25, 1985); a settlement was reached with defendant FDIC (See, order authorizing settlement filed July 31, 1985).
[2] The regulations in issue shall appear, for the purposes of this order, in the form in which they were found at the times relevant to the present controversy, which is, for the most part, the spring of 1976. The effective date of 7 C.F.R. § 1980.401 et seq., which is referred to as the Farmers Home Administration Business and Industrial Loan Program, is December 11, 1975. 40 Fed.Reg. 57,643 (1975).
[3] 7 U.S.C. § 1989 (1985) became effective on December 7, 1961, and has not been amended. 26 Fed.Reg. 10031 (1961).
[4] As defined by the regulations of the Farmers Home Administration, Department of Agriculture, under Subchapter P-Guaranteed Loans, "lender" is defined as: "The person or organization making and servicing the loan which is guaranteed under the provisions of this subpart. The lender is also the party requesting the loan guarantee." 7 C.F.R. § 1980.403(n) (1976).
[5] See page 788 for the full text of 7 C.F.R. § 1980.401(a) (1976).
[6] The mortgage is described in Fact 20, p. 784.
[7] The regulations which governed Small Business Investment Companies at the time relevant to the present controversy may be found at 13 C.F.R. §§ 107.1-107.1202 (1976), which became effective on November 7, 1973. 38 Fed.Reg. 30,837 (1973).
[8] The Small Business Investment Company Act of 1958, as amended, (P.L. 85-699, 72 Stat. 689, which appears generally at 15 U.S.C. §§ 661, et seq.) provides for the promulgation of regulations to control conflicts of interest at 15 U.S.C. § 687d, which states: "§ 687d. Conflicts of Interest. For the purpose of controlling conflicts of interest which may be detrimental to small business concerns, to small business investment companies, to the shareholders or partners of either, or to the purposes of this Act, the Administration shall adopt regulations to govern transactions with any officer, director, shareholder [shareholder, or partner] of any small business investment company, or with any person or concern, in which any interest, direct or indirect, financial or otherwise, is held by any officer, director, shareholder [shareholder, or partner] of (1) any small business investment company, or (2) any person or concern with an interest, direct or indirect, financial or otherwise, in any small business investment company. Such regulations shall include appropriate requirements for public disclosure (including disclosure in the locality most directly affected by the transaction) necessary to the purposes of this section."
[9] A specific finding that the borrowers are "small concerns" is not necessary here. See, e.g., United States v. Boca Raton Capital Corporation, 285 F.Supp. 504 (S.D.Fla.1968), in which the court, applying the S.B.I.C. regulations, did not specifically identify the borrowers as "small concerns" within the definition of the term as it appears in the S.B.I.C. regulations.
[10] 7 C.F.R. 107.3 (1976).
[11] Id.
[12] As of March 31, 1976, Yaschik Mortgage Company owned 8,893 shares of the total 57,750 outstanding shares, or 15.4% of Charleston Capital Corporation. As of March 31, 1977, Yaschik Mortgage Company owned 9,809 shares of the total 63,700 outstanding shares, or 15.4% of Charleston Capital Corporation.
[13] See, discussion supra, at 789-791.
[14] See discussion of the cited regulation, supra, at 789-791.
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503 F.2d 660
74-2 USTC P 9710
A.J. INDUSTRIES, INC., Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
No. 72-2760.
United States Court of Appeals, Ninth Circuit.
Sept. 12, 1974.
Jack R. White (argued), of Hill, Farrer & Burrill, Los Angeles, Cal., for plaintiff-appellant.
Ernest J. Brown (argued), U.S. Dept. of Justice, Washington, D.C., for defendant-appellee.
Before ELY and CARTER, Circuit Judges, and EAST,* District Judge.
OPINION
JAMES M. CARTER, Circuit Judge:
1
In this tax case, plaintiff taxpayer appeals from a district court judgement denying it a refund for taxes and interest paid in the sum of $1,291,445.79 for the taxable years 1957 through 1961. The central question is whether taxpayer is entitled to a loss deduction under either the 1939 or 1954 Internal Revenue Codes and applicable regulations for the years 1956 or 1957, in connection with an abandoned gold mining venture in Juneau, Alaska.
2
On its return in 1958, taxpayer claimed a loss deduction which it carried back to 1957 and carried forward through 1961 in order to reduce taxes in those five years. The Commissioner of Internal Revenue disallowed the deduction, assessing a deficiency. Taxpayer paid the deficiency and filed a suit for refund in the United States Court of Claims, claiming a deduction for a loss in 1958. The Court of Claims ruled that the loss had occurred sometime prior to 1958, and thus denied the claim. A.J. Industries, Inc. v. United States, 388 F.2d 701, 181 Ct.Cl. 1017 (1967).
3
Taxpayer then brought this action in the district court for a refund, claiming that the loss occurred in 1956 or 1957. It is not disputed that plaintiff, following the Court of Claims' decision regarding the year 1958, had right to bring another action claiming that the loss occurred in earlier years. Nor is it disputed that, if the loss occurred prior to 1956, the loss deduction was barred by the applicable statute of limitations. The district court, ruling that the loss occurred prior to 1956, denied the refund. The question on appeal is whether the district court applied the proper criterion under the Regulations and case law in determining when the loss occurred.
4
There is no dispute as to facts-- the case was tried on a stipulated record. The taxpayer does not challenge the findings of fact but only the conclusions of law and the judgment of the district court.
5
In the district court, the government disputed the amount of loss claimed, $2,028,515, but conceded at least $1,158,622 would be deductible if plaintiff was entitled to claim a loss. The question of the proper amount of the claimed loss was not reached by the district court and is not before us. However, we should note that there was no claim by the government that the claimed amount of loss was fictitious or false or in any other way not a legitimate claim except for its proper calculation under the facts and the law.
THE SPECIFIC QUESTIONS RAISED
6
(1) Did the district court disregard Treasury Regulation 118, 39.23(e)-3, 1939 Code?
7
(2) Did the district court erroneously rely on Boehn v. Commissioner, 326 U.S. 287, 66 S.Ct. 120, 90 L.Ed. 78 (1945)?
THE FACTS
8
The facts, which are not in dispute, are set forth in detail in the findings of the Commissioner in A.J. Industries, Inc. v. United States, 388 F.2d 701, 181 Ct.Cl. 1017, 1035-1063, from which findings the stipulated pretrial order was prepared. Some of the findings of fact are set forth in footnotes to the subsequent text; particularly Findings 60, 65, 77 and 78.
9
In summary, the Alaska mine was a profitable gold mining venture from 1897 until 1942. It lost money in 1943 and 1944, owing to higher wages brought about by the war. The War Labor Board ordered a 14-cent an hour retroactive increase in May 1944, and with increased costs for labor and material the taxpayer's president, pursuant to prior authorization for the board of directors, ordered a shutdown of the mine, which occurred in April 1944.
10
The taxpayer's management, believing until 1956 that the shutdown was temporary, were confident the mine could be reopened after the end of World War II. The management sought to protect the mining equipment, supplies and facilities, and to carry out repairs and reconstruction. They also engaged in exploratory work seeking new ore bodies in the mine, to the extent possible with a shutdown crew.
11
The shutdown force was composed of 'key' men, primarily power plant employees, mine shaft bosses, crew foremen and heads of departments, who would be valuable on reopening. At the shutdown there were 44 such employees. Over the years the number of the crew decreased. At the end of 1955 there were 29. When the general manager retired in 1956 there were 22 or 23 men left.
12
In 1949 the taxpayer had spent $22,513.39 for shutdown expenses. In 1956 it spent $20,365.45 for the same purposes.
13
The old management, in control until mid-1956, believed the mine could eventually be again operated. As a result of a proxy fight, a new management took over in June 1956. They decided to abandon the mine and in 1956 gave an option for salvage of the machinery and equipment. In 1957 the option was exercised and a contract made for the salvage process. The money from the option and the contract was spent by the new management toward the purchase of an operating company, the Reynolds Mfg. Company.
14
It is important to note that the loss claimed is not for machinery or equipment or for diminution in value of the mine itself. It is instead for the adjusted basis of plaintiff's capitalized development costs in preparing the underground tunnels and workings of the mine.
15
While the mine was still in use, the method of extracting gold was the 'caving' system, which required development work to prepare specific areas that could be 'caved in' economically and safely. This required construction of tunnels and shafts, winzes and raises for the general purpose of hauling, drainage, ventilation and safety. The development costs which benefitted the entire mine were listed in the books as 'Mine Development Costs,' and the development costs in preparing specific areas for 'cave ins' were listed as 'Preparatory Mining Costs.' Together they made up the capitalized amount for which the loss is claimed.
16
Thus the asset for which the loss is claimed is an intangible asset. It is not the mine or the real estate, and no question of legal title to the land is involved. It is an amount separable and identifiable from the land itself. It is not disputed that such intangible assets are capable of being discarded and abandoned by a taxpayer and are subject to a claim for a deductible loss.
THE DISTRICT COURT'S CONCLUSIONS OF LAW
17
In its Conclusions of Law the district court held:
18
'6. In order to be entitled to a loss deduction as the result of the Juneau mine having become worthless, plaintiff has the burden of demonstrating, by a preponderance of the evidence, that the property had something of value at the beginning of the year for which the loss is claimed.' Boehm v. Commissioner, 326 U.S. 287, 66 S.Ct. 120 (1945).
19
'7. Under the internal revenue laws a loss deduction must be recognized in the year in which the loss actually was sustained, irrespective of the subjective recognition or predispositions of a taxpayer's management. Boehm v. Commissioner, supra; A.J. Industries, Inc. v. United States, 388 F.2d 701, 181 Ct.Cl. 1017 (1967).
20
'8. Worthlessness of a mine is established when there no longer are any reasonable prospects for producing the ore in commercially profitable quantities.
21
'9. The facts and circumstances existing with respect to the Juneau mine during the period 1944-1956 were such that the management did not exercise reasonable business prudence in failing to formally recognize that the mine would never again produce commercially profitable gold ore.
22
'10. Under the applicable statutes, regulations (relating either to the 1939 or 1954 Internal Revenue Code), and case law, the Court concludes that plaintiff's loss was not sustained in either of the taxable years for which it was claimed and that no loss occurred to plaintiff in either 1956 or 1957.'
DISCUSSION
23
In this particular case the government concedes that the taxpayer is entitled to a refund if either the 1939 Code or the 1954 Code justifies a deduction. Both the 1954 Code, 165(a) (26 U.S.C. 165(a)) and the 1939 Code, 23(f), allow a deduction for 'any loss sustained during the taxable year and not compensated for by insurance or otherwise.'
I.
Loss Deductions Generally
24
A loss is not sustained and is not deductible because of mere decline, diminution or shrinkage of the value of property, Reg. 1.165-1(b) and (d), 1954 Code,1 states that the loss is treated as sustained only when its occurrence is 'evidenced by closed and completed transactions and is deductible during the taxable year fixed by identifiable events occurring in such taxable year.' The case law so holds. Commissioner v. Peterman (9 Cir. 1941) 118 F.2d 973, 976; Monroe v. Beatty, 46 T.C. 835, 836 (1966); Citizens Bank of Weston, 28 T.C. 717 (1957).
25
The 1954 Code provides specific guidance for determining when certain kinds of losses occur. For example, a 'theft loss' occurs by virtue of a theft and is deemed sustained and deductible when the Taxpayer discovers the theft. (165(e).) A 'disaster loss' occurs by virtue of a disaster and is accorded special treatment as to the year of deduction. (165(h).) Losses on worthless securities (165(g)) and worthless debts (166) are expressly sustained by virtue of the asset becoming 'worthless' and are expressly made deductible in the year during which they become worthless.
26
However, neither the 1939 Code, 23(f), nor the 1954 Code, 165,2 provide any guidance with respect to permissible deductions for the loss of a business asset such as capitalized development costs. We must therefore look to applicable regulations and case law.
II.
27
Treasury Regulation 118, 39.23(e)-3 (1939 Code)
28
The pertinent part of Treasury Regulation 118, 39.23(e)-3 (1939 Code) is set forth in the margin.3 The district court quoted Treasury Regulation 111, 29.23(e)-1 (1939 Code), in its Conclusion of Law No. 5. That regulation reads identically with Treasury Regulation 118, 39.23(e)-3 (1939 Code). Both were promulgated under the 1939 Internal Revenue Code.4 The district court correctly found in Conclusion of Law No. 3 that Treasury Regulation 1.165-1(d) (4)5 (1954 Code) allows a taxpayer the option of applying either the regulations under the 1939 Code or the 1954 Code to losses occurring on or before January 16, 1960. The government concedes this is correct. The analogous regulation under the 1954 Code, 1.165-2(a) is set forth in the margin.6
29
Conclusion of Law No. 8 reads as follows: 'Worthlessness of the mine is established when there no longer are any reasonable prospects for producing the ore in commercially profitable quantities.' In this Conclusion, the district court used the wrong standard.
30
Section 165(g)(1) of the 1954 Code (26 U.S.C. 165(g)(1)) expressly sets the standard of 'worthlessness' for taking a loss for securities. In 166(a)(1) of the 1954 Code (26 U.S.C. 166(a)(1)), the same standard is set for bad debts.
31
But neither Treasury Regulation 118, 39.23(e)-3 (1939 Code), or Treasury Regulations 1.165-1 and 1.165-2 (1954 Code), applicable to the loss of useful value of an asset used in a trade or business, mentions worthlessness or sets that as a standard. Regulation 118, 39.23(e)-3 (1939 Code) speaks of a situation where the taxpayer 'discontinues the business or discards such assets permanently from use in such business,' and states that the loss may be claimed in the year in which 'he (the taxpayer) takes such action.'
32
Regulation 1.165-1(b) (1954 Code), in defining the nature of the loss, states, 'a loss must be evidenced by closed and completed transactions, fixed by identifiable events . . ..' Regulation 1.165(d) (1954 Code), in fixing the year in which the loss occurs uses the same language but adding after '. . . fixed by identifiable events' the words 'occurring in such taxable year.' Neither the 1939 nor 1954 Regulations are considered in the district court's conclusions, although there is a general reference to the 1939 and 1954 Regulations in Conclusion No. 10.
33
S. S. White Dental Mfg. Co. v. United States (1944) 55 F.Supp. 117, 102 Ct.Cl. 115, discusses a regulation under the Revenue Act of 1936, Treasury Regulation 94, Art. 23(c)-3, identical to Regulation 39.23(e)-3, and states at p. 121:
34
'We think the words 'change in business conditions' in the Regulations must mean, 'in the opinion of the managers of the business.' They cannot refer to anything more objective than that, since assets are discarded upon the basis of that opinion, and upon no other basis.
35
'The words 'the usefulness in the business of some or all of the capital assets is . . . terminated' must mean terminated in whole or in such part that, in the opinion of the managers of the business, good management calls for their being discarded. Practically never is a capital asset wholly useless when discarded. It is discarded when it becomes relatively uneconomical to continue to use it, when its use is considered in relation to one or more alternatives. This choice was here made by plaintiff's managers, and their action comes within the quoted language of the regulation.'**
36
The government states that the Court of Claims rejected S.S. White in its decision in A.J. Industries, Inc., supra (388 F.2d at 710, 181 Ct.Cl. 1017) where it stated:
37
'But neither S.S. White nor Hazeltine, (170 F.Supp. 615, 145 Ct.Cl. 138) is authority for plaintiff's theory that the determination of which taxable year an asset became 'worthless' or 'loses its useful value' is solely within the discretion of the business judgment of management.'
38
S. S. White did not use the word 'solely' in its discussion of a management decision. Even so, the Court of Claims was wrong in holding that taxpayer could not rely on that case. The cases discussing the type of loss we are considering speak generally in terms of abandonment. The 'abandonment' or 'discarding' of an asset would require an act and an intent, as held in S.S. White, supra, pp. 121-123, 102 Ct.Cl. 115.
39
The decision of the Court of Claims in A.J. Industries, supra (388 F.2d at 703, 181 Ct.Cl. 1017) started out correctly stating and analyzing the law. It cited 165(a) of the 1954 Code (26 U.S.C. 165(a)), quoted Treasury Regulation 118, 39.23(e)-3 udner the 1939 Code, and quoted Regulation 1.165-2 of the 1954 Code. It then stated (p. 704):
40
'In order for a loss to be deductible under the pertinent statutory section, it must be shown that the loss was actually sustained during the taxable year; that the loss bacame fixed by an identifiable event in such year; and that there was an intention on the part of the owner to abandon the property. The mere non-use of the property is not enough to constitute an act of abandonment. It is not essential that legal title to the property be lost. Whether the property actually did lose its useful value in a particular year, and whether the owner actually did abandon it as an asset during that year, are questions of fact to be determined from a consideration of all the surrounding facts and circumstances. The issue as to whether the loss was actually sustained calls for a practical, not a legal test, and the standard requires a flexible approach according to the circumstances of each case. The determination as to the year an asset loses its useful value or becomes worthless is a matter of sound business judgment, and that judgment should be given effect unless it appears from the facts that the decision as to the year of loss was unreasonable or unfair at the time the decision was made. Thus, the test is whether the plaintiff has established that under all the facts and circumstances and in the exercise of reasonable business prudence, it fairly determined that its investment in its mine was lost and should be abandoned as worthless in 1958.' (Citing cases).
41
The Court of Claims also quoted (388 F.2d at 709-710, 181 Ct.Cl. 1017) extensively from Minneapolis, St. Paul & Sault Ste. Marie R.R. v. United States, 164 Ct.Cl. 226 (1964), which rejected a subjective test of 'worthless,' basing its holding on Boehm v. Commissioner, supra, and held the loss must be sustained in fact, during the taxable year, in order to be deductible.
42
Minneapolis was a bad debt case and Boehm was a securities case. In each category of loss the standare fixed by statute is 'worthlessness;' 166 of the 1954 Code (26 U.S.C. 166) governs bad debts, and 165(g) (26 U.S.C. 165(g)) applies to securities.
43
Thus the Court of Claims has taken cases in which 'worthlessness' is recognized as the statutory test of deductibility for the loss of a bad debt or security and extended the same test to a loss of a capitalized asset.
44
The basis of the Court of Claims' opinion for denying the loss in 1958 appears to be (1) the fact that the taxpayer continued to carry the mining asset, including the development costs, on its books for fear that a writeoff would cause the loss of its stock exchange listing, and (2) the fact that 1958 was the first year of profitable operation after 14 successive years of net operating loss. (388 F.2d at 712, 181 Ct.Cl. 1017).
45
From our reading of Treasury Regulation 118, 39.23(e)-3 (1939 Code), these conclusions follow:
46
1. There is nothing in the regulation to indicate that the act of discarding or abandoning the asset must occur in the same year that the asset loses its useful value or in the same year the taxpayer loses the loss of value.
47
2. It cannot be construed reasonably to require or allow a loss to become deductible in the year in which the asset loses its value, if the taxpayer does not abandon it, because he reasonably thinks it still has value.
48
3. The regulation cannot mean that a loss occurs by reason of loss of value, where the taxpayer neither abandons nor intends to abandon the asset, because he reasonably thinks it still has value and should be retained.
49
4. It is the act of abandonment which is the necessary predicate for sustaining the loss. Recognition of the loss is merely the motive or reason which gives rise to the intent to abandon. The taxpayer, in addition to an intent, must take some action.
50
5. He may claim the loss 'for the year in which he takes such action,' not the year he formed the intent to abandon, nor the year the asset lost its value.
51
6. The foregoing is subject to the exception that if the taxpayer realizes the asset is without value and has no reasonable expectation that the asset will again have value, he may not postpone claiming his loss for the purpose of a claim in a later year when, for example, he would secure greater tax benefits.*** This is what the taxpayer here did when it first claimed its loss and deductions in 1958. A.J. Industries, supra, 388 F.2d at 712.
52
7. The subjective judgment of the taxpayer (here the management) as to whether the business assets will in the future have value is entitled to great weight and a court is not justified in substituting its business judgment for a reasonable, well-founded judgment of the taxpayer. A.J. Industries, supra, 388 F.2d at 704, quoted above.
53
It is clear the district court did not correctly construe the regulation but rather, relying on the contentions of the government and the Boehm decision, misapplied the regulation.
III.
Additional Case Law
54
It has been repeatedly held that in order for a loss of an intangible asset to be sustained and to be deductible, there must be (1) an intention on the part of the owner to abandon the asset, and (2) an affirmative act of abandonment. E.g., S.S. White Dental Mfg. Co. v. United States, supra, pp. 121, 122. (We note the decision was written by the late Judge Madden, who, following his retirement from the Court of Claims, sat with distinction as a Senior Judge on our court on many occasions.)
55
Beus v. Commissioner (9 Cir. 1958) 261 F.2d 176, 180, states:
56
'As was held by the Tax Court and as has been held by other courts including the Idaho Supreme Court, there must be a concurrence of the act of abandonment and the intent to do so, both of which may be shown from all the surrounding facts and circumstances. Belridge Oil Co., 11 B.T.A. 127; Talache Mines v. United States, 9 Cir., 218 F.2d 491; Helvering v. Jones, 8 Cir., 120 F.2d 828, 830; Carrington v. Crandall, 65 Idaho 525, 147 P.2d 1009. The mere intention alone to abandon is not, nor is non-use alone, sufficient to accomplish abandonment. It is clear from the evidence in this case that those concurrent conditions which must necessarily exist before abandonment can be effective were not proved by the defendants to have existed in the year 1952, . . .'
57
The government does not comment on Beus in its brief.
58
Talache Mines v. United States (9 Cir. 1954) 218 F.2d 491, 495, 498, cert. denied, 350 U.S. 824, 76 S.Ct. 51, 100 L.Ed. 736 (1955) is further authority in this vein. The government tries to distinguish the case on various grounds and also argues that it is wrong. We think the case was correct, and is a holding requiring an act of abandonment of an asset with intent. Talache and Beus, supra, show that the necessity of an act and intent is the law of this circuit.
59
Two district court cases also reflect the rule in the Ninth Circuit, Hummel v. United States (N.D.Cal.1963) 227 F.Supp. 31, 32-33 states:
60
'It has been held that, where the taxpayer has not relinquished possession of an item, he must prove an 'abandonment', i.e., a concurrence of the act of abandonment and the intent to abandon, both of which must be shown from the surrounding circumstances, of such item in order to determine that a loss has occurred in the year of deducting. Neither mere intention alone nor mere non-use alone, is sufficient to accomplish abandonment. Burke v. C.I.R., 32 T.C. 775 (1959) affirmed, 283 F.2d 487 (9th Cir. 1960); Beus v. C.I.R., 261 F.2d 176, 180 (9th Cir. 1958); Talache v. United States, 218 F.2d 491, 498 (9th Cir. 1954), cert. den. 350 U.S. 824, 76 S.Ct. 51, 100 L.Ed. 736 (1955).'
61
Tanforan Co. v. United States (N.D.Cal.1970) 313 F.Supp. 796, 802-803 states:
62
'Finally, and again alternatively, the deduction is allowable under established principles relating to losses from the physical abandonment of assets.
63
'Traditionally, the loss for physical abandonment has been based on evidence establishing an intent to abandon the asset coupled with some overt act or identifiable event to which the abandonment can be related. As stated by the court in United California Bank v. Commissioner of Internal Revenue, 41 T.C. 437, 451 (1964), aff'd per curiam, 340 F.2d 320 (9th Cir. 1964): 'In order to establish actual physical abandonment, there must be an intention on the part of the owner to abandon the property coupled with an act of abandonment, both to be ascertained from all facts and surrounding circumstances."
64
In addition, the Court of Claims stated as follows in Hazeltine Corp. v. United States (1959) 170 F.Supp. 614, 620, 145 Ct.Cl. 138:
65
'The abandonment of an asset involves an actual intent on the part of the owner to abandon it, plus an act or acts by the owner designed to carry out such intention. Saxlehner v. Eisner & Mendelson Co., 1900, 179 U.S. 19, 31, 21 S.Ct. 7, 45 L.Ed. 60. The element of intent is especially important in considering whether there has been an abandonment. Nieman v. Plough Chemical Co., 6 Cir., 1927, 22 F.2d 73, 76, certiorari denied 277 U.S. 603, 48 S.Ct. 563, 72 L.Ed. 1010.'
66
The government dismisses the Hazeltine case by quoting the statement of the Court of Claims from A.J. Industries, supra, set forth above, which discussed S. S. White and Hazeltine.
67
We note there is not necessarily a conflict between Hazeltine and Minneapolis, etc. R.R., supra (164 Ct.Cl. 226). Minneapolis was a bad debt case and its reliance on Boehm for a worthlessness standard was proper. Hazeltine is an asset case.
68
The taxpayer also cites the following cases to support its contentions: 'Massey-Ferguson, Inc., 59 T.C. No. 22 (1972); United Calif. Bank, 41 T.C. 437, 451-452, Aff'd per curiam 340 F.2d 320 (9th Cir. 1965); George G. Ebner, T.C.Memo. 1958-108, 17 T.C.M. 550, 560-561; Citizens Bank of Weston, 28 T.C. 717 (1957).'
THE GOVERNMENT'S CASES
69
The government cites cases from the Second and Third Circuits which it asserts relied on Boehm in determining the year of loss by abandonment: James Petroleum Corp. v. Commissioner (2 Cir. 1956) 238 F.2d 678, cert. denied, 353 U.S. 910, 77 S.Ct. 667, 1 L.Ed.2d 664 (1957) and Mine Hill & Schuylkill Haven R. Co. v. Smith (3 Cir. 1950) 184 F.2d 422. In Mine Hill, the question was the year of abandonment. The court did not say the loss was sustained because of objective worthlessness but only cited Boehm for the limited proposition that there need not be a coincidence of intention to abandon with the act of abandonment, the act alone being sufficient.
70
James Petroleum, the second case, did not involve an abandonment loss. It concerned oil royalty interests, closely akin to securities. Neither the Tax Court below nor the Third Circuit discussed Treasury Regulation 118, 39.23(e)-3, for the loss was not covered by that section.
71
In the event either case is contrary to our position, we decline to follow them.
72
The government cites cases characterized by taxpayer as the 'Real Estate Cases.' Superior Coal Co. v. Commissioner, 2 T.C.M. 984, affirmed (7 Cir. 1944) 145 F.2d 597, cert. denied, 324 U.S. 864, 65 S.Ct. 913, 89 L.Ed. 1420 (1945); and Helvering v. Gordon (4 Cir. 1943) 134 F.2d 685. There is language in such cases to the effect that the loss can be sustained by worthlessness and that abandonment is not necessary. We agree with taxpayer that the cases are a limited exception to the general rule requiring abandonment in business loss cases.
73
The rationale of the Gordon and Superior Coal cases was that loss of legal title was not prerequisite to a claim for loss from abandonment of a worthless real property asset, but that a taxpayer must not be permitted to postpone the taking of a deduction for the purpose of obtaining a larger saving in tax in later years. This rationale concerning title was adopted by the Commissioner in Revenue Ruling 54-581, 1954-2 C.B. 112, as justification for an admitted deviation from the requirement of Regulation 118, 39.23(e)-3. (See Footnote (6b)).
74
But in any event, the cases involved real property and not an intangible asset as in our case. Neither case attempted to relate its rationale to the express language of 39.23(e)-3.
75
The government cites C-O Two Fire Equipment Co. v. Commissioner (3 Cir. 1955) 219 F.2d 57. The case is not in point. The deduction there claimed was due to obsolescence of inventory. Such a deduction is not governed by 39.23(e)-3.
76
Finally, the government cites Meyer v. Commissioner (8 Cir. 1957), 243 F.2d 262, cert. denied, 355 U.S. 862, 78 S.Ct. 94, 2 L.Ed.2d 68 (1957), holding that a loss in promoting a patent was due to worthlessness. Section 39.23(e)-3 was not cited or discussed in the opinion, nor were the abandonment cases referred to above, cited therein. If the case is contrary to our opinion, we do not choose to follow it.
SUMMARY
77
The district court, in its Conclusions of Law, Nos. 6 through 10, supra, paid lip service to the 1939 and 1954 Regulations cited therein and did not rely on (1) an act of abandonment, and (2) an intent to abandon. Instead, the district court, accepting the government's contentions below, concluded that worthlessness was the main criterion, to be judged by objective standards irrespective of the subjective intent of management. In short, it rejected taxpayer's contention that, based on the regulations and case law, there must exist (1) some act of abandonment, and (2) an intent by the taxpayer to abandon, in order for a loss to be sustained.
78
An analysis of Regulation 118, 39.23(e)-3 of the 1939 Code demonstrates the trial court did not interpret the regulation or base its decision on it. The case law shows it should be followed when a business loss of a capitalized asset is claimed. The Ninth Circuit has clearly held that for a loss by abandonment to occur there must be (1) an act and (2) an intent to abandon. The government's cases are either not in point, poorly reasoned, or from other circuits.
79
Certainly, under the statutory tax scheme, the loss had to occur in a single particular year. The year 1958 was first relied on by the taxpayer, since in that year it adopted a corporate resolution directing its officers to abandon the investment in the mine and write it off its books on December 31, 1958. But the Court of Claims in A.J. Industries, Inc. v. United States, 388 F.2d 701 (1967) held that the mine became worthless prior to 1958.
80
As to the years 1956 and 1957, here in issue, the government contends that Finding No. 92 defeats the taxpayer. It reads, 'The matter of abandoning the mining operation was considered by plaintiff's new management at various times after they acquired office in 1956, but no definitive action was taken until 1958 . . ..'
81
The taxpayer responds that the Court of Claims' decision is only res adjudicata as to the year 1958 and that it held the loss occurred prior to 1958. The fact that 'no definitive action' was taken until 1958 is not fatal to taxpayer in view of the holding that the loss occurred prior to 1958. This left open for the district court to find the year in which (1) an act of abandonment and (2) the intent to abandon occurred.
82
The taxpayer relies on Finding No. 607 to the effect that a majority of taxpayer's board of directors, from 1944 through the early part of 1956, believed that mining could eventually be resumed at the Juneau mine and that the assets should be preserved; and on Finding No. 658 setting forth a letter from the taxpayer's president, dated May 10, 1956 (during the proxy fight with the group that later took over management of plaintiff), justifying the position of the incumbent management in preserving the mine; and on Finding No. 779 showing that in late 1956 the taxpayer gave an option to Caine Steel Co. to the salvage rights to the mine equipment, replacement parts and scrap material in return for $100,000 to be used as a downpayment for the acquisition of the Reynolds Mfg. Company; and Finding No. 7810 stating that in late 1956 or early 1957, Caine Steel Co. assigned its options to Machinery Center, Inc., and that on January 28, 1957, Machinery Center entered into an agreement to salvage the mining and milling equipment, and taxpayer received an additional $100,000 to be used for the acquisition of Reynolds Mfg. Co.
83
Taxpayer thus contends that the findings show the loss did not occur before 1956 but occurred in 1956 or 1957 when '. . . the loss became fixed by an identifiable event in such year; and that there was an intention on the part of the owner to abandon the property.' A.J. Industries, supra, p. 704. We think the plaintiff is correct and that there was no intent to abandon nor any identifiable event prior to mid-1956.
84
The facts were stipulated. We see no need to send the case back to the district court for any further fact-finding on the issue of the year of loss. We think only one conclusion on the issue can be drawn from this record.
85
In 1956 there existed only the option to salvage, which might never have been exercised. But in 1957 a contract for salvage was executed. Thus there existed in 1957 'closed and completed transactions, fixed by identifiable events,' Regulations 1.165-1(b), 'occurring in such taxable year,' Regulation 1.165-1(d) (both 1954 Code). The year 1957 was the year 'the taxpayer discontinue(d) the business or discard(ed) such assets permanently from use in such business' and 'he (the taxpayer) may claim . . . (the) loss for the year in which he (took) such action. . . .' Treasury Regulation 118, 39.23(e)-3 (1939 Code). In 1957 there existed the intent to abandon and the act of abandonment of the business asset (the capitalized development costs). See cases cited, supra.
86
We conclude that the district court misapplied the applicable regulation, ignored the Ninth Circuit cases, and mistakenly relied on Boehm v. Commissioner, supra. In summary, the district court used the wrong criterion to determine the year of loss.
87
The judgment is reversed and the case remanded for entry of a judgment that the loss occurred in 1957. The district court will determine the amount of that loss.
*
Honorable William G. East, Senior United States District Judge, District of Oregon, sitting by designation
1
1954 Internal Revenue Code. 'Reg. 1.165-1 Losses
(a) Allowance of deduction . . ..
(b) Nature of loss allowable. To be allowable as a deduction under section 165(a), a loss must be evidenced by closed and completed transactions, fixed by identifiable events, and, except as otherwise provided in section 165(h) and 1.165-11, relating to disaster losses, actually sustained during the taxable year. Only a bona fide loss is allowable. Substance and not mere form shall govern in determining a deductible loss.
(c) Amount deductible . . ..
(d) Year of deduction. (1) A loss shall be allowed as a deduction under section 165(a) only for the taxable year in which the loss is sustained. For this purpose, a loss shall be treated as sustained during the taxable year in which the loss occurs as evidenced by closed and completed transaction and as fixed by identifiable events occurring in such taxable year. For provisions relating to situations where a loss attributable to a disaster will be treated as sustained in the taxable year immediately preceding the taxable year in which the disaster actually occurred, see section 165(h) and 1.165-11.
(e) Limitation on loss of individuals . . ..'
2
Section 165(a), 1954 Internal Revenue Code (26 U.S.C. 165(a)):
'(a) General rules.-- There shall be allowed as a deduction any loss sustained during the taxable year and not compensated for by insurance or otherwise.
(b) Amount of deduction.-- . . ..
(c) Limitation on losses of individuals.-- . . ..
(d) Wegering losses.-- . . ..
(e) Theft losses.-- . . ..
(f) Capital losses.-- Losses from sales or exchanges of capital . . ..
(g) Worthless securities.-- . . ..'
3
'Treas. Reg. 118, Sec. 39.23(e)-3. LOSS OF USEFUL VALUE.--
(a) When, through some change in business conditions, the usefulness in the business of some or all of the assets is suddenly terminated, so that the taxpayer discontinues the business or discards such assets permanently from use is such business, he may claim as a loss for the year in which he takes such action the difference between the basis (adjusted) and the salvage value of the property. This exception to the rule requiring a sale or other disposition of property in order to establish a loss requires proof of some unforeseen cause by reason of which the property has been prematurely discarded, as, for example, where an increase in the cost or change in the manufacture of any product makes it necessary to abandon such manufacture, to which special machinery is exclusively devoted, or where new legislation directly or indirectly makes the continued profitable use of the property impossible. This exception does not extend to a case where the useful life of property terminates solely as the result of those gradual processes for which depreciation allowances are authorized. It does not apply to inventories. The exception applies to buildings only when they are permanently abandoned or permanently devoted to a radically different use, and to machinery only when its use as such is permanently abandoned . . ..'
4
Treasury Regulation 111, 29.23(e)-1, is the identical predecessor to Treasury Regulation 118, 39.23(e)-3. Both were promulgated under the 1939 Code. Regulation 118, part 39, was promulgated September 26, 1953, and was made applicable to years beginning after December 31, 1951, superseding Regulation 111, part 29, as to such years. (Regulation 118, 18 F.R. 5771.)
5
Reg. 1.165-1(d)(4) (1954 Code):
'(4) The rules of this paragraph are applicable with respect to a casualty or other event which may result in a loss and which occurs after . . . (January 16, 1960.) If the casualty or other event occurs on or before such date, a taxpayer may treat any loss resulting therefrom in accordance with the rules then applicable, or, if he so desires, in accordance with the provisions of this paragraph; but no provision of this paragraph shall be construed to permit a deduction of the same loss or any part thereof in more than one taxable year or to extend the period of limitations within which a claim for credit or refund may be filed under section 6511.'
6
Treasury Regulations on Income Tax (1954 Code) 26 C.F.R.--
'Reg. Sec. 1.165-2. OBSOLESENCE OF NON-DEPRECIABLE PROPERTY.--
(a) ALLOWANCE OF DEDUCTION. A loss incurred in a business or in a transaction entered into for profit and arising from the sudden termination of the usefulness in such business or transaction of any non-depreciable property, in a case where such business or transaction is discontinued or where such property is permanently discarded from use therein, shall be allowed as a deduction under Section 165(a) for the taxable year in which the loss is actually sustained. For this purpose, the taxable year in which the loss is sustained is not necessarily the taxable year in which the overt act of abandonment, or the loss of title to the property, occurs.'
Regulation 1.165-2(a) (1954 Code) was cited in the district court's Conclusion of Law No. 3. It adopted, in the second sentence, the previously unstated exception based on the 'Real Estate Cases,' supra, that delayed formal abandonment or loss of title do not prevent a loss from being sustained with respect to worthless real estate, where there has been a de facto abandonment coupled with an intent to permanently discard property recognized by the taxpayer to be of no further value. That sentence is broad enough to cover the exception referred to, supra, that a taxpayer may not delay taking a loss that has actually occurred in order to receive more favorable tax treatment in a subsequent year. (See Footnote (6b)).
In any event the taxpayer need not rely on Regulation 1.165-2(a), since he is given the right to rely on Regulation 118, 39.23(e)-3 by virtue of the terms of Regulation 1.165-1(d)(4) (1954 Code).
6A The word 'suddenly' was also discussed by Judge Madden in S. S. White Dental Mfg. Co. v. United States (55 F.Supp. 117 at 121, 102 Ct.Cl. 115). The case concerned Treasury Regulation 94, Article 23(e)-3, but it read the same as Treasury Regulation 118, 39.23(e)-3.
Judge Madden concluded, 'We think that the word 'suddenly' in the regulation is satisfied, though it seems to us to be a rather inept word to express the apparent meaning of the regulation.'
6B Treasury Regulation 1.165-2, 1954 Code, in its last sentence, is broad enough to cover this exception. The last sentence reads:
'For this purpose (a deduction for loss) the taxable year in which the loss is sustained is not necessarily the taxable year in which the overt act of abandonment or loss of title to the property occurs.' However, the genesis of the last sentence
However, the genesis of the last sentence held real property assets which had become worthless, but were unable to divest themselves of legal title. These situations led to an exception shown by the Real Estate Cases.' A short summary may be helpful.
In the 1939 Code, Treasury Regulation 118, 39.23(e)-3, covered both depreciable and non-depreciable assets. Following the language covering the allowable loss when 'the taxpayer discontinues the business or discards . . . (the) assets permanently from use . . .' there appears this language:
'This exception to the rule requiring a sale or other disposition of property in order to establish a loss requires proof of some unforeseen cause by reason of which the property has been prematurely discarded . . ..' (See Footnote (3) for text of Regulation.)
In the 1954 Code, non-depreciable property and depreciable property were placed in separate sections. Regulation 1.165-2(a) covered non-depreciable property. (See Footnote (6).) Regulation 1.167(a)-8(4) covered depreciable property. It read:
'Section 1.167(a)-8(4): Where an asset is retired by actual physical abandonment (as, for example, in the case of a building condemned as unfit for further occupancy or other use), loss will be recognized measured by the amount of the adjusted basis of the asset abandoned at the time of such abandonment. In order to qualify for the recognition of loss from physical abandonment, the intent of the taxpayer must be irrevocably to discard the asset so that it will neither be used again by him not retrieved by him for sale, exchange or other disposition.'
It retained the essence of Treasury Regulation 118, 39.23(e)-3, 1939 Code-- abandonment and intent to abandon. Regulation 1.165-2(a), 1954 Code, however, included new language: '. . . the taxable year in which the loss is sustained is not necessarily the taxable year in which the over act of abandonment, or loss of title to the property, occurs.'
A limited exception had been spelled out before the enactment of the 1954 Code. The rule requiring loss of title ('sale or other disposition of property') referred to in Treasury Regulation 118, 39.23(e)-3, supra) worked a hardship on taxpayer whose real property had become worthless and who wanted to abandon it and claim the loss but who could not expeditiously divest himself of title. Thus the 'Real Estate' exception arose.
In such cases the courts adopted the rule that the taxpayer could claim a loss on real estate without being required to divest himself of legal title if he proved by identifiable events that the property had become worthless and that he did not intend to hold it. See, e.g., Denman v. Brumback (6 Cir. 1932) 58 F.2d 128; Rhodes v. Commissioner (6 Cir. 1939) 100 F.2d 966; W. W. Hoffman, 40 B.T.A. 459 (1939), aff'd sub nom. Commissioner v. Hoffman (2 Cir. 1941) 117 F.2d 987; Alice v. Gordon, 46 B.T.A. 1201 (1942), aff'd sub nom. Helvering v. Gordon (4 Cir. 1943) 134 F.2d 685.
In the Denman, Rhodes and Hoffman cases, the courts regarded the taxpayer's conduct as the practical equivalent of abandonment even though title had not been disposed of. In Gordon, the Tax Court cited those cases but held that the loss on real estate occurred by reason of the property becoming worthless and that an abandonment was not required. The taxpayer had done everything within her power to manifest an intent to divest herself of her fractional interest in the subject property, which interest was shown by identifiable events to have become worthless in the year the loss was claimed. It is apparent from the language of the Tax Court's Opinion that in holding that an abandonment was not required, the court was using that term to mean an 'irrevocable loss of title.' (46 B.T.A. at 1210.) The court did not mention the requirements of the existing regulation.
In each of these cases, the taxpayer regarded the property as being worthless and did not intend to preserve or hold it and the court believed the taxpayer should not be denied a loss under such circumstances because of the technicalities of title. There is nothing in the decisions to suggest that the rule was meant to give the government a weapon to deny loss deductions by contending that the taxpayer should have regarded the property as worthless in an earlier year than the one claimed. They do not stand for the proposition that the loss can be sustained at a time when the taxpayer intends to hold and preserve the property because of a bona fide belief that it still has potential value or possible future use.
The reverse of the situation is shown in the case of Superior Coal Co., 2 T.C.M. 984 (1943) aff'd sub nom. Superior Coal Co. v. Commissioner (7 Cir. 1944) 145 F.2d 597, cert. den., 324 U.S. 864, 65 S.Ct. 913, 89 L.Ed. 1420 (1945) where a taxpayer, who regarded his real estate as worthless and did not intend to preserve it for its potential value, used the retention of bare legal title as a device to postpone his intended tax deduction to a later and more favorable year.
There, the taxpayer, an Illinois corporation, claimed a loss for the year 1939 with respect to subsurface coal lands located at two mines in Iowa. Taxpayer had mined coal on the properties until 1927, at which time the court expressly found all mining operations on the premises were 'abandoned' because the taxpayer could mine coal of superior quality more cheaply from the lands it owned in Illinois. In 1929, taxpayer sold its Iowa power plant and all machinery, cars and other equipment which could be dismantled and the equipment was removed by 1931.
The taxpayer did not divest itself of legal title to the coal rights, however, and did not claim a loss with respect to such rights until 1939. Taxpayer contended that it had tried to sell the coal rights during the interim, but in 1939 terminated its selling effort, fixing that year as the year of loss. Accordingly, the court held that the loss was sustained in an earlier year because the coal rights had become worthless before 1939. In reaching such decision, the court did not discuss the existing Treasury Regulations dealing with abandonment losses, but rather relied upon the rule that a loss on real estate does not depend upon a disposition of legal title. The court's only discussion of the law which it applied was as follows (2 T.C.M. at 986):
'It is well settled that the retention of the bare legal title to property does not prevent a taxpayer from taking a deduction in the year in which the property becomes worthless. Alice v. Gordon. It is equally well settled that a taxpayer may not be permitted to postpone the taking of a deduction for a loss actually sustained until a year in which the deduction will result in a larger saving in tax.'
Revenue Ruling 54-581, 1954-2 C.B. 112 was later issued. It acknowledged that Treasury Regulation 118, 39.23(e)-3 'requires that the taxpayer shall have discontinued the business or discarded assets permanently in order to claim an abandonment loss for the year in which he takes such action.' The ruling then goes on to hold that such is not necessarily the rule, in view of the Gordon and Superior Coal cases, supra, quoting the above paragraph from Superior Coal Co. (2 T.C.M. at 986) and concluding:
'Accordingly, it is held that an abandonment loss is deductible only in the taxable year in which it is actually sustained. An abandonment loss which was actually sustained in a taxable year prior to the year in which the overt act of abandonment took place is not allowable as a deduction in the latter taxable year.' (Rev. Ruling 54-581, 1954-2 C.B. 112)
Broader language was used in the 1954 Code in Treasury Regulation 1.165-2(a) (supra, Footnote (6)).
Thus Treasury Regulation 1.165-2(a), 1954 Code, in its last sentence, clearly arose from and refers to the 'Real Estate' exception, but, is broad enough to cover a situation where a taxpayer deliberately fails to claim his loss in the year when there was the intent and the act of abandonment, for the purpose of securing more favorable tax treatment in a later year.
The Tax Court in Superior Coal Company expressly so stated in the excerpt, supra. In Helvering v. Gordon (4 Cir. 1943) 134 F.2d 685 (review of Alice v. Gordon decision in the Tax Court) the court stated that when the loss had taken place earlier '. . . the retention of the bare legal title becomes a circumstance without significance that should not prevent the taxpayer from taking the deduction in the year in which the loss occurs or permit him to postpone it at will to some later year when it will produce a larger reduction of tax liability.' (p. 688)
7
'60. A majority of plaintiff's board of directors from 1944 through the early part of 1956 believed that the price of gold was likely to be increased, and that mining could eventually be resumed at the Juneau mine. It was their policy throughout that period that the Juneau assets should be preserved intact, as far as possible, for a further resumption of operations when conditions improved. Each year after 1944, as the laborforce available became smaller, less maintenance was accomplished and the natural deterioration of the mine increased.'
8
'65. In response to the arguments and contentions of the stockholders Action Committee, incumbent management's proxy materials incuded a letter from plaintiff's president, C. A. Norris, to the stockholders, dated May 10, 1956, which contained the following statement reflecting the policy of the incumbent management:
BACKGROUND OF YOUR COMPANY
The major asset of your Company is the gold mine at Juneau, Alaska, from which we were extracting some 4,200,000 tons of ore annually during the pre-War years, together with a mill with a daily capacity of approximately 14,000 tons of ore. In addition, the Company owns extensive mining equipment and a power system at Juneau which now sells electricity commercially.
During the 15 years of full-scale operation of this mine preceding our entry into World War II, operations were highly successful, and liberal dividends totaling in the aggregate over $14 million were distributed to stockholders in the 12 years ending 1941, after paying off loans of $5 million incurred in developing the mine. The mine was shut down in 1944 because of rising costs brought on by the War. The costs of mining have risen continuously and substantially ever since, while the price of gold remains fixed by government decree at its pre-War level. This has produced a state of depression for the whole gold-mining industry and has had a particularly adverse effect upon our operations, since we depend upon large volume at a low margin of profit.
While it has been evident since the War that the mine could be operated only at a loss under the prevailing economy, nevertheless there has always been some degree of hope for an upward revision of the price of gold. With this possibility ever present, and taking into account the high cost of replacing the mining plant, your Management tenaciously has preserved the mine and mining plant for almost immediate resumption of operations, in the event of the end of the depression for gold.
We cannot forecast when this will occur but through all of the recorded civilization gold has remained one of our most cherished and sought-after commodities. We are confident that eventually gold will come into its own again.
In the meantime, the mine at Juneau represents an asset of little immediate but great potential value. This asset has been preserved intact for the shareholders.
During the years since the mine was closed down dozens of other ventures have been considered to produce new sources of income. Most of these could not be acquired on terms regarded as advantageous to Alaska Juneau or were beyond the ability of your Company, with its limited capital, to finance. Our experience along these lines has convinced us that only by substantially increasing the authorized share capital can your Company be put in a position to bargain seriously for desirable new acquisitions.'
9
'77. To raise the remaining $100,000 to acquire Reynolds, plaintiff, in late 1956, entered into an agreement with Caine Steel Co., of Los Angeles, giving Caine an option on the salvage rights to plaintiff's mine equipment, replacement parts and scrap materials. In return for this option, plaintiff received $100,000 in cash which was used to complete the down payment for the Reynolds acquisition.'
10
'78. In late 1956 or early 1957, Caine Steel Co. assigned its option on plaintiff's salvage rights to Machinery Center, Inc., a Utah corporation. Subsequently, on January 28, 1957, plaintiff and Machinery Center entered into a written agreement appointing Machinery Center as plaintiff's 'exclusive sales agent' on a 'best efforts' basis to dismantle, salvage and sell the Juneau mining and mill equipment. Only the powerplant, dams, powerlines, and other equipment used in its power operation were excepted from this contract. In this agreement plaintiff stated that it realized that the resumption of mining in June was not economically feasible within the foreseeable future. The agreement provided for an advance of $200,000 to plaintiff on its share of the anticipated proceeds from the salvage operation The $100,000 already received by plaintiff in 1956 from Caine Steel Co. was credited against such advance. Plaintiff's purpose in selling the machinery was to raise funds for the acquisition of the Reynolds Manufacturing Company. This agreement was terminated in 1959. Plaintiff entered into negotiations for a new contract to accomplish the sale of the machinery and equipment.'
| {
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ACCEPTED
12-14-00282-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
3/9/2015 12:20:48 PM
CATHY LUSK
CLERK
12-14-00282- CR
12-14-00283-CR
_______________________________________________________________
RECEIVED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE COURT OF APPEALS 3/9/2015 12:20:48 PM
FOR THE TWELFTH JUDICIAL DISTRICT CATHY S. LUSK
TYLER, TEXAS Clerk
3/9/2015
GENEVA DORIS VASQUEZ
V.
The State of Texas
________________________________________________________________
APPEAL FROM THE 159TH JUDICIAL DISTRICT COURT
OF ANGELINA COUNTY, TEXAS
ANDERS BRIEF OF APPELLANT
GENEVA DORIS VASQUEZ
__________________________________________________________________
Respectfully, Submitted:
/s/ John D. Reeves
JOHN D. REEVES
Attorney at law
1007 Grant Ave.
Lufkin, Texas 75901
Phone : 936-632-1609
Fax: (936) 632-1640
SBOT # 16723000
Email. [email protected]
ATTORNEY FOR APPELLANT
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Parties:
Appellant in Trial Court:
Geneva Doris Vasquez
Marlin Unit
TDC # 01960391
801 FM 969
Marlin, Texas 76661
Appellee in Trial Court:
The State of Texas
Trial and Appellate Counsel:
APPEAL:
JOHN D. REEVES TRIAL Rudy Velasquez
Attorney at law Attorney at law
1007 Grant Ave. P.O. Box 308
Lufkin, Texas 75901 Milam, Texas 75969
Phone: (936) 632-1609 Phone: (936) 229-0110
Fax: (936) 632-1640 SBOT# 20540350
SBOT # 16723000
Appellee:
April Ayers-Perez TRIAL Katrina Carswell
Angelina Dist. Attorney Angelina Asst. Dist. Atty
P.O. Box 908 P.O. Box 908
Lufkin, Texas 75901 Lufkin, Texas 75901
Phone: 936-632-5090 Phone: 936 632-5090
SBOT# 01921800 SBOT#: 10482700
ii.
TABLE OF CONTENTS
Page:
IDENTITY OF PARTIES AND COUNSEL…….……………………………..ii
TABLE OF CONTENTS……………………………………………………….iii
INDEX OF AUTHORITIES………………………………………………….iv-v
STATEMENT ON ORAL ARGUMENT. ……………………….……………...1
STATEMENT OF THE CASE…….…………………………………………..2-4
STATEMENT OF JURISDICTION.…………………………………………..4-5
ANDERS ISSUES.……………………………………….………………............5
STATEMENT OF FACTS .................................................................................6-7
SUMMARY OF THE ARGUMENT …….…………………………………….8-9
ARGUMENT…………………………………………………………………10-21
CONCLUSION AND PRAYER………………………………………………..22
CERTIFICATE OF COMPLIANCE………………………………………….....22
CERTIFICATE OF SERVICE………………………………. …………………23
iii.
INDEX OF AUTHORITIES
CASES
SUPREME COURT CASES
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493 (1967)………2
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984)...20
Nero v. Blackburn, 597 F.2d 991, (5th Cir. 1979)………………………………..21
TEXAS CASE LAW
Bessey v. State, 239 S.W.3d 809, (Tex.Crim.App.2007)…………………………15
Caddell v. State, 605 S.W.2d 275, (Tex. Crim. App. 1980)…..…………………12
Cardona v. State, 665 S.W. 2d 492, (Tex. Crim. App. 1984)…….………………10
Cochran v. State, 78 S.W.3d 20, (Tex. App.—Tyler 2002, no pet.)……..……….12
Cole v. State, 578 S.W.2d 127, (Tex. Crim. App. [Panel Op.] 1979)……….……13
Dinkins v. State, 894 S.W.2d 330, (Tex. Crim. App. 1995) …………………… 17
Euler v. State, 158 S.W.3d 88, (Tex. Crim. App. 2007)………………………….20
Ex Parte Delaney, 207 S.W 3d 794, (Tex. Crim. App. 2006)…………………….14
Flournoy v. State, 589 S.W.2d 705, (Tex. Crim. App. 1979)……………………..10
Gutierrez v. State, 108 S.W.3d 304, (Tex. Crim. App. 2003)…………………… 11
Hart v. State, 264 S.W.3d 364, (Tex. App.—Eastland 2008, pet. ref'd)………….12
iv.
Hoskins v. State, 425 S.W 2d 825, (Tex Crim. App. 1968)………………………12
Jackson v. State, 877 S.W.2d 768, (Tex. Crim. App. 1994)………………………21
Ladd v. State, 3 S.W.3d 547, (Tex. Crim. App. 1999) ………………………….. 20
McFarland v. State, 928 S.W. 2d 482, (Tex. Crim. App. 1996)…………………..20
Montgomery v. State, 810 S.W.2d 372, (Tex. Crim. App.1990)…………………18
Moore v. State, 605 S.W.2d 924, (Tex. Crim. App. 1980)……………………….13
Moses v. State, 590 S.W.2d 469, (Tex. Crim. App. 1979)……………………….13
Munoz v. State, 840 S.W.2d 69, (Tex. App.-Corpus Christi 1992, pet. ref'd)……15
Rhoades v. State, 934 S.W.2d 113, (Tex. Crim. App. 1996)……………………..19
Rickels v. State, 202 S.W.3d 759, (Tex. Crim. App. 2006) ……………………...10
Rodriguez v. State, 203 S.W.3d 837, (Tex. Crim. App.2006)……………………18
Seagraves v. State, 342 S.W.3d 176, (Tex. App. 2011)…………………………..16
Young v. State, 8 S.W. 3d 656, (Tex. Crim. App. 2000) ………………………...14
RULES AND OTHER AUTHORITIES
U.S. Const. Amend. VIII; U.S. Const. Amend. XIV…………………………….19
Tex. Code Crim. Proc. Ann. Art 42.12 sec. 23 (b) (West supp. 2014)……………11
Tex. Code Crim. Proc. Art. 26.13 (Vernon’s 2012)……………………...8,11,15-16
Tex .R. App. P. 33.1(a) ……………………………………………………………2
v.
_____________________________________________________________
12-14-00282-CR
12-14-00283-CR
_______________________________________________________________
IN THE COURT OF APPEALS
FOR THE TWELFTH JUDICIAL DISTRICT
TYLER, TEXAS
________________________________________________________________
Geneva Doris Vasquez
V.
The State of Texas
________________________________________________________________
APPEAL FROM THE 159th JUDICIAL DISTRICT COURT
OF ANGELINA COUNTY, TEXAS
ANDERS BRIEF OF APPELLANT
GENEVA DORIS VASQUEZ
TO THE HONORABLE COURT OF APPEALS:
STATEMENT ON ORAL ARGUMENT
APPELLANT WAIVES ORAL ARGUMENT
ANDERS BRIEF OF APPELLANT
TO THE HONORABLE COURT OF APPEALS
COMES NOW, Geneva Doris Vasquez , Appellant, pursuant to Texas Rules of
Appellate Procedure, Rule 33.1 by and through his attorney of record, John D.
Reeves, who respectfully submits this Anders brief for Appellant and would show
as follows: (Anders v. California, 386 U.S. 738, (1967)
STATEMENT OF THE CASE
Appellant pled guilty to an information for the offense of Burglary of a
Habitation on July 18, 2014 in cause 2014-0421, 12-14-00283-CR. (CR Vol. 1 p.
15-18; RR Vol. 2 p. 5-6) The Clerks’ record includes a waiver of rights to
indictment by a Grand Jury. (CR Vol. 1 p. 13-14) The Clerks record includes a
written plea admonishments-waivers- stipulations signed on July 18th, 2014.
(Cause 2014-0421 CR Vol. 1 p. 15-18) In addition, the appellant pled true to
allegations she violated her probation for the offense of Credit Card Abuse on July
18, 2014 in cause 2012-0039. (2012-0039 CR Vol. 1p. 58-59), (Cause 2014-0421)
Sup. CR Vol. 1 p. 6, RR Vol. 2 p.5), The trial court ordered a pre-sentence
investigation and a sentencing hearing was conducted on August 29th, 2014. (RR
Vol. 3) After the sentencing hearing on August 29th, 2014 the appellant was
sentenced in 2012-0039 to two years (2) in the State Jail for offense of Credit Card
Abuse. (Cause 2012-0039, CR Vol. 1 p. 56-57, RR Vol. 3 p. 11-12) (In cause
2.
2014-0421 the appellant was sentenced to fifteen (15) years in the ID-TDCJ for the
offense of burglary of a habitation. The sentences were ordered to run
concurrently. (Cause 2014-0421 CR Vol. 1p. 19-20) RR Vol. 3 p. 11-12) A
corrective judgment revoking community supervision was signed and filed with
the District Clerk on September 3, 2014. (Cause 2012-0039 CR Vol. 1 p. 58-59)
Notice of appeal was filed by trial counsel on September 26th, 2014 in both cases.
(Cause 2014-0421 CR Vol. 1 p. 21)
The trial court signed a trial court certification on July 18, 2004 denying appellant
a right of appeal in cause 2014-0421 prior to the sentencing on August 29, 2014.
(Cause 2014-0421, CR Vol. 1 p. 9) In cause 2012-0039 at the time of the plea on
July 18, 2014 the trial court also signed a trial court certification denying an
appeal. (Cause 2012-0039, CR Vol. 1 p. 50) Thereafter, a sentencing hearing was
conducted on August 29th, 2014. (RR Vol. 3.) The trial court signed a trial court
certification denying appellant’s right to appeal on September 29th, 2014. (Cause
2014-0421, CR Vol. 1 p. 25)(Denying appellant’s right to appeal in cause 2014-
0421 and 2012-0039) By order of this court filed with the Angelina District Clerk
December 4, 2014, the trial court conducted a hearing and made findings of fact
regarding appellant’s right of appeal in each case. (Cause 2012-0039, 2014-0421)
(Sup. CR p. 12-13) Appeal was denied except for sentencing in cause 2012-0039
3.
and 2014-0421. (Sup. CR Vol. 1 p. 12-13) At that time the trial court also
appointed counsel for appellant’s appeal in each case. (Supp. CR p. 14)
Subsequently, in response to this Courts Per Curiam Order on Abatement and
Remand, the trial court signed a recertification of appellant’s right of appeal in
each case. The recertification in each case was filed February 20, 2015. In cause
2012-0039 the court certified the appeal giving the appellant the right of appeal of
the revocation proceeding. (Supp. CR. Vol. 2) The trial court recertified appeal in
cause 2014-0421 with unlimited right of appeal. (Sup. CR Vol. 2) In Cause 2012-
0039 the CR does not include a specific waiver of appeal signed by the appellant
after sentencing on August 29th, 2014. Inappropriate trial court certifications were
entered on September 29, 2014 as set out previously. Counsel was appointed to
pursue appellant’s appeal on December 4, 2014 and file a docketing statement with
the 12th Court of Appeals by December 14th. 2014. (Sup. CR Vol. 1 p. 14) The
order for designation of records was signed by the trial court on October 24th, 2014
for the Clerk’s Record and the Reporter’s Record.
STATEMENT OF JURISDICTION
The trial court recertified appeal which was filed on March 2, 2015 by
supplemental record. A supplemental Trial Court Certification was filed with the
4.
appropriate signatures of the trial court, appellant and appeal Counsel after the
filing of the CR in each cause and after the Clerks filing Supplemental Clerk’s
Record Vol. 1. It should be reflected in Supp. CR Vol. 2
ANDERS ISSUES CONSIDERED
1. Did the trial court abuse its discretion in revoking the appellants
probation after finding appellant violated the terms of her community
supervision in cause 2012-0039, 12-14-00282-CR?
2. Did the appellant waive her right of appeal on guilt/innocence in Cause
2014-0214, 12-14-00283-CR?
3. Is the appellant’s plea of guilty in cause 2014-0421, 12-14-00283- CR,
free and voluntary and were proper admonishments given by the trial
court?
4. Is there error in the admission of State’s exhibit one and was there any
error regarding trial objections?
5. Is the sentence of the trial court in 12-14-00282-CR and 12-14-00283-CR
disproportionate in violation of the Eighth Amendment and Fourteenth
Amendments to the United States Constitution?
6. Did trial counsel provide ineffective assistance?
5.
STATEMENT OF FACTS
The appellant appeared before the trial court in 2012-0039 and 2014-0421
on July 18th, 2014. The record reflects the court addressed 2012-0039 first. (RR
Vol. 2 p. 4) The appellant waived a reading of the State’s motion to revoke. (RR
Vol. 2 p. 5) The appellant entered a plea of true to the allegations she violated
probation. (RR Vol. 2 p. 5) After admonition of the range of punishment in 2014-
0421 the appellant entered a plea of guilty to the offense of burglary of a
habitation. (RR Vol. 2 p. 5-6) The appellant stated her plea of true to the
revocation and plea of guilty to the burglary were free and voluntary. ( RR Vol. 2
p. 6) The appellant admitted she waived her right to a revocation hearing and a
right to a jury trial in the respective matters. ( RR Vol. 2 p. 7) It was announced
there was no plea bargain in either matter. ( RR Vol. 2 p. 8) The trial court ordered
a pre-sentence investigation. (RR Vol. 2 p. 8-9) States exhibit one was offered
without objection. (RR Vol. 4) This exhibit is actually Written Plea Admonishment
in 2012-0039 when appellant pled to the credit card abuse in March 2012, wherein
the appellant agreed to two years for five years probation and a five hundred dollar
fine for the offense of credit card abuse. ( RR Vol. 4 p)
On August 29, 2014 the trial court called both cases. After sorting out the
cases the appellant pled true to the allegations in the Motion to Revoke in the credit
6.
card abuse case and guilty in the burglary of a habitation case and the court
proceeded with the sentencing. ( RR Vol. 3 p. 2-3) The defense objected to the
PSI report and desired to offer evidence. The appellant was called and admitted
she pled true to the allegations she violated her probation and guilty to burglary of
a habitation. ( RR Vol. 3 p. 6-7) She explained that the probation officer who
interviewed her regarding the PSI left some information out of the report. ( RR
Vol. 3 p. 7) The information concerning the appellant was that she is suicidal and
tried to commit suicide “many times in the past.” ( RR Vol. 3 p. 8) She explains
she was raped while in State Jail by three women and the prison officials did
nothing about it. She stated she has attempted suicide approximately ten times. (
RR Vol. 3 p. 8) The appellant was upset because she advised the probation officer
who interviewed her for the PSI report and this information was not included in it.
( RR Vol. 3 p. 8-9) The court made inquiry regarding the appellant’s criminal
history and acknowledged her attempts to commit suicide while in custody on prior
occasions. ( RR Vol. 3 p. 9-10) The trial court sentenced the appellant in 2012-
0039 to two years (2) in the State Jail Division for credit card abuse and to fifteen
(15) years in 2014-0421 in the TDCJ-ID for the offense of Burglary of a
Habitation. ( RR Vol. 3 p. 11-12; CR Vol. 1 p. 19-20)
7.
SUMMARY OF THE ARGUMENT
Six issues are presented as a basis for appeal which is stated in Anders Issues
considered. The first issue is whether the trial court abused its discretion in
revoking appellant’s probation. Counsel believes the trial court did not abuse its
discretion as the appellant pled true to all the allegations contained in the State’s
motion to revoke probation. Further, the appellant admitted at the time of the plea
and at sentencing that the allegations were true. The second issue is whether the
appellant’s right to appeal was waived in regard to her plea of true and guilty.
Appeal attorney believes her right to appeal her plea was not waived in reviewing
the plea waiver and trial court certification signed after sentencing. Appellant
addresses this point in order to address the voluntariness of appellant’s plea The
third issue is whether the appellant’s plea of guilty was entered freely and
voluntarily and whether the trial court properly admonished the appellant? Appeal
counsel finds there is not a properly executed waver and stipulations concerning
her plea of guilty to the entire allegations contained in the State’s Indictment.
Also, appellate counsel finds the trial court improperly admonished the appellant in
regard to her right of appeal. However, counsel does not find this requirement as
necessary in regard to Tex. Code Crim. Proc. Art 26.13. The required admonition
regarding the appellant’s range of punishment in the burglary of a habitation case
8.
was given. The admonition although not required in a revocation proceeding was
given. Counsel finds that appellant’s plea of guilty was free and voluntary and that
appellant was competent. Fourthly, appeal counsel considers the admissibility of
the State’s one exhibit and any error regarding trial objections. Counsel finds the
one exhibit was admitted without objection. There was an objection to the pre
sentence investigation however, trial counsel produced the evidence for the trial
court to consider regarding the appellant’s suicidal tendencies. The one objection
not ruled upon in favor of the defense was not pursued by the defense as a result of
the appellant testifying . Fifthly, counsel considers whether the sentence rendered
by the trial court was disproportionate in violation of the U.S. Constitution. There
was no objection made in the trial court as to the sentence rendered. The trial court
gave a reasoned explanation regarding the sentencing. The sentence in this case is
within the parameters of the Texas Penal Code regarding punishment for a State
Jail felony in regard to 12-14-00282-CR and 12-14-00283-CR. for a second degree
felony. Lastly, appeal counsel considers whether trial counsel was ineffective. The
record reveals trial counsel presented evidence through the appellant at the time of
the pleas in each case and at sentencing. Counsel finds there is no basis on the
record to support ineffective assistance of counsel.
9.
ARGUMENT
1. Did the trial court abuse its discretion in revoking the appellants
probation after finding appellant violated the terms of her community
supervision in cause 2012-0039, 12-14-00282-CR?
In the instant matter the appellant entered a plea of true to the allegations
contained in the State’s amended motion to revoke community supervision. (RR
Vol. 2p. 2, 6) (Cause 2012-0039, CR Vol. 1 p. 47-49) The appellant also signed a
written waiver and consent to stipulation of testimony and stipulation. (CR Vol. 1
p. 51-53) In community supervision revocation cases, the State has the burden to
establish by a preponderance of the evidence that the terms and conditions of
community supervision have been violated. Cardona v. State, 665 S.W.2d 492, 493
(Tex. Crim. App. 1984). The preponderance of the evidence standard is met when
the greater weight of the credible evidence before the trial court supports a
reasonable belief that a condition of community supervision has been violated.
Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim. App. 2006). The trial court
determines if the State has met its burden of proof. If no procedural issue is raised,
the decision whether to revoke community supervision is within the discretion of
the trial court. Flournoy v. State, 589 S.W.2d 705, 708 (Tex. Crim. App. 1979). At
the time of the plea the trial court inquired if the plea of true was free and
10.
voluntary and if there was a waiver of the reading of the allegations. (RR Vol. 2. 6,
7) The trial court admonished the appellant that she had a right to a hearing in
regard to the revocation.( RR Vol. 2 p. 7) However, the trial court wrongly advised
appellant she had waived a right to an appeal ( RR Vol. 2p. 6-7) As this court is
well aware the appellant has the right to appeal the conviction and sentence. (Tex.
Code Crim. Proc. Ann. Art 42.12 sec. 23 (b) (West supp. 2014.)
To consider if the trial courts error regarding an appellant’s right of appeal is
sufficient to rise to establish an abuse of discretion in revoking appellant’s
probation, counsel considers if the error is sufficient. The appellant was
admonished concerning the range of punishment. (RR Vol. 2 p. 4) In Gutierrez v.
State, the court of criminal appeals held that a trial court is only required to
admonish a defendant of the punishment range before he or she pleads guilty to a
felony offense and not before he or she pleads true in a revocation proceeding. 108
S.W.3d 304, 309-10 (Tex. Crim. App. 2003)
("[I]n the context of revocation proceedings, the
legislature . . . has not required the court to inquire as to the
existence of a plea agreement or admonish the defendant
pursuant to 26.13."); see also Aguirre-Mata v. State, 125
S.W.3d 473, 475 (Tex. Crim. App. 2003) (stating that Boykin
v. Alabama, 395 U.S. 238, 89Page 3S. Ct. 1709 (1969),
"clearly did not hold that due process requires the equivalent
of the Article 26.13(a) admonishments or an admonishment on
the range of punishment" to a defendant pleading guilty); cf.
Tex. Code Crim. Proc. Ann. art. 26.13(a) (1) (West 2009 &
11.
Supp. 2014) (stating that before a trial court accepts a guilty
plea or plea of nolo contendere, it shall admonish the
defendant of the range of punishment attached to the offense).
In this matter the trial court advised the appellant of the range of punishment
even though not required. (RR Vol. 2 p. 4) As such the error of the trial court
regarding the right of appeal does not rise to a circumstance as may be found in
regard to a plea of guilty. Appellant finds no basis to address the trial courts error
as it relates to the finding of the plea of true and the sentence imposed by the trial
court. As this court has held, an appeal from an order revoking community
supervision is generally limited to the propriety of the revocation. Hoskins v.
State, 425 S.W 2d 825,828 (Tex Crim. App. 1968)
Appellant now considers the record as it relates to the trial court’s order
revoking community supervision and whether the trial court abused its discretion.
Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980). In the instant
matter the trial court finds several violations of community supervision conditions
as a result of the appellant’s plea of true. (RR Vol. 3 p. 4) The proof of any single
allegation is sufficient. See Hart v. State, 264 S.W.3d 364, 367 (Tex. App.—
Eastland 2008, pet. ref'd); Cochran v. State, 78 S.W.3d 20, 28 (Tex. App.—Tyler
2002, no pet.). In other words, if there is some evidence to support the finding of
12.
even a single violation, the revocation order must be upheld. Cochran, 78 S.W.3d
at 28 (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980). A plea
of "true, " standing alone, is sufficient to support a revocation of community
supervision. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979); Cole v.
State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979) In this matter
appellant’s plea of true is sufficient to find appellant violated the terms of
community supervision as alleged and the trial court did not abuse its discretion.
2.
Did the appellant waive her right of appeal on guilt/innocence in Cause
2014-0214, 12-14-00283-CR?
In this matter the plea was without agreement. (RR Vol. 2 p.8) In order to
consider the second possible issue of the voluntariness of appellant’s entry of her
plea, appeal counsel first considers this issue of waiver of appeal. The appellant
signed a waiver of appeal at the time of her plea in regard to guilt/innocence;
however this was prior to the sentence. The waiver was signed July 18, 2014 and
the sentence was August 29th, 2014. ( Cause 2014-0421 , CR Vol. 1 p. 9,15-18 ;
RR Vol. 2 p.7) The waiver of appeal in the written plea admonishments-waivers-
and stipulations is ineffective. (Cause 2014-0421, CR Vol. 1 p. 15-18) Contained
in this stipulation is “Waiver of right to appeal: If consideration was given by the
13.
State for my plea of guilt or no contest, I knowingly, intelligently, and voluntarily
waive my right to appeal”. (Cause 2014-0421, CR Vol. 1 p. 16) The
admonishments include the waiver of time provided to appeal. CR Vol. 1 p. 16)
additionally, the document contains a paragraph on Permission to Appeal.
Where you plead guilty or nolo contendre (no contest)
with a plea bargain agreement and the punishment assessed
does not exceed the agreement between you and the
prosecutor, the Court must give permission before you can
appeal on any matter in the case except for those matters
raised by written motion filed before trial. Where you plead
guilty or nolo contendre without a plea bargain agreement, all
nonjurisdictional defects, including claimed deprivations of
federal due process, are waived and no appeal may be made.
(CR Vol. 1 p. 15)
In light of Delaney, the waiver as contained in the document is ineffective
as it is prior to the appellant knowing what the punishment would be. ( Ex Parte
Delaney, 207 S.W 3d 794, 797 ( Tex. Crim. App. 2006) In the instant matter as
reflected upon by the court, and pursuant to Young v. State, appellant did not
waive a right to any appeal and thus counsel will consider the voluntariness of the
appellant’s plea. Young v. State, 8 S.W. 3d 656, 666-667 (Tex. Crim. App. 2000)
3.
Is appellant’s plea of guilty free and voluntary and accepted with
proper admonishment to the appellant?
14.
In the instant matter, the appellant was admonished regarding the range of
punishment. (RR Vol. 2 p. 5-6) The appellant stated the plea was entered without
force, threat or abuse and was voluntary. (RR Vol. 2 p. 6) The appellant states she
is pleading guilty because she is. (RR Vol. 2 p. 6-7) The trial court confirmed that
appellant had waived the right to jury trial, appeal, and cross examination of
witnesses among others. (RR Vol. 2 p. 7) The admonition regarding the waiver of
appeal was erroneous. The only exhibit offered was without objection. (RR Vol. 2
p. 9, RR Vol. 4) The exhibit was a copy of the stipulations entered at the time of
the appellant’s original plea in regard to Cause 2012-0039) A pre-sentence
investigation was ordered. (RR Vol. 2 p. 9)
In admonishing the defendant, there must be a determination if the trial court
substantially complied with Tex. Code. Crim. Proc. Ann. Art. 26.13.
A] court's failure to properly admonish a defendant
cannot be forfeited and may be raised for the first time on
appeal unless it is expressly waived.” Bessey v. State, 239
S.W.3d 809, 812 (Tex.Crim.App.2007).
The trial court may make the admonitions either orally or in writing. Tex.
Code Crim. Proc. Ann. art. 26.13(d); Munoz v. State, 840 S.W.2d 69, 75 (Tex.
App.-Corpus Christi 1992, pet. ref'd). The appellant was admonished orally as set
above. (RR Vol. 2 p. 4-8) In addition, as previously set out there was a written plea
15.
admonishments –waivers- stipulations which contained error regarding appellant’s
right of appeal. What is substantial compliance? In Seagraves, the Texarkana
court considered what is substantial compliance regarding required admonitions.
Seagraves v. State , 342 S.W.3d 176 (Tex. App. 2011) The court stated there must
be a affirmative showing that the defendant was not aware of the consequences of
the plea and was “misled or harmed by the admonishment of the court. Seagraves,
supra, at, [342 S.W.3d 183]. Tex. Code Crim. Proc. Ann. art. 26.13(c).
If the trial court substantially complies with Article 26.13,9
the defendant has the burden, under Article 26.13(c), to show
he or she pled guilty without understanding the consequences
of that plea and, consequently, suffered harm. Martinez, 981
S.W.2d at 197; Redd v. State, No. 06–08–00001–CR, 2008
WL 4613805, 2008 Tex. App. LEXIS 7969 (Tex. App.-
Texarkana Oct. 20, 2008, no pet.) (mem. op., not designated
for publication). admonishment is deemed substantial
compliance” with the statutory requirement.
A review of the cases regarding admonishments is generally when the trial
court does not properly admonish the defendant as to the correct range of
punishment or the consequences regarding enhancement paragraphs as shown in
Seagraves, supra. The appellate review is whether there is harmless error. It is to
determine if the error in regard to appeallant’s plea rendered appellant’s plea
involuntary or caused harm to the appellant.
Martinez v. State, 981 S.W. 2d 195, 196 (Tex. Crim. App.
16.
1998), and Gonzales v. State, 746 S.W.2d 902 (Tex. App.-
Corpus Christi 1988, no pet.) (citing Weekley v. State, 594
S.W.2d 96 (Tex. Crim. App. [Panel Op.] 1980) The Court of
Criminal Appeals has consistently applied this standard. High
v. State, 964 S.W.2d at 638; Cain v. State, 947 S.W.2d 262,
264 (Tex.Crim.App.1997).
Appeal counsel cannot direct this Honorable court to the record which
provides appellant did not understand the consequence of her plea and was misled
and harmed as a result of the trial courts error regarding appellant’s appeal rights.
Tex. Code. Crim. Procedure art. 26.13 does not address an admonishment
regarding appeal. In addition, appellant testified in punishment that she violated
her probation and committed the offense of burglary of a habitation. (RR Vol. 3 p.
7) The appellant admitted when first questioned that she pled guilty to the
burglary of habitation without force, threat, abuse and voluntarily. ( (RR Vol. 2 p.
6)
4.
Is there error in the admission of State’s exhibit one and was there any
error regarding trial objections?
State’s exhibit one was admitted without objection. (RR Vol. 2 p. 8-9)
Generally, it is held that a timely objection must be made in order to preserve an
17.
error in the admission of evidence. Dinkins v. State, 894 S.W.2d 330, 355 (Tex.
Crim. App. 1995) After review of the record only one objection was made by trial
counsel in the sentencing. (RR Vol. 4 p. 5) As was stated by counsel is the
objection that appellant had a history of attempting suicide. (RR Vol. 4 p. 7-9) The
one objection that was not ruled upon by the trial court as defense counsel did not
pursue it -as he made a record of the testimony he wanted included in the pre
sentence report. There being no basis for arguing an erroneous admission of either
State’s exhibit one or the lone objection to the pre-sentence report, appellate
counsel does not reach an issue of whether the substantial rights of the appellant
were disregarded. In viewing the trial court’s decision to admit or exclude evidence
and whether there was an abuse of discretion it is generally been determined that
the trial court is in the best position to decide questions of admissibility, and will
be upheld if a trial court's decision to admit or exclude evidence is "within the zone
of reasonable disagreement” when reviewed under an abuse of discretion standard.
Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App.2006); Montgomery v.
State, 810 S.W.2d 372, 390-91 (Tex. Crim. App.1990). Appeal counsel believes
there was no preserved error regarding the exhibit or the objection by defense
counsel regarding the PSI. As such, appeal counsel finds no harm in relation to the
record to subvert the substantial right of the appellant to require a reversal of the
18.
trial courts sentence.
5.
Was the trial court’s sentence of two years State Jail in cause 12-14-00283-
CR and fifteen (15) years in cause 12-14-00283-CR a disproportionate
sentence in violation of the Eighth Amendment and Fourteenth Amendments
to the United States Constitution? (U.S. Const. Amend. VIII; U.S. Const.
Amend. XIV.)
The sentence of two years State Jail in 12-14-00282-CR is within the penalty
range of a State Jail felony in the State of Texas. The sentence of fifteen years in
the ID-TDCJ in 12-14-00283-CR is within the penalty range of a second degree
felony in the State of Texas. In this matter there was no objection to the trial court
concerning the sentence in either case. There was no allegation or complaint that
the sentence is grossly disproportionate, constituting cruel and unusual
punishment, and as such the error if any was not preserved for review. See, Tex
.R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 119-20 (Tex. Crim. App.
1996). The trial court explained his rationale for the sentenced assessed. (RR Vol.
3 p. 8-12) Here, after the trial court announced its sentence at the punishment
hearing and appellant made no objection to the trial court about the punishment
assessed and did not assert her claim under the Eighth Amendment and the Texas
Constitution in the trial court. (RR Vol. 3 p. 11-12) The trial court explained that it
19.
gave due consideration to the criminal history and history of suicide attempts. (RR
p. 11-12) Appeal counsel believes appellant has waived her cruel and unusual
punishment complaint. See Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App.
1999) There is no evidence that the appellant‘s sentencing process did not provide
fundamental fairness. U.S. Const., Amend XIV. Euler v. State, 158 S.W. 3d 88, 91
(Tex. Crim. App. 2007) Fundamental fairness requires that an accused receive a
fair trial. In the instant matter, the appellant’s testified to her history of suicide
attempts while in the Texas Department of Criminal Justice and her complaint
regarding the department not investigating properly. (RR Vol. 3 p. 8-10)
6.
Was trial counsel’s representation ineffective?
The standard promulgated in Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 674 (1984) requires a two step analysis. First it requires a
demonstration that trial counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms. To satisfy this requirement
appellant must identify the acts or omissions of counsel alleged to be ineffective
assistance and affirmatively prove that they fell below the professional norm of
reasonableness. McFarland v. State, 928 S.W. 2d 482, 500 (Tex. Crim. App. 1996)
This Honorable court then will judge a claim of ineffectiveness based on the
20.
totality of the representation. Strickland, supra, 466 U.S. at 695-96, 104 S. Ct. at
2069. The presumption is that trial counsel was effective. See, Jackson v. State,
877 S.W.2d 768,771 (Tex. Crim. App. 1994). Trial counsel did present evidence
through the appellant’s testimony. The appellant was the only witness. As stated by
trial counsel the appellant wanted the trial court to become aware of her history of
suicide. Trial counsel was in error regarding the right of appellant to appeal each
case but did file a notice of appeal. Appeal counsel finds no basis to determine trial
counsel’s strategy or to ascertain of what value it might have been to call or not to
call other witnesses. The appellant’s testimony as set out previously supports the
facts of the indictment the appellant pled guilty to. The appellant’s testimony
supports her plea of true to the allegations she violated probation. Appeal counsel
does not find support from the record to argue “but for” trial counsels decisions in
the sentencing hearing there would have been a different result. In reviewing the
totality of trial counsel’s representation and presentation of evidence as considered
above- the record does not present evidence of trial counsel falling below the
objective standard of reasonableness and professional norms. Strickland, supra.
Further, appellant counsel does not find a single egregious error or omission that
will constitute ineffective assistance. Nero v. Blackburn, 597 F.2d 991, 994 (5th
Cir. 1979) As such, appellate counsel offers this Anders Brief.
21.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant’s counsel respectfully
requests, as relief, that he be allowed to withdraw as this appeal is frivolous and so
advise Appellant so that she may pursue a pro se brief if he so desires, or
alternatively to appoint other counsel for Appellant in the prosecution of this
appeal.
Respectfully considered,
/s/John D. Reeves
_______________________
JOHN D. REEVES
Attorney at law
1007 Grant St.
Lufkin, Texas 75901
Phone: (936) 632-1609
Fax: (936) 632-1640
SBOT # 16723000
Email: [email protected]
ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
I, John D. Reeves Counsel for appellant hereby certify that this brief exclusive of
the rule provisions that do not provide counting contains 4,137 words.
/s/John D. Reeves
_______________________
John D. Reeves
22.
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Appellant’s
Brief on 9th day of March, 2015 been forwarded to the State’s Counsel, April
Ayers, Perez, Assistant District Attorney of Angelina County , by E filing.
/s/John D. Reeves
_______________________
John D. Reeves
Attorney for Appellant
Geneva Doris Vasquez
23.
| {
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IN THE COURT OF APPEALS OF IOWA
No. 17-1896
Filed February 20, 2019
DOMINIC CLESTER,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Mark J. Smith,
Judge.
Dominic Clester appeals the district court’s dismissal of his application for
postconviction relief. REVERSED AND REMANDED.
Timothy J. Tupper of Tupper Law Firm, Davenport, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee State.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
2
TABOR, Judge.
Dominic Clester appeals the district court’s dismissal of his application for
postconviction relief (PCR). The court dismissed the PCR application as a
sanction for appointed counsel’s failure to comply with its order to compel a
response to the State’s discovery requests. Because the court made no finding
Clester’s noncompliance was due to willfulness, bad faith, or fault, we reverse the
dismissal of his PCR application.
I. Background Facts and Proceedings.
In May 2015, Clester pleaded guilty to second-degree robbery and second-
degree burglary. At his plea hearing, the twenty-three-year-old advised the district
court he was taking three prescription medications: one antipsychotic and two for
seizures. As a factual basis for his guilty plea, Clester admitted a woman asked
him to leave her apartment and he instead assaulted her with the intent to commit
a theft. The district court sentenced Clester to indeterminate terms of ten years
and twenty-five years, to be served consecutively.
In December 2016, Clester filed a PCR application as a self-represented
litigant. The court appointed an attorney to represent Clester. In March 2017, that
attorney filed an amended application, alleging trial counsel was ineffective in three
ways: (1) by failing to fully investigate the case, leaving Clester to plead guilty
based on inaccurate information; (2) by failing to fully investigate the possibility of
a diminished-capacity defense based on Clester’s “extreme intoxication at the time
of this offense as well as [his] numerous mental health issues”; and (3) by failing
to fully investigate whether second-degree robbery and first-degree burglary were
subject to the merger doctrine.
3
The State answered Clester’s petition the following day. On April 4, the
State filed its notice of discovery: six interrogatories, including a request Clester
sign a waiver allowing the State to access his medical records from the Muscatine
County Jail. The PCR court set trial for November 1, 2017, requiring all written
discovery be served no later than ninety days before trial—a deadline falling on
August 3.
By July 1, Clester and his PCR attorney had yet to respond to the State’s
discovery requests. So the State filed a motion to compel asking the court to
require Clester to respond to the interrogatories within thirty days. The State’s
motion went unresisted.1 On July 24, the court granted the State’s motion to
compel, giving Clester until August 11 to answer the State’s interrogatories and
sign the medical waiver.
August 11 came and went, and the State still had not heard from Clester.
On August 13, the State filed a motion to dismiss Clester’s PCR application as a
sanction for his failure to comply with discovery. The State’s motion again went
unresisted. So on September 5, the PCR court granted the State’s motion to
dismiss.2
Two weeks later, PCR counsel filed a motion to reconsider asking the court
to reinstate Clester’s application. Counsel assured the court the failure to respond
1
Clester’s counsel stated he “did not file a resistance to [the State’s motion to compel]
since [counsel] was aware that the State was entitled to the responses.”
2
The court’s order was terse:
The State, by and through County Attorney Alan Ostergren, has
filed a motion to dismiss for failure to answer interrogatories on or before
August 11, 2017[,] as previously ordered by the court. No resistance has
been filed by the applicant. After review of the file, the court finds that the
State’s motion should be and is hereby granted. Court costs are assessed
against the applicant.
4
to the State’s interrogatories fell “solely on [his] shoulders” and was not his client’s
fault. Counsel pointed to his “extreme workload” in explaining his
unresponsiveness. Counsel filed a response to the interrogatories on October 15.
The State resisted reinstatement of the application.
Ten days later, the court denied Clester’s motion, providing this analysis:
To say the least, the [c]ourt is more than a little frustrated with
applicant’s counsel in failing to respond to either the motion to
compel or the request for dismissal due to failure to abide by the
discovery rules. Counsel’s claim of excessive caseload, given the
time between the first [m]otion to [c]ompel and the dismissal is no
excuse. Answers to [i]nterrogatories[,] which are mere conclusions
and contain little factual information[,] were not filed until October 15,
2017. The State has still not received the medical waiver it requested
to allow them to review applicant’s medical records.
Clester appeals the dismissal of his application.
II. Scope and Standards of Review.
In general, we review PCR proceedings for the correction of errors at law.
Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010). But we apply an abuse-of-
discretion standard to a district court’s imposition of discovery sanctions.3 Lawson
3
In discussing the standard of review, the State frames the question as whether the court
abused its discretion in finding “counsel failed to provide good cause for reinstatement.”
But the State does not return to the good-cause standard in the merits section of its brief;
instead it discusses whether the court abused its discretion in dismissing the application
as a discovery sanction. In the district court, both parties referred to “setting aside the
default judgment.” While the district court did not expressly enter a default judgment, its
dismissal of the action encompasses that remedy. See Aldrich v. San Fernando Valley
Lumber Co., 216 Cal. Rptr. 300, 306 (Dist. Ct. App. 1985) (“It is apparent that an order of
dismissal entered for failure to comply with an order compelling answers to interrogatories
is the practical equivalent of a default judgment.”); see also 12 Barry A. Lindahl, Iowa
Practice Series: Civil & Appellate Procedure § 40:1 (May 2018 Update) (“An involuntary
dismissal is an adjudication on the merits whether it states that it is with or without
prejudice. Thus, . . . where a petition has been dismissed for failure to produce
documents, such dismissal is involuntary and constitutes an adjudication on the merits for
purposes relating to application of the doctrine of res judicata.”). Still, the issue before us
is whether the court abused its discretion in dismissing Clester’s PCR application as a
sanction for counsel’s noncompliance with a discovery order.
5
v. Kurtzhals, 792 N.W.2d 251, 258 (Iowa 2010). A court abuses its discretion when
its ruling rests upon grounds clearly unreasonable or untenable. Id. Generally, we
only find an abuse of discretion in the imposition of discovery sanctions “where
there is a lack of substantial evidence to support the trial court’s ruling.” Wagner
v. Miller, 555 N.W.2d 246, 249 (Iowa Ct. App. 2005).
But “because the sanctions of dismissal and default judgment preclude a
trial on the merits, the range of the trial court’s discretion to impose such sanctions
is narrow.” In re Marriage of Williams, 595 N.W.2d 126, 129 (Iowa 1999). Given
the severity of dismissal and default, the court must find noncompliance was a
result of willfulness, fault, or bad faith before imposing either sanction. Marovec v.
PMX Indus., 693 N.W.2d 779, 778 (Iowa 2005).
III. Analysis
Clester’s argument recognizes the parties in a PCR action have available
“[a]ll rules and statutes applicable in civil proceedings including pretrial and
discovery procedures.” Iowa Code § 822.7 (2017); see Nuzum v. State, 300
N.W.2d 131, 132–33 (Iowa 1981) (“Rules and statutes governing the conduct of
civil proceedings are applicable to postconviction proceedings.”). But Clester
insists the district court went too far in dismissing his PCR application as a
discovery sanction when his appointed counsel was solely to blame for the
noncompliance.4 Although he does not overtly raise a constitutional claim, Clester
4
Clester does not argue PCR trial counsel provided ineffective assistance. If he had, he
could have asserted structural error. Cf. Villa Magana v. State, 908 N.W.2d 255, 259
(Iowa 2018) (finding structural error where PCR counsel “failed to take necessary action
to prevent [a] client’s application from being dismissed” for want of prosecution because
the attorney’s inaction resulted in dismissal of the application absent consideration on the
merits or meaningful adversarial testing—a constructive denial of counsel); Lado v. State,
804 N.W.2d 248, 252–53 (Iowa 2011) (finding structural error where counsel failed to seek
6
asserts, “[F]undamental fairness requires appropriate sanctions, short of dismissal
or default, be applied to [his] postconviction counsel and that the underlying
postconviction matter be reinstated.”
The district court acted under Iowa Rule of Civil Procedure 1.517, dealing
with the consequences for discovery violations. If, after the court grants a motion
to compel discovery, a party fails to serve answers to interrogatories, the court may
“make such orders in regard to the failure as are just,” including dismissal or entry
of default against the offending party. Iowa R. Civ. P. 1.517(2)(b)(3). And in the
appropriate circumstances, “dismissal or default may be visited upon [clients]
because of the actions of their lawyers.” See Kendall/Hunt Pub. Co. v. Rowe, 424
N.W.2d 235, 241 (Iowa 1988). But dismissal under those circumstances must be
the “rare judicial act.” Id. (quoting Edgar v. Slaughter, 548 F.2d 770, 773 (8th Cir.
1977) (“When noncompliance is the result of dilatory conduct by counsel, the
courts should investigate the attorney’s responsibility as an officer of the court and,
if appropriate, impose on the client sanctions less extreme than dismissal or
default, unless it is shown that the client is deliberately or in bad faith failing to
comply with the court’s order.”)). The Eighth Circuit emphasized, “[I]n our system
of justice the opportunity to be heard is a litigant’s most precious right and should
be sparingly denied.” Edgar, 548 F.2d at 773.
a continuance to “prevent dismissal under Iowa Rule of Civil Procedure 1.944”). Because
we find dismissal was an abuse of discretion, we need not reach the question whether an
appellate court may sua sponte consider whether a PCR dismissal constitutes structural
error. See Villa Magana, 908 N.W.2d at 260 (bypassing general error preservation rules
and opining PCR applicant “should not suffer the consequences” from his appellate
counsel not raising Lado issue until the reply brief).
7
The State defends the dismissal as an appropriate remedy “[d]espite its
stark nature.” The State cites Mott v. State, where a panel of our court reversed a
default judgment against a PCR applicant who failed to appear for trial. See No.
12-1293, 2013 WL 5962908, at *1 (Iowa Ct. App. Nov. 6, 2013). In dicta, our court
noted, “Our findings today should not be construed to indicate a default judgment
is never available in postconviction proceedings. A default judgment may be a
proper remedy in some situations.” Id. at *1 n.3. But the State does not point us
to any of those situations. Nor did our search lead us to any Iowa case upholding
the dismissal of a PCR application as a discovery sanction based on the dilatory
actions of appointed counsel.
We did find precedent disfavoring default when the roles were reversed and
the State failed to comply with the rules of civil procedure. For instance, in
Furgison v. State, the PCR applicant sought a default judgment based on the
State’s failure to respond to his original filing within thirty days. 217 N.W.2d 613,
617 (Iowa 1974). The supreme court acknowledged the PCR chapter incorporated
the rules of civil procedure but hedged: “Even so, such a collateral review of
criminal judgments should be tailored to the purpose thereof without
characterization as criminal or civil. It must encompass some attributes of each
where appropriate to the objective, at the same time eliminating those
inappropriate to the remedial process.” Id.
The Furgison court found the PCR chapter revealed no provision
“specifically or inferentially” allowing for a default judgment in the event the State
failed to respond to an application within the timeframe allowed under the rules of
civil procedure. Id. at 618. Because the State’s noncompliance could not “breathe
8
life into an otherwise meritless application,” the Furgison court held, “[D]efault
procedures are inconsistent with and would serve no useful purpose in our
postconviction review process.” Id.; see also Thomas v. State Bd. of Parole, 220
N.W.2d 874, 877 (Iowa 1974) (upholding extension of time for State to respond to
PCR application, noting intent of PCR procedure “appears to be to get at the merits
of the controversy” and observing “situation is not akin to a private suit on a note
in which the plaintiff is entitled to his judgment if the defendant defaults”).
Of course, the consequences differ when a default judgment is entered in
the State’s favor. Clester’s convictions are not upended based solely on dilatory
conduct by a county attorney in responding to what may be a meritless application.
But at the same time, if—as our supreme court intuited—the legislature designed
chapter 822 to “get at the merits of the controversy,” that design should likewise
shield Clester from a default judgment based solely on the dilatory conduct of his
court-appointed counsel. Rather than breathing life into what may be an otherwise
meritless application, default judgment here suffocates what may have been a
meritorious application.
Even assuming a default judgment may in some rare set of circumstances
be appropriate to sanction a PCR applicant’s failure to comply with the State’s
discovery requests, the record does not support that extreme result in Clester’s
situation. See Troendle v. Hanson, 570 N.W.2d 753, 755 (Iowa 1997) (requiring
substantial evidence in support of factual findings necessary to district court’s
exercise of discretion). In arguing dismissal was justified, the State relies on
Krueger v. Cannon, where our court upheld the dismissal of a legal malpractice
action based on counsel’s unresponsiveness and abuse of the discovery process.
9
See No. 03-0127, 2004 WL 242913, at *1 (Iowa Ct. App. Feb. 11, 2004). But
Krueger is distinguishable—there, the district court explicitly found noncompliance
was “deliberat[e], without cause, and lacking good faith,” further noting the party,
through its counsel, found the “whole discovery process as too burdensome and
unnecessary.’” Cf. id. The PCR court here made no such finding about Clester—
instead, it merely expressed frustration with “applicant’s counsel in failing to
respond” and deemed counsel’s claim of “excessive caseload” as “no excuse.”
Our supreme court has justified holding clients responsible for the
noncompliance of their attorneys, at least in part, because civil litigants generally
choose their own lawyers and may seek recourse for a lawyer’s negligence
through a malpractice action. E.g., Troendle, 570 N.W.2d at 756–57 (“Plaintiffs
placed their case in the hands of their attorney and must bear responsibility for his
actions in the conduct of their case.”); Krugman v. Palmer Coll. Of Chiropractic,
422 N.W.2d 470, 475 (Iowa 1988) (“We regret that the sanction in this case visits
the sins of counsel on his client. But ‘a litigant chooses counsel at his peril, and
here, as in countless other contexts, counsel’s disregard of his professional
responsibilities can lead to extinction of his client’s claim.’” (quoting Cline Forty–
Second St. Theatre v. Allied Artists, 602 F.2d 1062, 1068 (2d Cir. 1979))).
But that rationale doesn’t fit indigent PCR applicants who rely on appointed
counsel. Clester did not choose his attorney.5 And his attorney took full
responsibility for the dereliction of duty. Under these circumstances, the district
5
And Clester likely could not file a malpractice claim against his postconviction counsel
unless he obtained relief from his convictions. See Kraklio v. Simmons, 909 N.W.2d 427,
436 (Iowa 2018) (explaining “claim for legal malpractice arising from a criminal case does
not accrue until relief from a conviction is obtained”).
10
court should have considered whether a sanction less drastic than dismissal would
have been more just and effective. See Kendall/Hunt Pub. Co., 424 N.W.2d at
241 (quoting Edgar, 548 F.2d at 773)); see also Phan v. Morrow, 60 P.3d 1111,
1113 (Or. Ct. App. 2003) (“While the trial court could, on proper determination,
have held petitioner’s counsel in contempt for noncompliance with the scheduling
order, we are unaware of any authority under [Oregon law] allowing the court to
visit the sins of petitioner’s court-appointed counsel on his client.”).
In addition to overlooking lesser sanctions, the PCR court failed to make the
necessary finding for dismissal. The dismissal order does not conclude Clester’s
noncompliance with the State’s discovery requests resulted from willfulness, fault,
or bad faith. The absence of that finding constitutes an abuse of discretion. See
2049 Grp. Ltd. v. Galt Sand Co., 526 N.W.2d 876, 878 (Iowa Ct. App. 1994).
IV. Conclusion.
Absent a finding of willfulness, fault, or bad faith, it was an abuse of
discretion to dismiss Clester’s PCR application on this record. Accordingly, we
reverse the dismissal order and reinstate Clester’s application. We remand for
further proceedings consistent with this opinion.
REVERSED AND REMANDED.
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519 F.2d 1399
McGheev.Lucas
74-1524
UNITED STATES COURT OF APPEALS Fourth Circuit
4/25/75
1
W.D.Va.
AFFIRMED
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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE: PETITION FOR PERMISSION TO : No. 196 MM 2014
EMPANEL SECOND INDICTING GRAND :
JURY :
:
:
PETITION OF: HON. JAMES P. :
MACELREE, II PRESIDENT JUDGE OF :
CHESTER COUNTY :
ORDER
PER CURIAM
AND NOW, this 24th day of February, 2015, the Petition to Empanel Second
Indicting Grand Jury is GRANTED.
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} |
240 F.Supp.2d 8 (2003)
UNITED STATES of America ex rel. Sara ORTEGA, Plaintiff,
v.
COLUMBIA HEALTHCARE, INC., et al. Defendants.
No. 99CV3305(RCL).
United States District Court, District of Columbia.
January 15, 2003.
*10 Robert P. Trout, Amy Berman Jackson, John Thorpe Richards, Jr., Trout & Richards, PLLC, Washington, Thomas A. Spieczny, El Paso, TX, for Relator.
Roger S. Goldman, Jennifer C. Archie, Alice S. Fisher, Latham & Watkins, Washington, DC, Walter P. Loughlin, Latham & Watkins, New York City, for Defendants.
Michael F. Hertz, Joyce R. Branda, Jonathan L. Diesenhaus, J. Chris Larson, Civil Division, U.S. Department of Justice, Washington, DC, for U.S.
MEMORANDUM OPINION
LAMBERTH, District Judge.
This case comes before the Court on motions practice seeking the dismissal of Relator's complaint. The United States filed a motion to dismiss [40], Relator opposed [122] and sought leave to file under seal [125] (which HCA opposed [172]), and the United States replied [142].[1] Relators in other cases pending before this Court filed statements of interest. Relator Thompson filed a memorandum In support of the government's motion [133], as did Relator King [148]; Relator Ortega responded [182], and Thompson replied [190]. King sought leave to respond to Thompson's reply [369]; Thompson then sought leave to respond [412] to King's statement. Defendant HCA also filed a motion to dismiss [82], Relator responded [145] and sought leave to file her opposition under seal [151], HCA replied [183], and the United States filed a statement of interest [202]. After a settlement was negotiated with respect to various cases in this MDL, the United States filed a motion to expedite consideration of pending suggestions of dismissal [739] on first-to-file grounds in four cases, to assist in apportioning the settlement proceeds.
Upon consideration of the case, the parties' motions and responses, and the law, the United States' motion to dismiss will be granted; its motion to expedite will be granted as to this case. HCA's[2] motion to dismiss will be granted. Thompson and King will be granted leave to file responses. Relator's motions to file under seal will be denied.
I. Background
This case is part of the multi-district litigation of False Claims Act qui tam suits against HCA and various related entities. The United States seeks dismissal of kickback allegations in this case under the first-to-file bar of the False Claims Act (FCA), 31 U.S.C. § 3730(b)(5). Once a qui tam suit has been filed under the FCA, the first-to-file bar prohibits any subsequent *11 would-be relator from filing a case based on the same underlying facts.
Relator filed this suit under seal June 8, 1995 in the Western District of Texas, alleging that HCA-owned Columbia Medical Center West, an El Paso hospital, fraudulently procured certification from the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) and that such fraud excluded it from participation in Medicare, rendering claims submitted for Medicare reimbursement false. The original complaint also contained a brief allegation that defendants engaged in fraudulent accounting practices by booking costs from the Rehabilitation Center to the Back Care Center to raise the base for Medicare funding. On December 18, 1997, Relator filed a first amended complaint, which added two additional allegations. First, Relator outlined a scheme of illegal kickbacks to physicians for referrals. Second, she alleged improper upcoding of treatments to inflate the compensation received from Medicare; the upcoding allegations have been settled and Relator will receive $250,194 from the settlement.
After reviewing the complaints, the United States intervened in the kickback, cost shifting, and upcoding claims of the first amended complaint on September 30, 1998, leaving Relator to pursue the JCHO certification claim on her own. As noted, the upcoding claims were settled. The United States withdrew its intervention as to the specific allegation of cost shifting, and Relator and HCA subsequently stipulated to a dismissal of the cost shifting claim. The United States filed a suggestion of dismissal of the kickback claims on the ground that complaints predating Relator's first amended described alleged the same kickback scheme. HCA filed a motion to dismiss, asserting in addition to the first-to-file bar that the complaint does not plead fraud with particularity, and that JCAHO accreditation is not a prerequisite to participation in Medicare and therefore the allegedly fraudulently procured certification would not have affected the government's decision to pay claims submitted to it.
II. First-to-File Bar of 31 U.S.C. § 3730(b)(5)
A. Legal Analysis of § 3730(b)(5)
In crafting the FCA, Congress prohibited certain suits, divesting courts of jurisdiction over them. At issue here is the provision in 31 U.S.C. § 3730(b)(5), which states in its entirety: "When a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action." If an action "based on the facts underlying" a pending case comes before a court, it must dismiss the later-filed case for lack of jurisdiction. See United States ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1186 (9th Cir.2001) (referring to a § 3730(b)(5) challenge as "jurisdictional"); United States ex rel. Capella v. United Techs. Corp., 1999 WL 464536 at *8 (D.Conn.1999) ("Section 3730(b)(5) acts as a jurisdictional bar to a qui tam action."); see also Capella, 1999 WL 464536 at *4 ("[A]n action must be dismissed for lack of subject matter jurisdiction when a federal court lacks the ... statutory authority to adjudicate the case.").[3]
*12 Section 3730(b)(5) sets up an "exceptionfree, first-to-file bar." Lujan v. Hughes Aircraft Co., 243 F.3d at 1183; see also Erickson ex. rel. United States v. Am. Inst, of Biological Sci, 716 F.Supp. 908, 918 (E.D.Va.1989) ("The qui tam complaint filed first blocks subsequent qui tam suits based on the same underlying facts."). The question turns, then, on what constitutes a § 3730(b)(5) proscribed "related action based on the facts underlying the pending action." Litigants have advanced to the courts, and this case is no exception, two different theories on the meaning of this provision. Hopeful wouldbe relators urge that the test should be whether the later-filed complaint relies on facts identical to those asserted in the first complaint, while defendants advocate a broader "material facts" analysis.
The "identical facts" test fails under both the language and the policy the FCA. Section 3730(b)(5) refers to "related" actions and "underlying" facts, language inconsistent with the rigid precision of an identical facts test. Further, permitting infinitely fine distinctions among complaints has the practical effect of dividing the bounty among more and more relators, thereby reducing the incentive to come forward with information on wrongdoing. This is inconsistent with the FCA's purpose of encouraging whistleblowers to approach the government and file suit as early as possible. United States ex rel. LaCorte v. SmithKline Beecham Clinical Labs., Inc. 149 F.3d 227, 234 (3d Cir.1998). Therefore, courts have rejected the identical facts test and held that the later-filed case is barred if it relies on the same underlying facts as the first case.
While no material facts test has been uniformly adopted among the courts, most courts agree on the same basic elements. Some courts have approached the comparison between two cases as a search for "the same material facts." LaCorte, 149 F.3d at 234; Lujan, 243 F.3d at 1189. Another court expressed the standard as barring claims that "the defendant engaged in the same type of wrongdoing as that claimed in a prior action," Capella, 1999 WL 464536 at *9. The Erickson court adopted this two-part test: "A subsequently filed qui tarn suit may continue only to the extent that it is (a) based on facts different from those alleged in the prior suits and (b) gives rise to separate and distinct recovery by the government." Erickson ex rel. United States v. Am. Inst, of Biological Sci, 716 F.Supp. 908, 918 (E.D.Va. 1989). The court in United States ex rel. Capella v. United Technologies Corp., 1999 WL 464536 at *9 (D.Conn.1999), adopted a similar test, holding that a later claim is barred unless "(1) it alleges a different type of wrongdoing, based on different material facts than those alleged in the earlier suit; and (2) it gives rise to a separate recovery of actual damages by the government."[4]
*13 The Court will not adopt either the Erickson or Capella tests wholesale, but will combine them into the following test: A later-filed qui tarn complaint is barred unless (1) it alleges a different type of wrongdoing, based on different material facts than those alleged in the earlier suit; and (2) it gives rise to separate and distinct recovery by the government. Capella supplies the first element. The Court does not adopt Capella's second element because its use of the phrase "actual damages" clouds rather than clarifies the issue. Under the False Claims Act, the government may recover a civil penalty of not less than $5,000 or more than $10,000 for each false claim submitted to it, in addition to three times the damages it sustained. 31 U.S.C. § 3729(a). Thus, actual damages are only one element of the government's recovery, and an examination of whether the government will have a separate recovery under a later-filed suit should take all possible forms of recovery into account.[5] The first element of the inquiry-the material facts analysis-is the most important; an examination of possible recovery merely aids in the determination of whether the later-filed complaint alleges a different type of wrongdoing on new and different material facts.
If the later-filed complaint alleges the same type of wrongdoing as the first, and the first adequately alleges a broad scheme encompassing the time and location of the later filed, the fact that the later complaint describes a different time period or geographic location that could theoretically lead to a separate recovery does not save it from the absolute first-tofile bar of § 3730(b)(5). See Palladino ex rel. United States v. VNA of S. New Jersey, Inc., 68 F.Supp.2d 455, 478-79 (D.N.J.1999) (finding a broad allegation in a complaint describing misconduct in Philadelphia sufficient to preempt a later complaint focusing on Runnemede, New Jersey). This is because "such duplicative claims do not help reduce fraud or return funds to the federal fisc, since once the government knows the essential facts of a fraudulent scheme, it has enough information to discover related frauds." United States ex rel. LaCorte v. SmithKline Beecham Clinical Labs., Inc., 149 F.3d 227, 234 (3d Cir.1998). The strictures of Rule 9(b) limit the preclusive effect of the firstfiled complaint to claims that can be pleaded with particularity, thus obviating the danger of opportunistic relators filing unsupported placeholder complaints for the sole purpose of preemption. Id.
Relator advances two arguments on the interpretation of § 3730(b)(5) that need to be addressed. First, she argues that the government's September 1998 intervention cured § 3730(b)(5)'s first-to-file bar because § 3730(b)(5) should be interpreted *14 in tandem with § 3730(e)(3). Section 3730(e)(3) prohibits the bringing of an action based on allegations or transactions the subject of a civil suit or administrative proceeding in which the government is already a party, and therefore (under Relator's reading) kicks in only after the government has intervened in an FCA suit. Thus, she concludes, because the government intervened in her action before it intervened in Thompson's or King's, Relator's complaint was the first-filed. This torturous reading is unwarranted by the plain language of § 3730(b)(5). The inclusion of both provisions in § 3730 is somewhat confusing; it is unclear what § 3730(e)(3) adds to seemingly broader § 3730(b)(5) in the case of a qui tam suit. See Capella, 1999 WL 464536 at *8 n. 4 (observing the debate over the distinction between the two provisions). However, there is no indication that § 3730(e)(3) was intended to limit the application of § 3730(b)(5); the simple language of § 3730(b)(5) in no way implicates government intervention as a significant fact. Indeed, subsection (b) is captioned "Actions by private persons," and § 3730(b)(5) refers to the "person" bringing the first action, providing further indication that government intervention is irrelevant to the application of § 3730(b)(5). The Court rejects Relator's suggestion that the date of government intervention is the relevant date for determining which would-be relator was first-to-file. The date the complaint is filed with the court is the date on which it is brought for purposes of § 3730(b)(5). See 31 U.S.C. § 3730(b)(5) ("When a person brings an action under this subsection, no person ... may ... bring a related action ...." (emphasis added)).
Second, Relator asserts that her December 18, 1997 amended complaint should relate back to the June 8, 1995 filing date for her original complaint, which-she argues-would put her back at the front of the line ahead of Thompson and King.[6] She emphasizes that § 3730(b)(5) states that no person may "bring" an action, but does not prohibit an amendment to a complaint that adds an allegation made in an earlier-filed suit. While she is literally correct that the language of § 3730(b)(5) makes no reference to amendment, it is clearly outside the intent and purpose of § 3730(b)(5) to permit relation back. Section 3730(b)(5) sets up an absolute, first-to-file bar. Amendment does not provide a back door to avoid this exception-free bar.
Moreover, Rule 15, on which Relator relies, does not support her argument that the kickback claims added in her first amended complaint should date back to the date of her original complaint. The relevant portion of Rule 15 permits relation back if "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." FED. R. CIV. P. 15(c)(2).[7] This standard applies to FCA claims. See United States ex rel. Colunga v. Hercules Inc., 1998 WL 310481 (D.Utah *15 1998); United States ex rel. Costa v. Baker & Taylor, Inc., 1998 WL 230979 (N.D.Cal. 1998). Relator's original complaint contained allegations only as to JCAHO certification and cost-shifting from the Rehabilitation Center to the Back Care Center. The kickback claims added in the first amended complaint did not arise from the same "conduct, transaction, or occurrence." The JCAHO and cost-shifting claims involve distinct facts and allegations from the kickback claims. Therefore, the kickback claims do not relate back to the filing date of the original complaint, but were brought, for purposes of § 3730(b)(5), on December 18, 1997. See, e.g., Safir v. Blackwell, 579 F.2d 742, 745 (2d Cir.1978) (not permitting relation back of an amendment adding an FCA claim where the claim did not arise out of the subject matter of the original complaint).
B. Factual Analysis of Relator's, Thompson's and King's Complaints
The only evidence needed to determine if a complaint is barred by § 3730(b)(5)'s first-to-file rule is the complaints themselves. LaCorte, 149 F.3d at 235 n. 6. Because the bar is absolute and across-the-board, no background evidence is relevant to the inquiry. Therefore, Relator's request for an evidentiary hearing is denied.[8] Relator claims that the court "cannot look at the timing of her amended complaint in a vacuum," Relator's Opposition to Government's Motion to Dismiss [122] at 20, but that is exactly what it must do. The Court will examine Relator's complaint and compare it with those of Thompson and King to determine if Relator's complaint would require proof of a "distinct set of facts" from the Thompson and King complaints. Capella, 1999 WL 464536 at *10. If not, and the complaints rest on the same material facts, then Relator's complaint is barred by § 3730(b)(5). If so, the Court will then consider whether Relator's complaint would give rise to a separate recovery for the government.
The kickback claim added in Relator's December 18, 1997 First Amended Complaint alleges several types of impermissible kickback behavior: (1) giving physicians limited partnership status interest in hospital ownership, calculated according to referral rate; (2) providing medical directorships compensated according to referral rate; and (3) providing free or reduced rent, recruiting services, hunting and fishing trips, and other travel. Ortega First Amend. Compl. at ¶ 7. The behavior is alleged to have occurred at Columbia Medical Center West, an El Paso Hospital owned in whole or in part by Columbia HCA Corporation, Sun Towers/Vista Hills Holding Company, El Paso Healthcare Systems Limited, and El Paso Healthcare Equities, Inc.
Relator James M. Thompson, whose case is before this Court under Civil Action No. 99-3302, filed his original complaint under seal on March 10, 1995 in the Southern District of Texas. The original complaint describes that kickbacks to induce referrals were provided "in the Corpus *16 Christi Division of the Southern District of Texas as well as elsewhere" in the form of opportunities to obtain equity interests in HCA hospitals or healthcare organizations; loans; consultation fees used to guarantee physicians' capital interests in HCA; free or reduced rent on office space; free or reduced rate vacations, hunting trips, fishing trips, and other recreational activities; free or reduced rate medical training; income guarantees; and superior or exclusive rights to perform procedures in HCA facilities. Thompson Orig. Compl. at ¶ 26. Thompson's second amended complaint, filed November 1995, alleges kickbacks were paid "in the Corpus Christi Division of the Southern District of Texas as well as elsewhere," and added the following forms of kickback behavior to its earlier allegations: paying consultation fees, rent, or other moneys to induce referrals, and making payments to physicians based on the amount of business provided to HCA. Thompson Second Amend. Compl. ¶ 32. The second amended complaint includes allegations that Thompson spoke with physicians from other areas, including Houston, Fort Worth, and Miami, who allegedly stated that the same types of kickbacks were provided in their areas; on this basis Thompson alleged that kickbacks were given "at other such localities," in addition to the Corpus Christi specific complaints. Id. ¶¶ 69-70.[9]
Relator Gary Lee King, whose case is pending before this Court under Civil Action No. 99-3306, filed his complaint in July 1996 in the Western District of Texas. The complaint names Columbia/HCA Healthcare Corporation and El Paso Healthcare Systems, Ltd. as defendants. King was employed at Columbia Medical Center East, King Orig. Compl. at ¶ 12. Most of the allegations relate to behavior on the the part of El Paso Healthcare Systems (EPHS), an entity that owns both Columbia Medical Center East, where King worked, and Columbia Medical Center West, Ortega's former place of employment and the subject of her qui tam complaint. The complaint alleges, inter alia, that EPHS conducted illegal physician recruitment, that physicians had partnership interests in healthcare entities to which they referred patients, that EPHS overpaid physicians for the value of partnerships when the physicians withdrew, that physicians were leased office space at below-market rates, that loans were made to physicians on which payments and delinquency were excused, that physicians and their family members were provided with free or discounted medical service, and that physicians were given discounts and price waivers for laboratory services. See King Orig. Compl. ¶¶ 34-51. These benefits to doctors were allegedly given to induce referrals. Id. at Part B: Fraudulent Referral Inducements. King included a count titled "Illegal Practices at Other Columbia Locations," alleging that HCA "illegally induced patient referrals to various other Columbia entities around the country," citing instances in Virginia and Florida. Id. ¶¶ 52-54.
Both Thompson and King, then alleged kickback behavior similar to that alleged by Relator, that various benefits were provided to doctors in exchange for referrals. While the list of benefits might vary slightly, the scheme is the same. Both Thompson and King were filed before Relator's First Amended Complaint added the kickback allegations. Relator's complaint fails the first part of the test. It fails to allege a different type of wrongdoing, based on *17 different material facts than those alleged in the earlier suit. The same type of wrongdoing is alleged in Relator's, Thompson's, and King's complaints. The material facts are the same.
Relator tries to save her complaint because the allegations are made as to the El Paso Columbia Medical Center West hospital, which is not specifically mentioned in either Thompson's or King's complaint. However, a variation in geographic location is not the type of "material fact" that will protect a complaint from § 3730(b)(5)'s first-to-file bar. Palladino v. VNA of S. New Jersey, Inc., 68 F.Supp.2d 455, 478-79 (D.N.J.1999) (finding a broad allegation in a complaint describing misconduct in Philadelphia sufficient to preempt a later complaint focusing on Runnemede, New Jersey). Moreover, even if this were not the case, Relator's specific location would indeed be specifically preempted by King's inclusion of EPHS, an entity that owns both Columbia Medical Center West and Columbia Medical Center East, as a defendant. A comparison with either Thompson or King reveals that Relator was not the first to file the kickback allegations contained in her First Amended Complaint, and those allegations are therefore barred by 31 U.S.C. § 3730(b)(5).[10]
III. JCAHO Claims
After the United States moved to dismiss Relator's kickback claims on first-to-file grounds, HCA filed a motion to dismiss Relator's complaint. As to the kickback claims, HCA agreed with the government that they were barred by the first-to-file rule. Relator's other live claim is that HCA fraudulently obtained JCAHO certification.[11] In her complaint, Relator explains that that she, along with other employees, was asked to falsify minutes and records of meetings to reflect that certain discussions had taken place-when in fact they had not-that were necessary to fulfill JCAHO requirements. Relator asserts that JCAHO certification is a prerequisite for participation in Medicare. Fraudulently obtaining certification, Relator argues, renders Medicare claims fraudulent because such claims impliedly certify compliance with Medicare regulations, including JCAHO certification. HCA argues that JCAHO certification is not a prerequisite to participation in Medicare, and that fraudulently obtaining JCAHO certification would not affect the government's decision to pay, the essential element of an implied certification case. Furthermore, HCA argues, Relator's claims do not meet the heightened pleading requirements of Rule 9(b), which mandates that claims of fraud be plead with particularity.
A. Pleading Fraud with Particularity
Rule 9(b) requires the circumstances constituting fraud to be stated with particularity. *18 HCA argues that Relator's complaint did not state her JCAHO claim with particularity, because it does not articulate exactly what information from the minutes was false or contrived, that Relator does not identify the relationship between the false minutes and the results of the accreditation survey, and that Relator does not give the particulars of the allegedly false claims submitted by HCA. The purpose of Rule 9(b) is to ensure that defendants have sufficient notice of the claims against them to prepare a defense.[12] The Fourth Circuit has counseled in the context of the FCA, "A court should hesitate to dismiss a complaint under Rule 9(b) if the court is satisfied (1) that the defendant has been made aware of the particular circumstances for which she will have to prepare a defense at trial, and (2) that plaintiff has substantial prediscovery evidence of those facts." Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir.1999). The D.C. Circuit has taken a generous approach to pleadings. This approach is exemplified in Sparrow v. United Air Lines, Inc., 216 F.3d 1111 (D.C.Cir. 2000), which holds that a complaint is not deficient even if it fails to set out a prima facie case as an initial matter. Sparrow, 216 F.3d at 1113, 1114. While Sparrow notes that Rule 9(b) requires more particularity than Rule 8, which governed Sparrow, id. at 1118, Rule 9(b) does not completely vitiate the liberality of Rule 8. See United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1385-86 (D.C.Cir.1981).
The D.C. Circuit addressed how Rule 9(b) applies to qui tam cases in United States ex rel. Totten v. Bombardier Corp., 286 F.3d 542, 551-52 (D.C.Cir.2002). The court noted that under 9(b) the circumstances that must be pleaded with specificity include " `time, place, and contents of the false representations.'" Id. at 552 (citations and emphasis omitted). The relator in that case had alleged only that non-conforming goods had been delivered, not that the defendants had made false claims as a result of delivery of the nonconforming goods. Id. at 551. The court ruled that the relator "must set forth an adequate factual basis for his allegations that the Contractors submitted false claims ..., including a more detailed description of the specific falsehoods that are the basis for his suit." Id. at 552.
Here, the description of the fraudulent scheme is sufficiently specific. Relator alleges that minutes were falsified in order to receive JCAHO certification. She lists the names of the committees whose minutes were falsified, Ortega First Amend. Compl. ¶ 12, the names of those involved in the falsification, id., and describes individual instances in which the minutes were falsified. Id. ¶¶ 13-14. However, Relator's First Amended Complaint suffers from the same deficiency as that in Totten. Presumably, Relator's theory is that all claims for Medicare reimbursement that were submitted while the hospital was holding a fraudulently obtained JCAHO certification were tainted with that fraud. However, this theory does not appear in her complaint. The complaint lays out the fraudulent scheme, but fails to take the final step of connecting it with claims for payment. Relator "must aver that the defendants actually submitted false demands for payment." Totten, 286 F.3d at 544 (emphasis original). The ordinary remedy for this sort of *19 deficiency is to allow cure of such a pleading flaw by amendment. Id. at 546. However, as in Totten, this would be futile, as Relator's JCAHO certification theory is insufficient to state a claim under the FCA.[13]
B. JCAHO Certification and the Decision to Pay
The FCA does not provide a remedy for every violation of a statute or regulation. It applies "only if compliance with the statutes or regulations was a prerequisite to gaining a benefit, and the defendant affirmatively certified such compliance." Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 787 (4th Cir.1999). Such compliance may be impliedly certified, "but only where certification was a prerequisite to the government action sought." United States ex rel. Siewick v. Jamieson Sci. & Eng'g, Inc., 214 F.3d 1372, 1376 (D.C.Cir.2000). That is, recovery may be had under the FCA for an implied certification where if the government had known of the violation when presented with the claim for payment, it would not have paid the claim. Relator urges that JCAHO certification is a prerequisite to participation in Medicare. Thus, the logic goes, if a hospital's JCAHO accreditation is fraudulently obtained, it is essentially non-accredited, and therefore ineligible to participate in Medicare, and the government would not pay the claims submitted by an ineligible provider if it knew the true situation.
HCA contests that JCAHO certification is required to participate in Medicare. As the parties explain, the Medicare regulations provide myriad conditions and requirements, running from dietetic services to infection control. 42 C.F.R. §§ 482.1 et seq., 489.10. To participate, a healthcare entity must be in compliance with all of these. 42 C.F.R. 488.3(a). However, the federal government does not monitor compliance with the conditions. Instead, the regulations provide various means through which providers can be deemed in compliance with the regulations and eligible to participate in Medicare. The entities authorized to determine compliance include private national accreditation programs, 42 C.F.R. § 488.6, states, 42 C.F.R. § 488.10, and JCAHO and the American Osteopathic Association, 42 C.F.R. 488.5(a). Thus, while JCAHO accreditation automatically confers eligibility to participate in Medicare, it is not a prerequisite. The government will pay a claim submitted by a provider that is not JCAHO-accredited; it follows that lack of proper JCAHO certification would not affect the government's decision to pay in the sense required by the False Claims Act. This is further supported by the Center for Medicare and Medicaid Services' State Operations Manual, which provides that when a hospital loses its JCAHO certification, the state agency is to schedule a survey and recertify the institution, rather than providing for automatic disqualification. See Centers for Medicare & Medicaid Services, State Operations Manual § 2022, available at http://cms.hhs.gov/ manuals/pub07pdf/part-02.pdf.
Relator argues that even if JCAHO certification itself is not a prerequisite, HCA could not have received accreditation through any means had it not falsified the minutes, because the compliance standard is the same regardless of the accreditation method. This is an appealing argument, but one that has no basis in the language *20 of Relator's First Amended Complaint. Moreover, the Court must return to the mandate that the FCA does not provide a remedy for every regulatory violation. Siewick, 214 F.3d at 1376. The implied certification theory creates an expansive reading of the FCA. While this reading-to which the Court adheres-is not unwarranted, and furthers the statute's purpose of uncovering fraud against the United States, it is not infinitely expansive. Compliance with the Medicare laws and the regulations promulgated under them is a requirement to participate in Medicare, JCAHO certification is not. If Relator's allegations are true, the government is unlikely to take a sanguine view of HCA's behavior, and consequences will likely follow. However, liability under the FCA will not be one of those consequences.
IV. Relator's Motions to File Under Seal
Relator filed two motions, [125] and [151], seeking leave to file various of her responses under seal. The responses describe the procedural history of the case, including the time period when the complaint was under seal. See 31 U.S.C. § 3730(b)(2),(3) (requiring a qui tam, complaint to be filed under seal to permit the government to evaluate that allegations and determine whether it will intervene). The basis of the motions is Relator's belief that these portions of the record remain sealed. HCA opposed the motions [172], arguing that it is entitled to analyze the documents and use them in presenting its argument that § 3730(b)(5) deprives the Court of subject matter jurisdiction over Relator's complaint.
To the extent any part of this case remains under seal, that seal will be vacated. The United States filed an application to unseal the case on December 1, 2000 [99ms432 # 94], which the Court granted [99ms432 #141]. The government's December 2000 motion sought unsealing of "this proceeding and the complaints in the cases that are a part of it," but requested that all other pleadings filed while the case was under seal remain under seal. The Court's order unsealed the complaints and prospectively unsealed future proceedings in the case, but maintained previous proceedings under seal. In the present case, the United States did not file a position on HCA's opposition to Relator's motion to file under seal, nor did Relator file a reply noting any dissent to HCA's suggestion that the Court unseal previous proceedings in this case. There appears to the Court no reason to maintain any portion of this case under seal. The United States' criminal investigation into the HCA matters has been concluded, and the parties are on the eve of settlement with regard to the kickback claims. Therefore, the seal remaining on proceedings prior to December 14, 2000 will be vacated, and Relator's motions to file under seal will be denied.
Because the motions to file under seal are denied, HCA is entitled to receive unredacted versions of Relator's filings. HCA may file a motion for reconsideration with this Court if the information contained in the unredacted motions affords it new avenues for relief. However, because HCA's motion to dismiss is granted by the order accompanying this memorandum opinion, the Court hopes it will show forbearance in this matter.
V. Conclusion
Relator's complaint will be dismissed with prejudice in its entirety.[14] The kick *21 back portion of the complaint is barred by the Thompson and King complaints under the first-to-file rule of § 3730(b)(5). The JCAHO allegations do not state a claim under the FCA, because JCAHO certification is not a prerequisite to participation in Medicare, and thus defective JCAHO certification would not affect the government's decision to pay Medicare claims. The United States' motion to dismiss [40] will be granted as to Count I and denied as moot as to Count III. HCA's motion to dismiss [82] will be granted as to Counts I and II and denied as moot as to Count III. Relator's motions to file memoranda under seal, [125] and [151], will be denied, and the seal on proceedings prior to December 14, 2000 in this case will be vacated. James M. Thompson's motion for leave to respond [412] will be granted, as will Gary Lee King's [369]. The United States' Motion to Expedite [739] will be granted as to this case.
NOTES
[1] The United States also filed a notice of withdrawal of intervention as to specific allegations in Count III, which Relator opposed, arguing that once it intervened the United States could not withdraw. This dispute was mooted when Relator and HCA reached a settlement as to Count III and stipulated to its dismissal.
[2] The Court will refer to defendants collectively as "HCA."
[3] While an earlier decision examining § 3730(b)(5), which was added in 1986, hazarded an opinion that it was not jurisdictional, that remark was dicta and has not been adopted by any court facing the question. See United States ex rel. Dorsey v. Dr. Warren E. Smith Community Mental Health/Mental Retardation & Substance Abuse Centers, 1997 WL 381761 at *2 n. 3 (E.D.Pa.1997).
[4] Capella applied this test taking into consideration whether a host-parasite relationship existed between the two complaints, in which the later suit "receives support or advantage without offering any useful or proper return." Capella, 1999 WL 464536 at * 9. This standard was derived from cases analyzing § 3730(e)(3), prohibiting suits based on allegations or transactions already the subject of a civil suit or administrative proceeding in which the government is a party. This analysis is inapposite. The relationship between the first and second suits is irrelevant. It is highly possible, as in United Slates ex rel. Dorsey v. Dr. Warren E. Smith Community Mental Health/Mental Retardation & Substance Abuse Centers, 1997 WL 381761 (E.D.Pa.1997), that the second to file could be a witness in the first qui tarn case and provide valuable assistance in its prosecution. In such a situation, the second relator (and his complaint) would not be parasitic, but would still be barred.
[5] This is particularly true for certain types of implied certification cases. In several kickback cases now pending before this Court, for example, it is alleged that HCA violated the anti-kickback and Stark laws, which prohibit remuneration to physicians for patient referral. Compliance with these laws is a condition for reimbursement under Medicare, and HCA and other defendants impliedly certified compliance with these law in submitting claims to Medicare. In such cases, if the allegations can be proven, even if the services for which claims were submitted were medically necessary and properly provided, there were violations of the FCA. The courts examining these types of claims have acknowledged that actual damages may be difficult to determine and prove, but that will not affect the application of the statutory penalty provisions. See generally United States ex rel. Pogue v. American Healthcorp, Inc., 238 F.Supp.2d 258 (D.D.C.2002); United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 20 F.Supp.2d 1017, 1047 (S.D.Tex. 1998); United States ex rel. Pogue v. American Healthcorp, Inc., 914 F.Supp. 1507 (M.D.Tenn.1996).
[6] This is a dubious proposition. What's good for the goose is good for the gander, and if Relator's amendment were to relate back to her original filing date, so would Thompson's amendments date back to his original filing date-which precedes Relator's by two months.
[7] The other two relation-back provisions of Rule 15(c) have no application here. Rule 15(c)(1) permits relation back when permitted by the applicable statute of limitations. The FCA statute of limitations makes no mention of relation back. 31 U.S.C. § 3731(b); see also United States ex rel. Colunga v. Hercules Inc., 1998 WL 310481 at *2 (D.Utah 1998). Rule 15(c)(3) relates to the naming of parties and is similarly inapplicable here.
[8] In her briefing, Relator advances several reasons why she should be permitted to maintain her suit (and her chance of receiving a bounty), including that her cooperation predated the filing of Thompson's amended complaint incorporating broad kickback allegations, and that her cooperation began before King's cooperation. She asserts that her suit is not parasitic of Thompson's or King's. Her responses are rich with indignation and resonate with the implication that because her cooperation was freely and generously given to the government, she deserves to share in any recovery against HCA on these issues. While the Court commends Relator for her true spirit of public service in assisting the government in uncovering and prosecuting the alleged fraud, none of these circumstances are relevant to a § 3730(b)(5) analysis.
[9] The Southern District of Texas has examined Thompson's kickback claims, as embodied in his Fourth Amended Complaint, and found them sufficient to state a claim under the Stark and Anti-Kickback laws See United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 20 F.Supp.2d 1017 (S.D.Tex.1998).
[10] Thompson and King took the filing of the United States' motion to dismiss as an opportunity to battle over whether one of their complaints will likewise be barred by § 3730(b)(5). That issue is not before the Court. Cf. United States ex rel. LaCorte v. SmithKline Beecham Clinical Labs., Inc., 149 F.3d 227, 237 (3d Cir.1998) (noting that a would-be relator had no standing to test the priority among earlier-filed complaints). Therefore, at this time the Court observes only that either complaint is sufficient to bar Relator's, and makes no further determination. Because they contain information useful to the decision of the issue before it, the Court will grant Thompson and King leave to file their various replies.
[11] HCA's opposition seems to confuse a court order with a claim of privilege. It states, "There is no reason proffered to withhold procedural information about the procedural history of the case," and goes on to discuss privilege. A statutory provision or court order sealing a case is certainly reason enough to withhold information, lest the attorney revealing the information be subject to contempt.
[12] Other policy reasons behind Rule 9(b) are "to discourage meritless fraud accusations, to prevent serious damage to the reputation of the defending party from baseless claims, and to deter claimants from adding broad fraud allegations to induce advantageous settlements." Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 73 (D.D.C.2002). The parties have not indicated that these policies are implicated here.
[13] After settlement of an upcoding claim in 2001, stipulated dismissal of the cost-shifting claim, and dismissal on first-to-file grounds of the kickback claim, the JCAHO claim is all that remains.
[14] The complaint will be dismissed without prejudice against the government, which is not subject to the constraints of § 3730(b)(5).
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Filed
Washington State
Court of Appeals
Division Two
May 17, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46002-5-II
Respondent, PUBLISHED OPINION
v.
GUADALUPE SOLIS-DIAZ,
Appellant.
BJORGEN, C.J — Guadalupe Solis-Diaz, tried and sentenced as an adult for crimes
committed while a juvenile, appeals his sentence of 1,111 months (92.6 years) in prison on six
counts of first degree assault with firearm enhancements, one count of drive-by shooting, and
one count of unlawful possession of a firearm. Solis-Diaz argues, and the State concedes, that
the sentencing court erred by refusing to consider whether application of the multiple offense
policy warranted an exceptional downward sentence. He also argues that the trial court erred by
refusing to consider his youth as a mitigating factor and by imposing a 1,111-month prison term
on a juvenile offender in violation of constitutional prohibitions on cruel and unusual
punishment. Finally, Solis-Diaz asks us to disqualify the sentencing judge from hearing the case
No. 46002-5-II
if we remand for resentencing, arguing that the judge’s statements at the previous sentencing
hearing created the appearance of bias.
We agree with Solis-Diaz that the sentencing court erred by failing to consider an
exceptional sentence below the standard range in mitigation of consecutive sentences imposed
under the multiple offense policy. We also hold that the sentencing court erred by failing to
consider Solis-Diaz’s age as a basis for a sentence below the standard range. Accordingly, we
vacate Solis-Diaz’s sentence and remand for resentencing. On remand, the sentencing court
must conduct a meaningful, individualized inquiry into whether Solis-Diaz’s youth should
mitigate his sentence. Because we remand on other grounds, we do not consider whether Solis-
Diaz’s sentence violates the constitutional prohibitions on cruel and unusual punishment. We
decline to mandate the sentencing judge’s disqualification, but we acknowledge that Solis-Diaz
is free to move for disqualification on remand.
FACTS
Solis-Diaz was 16 years old in 2007, when he participated in a gang related drive-by
shooting in Centralia. He was charged with six counts of first degree assault, each with a firearm
sentencing enhancement; one count of drive-by shooting; and one count of second degree
unlawful possession of a firearm. He was tried as an adult pursuant to former RCW
13.04.030(1)(e)(v)(A) (2005) and former RCW 9.94A.030(46)(v) (2006). The jury found him
guilty on all counts, and the trial court imposed a standard-range sentence of 1,111 months in
prison. Judge Nelson Hunt presided over the original sentencing.
Solis-Diaz brought a personal restraint petition challenging his sentence in this court. In
an unpublished opinion, we reversed the sentence for ineffective assistance of counsel and
2
No. 46002-5-II
remanded for resentencing. In re Pers. Restraint of Diaz, 170 Wn. App. 1039, 2012 WL
5348865, *1 (2012). Among the grounds for concluding that Solis-Diaz received ineffective
assistance was his counsel’s failure to properly inform the trial court that Solis-Diaz’s case was
automatically declined to adult court. Id. We did not decide whether a 1,111-month fixed term
sentence violated the federal constitutional prohibition of cruel and unusual punishment or the
state constitutional prohibition of cruel punishment.
Judge Hunt also presided over the resentencing. Solis-Diaz requested an exceptional
downward sentence on grounds that the multiple offense policy of the Sentencing Reform Act of
19811 (SRA) operated to impose a clearly excessive sentence and that Solis-Diaz’s age indicated
diminished capacity to understand the wrongfulness and consequences of his actions. Judge
Hunt denied the request and again imposed a standard-range sentence of 1,111 months in prison.
In making his ruling, Judge Hunt “ha[d] some comments to make about the finding that
[Solis-Diaz’s counsel at the original sentencing] was ineffective.” Report of Proceedings (RP) at
34. He called the reasoning underlying our holding
an insult to all the trial judges in this state. To postulate that a judge would be so
ignorant, lazy or stupid as to not know or inquire at some point why this 17-year-
old was in adult court is incredible to me.
....
In my case, it’s particularly insulting as [counsel] well understood my
background, which consists of 17 years in prosecution, nine years in private
practice, . . . and at the time three years on the bench.
....
[I]t is simply ludicrous to think that I would not have known what [counsel] meant
when he said the defendant was . . . auto-declined.
1
Chapter 9.94A RCW.
3
No. 46002-5-II
RP at 34-35. Judge Hunt then outlined at length his reasons for imposing a sentence at the top of
the standard range:
The sentence is precisely what the Legislature intended and is frankly the only
result which would withstand a legal analysis.
....
I believe the original sentence accurately reflects what the legislative intent for this
situation is, and there are no substantial and compelling reasons to deviate from the
standard range.
[T]he legislative intent is clear, and under the Sentencing Reform Act, punishment
and accountability are the primary foci of sentencing, and serious violent offenses
will be punished severely, particularly if there are multiple counts. Older teenagers
will be treated as adults. And, finally, if you commit serious violent offenses while
armed with a firearm, you’ll receive a severe sentence.
One of the purposes of sentencing is the message that is sent to others
contemplating a similar offense.
....
I don’t know where the people live who made the claim that assaults in
Lewis County have remained relatively steady, but for those of us who do live here,
we know this. There had been many similar incidents of gang-related violence in
Centralia with the use of firearms. From the day this sentence was pronounced,
there have been no similar crimes in Centralia. Gang-related violence with firearms
ha[ve] been virtually eliminated from Centralia.
RP at 37-44.
Judge Hunt rejected Solis-Diaz’s request to impose an exceptional sentence below the
standard range. He explained that under an earlier, now reversed, decision of Division Three of
our court, State v. Graham (Graham I), 178 Wn. App. 580, 314 P.3d 1148 (2013), rev’d, 181
Wn.2d 878 (2014), he had no authority to impose an exceptional downward sentence on multiple
offense policy grounds because Solis-Diaz’s convictions were for serious violent offenses, as
defined in the SRA. He similarly stated that he believed State v. Ha’mim, 132 Wn.2d 834, 847,
940 P.2d 633 (1997), and State v. Scott, 72 Wn. App. 207, 219, 866 P.2d 1258 (1993), aff’d sub
nom., State v. Ritchie, 126 Wn.2d 388, 894 P.2d 1308 (1995), prohibited him from considering
4
No. 46002-5-II
Solis-Diaz’s youth as an indicator of diminished capacity.
Solis-Diaz appeals his sentence.
ANALYSIS
I. CONSIDERATION OF MITIGATING FACTORS: MULTIPLE OFFENSE POLICY
Solis-Diaz argues that the sentencing court erred by failing to consider as a mitigating
factor the excessive nature of the standard range sentence produced by application of the SRA’s
multiple offense policy in this case. The State concedes that the sentencing court erred in
refusing to consider this matter and we accept the concession.
We review a sentencing court’s decision to deny an exceptional sentence to determine
whether it failed to exercise discretion or abused its discretion by ruling on an impermissible
basis. State v. McGill, 112 Wn. App. 95, 100, 47 P.3d 173 (2002). Where the sentencing court
fails to exercise its discretion because it incorrectly believes it is not authorized to do so, it
abuses its discretion. State v. O’Dell, 183 Wn.2d 680, 696-97, 358 P.3d 359 (2015); see also
State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005) (noting that a sentencing court
abuses its discretion by categorically refusing to consider an authorized and requested
exceptional sentence).
Under the SRA, a sentencing court must generally sentence a defendant within the
standard range. State v. Graham (Graham II), 181 Wn.2d 878, 882, 337 P.3d 319 (2014).
Pursuant to the SRA’s multiple offense policy, standard range sentences for multiple serious
5
No. 46002-5-II
violent offenses are to be served consecutively. RCW 9.94A.589(1)(b).2 However, “[t]he court
may impose an exceptional sentence below the standard range if it finds that mitigating
circumstances are established by a preponderance of the evidence.” RCW 9.94A.535(1).3 One
such mitigating circumstance exists if “[t]he operation of the multiple offense policy of RCW
9.94A.589 results in a presumptive sentence that is clearly excessive in light of the purpose of
this chapter, as expressed in RCW 9.94A.010.” RCW 9.94A.535(1)(g).4 When the resulting set
of consecutive sentences is so clearly excessive under the circumstances that it provides
“‘substantial and compelling reasons’” for an exceptional sentence below the standard range, the
sentencing court may grant that exceptional sentence. Graham II, 181 Wn.2d at 885 (quoting
RCW 9.94A.535).
The sentencing court in this case declined to consider an exceptional sentence below the
standard range because it believed that the SRA’s multiple offense policy could not be the basis
for mitigation of resulting consecutive sentences. It based its belief on Division Three’s opinion
in Graham I. In that case, the court held that operation of the multiple offense policy to serious
violent offenses was not a proper basis for an exceptional sentence. 178 Wn. App. at 590.
However, after Solis-Diaz’s resentencing our Supreme Court reversed the decision in
Graham I and clarified that “a sentencing judge may invoke .535(1)(g) to impose exceptional
sentences both for multiple violent and nonviolent offenses scored under .589(1)(a) and for
multiple serious violent offenses under .589(1)(b).” Graham II, 181 Wn.2d at 885. Therefore,
2
RCW 9.94A.589 was amended in 2015. This amendment did not affect subsection (1)(b).
3
RCW 9.94A.535 was amended in 2015. This amendment did not affect subsection (1).
4
RCW 9.94A.535 was amended in 2015. This amendment did not affect subsection (1)(g).
6
No. 46002-5-II
even though the sentencing court based its decision not to exercise discretion on controlling case
law at the time of sentencing, the fact that our Supreme Court reversed that case law and clarified
the underlying statutory provisions rendered unlawful the basis for the sentencing court’s
decision. Therefore, we must vacate Solis-Diaz’s sentence and remand for resentencing. See
O’Dell, 183 Wn.2d at 697; In re Pers. Restraint of Greening, 141 Wn.2d 687, 694, 9 P.3d 206
(2000). At the new sentencing, the trial court can consider whether Solis-Diaz’s sentence was
clearly excessive due to operation of the multiple offense policy.
II. YOUTH AS A MITIGATING FACTOR
Our Supreme Court’s recent decision in O’Dell provides a separate reason why the trial
court erred in failing to consider an exceptional sentence downward. Like Graham II, O’Dell
issued after the resentencing of Soliz-Diaz. O’Dell was convicted of rape committed just after
his 18th birthday. At sentencing, the trial court ruled that it could not consider O’Dell’s age as a
mitigating circumstance under Ha’mim, 132 Wn.2d 834, and imposed a standard range sentence
of 95 months. O’Dell, 183 Wn.2d at 683.
The Supreme Court disagreed, holding that
in light of what we know today about adolescents’ cognitive and emotional
development, we conclude that youth may, in fact, “relate to [a defendant’s] crime,”
[Ha’mim, 132 Wn.2d at 847] (quoting RCW 9.94A.340); that it is far more likely
to diminish a defendant’s culpability than this court implied in Ha’mim; and that
youth can, therefore, amount to a substantial and compelling factor, in particular
cases, justifying a sentence below the standard range.
O’Dell, 183 Wn.2d at 695-96. In its analysis, the court disapproved of Scott, 72 Wn. App. at
219, an opinion from Division One of our court indicating that youthful incapacity extends only
to “common teenage vice[s],” but also affirmed that youth alone does not per se indicate such
incapacity. Id.; see also Ha’mim, 132 Wn.2d at 847. The Supreme Court concluded that the trial
7
No. 46002-5-II
court abused its discretion by improperly declining to exercise that discretion to consider
O’Dell’s youth. O’Dell, 183 Wn.2d at 697. The court accordingly remanded for a new
sentencing hearing, directing the trial court to consider whether youth diminished O’Dell’s
culpability. Id.
The same logic and policy that led the Supreme Court to require the consideration of the
youth of a young adult offender would apply with magnified force to require the same of Solis-
Diaz, who committed his crimes while a juvenile. As did the trial court in O’Dell, the trial court
here decided that under Ha’mim it could not consider the defendant’s youth as a mitigating factor
in sentencing. As did the trial court in O’Dell, the trial court here abused its discretion in
refusing that consideration. Our Supreme Court’s analysis in O’Dell compels the same result:
reversal of Solis-Diaz’s sentence and remand for a new sentencing hearing to meaningfully
consider whether youth diminished his culpability. O’Dell, 183 Wn.2d at 697.
III. THE NATURE OF THE INQUIRY ON RESENTENCING
We conclude above that the sentencing court erred in two ways: by failing to consider
whether Solis-Diaz’s sentence was clearly excessive due to operation of the multiple offense
policy and by failing to meaningfully consider whether youth diminished his culpability under
O’Dell. Our Supreme Court’s analysis in O’Dell informs how the sentencing court is to consider
Solis-Diaz’s youth in making these evaluations.
The court in O’Dell recognized that youth might be relevant to one of the mitigating
factors listed in current RCW 9.94A.535: an impairment of the defendant’s “[]capacity to
appreciate the wrongfulness of his conduct or [to] conform [his or her] conduct to the
requirements of the law.” 183 Wn.2d at 697. O’Dell acknowledged that the United States
8
No. 46002-5-II
Supreme Court has identified several different effects of youth on the capacity and culpability of
juvenile offenders, arising in the context of constitutional prohibitions against cruel and unusual
punishment. Id.; see also Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 2467, 183 L. Ed. 2d
407 (2012); Graham v. Florida, 560 U.S. 48, 68, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010);
Roper v. Simmons, 543 U.S. 551, 574, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). Recognition of
these effects stemmed from developments in the fields of psychology and neuroscience showing
“‘fundamental differences between juvenile and adult minds’—for example, in ‘parts of the brain
involved in behavior control.”’ Miller, 132 S. Ct. at 2464 (quoting Graham, 530 U.S. at 89-90).
The Court noted that these differences may lead to impulsive decision making, Roper, 543 U.S.
at 569, may decrease a juvenile’s ability to resist harmful influences and conform to the
requirements of the law, id. at 571, and may make it more likely that a juvenile offender will
reform his life, Miller, 132 S. Ct. at 2465. Our Supreme Court in O’Dell stated that the studies
underlying Miller, Roper and Graham “establish a clear connection between youth and
decreased moral culpability for criminal conduct.” 183 Wn.2d at 695.
The effects of youth on capacity and culpability are part of a multifaceted whole. In
juveniles “‘[a] lack of maturity and an underdeveloped sense of responsibility . . . often result in
impetuous and ill-considered actions and decisions.’” Roper, 543 U.S. at 569 (quoting Johnson
v. Texas, 509 U.S. 530, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993)). Similarly, “juveniles are
more vulnerable or susceptible to negative influences and outside pressures, including peer
pressure.” Id.; see also Thompson v. Oklahoma, 487 U.S. 815, 835, 108 S. Ct. 2687, 101 L. Ed.
2d 702 (1988) (“Inexperience, less education, and less intelligence make the teenager less able to
evaluate the consequences of his or her conduct while at the same time he or she is much more
9
No. 46002-5-II
apt to be motivated by mere emotion or peer pressure than is an adult.”). Further, juveniles
exhibit “vulnerability and comparative lack of control over their immediate surroundings” and
therefore have “a greater claim than adults to be forgiven for failing to escape negative
influences.” Roper, 543 U.S. at 570. The “character of a juvenile is not as well formed as that of
an adult,” so “it is less supportable to conclude that even a heinous crime committed by a
juvenile is evidence of irretrievably depraved character.” Id. These scientific findings and their
endorsement by the high courts of both the United States and Washington compel the same
conclusion: a sentencing court’s evaluation of a particular juvenile offender’s circumstances
must at least extend to an individualized assessment of each of these potential effects of youth.
In short, a sentencing court must take into account the observations underlying Miller,
Graham, Roper, and O’Dell that generally show among juveniles a reduced sense of
responsibility, increased impetuousness, increased susceptibility to outside pressures, including
peer pressure, and a greater claim to forgiveness and time for amendment of life. O’Dell, 183
Wn 2d at 695-96. Against this background, the sentencing court must consider whether youth
diminished Soliz-Diaz’s culpability and make an individualized determination whether his
“capacity to appreciate the wrongfulness of his conduct or [to] conform that conduct to the
requirements of the law” was meaningfully impaired. O’Dell, 183 Wn.2d at 696.5
A sentencing court’s inquiry into the individual circumstances of a particular juvenile
offender should take into account that offender’s level of sophistication and maturity. See
5
We do not reach the extent of the trial court’s duty if the defendant fails to present needed
evidence.
10
No. 46002-5-II
O’Dell, 183 Wn.2d at 697. Evidence suggesting that the offender thought and acted like a
juvenile may indicate that the offender’s culpability was less than that necessary to justify
imposition of a standard range sentence. See id. Similarly, evidence that the offender exhibits
growing maturity and would benefit from an opportunity to rehabilitate his life may indicate that
a lesser sentence will better accomplish the State’s penological goals. See id.
Consistently with O’Dell, we direct the sentencing court in this case to fully and
meaningfully consider Solis-Diaz’s individual circumstances and determine whether his youth at
the time he committed the offenses diminished his capacity and culpability. If the court
determines that his youth did so diminish his capacity and culpability, it must consider whether
an exceptional sentence below the standard range is justified based on youth. O’Dell, 183 Wn.2d
at 696.
IV. DISQUALIFICATION OF JUDGE HUNT
Solis-Diaz argues that Judge Hunt should be disqualified from presiding over the
resentencing proceedings. We decline to disqualify Judge Hunt, although Solis-Diaz is free to
move for disqualification on remand.
Under the federal and state constitutions, a criminal defendant has the right to be tried
and sentenced by an impartial court. U.S. CONST., amends. VI, XIV; WASH. CONST. art. I, § 22.
Even the appearance of partiality can be grounds for disqualification of a judge. State v.
Gamble, 168 Wn.2d 161, 187, 225 P.3d 973 (2010). “Under the appearance of fairness doctrine,
a judicial proceeding is valid only if a reasonably prudent, disinterested observer would conclude
that the parties received a fair, impartial and neutral hearing.” Id. To establish grounds for
11
No. 46002-5-II
disqualification under the doctrine, a party must show actual or potential bias. Id. at 187-88;
State v. Lundy, 176 Wn. App. 96, 109, 308 P.3d 755 (2013).
However, the appearance of fairness doctrine generally is not grounds for preemptive
disqualification of a judge by a remanding appeals court. State v. McEnroe, 181 Wn.2d 375,
386, 333 P.3d 402, remanded, 2014 WL 10102380 (Wash. 2014). A party usually must move
before the trial court to disqualify the judge to which its case has been assigned, so the judge is
allowed the first opportunity to consider recusal and the parties can develop an adequate record
on the issue of disqualification. Id. at 387. Reassignment by a remanding court is proper only
where
the trial judge will exercise discretion on remand regarding the very issue that
triggered the appeal and has already been exposed to prohibited information,
expressed an opinion as to the merits, or otherwise prejudged the issue.
Id. (footnotes omitted).
According to Solis-Diaz,
Judge Hunt’s extremely intemperate remarks at the sentencing hearing demonstrate
that he would reasonably be expected upon remand to have substantial difficulty in
putting out of his mind his previously expressed views or findings determined to be
erroneous.
Br. of Appellant at 39. Solis-Diaz argues that Judge Hunt’s remarks indicated a general refusal
to accept the mandate of this court. However, none of Judge Hunt’s comments indicated that he
would not accept or follow our mandate following this appeal. Instead, his comments expressed
personal umbrage toward this court for its reasoning in ordering the previous resentencing.
Whether or not these comments were inappropriate, we do not hold that they require
disqualification on remand.
12
No. 46002-5-II
Judge Hunt also stated that “[t]rial courts are not to impose their own feelings on the
standard range sentences, as that is what the Legislature has determined they shall be.” RP at 51.
This view could reflect a general bias toward rejecting exceptional downward sentences. Judge
Hunt further stated that
[t]his sentence was exactly what the Legislature intended for crimes such as this.
I would not have given a mitigated sentence had I known about the information that
[was not presented at the original sentencing]. . . . I already knew it, and I imposed
the sentence I did being fully informed of the legal consequences of doing so.
RP at 53. Read in isolation, these comments seem to indicate that Judge Hunt prejudged Solis-
Diaz and determined that his convictions invariably warrant his lengthy sentence.
However, read in context, Judge Hunt seems to have been ruling that the governing case
law at the time prevented him from considering the mitigating factors now at issue on appeal.
He stated, for example, that “[i]n my opinion, the suggested options [for mitigation] are either
unlawful or legally insufficient,” RP at 48, and that “[n]one of the suggested mitigating factors
recommended by the defense are legally sufficient,” RP at 53. Judge Hunt, however, has not had
an opportunity to analyze whether Solis-Diaz should receive an exceptional sentence in light of
O’Dell or this opinion. Without a stronger showing of bias on the issues to be addressed on
remand, we will not mandate disqualification.
As we discussed above, the sentencing court on remand must exercise its discretion
regarding the possibility of an exceptional downward sentence based on mitigating factors that
include the application of the multiple offense policy and consideration of Solis-Diaz’s age and
attendant levels of capacity and culpability. If Solis-Diaz believes that Judge Hunt cannot
impartially follow our instructions and perform an individualized inquiry into the effects of
13
No. 46002-5-II
Solis-Diaz’s youth, he may move for disqualification before the sentencing court. We express no
opinion as to whether Judge Hunt is disqualified on that basis.
CONCLUSION
We conclude that the sentencing court erred in failing to consider whether the operation
of the SRA’s multiple offense policy and Solis-Diaz’s youth at the time he committed the crimes
should mitigate his standard range sentence and warrant an exceptional downward sentence.
Therefore, we vacate Solis-Diaz’s sentence and remand for resentencing proceedings consistent
with this opinion. We decline to disqualify Judge Hunt from making this inquiry, but note that
Solis-Diaz may move for disqualification before the sentencing court.
BJORGEN, C.J.
I concur:
MAXA. J.
14
No. 46002-5-II
Melnick, J. (concurrence) — Because the law has changed since the trial court sentenced
Guadalupe Solis-Diaz, I concur that his sentence must be reversed and the matter should be
remanded for a new sentencing hearing. I write solely to express my disagreement with the
majority’s opinion mandating what the sentencing court must consider on remand. The “Nature
of the Inquiry on Resentencing” section exceeds the scope of what we have to decide, and
anticipates the evidence the parties will present to the sentencing court. Majority at 8-11. The
majority improperly establishes the sentencing court’s scope on remand. First, the parties did not
brief this issue, and we should not consider it. RAP 12.1(a). Second, because the resentencing
has not occurred, the issue is not before us. If the parties do not present all of the evidence the
majority opinion orders the sentencing court to consider, it cannot comply. Third, if the sentencing
court fails to comply with applicable law, Solis-Diaz will once again have the right to appeal.
Lastly, I have faith that the trial court will follow the law and properly consider all of the relevant
evidence the parties present. And I also have faith that the parties will effectively present all of
the evidence they believe will assist the court in resentencing Solis-Diaz.
Melnick, J.
15
| {
"pile_set_name": "FreeLaw"
} |
246 Cal.App.2d 799 (1966)
55 Cal. Rptr. 482
THE PEOPLE, Plaintiff and Respondent,
v.
MONTIE RAY McCUISTON, Defendant and Appellant. THE PEOPLE, Plaintiff and Appellant,
v.
MONTIE RAY McCUISTON, Defendant and Respondent. (Consolidated Cases.)
Docket Nos. 5466, 5528.
Court of Appeals of California, First District, Division One.
December 5, 1966.
*800 Edwin R. Baltimore, under appointment by the Court of Appeal, for Defendant and Appellant in No. 5466.
Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, John T. Murphy, William D. Stein and Louise H. Renne, Deputy Attorneys General, for Plaintiff and Respondent in No. 5466 and Plaintiff and Appellant in No. 5528.
R. Donald Chapman, Public Defender, for Defendant and Respondent in No. 5528.
*801 MOLINARI, J.
On this appeal two cases involving Montie Ray McCuiston have been consolidated. One (1 Crim. 5466) is an appeal by defendant from a judgment of conviction for sale of narcotics (violation of Health & Saf. Code, § 11501). The other (1 Crim. 5528) is an appeal by the People from a postjudgment order of the trial court modifying the judgment of conviction for possession of heroin (violation of Health & Saf. Code, § 11500) by striking therefrom a prior felony conviction.[1]
In 1 Criminal 5466 defendant makes the following contentions: (1) The proceedings by which he was committed to the California Rehabilitation Center (the "Center") were not held in compliance with the applicable Welfare and Institutions Code sections; (2) the finding by the Superintendent of the Center (the "Superintendent") that defendant was not a fit subject for confinement or treatment at the Center is not supported by substantial evidence and therefore the Superintendent abused his discretion in determining that defendant was ineligible for treatment at the Center; and (3) the trial court, in sentencing defendant to a term in state prison after he had been returned to the court by the Center, should have credited defendant's sentence term with the time served by him at the Center. In 1 Criminal 5528 the sole contention of the People is that the trial court erred in striking the prior conviction from the judgment because despite the fact that no sentence had been imposed upon defendant in connection with the prior charge, a conviction occurred upon the finding of guilt.
Statement of the Cases
On April 5, 1963 defendant was found guilty by the court of a violation of Health and Safety Code section 11501 (sale of narcotics). Thereafter, pursuant to defendant's motion under Penal Code section 6451,[2] the trial court appointed Drs. M. *802 Shoor and N. Nomof to examine defendant for the purpose of determining whether he was a narcotic addict within the meaning of that section. On May 17, 1963 the doctors were sworn and examined by the court and in addition they submitted to the court the certificate of medical examiners which they both signed. On the same date the trial court found that defendant was a narcotic addict within the meaning of section 6451 and ordered him committed to the Director of Corrections for placement in the Center for a period not to exceed 10 years.
On February 4, 1965, while defendant was in outpatient status from the Center, he was indicted for having violated Health and Safety Code section 11502 (selling heroin to a minor). This indictment further charged a prior felony conviction, namely, a violation of Health and Safety Code section 11501. On March 24, 1965 defendant pleaded guilty to the lesser included offense of violating Health and Safety Code section 11500 (possession of heroin) and admitted the prior conviction. Accordingly, on May 5, 1965 the trial court entered judgment sentencing defendant to state prison for the term prescribed by law.
Thereafter, on September 3, 1965 the Superintendent of the Center, by letter to the trial court, certified that because of defendant's recent commitment to the state prison he was not a fit subject for confinement or treatment at the Center. Accordingly, on September 17, 1965 the trial court sentenced defendant to state prison for the term prescribed by law for his 1963 conviction and further ordered that this sentence run concurrently with that imposed for defendant's 1965 conviction for possession of heroin. On September 22, 1965 defendant filed his notice of appeal from this judgment.
Thereafter, in connection with his May 5, 1965 conviction, defendant on November 1, 1965 filed a petition for writ of error coram nobis. Among the several grounds urged for relief in this petition defendant alleged that the prior felony conviction charged in the indictment leading to his conviction in May 1965 was not properly chargeable as a prior conviction since he was not actually convicted of a violation of Health and Safety Code section 11501 (the conviction which formed the basis of the prior felony charge) until he was sentenced to *803 state prison on September 17, 1965. On December 10, 1965, as an alternative to granting defendant's petition for writ of error coram nobis, the trial court modified the May 5, 1965 judgment by striking the prior felony conviction. It is from this order that the People appeal in 1 Criminal 5528.
The Commitment Proceedings
[1] According to the provisions of former section 6451 the proceedings held pursuant to that section to determine if a defendant is a narcotic addict within the meaning of the section "shall be conducted in substantial compliance with Sections 5353, 5053, 5054, and 5055 of the Welfare and Institutions Code."[3] Defendant contends that since no witnesses were called either by the People or by defendant, the proceedings held in the instant case to determine if defendant was a narcotic addict did not comply with the provisions of former Welfare and Institutions Code section 5053[4] (now Welf. & Inst. Code, § 5564). While this section clearly allows for the presence of witnesses at a commitment proceeding, it does not require that witnesses be present or testify at the hearing except where they are so requested by the defendant. In the instant case since the record does not indicate that defendant requested the presence of witnesses at the commitment proceeding it is apparent that their absence did not vitiate the effectiveness of the proceedings. Defendant cites the cases of People v. Victor, 62 Cal.2d 280 [42 Cal. Rptr. 199, 398 P.2d 391], and People v. Davis, 234 Cal. App.2d 847 [44 Cal. Rptr. 825], in support of his argument that the commitment proceedings held in the instant case were improper because of the failure of the trial court to call any witnesses. In Victor there was only one medical examiner present at the commitment proceedings whereas Welfare and Institutions Code section 5053 specifically required at least two. And in Davis *804 the commitment was held to be improper because the doctors who had examined the patient signed their certificates prior to appearing in court rather than after their court appearance as specifically required by Welfare and Institutions Code section 5055.
In the instant case the clerk's minutes of the commitment proceedings reveal that the two doctors who had examined defendant pursuant to former section 6451 were present in court at the hearing, were sworn and examined by the court, and then signed the medical certificate and submitted it to the court. Accordingly, it is clear that these proceedings were held in substantial compliance with the appropriate Welfare and Institutions Code sections.
Abuse of Discretion on the Part of the Superintendent of the Center
[2] Defendant contends that the Superintendent abused his discretion in determining that defendant was not a fit subject for treatment at the Center on the basis of defendant's 1965 conviction which resulted in his commitment to state prison and that, accordingly, it was error for the trial court to sentence defendant to state prison for the 1963 conviction without considering whether, in spite of the Superintendent's determination, defendant was nonetheless entitled to treatment at the Center. The basis of defendant's contention is that a subsequent conviction does not, by itself, support a determination of ineligibility for the rehabilitation program.
At the time the Superintendent certified to the trial court that defendant was no longer a fit subject for treatment at the Center and that his case should be referred to the court for further proceedings on the suspended criminal charges, section 6453, which authorized such a proceeding, provided as follows: "If at any time after 60 days following receipt of a person at the facility, the Director of Corrections concludes that the person, because of excessive criminality or for other relevant reason, is not a fit subject for confinement or treatment in such narcotic detention, treatment and rehabilitation facility, he shall return the person to the court in which the case originated for such further proceedings on the criminal charges as that court may deem warranted."[5] The case of People v. Pate, 234 Cal. App.2d 273, 275-276 [44 Cal. Rptr. 462], held *805 that the question of whether a person committed to the Center is a fit subject for treatment at the Center is addressed in the first instance to the sound discretion of the Director of Corrections and that his determination is reviewable by the trial court, which, upon finding that the Director has abused his discretion, may set aside such conclusion and direct the Director to carry out the court's order of commitment. In Pate, because the committing court, in imposing a prison sentence upon the defendant, believed that the Director's decision to reject the defendant was conclusive and that the court had no alternative other than to impose a prison sentence, the appellate court reversed the judgment only as to the prison sentence imposed and remanded the case to the committing court in order for it to determine whether or not the Director's refusal to accept the defendant for treatment was an abuse of discretion. It should be noted, moreover, that in Pate the Director based his reason for returning the defendant to prison not upon the defendant's "excessive criminality" but upon the fact that he was a "dual commitment," i.e., that he was under active parole for a prior felony conviction at the time of his commitment to the Center as a narcotic addict under former section 6451.
In the instant case the Superintendent, in the sound exercise of his discretion, predicated his determination that defendant should be returned to the trial court upon the fact that defendant, as a result of his 1965 conviction, was incarcerated in a state prison and was therefore unavailable for treatment at the Center. No contention is here made, as in Pate, that when defendant was returned from the Center the court failed to determine the propriety of the Superintendent's ruling. It is apparent from the action of the court that it agreed with the conclusion reached by the Superintendent and concluded that he did not abuse his discretion in determining that because of defendant's subsequent conviction and incarceration he was no longer a fit subject for treatment at the Center.
Defendant, however, argues that the trial court, in sentencing defendant to state prison following the Superintendent's report that defendant was no longer a fit subject for treatment at the Center, failed to consider that provision of former section 6451 (now Welf. & Inst. Code, § 3051) which provided that notwithstanding the fact that the defendant, by virtue of the nature of his present conviction or a previous conviction, was ineligible for the rehabilitation program pursuant to the *806 provisions of former section 6452 (now Welf. & Inst. Code, § 3052), the judge could nevertheless order commitment with the concurrence of the district attorney of the appropriate county.[6] Defendant bases his argument in this regard on the case of People v. Ortiz, 61 Cal.2d 249 [37 Cal. Rptr. 891, 391 P.2d 163]. There, following the defendant's conviction for a sale of narcotics in violation of Health and Safety Code section 11501, the trial court indicated that because of the nature of the defendant's conviction he was as a matter of law ineligible for treatment at the center and that, accordingly, the court had "`no alternative at all'" but to impose a prison sentence. (P. 251.) On appeal the Supreme Court assumed that the trial court's determination that the defendant was ineligible for treatment at the Center was based upon its conclusion that the defendant's conviction fell within those specified in former section 6452. Accordingly, the Supreme Court, in reversing the judgment of conviction insofar as it sentenced the defendant to state prison, held that the offense of which the defendant was convicted was not within the purview of former section 6452, and that it was therefore incumbent upon the trial court to determine as a matter of fact whether the defendant was eligible for treatment at the Center under the provisions of former section 6451.
We fail to see how former sections 6451 and 6452 or the Ortiz case, all of which relate to the question of a defendant's initial eligibility for treatment at the Center, are relevant to the instant case, since our inquiry here is whether or not defendant, once having been committed to the Center for treatment, may subsequently be returned to the trial court and sentenced to state prison. As to this question the relevant statutory provision is former section 6453. Thus our conclusion that the Superintendent did not abuse his discretion in determining that defendant, based upon his 1965 conviction, was no longer a fit subject for treatment at the Center is dispositive of the issue before us.
Credit for Time Served at the Center
[3] Defendant argues that the judgment entered by the trial court on September 17, 1965 is incorrect because it does *807 not indicate that the time served by defendant at the Center was to be credited towards his prison sentence. In support of this contention, defendant cites former section 6520 (now Welf. & Inst. Code, § 3200), which provided in relevant part as follows: "In any case where the criminal charges are not dismissed and the person is sentenced thereon, time served while under commitment pursuant to Article 2 of this chapter shall be credited on such sentence." In People v. Reynoso, 64 Cal.2d 432 [50 Cal. Rptr. 468, 412 P.2d 812], it was held in a situation similar to the instant case that a defendant is not as a matter of law entitled to credit on his sentence for the criminal charge for time spent in the Center. Reynoso further held that whether a judge who pronounces sentence or a sentencing and paroling body such as the Adult Authority should take into consideration the time spent by a defendant in the Center is a matter vested in the discretion of such judge or board. In its discussion of this issue Reynoso does not refer to or cite section 6520 nor its successor statute, Welfare and Institutions Code section 3200.
In People v. Moreno, 235 Cal. App.2d 386 [45 Cal. Rptr. 243], the situation presented was also similar to that in the present case except that when the trial judge sentenced the defendant it did so with a notation that pursuant to section 6520 the defendant was to receive credit for the time spent in the Center. It was there held that since under section 6520 and the express terms of the sentence the defendant was credited with his time in the Center, he was not subjected to double punishment.
In the instant case no showing has been made that defendant has not been given credit by the Adult Authority for the time served at the Center. His complaint is that the judgment does not provide for such credit. We are of the opinion that the judgment need not so provide, but that under the California indeterminate sentence law (§§ 1168, 3020-3025) any credit to which defendant is entitled should be set by the Adult Authority. In the absence of any evidence that the Adult Authority has not given defendant such credit or has indicated that it will not give him such credit we need not attempt to reconcile the language of former section 6520, which appeared to make the giving of such credit mandatory, with the holding in Reynoso that the granting of such credit is a matter of discretion.
*808 Propriety of the Trial Court's Order Modifying the May 5, 1965 Judgment by Striking the Prior Felony Conviction
As we have indicated above, the sole issue which the People raise in 1 Criminal 5528 is that the trial court erred in modifying the May 5, 1965 judgment in that action by striking therefrom the prior felony conviction based upon a violation of Health and Safety Code section 11501. Since the trial court's order modifying the judgment, which order was made as an alternative to granting defendant's petition for writ of error coram nobis, was based on the ground that the April 5, 1963 determination of defendant's guilt for sale of narcotics in violation of Health and Safety Code section 11501 did not constitute a conviction and that therefore defendant had not suffered a conviction for sale of narcotics prior to his conviction for possession of heroin, the propriety of this order turns upon the question of whether a conviction, for purposes of Health and Safety Code section 11500, which provides for an increased sentence if the defendant "has been previously convicted once of any felony offense described in this division,"[7] occurs when the defendant is found guilty of a particular offense.
The People assert that People v. Hurley, 155 Cal. App.2d 350 [317 P.2d 1003], is dispositive of this question. That case held that a conviction for purposes of division 10, chapter 5 of the Health and Safety Code occurs upon a finding of guilt. There the defendant was found guilty in a nonjury case of violating Health and Safety Code section 11500. While the matter was pending for a probation officer's report, the defendant was charged with violating Health and Safety Code section 11714 to which charge he pleaded guilty before the magistrate. An amended complaint was then filed in the second case charging the former conviction under Health and Safety Code section 11500, which charge the defendant denied. Both cases came on for hearing on the same date. At that time the trial court sentenced the defendant to prison for the term prescribed by law for his violation of Health and Safety Code section 11500, and as to the defendant's violation of Health and Safety Code *809 section 11714 the trial court, finding the charge of former conviction to be true, senteneed the defendant to prison for 10 years. (In the absence of the previous conviction the term would have been 5 years.) Thereafter the defendant filed a timely appeal from the judgment imposed for violation of Health and Safety Code section 11714. On appeal the contention was made by the defendant that he could not be sentenced for two offenses at the same time and have one offense treated as a prior conviction. In rejecting this contention the reviewing court held that the defendant stood convicted for violating Health and Safety Code section 11500 when his guilt was ascertained by the trial court and not as of the time judgment was imposed by the court.
Defendant contends that Hurley incorrectly states the law. In support of this contention defendant points out that since the court which decided Hurley expressly noted in its opinion that neither the defendant nor the Attorney General had cited any precedents, it is apparent that that court was not made aware of a substantial body of case law directly contrary to its holding not only in California but in the common law and in the majority of the United States as well. Defendant also notes that the reviewing court in Hurley was given no opportunity to correct its decision in that no petition for a rehearing was filed; that the cases upon which it relied were inapplicable; and that no petition for a hearing in the Supreme Court was filed.
The rule ascribed as the majority rule by defendant is that declared in a number of cases which have enunciated the principle that a conviction within the meaning of criminal statutes which prescribe an increased penalty for an offense committed by a defendant who has suffered a prior conviction implies a final judgment or sentence and that no former conviction results in situations where, for example, a sentence is suspended, no sentence is imposed, or an appeal is taken. (See 5 A.L.R.2d 1080, 1083-1085.) [4] Notwithstanding the principle enunciated in these cases as to the definition of "conviction" within in the meaning of habitual criminal statutes, it is apparent that in California in a situation such as that involved in the instant case, i.e., where the defendant's guilt has been ascertained either by verdict, finding, or plea of guilty and the trial court, in lieu of imposing a sentence, commits the defendant to the Center pursuant to section 6451, the ascertainment of guilt constitutes a conviction and the defendant may thereafter be charged with such conviction as a prior conviction as to subsequent *810 offenses. We reach this conclusion as to the meaning of conviction in such a situation upon the basis of former section 6520 (now Welf. & Inst. Code, § 3200). This section, insofar as applicable here, provided that when a person who has had the imposition of sentence suspended "Upon conviction ... for any crime in any superior court" under section 6451, so as to permit his commitment as a narcotic addict pursuant thereto, is recommended for a discharge, the court "may dismiss the criminal charges of which such person was convicted," and that "Such dismissal shall have the same force and effect as a dismissal under Section 1203.4 of the Penal Code, except the conviction is a prior conviction for purposes of Division 10 of the Health and Safety Code." (Italics added.)
Section 1203.4 to which former section 6520 referred as providing the guidelines for the effect of such dismissal provides in pertinent part that a defendant who fulfills the conditions of his probation and is discharged therefrom shall be permitted to withdraw his plea of guilty or to have the verdict of guilty set aside and that "the court shall thereupon dismiss the accusations or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted ...; provided, that in any subsequent prosecution of such defendant for any other offense, such prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed." (Italics added.) The cases which have construed this latter provision of section 1203.4 have held that even though a defendant is granted probation and, upon fulfilling the terms of probation, is released from disabilities, he has nonetheless suffered a conviction within the meaning of statutes increasing the penalty for a subsequent offense and he may therefore be charged with such conviction as a prior conviction as to subsequent offenses. (People v. Barwick, 7 Cal.2d 696, 699 [62 P.2d 590]; People v. Hainline, 219 Cal. 532, 534-535 [28 P.2d 16]; People v. Rosencrantz, 95 Cal. App. 92, 94 [272 P. 786]; People v. Acosta, 115 Cal. App. 103, 107-108 [1 P.2d 43]; see also In re Phillips, 17 Cal.2d 55, 61 [109 P.2d 344, 132 A.L.R. 644]; Meyer v. Board of Medical Examiners, 34 Cal.2d 62, 66 [206 P.2d 1085]; Stephens v. Toomey, 51 Cal.2d 864, 871 [338 P.2d 182].) The above cases all deal with a situation where, after the defendant has received a suspended sentence or been granted probation, his record is expunged upon the fulfillment of the terms of probation. However, *811 these cases make it apparent that the conviction is extant from the time of the plea of guilty or the verdict or finding of guilt and that such conviction may therefore be considered as a prior conviction enhancing the penalty for a subsequent offense regardless of whether the defendant has fulfilled the terms of probation and had his record expunged.
Upon analogy of these cases which have construed the provision of section 1203.4 relating to the effect of a dismissal following the successful completion of probation, we conclude that by virtue of similar language of former section 6520 and the specific reference in the latter section to section 1203.4 the term "conviction" as used in Health and Safety Code section 11500 must be interpreted to mean the ascertainment of guilt by the trial court rather than the rendering of judgment or the imposition of sentence based upon that ascertainment. Accordingly, in the instant case defendant stood convicted of violating section 11501 of the Health and Safety Code when he was found guilty thereof on April 5, 1963. As of that date, irrespective of the proceedings brought pursuant to former section 6451 which resulted in a suspension of the imposition of sentence, defendant's guilt for violating Health and Safety Code section 11501 had been ascertained. Such ascertainment constituted a conviction for such offense which, under former section 6520, could thereafter be charged as a prior conviction regardless of whether defendant was rehabilitated so as to effect his discharge and a dismissal of the charge as provided in former section 6520.
The judgment in 1 Criminal 5466 is affirmed and the order in 1 Criminal 5528 is reversed.
Sullivan, P.J., and Sims, J., concurred.
A petition for a rehearing in No. 5528 was denied December 23, 1966, and respondent's petition for a hearing by the Supreme Court in No. 5528 was denied February 1, 1967. Sullivan, J., did not participate therein.
NOTES
[1] Such an order is appealable by the People under Penal Code, section 1238, subdivision 5. (People v. Gilbert, 25 Cal.2d 422, 444 [154 P.2d 657].)
[2] Unless otherwise indicated all statutory references are to the Penal Code. Section 6451, which was repealed in 1965 but reenacted in substantially the same language, as Welfare and Institutions Code section 3051, provided in relevant part as follows: "Upon conviction of a defendant for any crime in any superior court, if it appears to the judge that the defendant may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics he shall adjourn the proceedings or suspend the imposition of the sentence and conduct proceedings to ascertain if such person is addicted to narcotics or in imminent danger thereof unless in the opinion of the judge the defendant's record and probation report indicate such a pattern of criminality that he does not constitute a fit subject for commitment under this section. If a petition is ordered filed, proceedings shall be conducted in substantial compliance with Sections 5353, 5053, 5054, and 5055 of the Welfare and Institutions Code."
[3] These sections which prescribe the type of proceedings necessary for the commitment of a mentally ill person were repealed in 1965. However, they were reenacted, in substantially the same language, as Welfare and Institutions Code sections 5628, 5564, 5565, and 5566, respectively.
[4] This section, in relevant part, provided as follows: "The judge of the superior court may, for any hearing, order the clerk of the court to issue subpoenas and compel the attendance of witnesses from any place within the boundaries of this State and shall issue such subpoenas and compel attendance of witnesses as requested by the alleged mentally ill person; ... The judge shall compel the attendance of at least two medical examiners, who shall hear the testimony of all witnesses, make a personal examination of the alleged mentally ill person, and testify before the judge as to the result of the examination, and to any other pertinent facts within their knowledge."
[5] Effective Sept. 15, 1965 this section was repealed and reenacted, in substantially the same language, as Welfare and Institutions Code section 3053.
[6] The relevant portion of section 6451 read as follows: "In any case to which section 6452 applies, the judge may request the district attorney to investigate the facts relevant to the advisability of commitment pursuant to this section. In unusual cases, wherein the interests of justice would best be served, the judge may, with the concurrence of the district attorney and defendant, order commitment notwithstanding section 6452."
[7] Specifically Health & Safety Code, section 11500 provides in pertinent part as follows: "If such a person has been previously convicted once of any felony offense described in this division ... the previous conviction shall be charged in the indictment or information and if found to be true ... upon a court trial, or is admitted by the defendant, he shall be imprisoned in the state prison for not less than five years nor more than 20 years...."
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Order Michigan Supreme Court
Lansing, Michigan
July 24, 2012 Robert P. Young, Jr.,
Chief Justice
144774 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra,
Plaintiff-Appellee, Justices
v SC: 144774
COA: 300335
Wayne CC: 10-000313-FC
GEORGE HUDGENS,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the January 19, 2012
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
July 24, 2012 _________________________________________
p0716 Clerk
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797 S.W.2d 376 (1990)
Gary B. SEWELL, Appellant,
v.
The STATE of Texas, Appellee.
No. 13-90-051-CR.
Court of Appeals of Texas, Corpus Christi.
October 4, 1990.
Joseph E. Garica, Portland, for appellant.
*377 Thomas L. Bridges, Sinton, for appellee.
Before NYE, C.J., and DORSEY and KEYS, JJ.
OPINION
NYE, Chief Justice.
Appellant, Gary Sewell, pleaded no contest subsequent to a plea bargain to burglary of a habitation. The trial court assessed punishment as fifteen years' confinement in the Texas Department of Criminal Justice, Institutional Division and a $2,000 fine. By two points of error, appellant asserts that the trial court erred in overruling his pretrial motions to suppress evidence and statements which were allegedly obtained pursuant to two unlawful arrests. We affirm the trial court's judgment.
The record reveals that at approximately 2:00 a.m. on September 20, 1989, Aransas Pass police officers Martinez, Titus, Winkle and Grumbles answered a radio dispatch reporting a "suspicious person" in the Thirteenth Street Apartments area. Officer Titus arrived first and observed appellant in the parking lot of the apartment complex. Titus noticed that two television sets had been placed on the hood of appellant's pickup truck, a microwave oven was in the truck cabin and a battery charger lay in the truck bed. Appellant informed Titus that he was transferring these items into the apartment where he was staying with his father.
At that time, Officer Winkle arrived, followed shortly thereafter by officers Martinez and Grumbles. The officers knew appellant from previous contact and talked to him regarding his ownership of the items they observed but did not arrest him. Officer Martinez was aware that appellant had prior convictions for burglary and suggested that the officers record the serial numbers from the items appellant was moving. Appellant's identification or driver's license number did not match a license number inscribed on the microwave oven. Officer Grumbles instructed appellant to stand by the rear bumper of his truck while one of the officers recorded the identification numbers. The serial numbers of the two televisions and the serial number and Texas driver's license number inscribed on the microwave oven were reported to the dispatcher.
Officer Winkle stated that the officers were suspicious of appellant because it was unusual for a person to be moving two television sets and a microwave oven at two o'clock in the morning. Furthermore, when the officers asked appellant why he chose to move his property at that time of night, he replied that he had recently purchased the appliances. When asked, appellant did not recall the name of the person who sold the items to him.
Appellant remained with the officers for approximately one and a half hours until the police computer indicated that none of the serial numbers were from items reported stolen. Appellant resumed his activities as the officers resumed their respective patrols.
The day after appellant was detained in the Thirteenth Street Apartments parking lot, the police department received a stolen property report indicating that John Thompson lost a television, microwave oven and a battery charger during a burglary of his residence. The serial numbers and driver's license number which Thompson reported from the microwave oven and television set were the same as those observed on the items in appellant's truck. Thompson also described a battery charger similar to the one with which appellant was seen.
Officer Martinez sought appellant at his father's apartment. The father consented to a search of the premises. Martinez found appellant asleep in the apartment and discovered a battery charger similar to the one reportedly stolen in the Thompson burglary.
One of the assisting officers gave appellant his Miranda warnings on suspicion of possession of stolen goods and transported him to the police station where an officer again informed appellant of his rights. The officers then attempted to verify with Thompson that the battery charger found *378 in appellant's possession was the one he reported stolen.
Three hours after appellant arrived at the station, Thompson informed the police officers that he mistakenly reported his battery charger as stolen. Martinez then released appellant from custody.
Following the release, Martinez asked appellant to reveal the location of Thompson's stolen television and microwave. Appellant indicated that he would not do so for fear that the police would arrest his friends who merely received the items from appellant. Martinez assured appellant that no criminal charges would be made against the friends. Appellant subsequently provided the name and address of the person to whom he had given one of the televisions and information leading to the recovery of the other television and the microwave oven at a Corpus Christi pawn shop.
Appellant asserts in his first point of error that the police had no probable cause to arrest him and therefore evidence of the serial numbers and driver's license numbers inscribed on items was illegally obtained. Appellant testified that he did not feel that he could leave at any time during that contact, even to enter the apartment where he was staying. He specifically points out that the length of his contact with the four officers indicates a detention amounting to a warrantless arrest. Thus, appellant concludes that the trial court erred by failing to suppress the evidence gathered during this alleged arrest.
A police officer may briefly stop a suspicious person in order to determine his identity or to momentarily maintain the status quo while obtaining more information. Circumstances amounting to less than probable cause for an arrest may justify temporary detention for the purpose of investigation since an investigation is considered to be a lesser intrusion upon the personal security of an individual. Gearing v. State, 685 S.W.2d 326, 328 (Tex. Crim.App.1985); Ramos Meza v. State, 736 S.W.2d 221, 223 (Tex.App.-Corpus Christi 1987, no pet.). To determine whether the police conduct was reasonable, we look to the totality of the circumstances surrounding the intrusion. Ramos Meza, 736 S.W.2d at 223.
To justify an investigatory stop, a police officer must be able to point to specific and articulable facts which, in light of the officer's experience and personal knowledge, taken together with rational inferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-1880, 20 L.Ed.2d 889 (1968); Schwartz v. State, 635 S.W.2d 545, 547 (Tex.Crim.App.1982); Munoz v. State, 709 S.W.2d 34, 37 (Tex.App.- Corpus Christi 1986, no pet.). The police officer must reasonably suspect that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to crime. Schwartz, 635 S.W.2d at 547; Ramos Meza, 736 S.W.2d at 223.
In the present case, the evidence indicates that appellant's detention was nothing more than an investigatory stop to gather information. The four officers answered a suspicious person complaint at an apartment complex where they subsequently encountered appellant moving appliances in the early morning hours. The appliances and their identification numbers were readily visible. Several of the officers recognized appellant from past contact and at least one of the officers knew that he had prior burglary convictions. Appellant's identification or driver's license number did not match that inscribed upon the appliances. Although he claimed that he recently purchased these items, appellant could not remember the name of the vendor. Under these circumstances, it was reasonable for the officers to believe that appellant was possibly involved in criminal activity.[1] Point one is overruled.
*379 In his second point of error, appellant asserts that the trial court erred by not suppressing certain statements and evidence obtained as a result of those statements pursuant to an unlawful arrest. At the time he took appellant into custody, Officer Martinez possessed knowledge of sufficient facts to make a warrantless arrest for possession of stolen property. See Tex.Code Crim.Proc.Ann. art. 14.01 (Vernon 1977). Following information that Thompson's battery charger had not been stolen, appellant was released from custody. He was free to leave when he gave Martinez the incriminating statements. There was no evidence of coercion or threats by the police to prompt or force appellant's statement.
A non-custodial, voluntary, oral statement is admissible at trial. Tex.Code Crim.Proc.Ann. art. 38.22, § 5 (Vernon 1979). If an appellant is not in police custody at the time he makes an oral confession and that confession is given freely, voluntarily and without compulsion, the evidence is admissible. Shiflet v. State, 732 S.W.2d 622, 623 (Tex.Crim.App.1985); Huerta v. State, 709 S.W.2d 21, 22-23 (Tex. App.-Corpus Christi 1986, no pet.).
We hold that the appellant gave his statement freely and of his own will and was not coerced, threatened or forced to do so. Because appellant was not in custody at the time he gave this statement, both the statement and the evidence recovered as a result of the statement was admissible evidence. Furthermore, because appellant made the statement under lawful circumstances, his subsequent arrest was not tainted. Point two is overruled.
The judgment of the trial court is AFFIRMED.
NOTES
[1] The present case fails to fall within the purview of Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) and White v. State, 729 S.W.2d 737 (Tex.Crim.App.1987) as these cases delineate the circumstances in which a warrantless seizure of an item "in plain view" during a lawful search of a private area, namely a dwelling place, may be reasonable.
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476 U.S. 1176
106 S.Ct. 2904
90 L.Ed.2d 990
Alvin R. MOORE, Jr.v.Frank BLACKBURN, Warden.
No. 85-5555
Supreme Court of the United States
June 9, 1986
On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.
The petition for a writ of certiorari is denied.
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.
1
The petitioner in this case was sentenced to death by a jury that was "led to believe that the responsibility for determining the appropriateness of [his] death rests elsewhere," Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985). Under our recent decision in Caldwell, petitioner's sentence cannot stand unless this error "had no effect on the sentencing decision," id., at 341, 105 S.Ct., at 2646, a point the courts below did not consider and the State does not contest here. I would therefore grant the petition for certiorari, vacate the District Court's judgment, and remand for reconsideration in light of Caldwell.
2
At the penalty phase of petitioner's trial, the prosecutor argued:
3
"And it's a tough thing to ask, but there is only one penalty really available for this type of crime and that is the death penalty. This is where it will begin. From the next point forward it goes through the court system to be thoroughly reviewed and checked, through every court in this land. But it has to begin here, right here with the jury." App. to Pet. for Cert. 10; State v. Moore, 414 So.2d 340, 347 (La.1982).
4
On direct appeal to the Louisiana Supreme Court, petitioner argued that these statements had injected passion, prejudice, or other arbitrary factors into the sentencing determination. That court, while admitting that the prosecutor's argument was "close to reversible error," ibid., concluded that the argument had not diminished the jury's sense of responsibility for its sentencing decision. The Fifth Circuit, reviewing the District Court's rejection of the same claim in petitioner's first federal habeas petition, reached the same conclusion. Moore v. Maggio, 740 F.2d 308, 320 (CA5 1984). Subsequently, this Court decided Caldwell, and petitioner filed a second habeas petition claiming that the prosecutor's argument violated the Eighth Amendment as construed in our decision in that case.
5
The District Court denied this petition, and the Court of Appeals denied a certificate of probable cause. 774 F.2d 97 (CA5 1985). The latter court held that the Caldwell claim had been raised in petitioner's first application, and was therefore barred by Rule 9(b) of the Rules Governing Section 2254 Cases, and by the principles enunciated in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The court also concluded that its prior determination that the prosecutor's argument had not diminished the jury's sense of responsibility, see 740 F.2d, at 320, was "consistent with the rule set forth in Caldwell." 774 F.2d, at 98. Even had the Caldwell claim not been raised previously, the court held, it would have denied that claim as an abuse of the writ, because a competent lawyer would have been aware of the possibility of such a claim.
6
The Court of Appeals was mistaken in believing that its prior pronouncement that the jury's sense of responsibility was not diminished disposed of the Caldwell claim. The prosecutor's argument in this case is essentially identical to the argument held unconstitutional in Caldwell. The lesson of Caldwell, at a minimum, is that a misleading or incomplete statement concerning appellate review of a death sentence necessarily diminishes the jury's sense of responsibility. In the present case, no less than in Caldwell, the jury may have "harbor[ed] misconceptions about the power of state appellate courts or, for that matter, this Court to override a jury's sentence of death." 472 U.S., at 342, 105 S.Ct., at 2646 (O'CONNOR, J., concurring in part and concurring in judgment). Under those circumstances, we cannot be confident that the jury did not conclude that the ultimate responsibility for petitioner's fate rested elsewhere.
7
This case, then, falls squarely within the "ends of justice" exception to the general rule forbidding successive assertions of the same claim on habeas, see Sanders, supra, at 16-17, 83 S.Ct., at 1077-1078. In Sanders, this Court held that "[i]f purely legal questions are involved, the applicant may be entitled to a new hearing upon showing an intervening change in the law." 373 U.S., at 17, 83 S.Ct., at 1078. Caldwell constitutes an intervening change in the law concerning the precise argument used by the prosecutor in this case—a change that requires reexamination of the Court of Appeals' earlier conclusion about the effect of that argument on the jury. The clear import of Sanders is that petitioner is entitled to present his claim to the federal courts, and I therefore dissent from the denial of certiorari.
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425 F.Supp.2d 863 (2006)
Joseph P. FOLEY, Plaintiff,
v.
AMERICAN ELECTRIC POWER, et al., Defendants.
No. 03-CV-328.
United States District Court, S.D. Ohio, Eastern Division.
March 7, 2006.
*864 *865 Alan G. Starkoff, Schottenstein Zox & Dunn Columbus, OH, for Plaintiff.
Alvin James McKenna, Ann M. Caresani, Bradd Nathan Siegel, Porter Wright Morris & Arthur, Columbus, OH, for Defendant.
OPINION AND ORDER
MARBLEY, District Judge.
This matter is before the Court on the parties' cross-motions for summary judgment. On March 7, 2005, Plaintiff, Joseph P. Foley, and Defendants, American Electric Power Company, Inc. ("AEP"), AEP Energy Services, Inc. ("Energy Services"), American Electric Power Service Corporation ("Service Corp.") (collectively, the "Company"), American Electric Power System Incentive Compensation Deferral Plan, Melinda A. Ackerman, Thomas M. Hagan, and Henry W. Fayne, filed separate motions for summary judgment. For the reasons set forth herein, Plaintiff's Motion for Summary Judgment is DENIED, and Defendant's Motion for Summary Judgment is GRANTED in part and DENIED in part.
II. BACKGROUND
A. Facts
In September 1998, pursuant to a two-year employment agreement, Plaintiff was hired as a senior energy trader by Defendant Service Corp., a subsidiary of Defendant AEP and an affiliate of Defendant Energy Services. Plaintiff's two-year employment agreement expired on September 8, 2000, and Plaintiff continued to be employed by the Company on an at-will basis, working first as a senior energy trader and then as Director of Energy Trading for the Company's "Gulf Desk." As Director of Energy Trading, Plaintiff was responsible for trading gas at specified locations, and he supervised up to four other gas traders at a time.
*866 While he was employed with the Company, Plaintiff participated in the AEP Energy Services, Inc. Phantom Equity Plan ("PEP"), an incentive plan designed to "focus participants on the profitibility of AEP Energy Services, Inc., enhance shareholder value and provide Participants with an equity participation sufficient to attract, motivate, and retain qualified executives." Plaintiff was a participant in the PEP from the beginning of his employment through June 30, 2002, the date on which the PEP terminated.
Additionally, during Plaintiff's employment with the Company, Plaintiff became eligible to participate in the AEP System Incentive Compensation Deferral Plan ("ICDP"). The ICDP, established by the Company and effective as of January 1, 2001, is an employee pension benefit plan within the meaning of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. The purpose of the ICDP is to allow certain high-ranking Company employees to defer all or a portion of the incentive compensation they receive for tax deferral purposes.
Section 7.1 of the ICDP provides that "payment of a participant's or a former participant's account shall be made within 60 days of termination of employment." Furthermore, a participant may elect to have deferrals paid in the form of installments, but such election shall not apply if the participant terminates employment for reasons other than retirement, disability, or death. In August 2001, Plaintiff became eligible to participate in the ICDP, and on August 25, 2001, he elected to defer 90% of his PEP compensation, which would have been otherwise payable in the third quarter of 2002, by rolling it into the ICDP. The remaining ten percent of Plaintiff's PEP compensation was to be paid under the terms of the PEP. On June 30, 2002, the date the PEP terminated, Plaintiff received that ten percent of his PEP compensation as taxable income.
On October 8, 2002, the Company fired Plaintiff after he admitted to engaging in false reporting of energy trading transactions to industry publications.[1] Subsequent to his termination, on December 6, 2002, Plaintiff made a claim for $2,057,514.72 from the ICDP that he had accrued in deferred compensation. In denying Plaintiff's claim for the benefits, the Company asserted that had it been aware of Plaintiff's misconduct before June 30, 2002, it would have terminated him at that point, thus foreclosing any interest he had in the PEP.
On January 2, 2003, Plaintiff appealed the denial of benefits under the ICDP to the ICDP Committee, a committee responsible for the administration and interpretation of the ICDP. The ICDP Committee is composed of the Senior Vice President-Human Resources (Defendant Ackerman), the Executive Vice President-Shared Services (Defendant Hagan), and the Executive Vice President-Finance and Analysis (Defendant Fayne[2]). The ICDP Committee *867 met on February 28, 2003 to review the denial of Plaintiff's benefits. The Committee concluded that because Plaintiff remained an employee after June 30, 2002, the amount payable to him under the PEP was not forfeited. The ICDP Committee further held that though Plaintiff was entitled to benefits under the ICDP, it "[did] not intend to waive any rights or claims that American Electric Power may have against Mr. Foley."
On March 4, 2003 Defendants sent Plaintiff its decision letter and a separate letter, informing Plaintiff that the Company owed him nothing. The separate letter stated that the Company had determined it had a right to off-set for the damages that Plaintiff's conduct caused to the Company, and that the amount of those damages far exceeded the amount of Plaintiff's claim.
Plaintiff never received any additional money from Defendants.
B. Procedural History
Plaintiff filed a complaint (the "Complaint") against Defendants on April 11, 2003. The Complaint seeks to recover the benefits under the ICDP allegedly due to Plaintiff. Plaintiff alleges that Defendants are liable to him under theories of conversion, constructive trust, breach of fiduciary duty related to the constructive trust, and multiple ERISA violations, including breaches of the fiduciary duties relating to minimum funding standards, trust requirements, and prohibited transactions. In his Prayer for Relief, Plaintiff seeks the payment of his deferred compensation in the amount of $2,057,514.72 plus interest and accumulation from December 9, 2002, attorney's fees, punitive damages, the immediate funding of the ICDP in compliance with ERISA's minimum funding requirements, and the establishment of a trust for ICDP plan assets. In addition, Defendants have brought three counterclaims against Plaintiff for violation of the faithless servant doctrine, intentional misrepresentation, and unjust enrichment.
Plaintiff and Defendants each filed a motion for summary judgment ("Plaintiff's Motion" and "Defendants' Motion," respectively), as well as responsive memoranda. Upon completion of the filings, the parties had oral argument on the cross-motions for summary judgment before the Court. The parties' cross-motions for summary judgment are now ripe for decision.
III. STANDARD OF REVIEW
Summary judgment is appropriate "[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." FED. R.Civ.P. 56(c). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the non-moving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir.1993). In response, the non-moving party must then present "significant probative evidence" to show that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir.1993) (citations omitted).
*868 In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The Court also must interpret all reasonable inferences in the non-movant's favor. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (stating that the court must draw all reasonable inferences in favor of the non-moving party and must refrain from making credibility determinations or weighing the evidence). The existence of a mere scintilla of evidence in support of the non-moving party's position will not be sufficient; however, there must be evidence from which a factfinder reasonably could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (finding summary judgment appropriate when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party"). Finally, when parties file cross-motions for summary judgment, "the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist." Parks v. LaFace Records, 329 F.3d 437, 444-45 (6th Cir.2003) (quoting B.F. Goodrich Co. v. United States Filter Corp., 245 F.3d 587, 593 (6th Cir.2001)).
IV. ANALYSIS
As a threshold matter, it is uncontroverted that the ICDP is a "top hat plan" under ERISA. Top hat plans are subject to limited provisions of ERISA:
ERISA's coverage provisions, 29 U.S.C. §§ 1003, 1051, 1081, and 1101, state that ERISA shall apply to any employee benefit plan, other than listed exceptions. One of these exceptions, known as a top hat plan, is defined as: "a plan which is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees." 29 U.S.C. §§ 1051(2), 1081(a)(3), 1101(a)(1). Top hat plans are exempt from the participation and vesting provisions of ERISA, 29 U.S.C. §§ 1051-1061, its funding provisions, 29 U.S.C. §§ 1081-1086, and its fiduciary responsibility provisions, 29 U.S.C. §§ 1101-1114, though not from its reporting and disclosure provisions, 29 U.S.C. §§ 1021-1031, or its administration and enforcement provisions, 29 U.S.C. §§ 1131-1145.
Demery v. Extebank Deferred Compensation Plan (B), 216 F.3d 283, 286-87 (2nd Cir.2000); see also Peters v. The Lincoln Electric Co., 285 F.3d 456, 467 n. 10 (6th Cir.2002) (discussing the extent to which top hat plans are exempt from ERISA's regulatory scheme). Here, since Plaintiff concedes that the ICDP is a top hat plan, most of Plaintiff's claims are not cognizable under ERISA, including breaches of the fiduciary duties relating to minimum funding standards, trust requirements, and prohibited transactions. Thus, Plaintiffs sole claim for relief pursuant to ERISA exists under the statute's administration and enforcement provisions, 29 U.S.C. §§ 1131-1145.
Moreover, to the extent Plaintiff seeks to recover money under the ICDP, Plaintiffs allegations under state law are preempted by ERISA. Congress, in enacting ERISA, provided that the statute *869 "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." ERISA § 514(a), 29 U.S.C. § 1144(a); Warner v. Ford Motor Co., 46 F.3d 531, 532 n. 2 (6th Cir.1995). Section 502(a)(1)(B) of ERISA states that "[a] civil action may be brought by a participant or beneficiary to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan[.]" 29 U.S.C. § 1132(a)(1)(B). The purpose of § 502(a) is to provide beneficiaries with a cause of action to enforce their ERISA contracts. See Warner, 46 F.3d at 535; see also Martin v. Gen. Motors Corp., 753 F.Supp. 1347, 1358 (E.D.Mich.1991) (ERISA's civil enforcement provisions completely preempt state law causes of action "with respect to both persons who are actually `participants' or `beneficiaries' of employee benefit plans and persons who claim to be `participants' or `beneficiaries' of employee benefit plans." (emphasis in original.)). In this case, Plaintiffs state law claims of conversion, constructive trust, and breach of fiduciary duty relating to the constructive trust, all stem from Plaintiffs participation in the ICDP. As such, they are preempted by ERISA, and Plaintiffs sole remaining claim is under § 502(a)(1)(B) of ERISA, codified as 29 U.S.C. § 1132(a)(1)(B).
A. Plaintiff's Claim for Benefits Under Section 502(a)(1)(B) of ERISA
Plaintiff submits that he is entitled to recover his benefits from the ICDP pursuant to contract law. Specifically, Plaintiff argues that Defendants failed to draft provisions in the ICDP that would give them the authority to forfeit or off-set Plaintiffs compensation.[3] Looking to the terms of the ICDP,[4] Plaintiff notes the absence of any forfeiture or alienation provisions,[5] and argues that ambiguous contract language must be construed against its drafter.[6]Goldstein v. Food, Folks & Fun, Inc., 2003 WL 23770598, *2, 2003 U.S. Dist. LEXIS 16432, 6-7 (D.Ohio, 2003). Further, Plaintiff contends that Defendants' initial actions regarding Plaintiffs deferred compensation indicate Defendant's intent to withhold Plaintiffs compensation illegally. Plaintiff refers to various post-termination correspondences *870 with Janet Holiday, the Company's Senior Executive Benefits Consultant, in which Holiday never indicated that Plaintiff's entitlement to his benefits was in question. According to Plaintiff, Holiday assured him that the benefits would be paid. Additionally, Plaintiff notes that he received documents indicating that his participation interest had been deposited into his bank account, although the deposit was never reflected in his bank account statement. Plaintiff maintains that these communications help prove that Defendants breached the terms of the ICDP in a feeble attempt to modify retroactively or to interpret the ICDP without having the authority to do so.
Conversely, Defendants assert that the absence of language in the ICDP expressly forbidding forfeiture or setoff entitled them to withhold payment to Plaintiff based upon his disloyal and injurious conduct. Under Defendants' interpretation of the ICDP, Plaintiff had merely an unsecured claim to benefits to be paid from the Company's general assets. Additionally, in speaking of the conduct for which Plaintiff was terminated,[7] Defendants mention that such conduct is contrary to the Company's published rules of conduct, ethical guidelines, common sense, and federal law. Plaintiff's conduct also subjected the Company to what Defendants deem are serious consequences, including an immediate drop in its stock price, resulting in a loss of one billion dollars in market capitalization, substantial reduction in overall trading activity and trading revenue, and a lengthy government investigation into the Company's trading practices. Since Plaintiff was a disloyal employee and the ICDP does not expressly prohibit forfeiture, Defendants maintain that the Company is entitled to refuse to pay Plaintiff benefits under the ICDP.
The resolution of Plaintiff's ERISA claim turns on the issue of how the Court should interpret the ICDP, given that it does not include a provision affirmatively authorizing forfeiture or setoff. Since top hat plans are exempt from much of ERISA, including the non-forfeiture and non-alienation provisions,[8]Carson v. Local 1588, Int'l Longshoremen's Assn., 769 F.Supp. 141, 144 (S.D.N.Y.1991), contract principles, applied as a matter of federal common law, govern disputes that arise with respect to plan administration and enforcement. See Kemmerer v. ICI Americas, Inc., 70 F.3d 281, 287 (3rd Cir.1995); In re Carlyle, 242 B.R. 881, 891 (Bankr. E.D.Va.1999). Under the federal common law of contracts, contracting parties may expressly preclude setoff between them by agreement, but a waiver of setoff "cannot be inferred from equivocal language nor deduced from ambiguous expressions." Carlyle, 242 B.R. at 892 ("Few cases have found contractual language to be sufficiently specific and precise to constitute a waiver of setoff."). After the court reviewed provisions of the top-hat plan at issue in Carlyle, it found the following:
The language of the Retirement Plan, which provides that `[t]he right of the *871 Officer as any other person to the payment of a benefit hereunder shall not be assigned, transferred, pledged, encumbered or subject to any form of attachment,' is too imprecise to find it as a bar to offset. Rather, it appears to be language of a standardized nature found in all ERISA plans to prevent the imposition of an immediate taxable event upon the participation.
Id. at 893. Contractual language must be clear and explicit in explaining the intent of the parties to preclude setoff between them. Id. at 892. In the absence of an express prohibition of setoff, the federal common law of contracts authorizes an offsetting of one party's contractual obligation to the other.
As to the issue of forfeiture, courts have held that if a top-hat plan does not contain a non-forfeiture agreement, then an employer may withhold that portion of benefit plan payment that accrued during periods of employee disloyalty. Aramony v. United Way of Am., 28 F.Supp.2d 147, 171 (S.D.N.Y.1998)[9] ("Under the federal common law of forfeiture, which is derived from the consensus approach of state courts, employees cannot recover non-vested pension benefits that accrued during periods of disloyalty."); Carson, 769 F.Supp. at 144 ("Presumably, when the strict non-forfeiture and non-alienation principles surrounding ERISA are not applicable [as in top hat plans], a pension benefit is forfeitable.").[10] Ohio law is consistent with this interpretation. See, e.g., Roberto v. Brown Cty. Gen. Hosp., 59 Ohio App.3d 84, 571 N.E.2d 467, 469 (1989) (holding that "[a] contract of employment implicitly contains an agreement that the employee will act in good faith and will not act to the detriment of his employer" and that "dishonesty and disloyalty on the part of an employee which permeates his service to his employer will deprive him of his entire agreed compensation, due to the failure of such employee to give the stipulated consideration for the agreed compensation." (emphasis in original)).
During oral argument on the parties cross-motions for summary judgment, Plaintiff relied upon Fields v. Thompson Printing Co., 363 F.3d 259 (3rd Cir.2004), which he contends is controlling here. In Fields, the plaintiff was the CEO of Thompson Printing Company ("TPC"). An employment contract that contained a non-forfeiture clause in favor of Fields[11] governed his post-retirement employee benefits and compensation. Id. at 263.-When three female TPC employees alleged that Fields had sexually harassed them, *872 TPC terminated Fields' employment and, based upon public policy, refused to pay Fields any further compensation under his employment contract. Id. In construing the employment contract, the Third Circuit held that Fields was entitled to post-termination benefits and compensation because the contract did not include a conduct-related exception to its express non-forfeiture clause. Id. at 270. The court further held that it was unwilling to "look past the plain language of a relatively straightforward contract" and read such an exception into the employment contract based upon TPC's public policy argument. Id. at 268.
In this case, the Court finds that the ICDP does not contain an effective waiver of setoff, and Defendants may apply a setoff of Plaintiffs ICDP benefits earned during periods of Plaintiffs disloyalty to the Company. The parties agree that the ICDP, like the SBA in Aramony, the Retirement Plan in Carlyle, and the pension plan in Carson, is a top hat plan that is not subject to the non-forfeiture and non-alienation provisions of ERISA. Accordingly, the federal common law of contracts governs whether Defendants may offset Plaintiffs benefits under the ICDP. Under federal common law, contracting parties are not barred from offsetting one party's obligations to the other absent an explicit waiver of setoff between them. The, plain language of Section 7.1 of the ICDP, like the relevant provision of the Retirement Plan in Carlyle, is too imprecise to constitute a complete bar to setoff. Carlyle, 242 B.R. at 893-94 (finding that contract language that provided that "[t]he right of the [e]mployee or any other person to the payment of benefits under this Agreement shall not be assigned, transferred, pledged or encumbered except by will or by the laws of descent and distribution" fails to express a sufficiently concrete intention to prohibit setoff). Therefore, the contract language of the ICDP does not preclude setoff.
Under Aramony, Plaintiff cannot recover his ICDP benefits that accrued during periods of disloyalty. Contrary to Plaintiffs argument, Fields is inapposite because the employment contract in that case contained a non-forfeiture clause, while the ICDP does not. See Fields, 363 F.3d at 263. No language in the ICDP provides for the non-forfeiture of benefits. The essential holding of Fields is that the court was unwilling to read an implicit conduct-related exception into a contract's express non-forfeiture clause. See id. at 268. Similarly, this Court will not read a setoff waiver into the ICDP when no such waiver was expressly provided. Aside from Plaintiffs discussion of Fields,[12] which can be distinguished from this case due to the absence of an express nonforfeiture provision in the ICDP, Plaintiff does not rely upon any authority for its proposition that top hat plans are only subject to setoff if there are express provisions authorizing it. Accordingly, since the ICDP contains neither a non-forfeiture clause nor a waiver of setoff, Defendant is entitled to offset Plaintiffs ICDP benefits to account for the amount of such benefits that Plaintiff accrued during periods of disloyalty to the Company.
Therefore, Plaintiffs Motion for Summary Judgment as to its claim for benefits under section 502(a)(1)(B) of ERISA is DENIED. Defendants' Motion for Summary Judgment is GRANTED to the extent that Defendants have a right to setoff against Plaintiffs accrued ICDP benefits any amount of such benefits Defendants prove Plaintiff accrued during periods of *873 disloyalty to the Company. As a predicate to any setoff, however, Defendants must first prove that Plaintiff was disloyal to the Company.[13] Then, Defendants must prove the amount of Plaintiff's ICDP benefits that accrued during any period of such disloyalty.
B. Defendants' Counterclaims
In its Answer, the Company raised three state law counterclaims to Plaintiff's Complaint: a violation of the faithless servant doctrine, intentional misrepresentation, and unjust enrichment.[14] The Company now moves for summary judgment based upon those counterclaims. Each counterclaim will be discussed seriatim.
1. Faithless Servant Doctrine
As stated above, the Company may setoff against amounts payable to Plaintiff under the ICDP for any time period in which the Company can prove Plaintiff was disloyal, pursuant to the "faithless servant doctrine." In Ohio, courts have adopted the "faithless servant doctrine" enunciated by the Kansas Supreme Court, which provides the following:
[D]ishonesty and disloyalty on the part of an employee which permeates his service to his employer will deprive him of his entire agreed compensation, due to the failure of such an employee to give the stipulated consideration for the agreed compensation. Further, as public policy mandates, an employee cannot be compensated for his own deceit or wrongdoing. However, an employee's compensation will be denied only during his period of faithlessness.
Roberto, 571 N.E.2d at 469 (citing Bessman v. Bessman, 214 Kan. 510, 520 P.2d 1210 (1974)) (Emphasis in original). In Roberto, the court held that, under the faithless servant doctrine, an employer was entitled to withhold three years of deferred compensation from a hospital administrator who had embezzled from the hospital. Id. Other courts have similarly interpreted the faithless servant doctrine. See, e.g., Goal Systems Int'l, Inc. v. Klouda, No. 84AP-168, 1985 WL 10461 (Ohio Ct.App. 10th Dist. Oct. 10, 1985) (affirming an award for an employer for a portion of a disloyal employee's salary when, following his termination from employment, the former employee, a program developer, tried to market his computer program through a competitor); Hey v. Cummer, 89 Ohio App. 104, 97 N.E.2d 702 (1950) (affirming an award for an employer of an employee's entire compensation when the employee profited secretly at the expense of employer); Aramony, 28 F.Supp.2d at 176 (interpreting New York state law, ruling that a disloyal employee forfeits his right to compensation for services performed during a period of disloyalty, even if the employee's services have been, on balance, beneficial to the employer).
In this case, the Company alleges that Plaintiff's reporting of inaccurate *874 trade information to Inside FERC violated the Company's standards of ethical business practices and its Corporate Code of Conduct. The Company moves this Court to apply the faithless servant doctrine and to order Plaintiff to forfeit all of his compensation, irrespective of whether it is deferred, that was credited to or paid to him during his period of disloyalty, dishonesty, and lack of fidelity. The Company argues that the time period of disloyalty runs from early 2000 through Plaintiffs termination, since Plaintiff admitted that "he began to routinely misreport trades to Inside FERC early in 2000 and continued to do so and/or to conceal his having done so until October 2002." Defs.' Reply Mem. at 11. Accordingly, the Company contends that it is entitled to retain the $2,057,514.72 from Plaintiffs ICDP account and also recover the more than $1.5 million it paid to Plaintiff in salary from January 1, 2000 through the end of his employment.
Plaintiff asserts that the faithless servant doctrine should not apply here because: (1) Plaintiff did not personally gain from disclosing inaccurate trade information to outside publications; (2) the Company had no specific procedures in place concerning the reporting of trades to outside publications; and (3) Plaintiffs inaccurate reporting did not "permeate his service" to the Company. First, Plaintiff alleges that Ohio cases invoking the faithless service doctrine typically involve cases in which an employee took money directly from the employer.[15] Plaintiff alleges that, in contrast, his actions were not designed to harm the Company and were done in an effort to compensate for a lack of market information. Second, Plaintiff argues that, prior to October 2002, the Company had not implemented any rules specifically concerning the proper procedures for reporting trades to trading publications. Third, Plaintiff contends that since all of his trades were accurately reported o the Company, his actions did not "permeate his service to his employer." For these reasons, Plaintiff argues that the Company's counterclaim based upon the faithless servant doctrine fails.
On this issue, there remain a number of material issues of fact which are inappropriate for resolution on a motion for summary judgment. While the Court is persuaded that Plaintiffs actions could potentially trigger the application of the faithless servant doctrine as a matter of law, Defendant has not proffered sufficient evidence to prevail at this stage of the litigation. Plaintiffs assertion that the doctrine only applies when an employee gains personally from his actions is incorrect.[16] There is no requirement that an agent receive a benefit before the faithless servant doctrine authorizes a forfeiture of the agent's compensation. The fact that Plaintiff did not obtain any improper personal benefit from his misreporting to outside publications does not preclude the *875 application of the faithless servant doctrine.
The Court, however, finds that there is a genuine issue of material fact of whether Plaintiff, as Director of Energy Trading for the Company's Gulf Desk, should have been aware of the legal and practical implications of his false reporting. Also, the Court hesitates to declare at this early stage that Plaintiff's repeated misreporting of trades to outside publications and Plaintiff's attempts to conceal his own and his subordinates' misconduct satisfy the permeation requirement. Therefore, Defendants' Motion for Summary Judgment as to its counterclaim under the faithless servant doctrine is DENIED.
2. Intentional Misrepresentation
To succeed on a claim of fraud or intentional misrepresentation, a party must prove: (1) a representation or, where there is a duty to disclose, concealment of a fact; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; (4) with the intent of misleading another into relying upon it; (5) justifiable reliance upon the representation or concealment; and (6) a resulting injury proximately caused by the reliance. Russ v. TRW, Inc., 59 Ohio St.3d 42, 570 N.E.2d 1076, 1083 (1991); Wing v. Anchor Media Ltd. of Texas, 59 Ohio St.3d 108, 570 N.E.2d 1095, 1099 (1991).
Plaintiff argues that the Company has failed to provide sufficient evidence to prove the first, fifth, and sixth elements of the counterclaim. First, Plaintiff asserts that his reasoning for his conduct, when coupled with the lack of physical trades at the Company, does not indicate an intent to mislead, but rather an attempt to correct the misleading activities of others and to compensate for a lack of information. Second, Plaintiff argues that any reliance by the Company on Plaintiff's reports to outside publications was not justified since, according to Plaintiff, his method of using market indicators to establish information regarding prices was common throughout the industry and was used at the Company before Plaintiff was employed there. Third, Plaintiff notes that the Company has not shown that it was injured by its reliance on Plaintiff's representation or concealment.
The Company has failed to provide sufficient evidence to prevail on its counterclaim of intentional misrepresentation at summary judgment. There are genuine issues of material fact as to the extent of Plaintiff's duty to disclose with the Company his reporting activity to outside publications, whether, and to what extent, the Company was aware of reporting practices within the industry and the Company, and whether Plaintiff's conduct was the proximate cause of the Company's injury. Accordingly, Defendants' Motion for Summary Judgment as to its counterclaim for intentional misrepresentation is DENIED.
3. Unjust Enrichment
To prevail on a claim of unjust enrichment, a party must prove "(1) a benefit conferred by a plaintiff upon a defendant, (2) knowledge by the defendant of the benefit, and (3) retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment (`unjust enrichment')." Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 465 N.E.2d 1298, 1302 (1984). Unjust enrichment is a claim under quasi-contract law that "arises out of the obligation cast by law upon a person in receipt of benefits which he is not justly entitled to retain." Id. (quoting Hummel v. Hummel, 133 Ohio St. 520, 14 N.E.2d 923 (1938)).
*876 Here, Plaintiff contests that the Company has satisfied the third element of its claim.[17] Specifically, Plaintiff argues that "[i]n light of [Plaintiff]'s belief that his conduct was entirely proper, a belief confirmed in part by the lack of any contrary policy at Energy Services or AEP or contrary direction by management, it cannot be said that [Plaintiff] had any motive to conceal his activities." Pl.'s Mem. Opp'n at 18.
A genuine issue of material fact on it's the Company's unjust enrichment claim precludes summary judgment. The Court does not believe that the Company's evidence sufficiently proves that Plaintiff's retention of his compensation during the relevant time period was unjust. Thus, Defendants' Motion for Summary Judgment as to its counterclaim for unjust enrichment is DENIED.
V. CONCLUSION
For the foregoing reasons, Plaintiff's Motion for Summary Judgment is DENIED. Defendant's Motion for Summary Judgment is GRANTED with respect to setoff of Plaintiff's ICDP benefits, but DENIED with respect to the Company's counterclaims under the faithless servant doctrine, intentional misrepresentation, and unjust enrichment.
IT IS SO ORDERED.
NOTES
[1] Plaintiff admitted to submitting inaccurate trade information to "Inside FERC," a publication that uses trade information to establish benchmark prices for the settlement of gas trades throughout the industry. Such inaccurate reporting occurred on numerous occasions from a period sometime in 2000 through perhaps as late as April or May of 2002. Foley instructed his subordinates to provide Inside FERC with fictional deals at fictional prices in an attempt to "counteract false reporting by other market participants."
Notably, Plaintiff and Defendants agree that Plaintiff accurately reported his trades within the Company.
[2] Defendants allege that Defendant Fayne is entitled to judgment in his favor on the independent ground that he was sued on the mistaken belief that he was a member of the ICDP Committee when Plaintiff's claim for benefits was considered. Defs.' Mem. Supp. at 1 n. 1. Defendants assert that Susan Tomasky, not Defendant Fayne, was the Executive Vice President-Finance and Analysis during the relevant time period. Id. at 7-8. Accordingly, any claim against Defendant Fayne in his capacity as the Executive Vice President-Finance and Analysis in this case is dismissed.
[3] Another argument Plaintiff advances in his Reply Brief relates to Income Tax Regulations. After acknowledging that there is no regulatory guidance under ERISA, Plaintiff cites the Income Tax Regulations interpreting the minimum vesting standards of ERISA, which define the term "nonforfeitable" as "a right which, at a particular time, is conditioned under the plan on a later event, performance, or forbearance which will cause the loss of that right, is a forfeitable right at that time." 26 CFR § 1.411(a)-4(a); 26 CFR § 1.411(a)-4T(a). As the Court has noted, the ICDP, a qualified top hat plan under ERISA, is not subject to the minimum vesting standards of ERISA. Therefore, Plaintiff's argument invoking the Income Tax Regulations is not well-taken.
[4] Plaintiff offers some discussion of the terms of the PEP. The employee benefits plan concerned here, however, is the ICDP, not the PEP. Therefore, the Court will not address Plaintiff's arguments involving the contract language within the PEP.
[5] Plaintiff cites Section 7.1 of the ICDP, which reads as follows:
Upon a participant's or a former participant's termination of employment with the company for any reason other than retirement or disability, the [C]ompany shall pay the participant or the former participant the full amount credited to the participant's or former participant's account. The payment shall be made within 60 days of the participant's or former participant's termination of employment.
[6] Pl.'s Mem. Supp. at 16.
[7] Plaintiff was fired for misreporting trade information to outside trade publications.
[8] The rationale for the excluding top hat plans from many of the protective statutory provisions is that top hat plans, by definition, only apply to top management and other highly compensated employees. Presumably, employees who are eligible to participate in top hat pension plans would be able to use their elevated bargaining position to negotiate such protection for their plans on their own. As such, they do not need the protection of the comprehensive ERISA framework, which is primarily aimed at lower echelon employees.
The non-forfeiture and non-alienation provisions of ERISA are codified at 29 U.S.C. §§ 1051-1061, which, as stated above, do not apply to the ICDP.
[9] aff'd in part, rev'd in part and remanded on other grounds, Aramony v. United Way Replacement Benefit Plan, 191 F.3d 140 (2nd Cir.1999). In Aramony, the court ruled that the plaintiff-employee was entitled to benefits under one top hat plan (the Replacement Benefit Plan or "RBP"), which contained an express non-forfeiture clause, but the defendant-employer had a right of setoff under a second top hat plan (the Supplemental Benefit Agreement or "SBA"), which did not contain an express non-forfeiture provision. Id. at 155, 171.
[10] In Carson, the court held that the defendant-union could estop the plaintiff-employee from receiving a pension under the plaintiff's top-hat pension plan for an injury plaintiff caused to the defendant since top-hat pension plans are not subject to the non-forfeiture and non-alienation provisions of ERISA. 769 F.Supp. at 145.
[11] The non-forfeiture clause in the employment contract between Fields and TPC provided that "[t]his contract shall be non-terminable by Thompson [Printing Company]. In the event Thompson [Printing Company] shall terminate the employment of Jerry [Fields], all of the benefits as contained herein shall continue in accordance with the terms and provisions of this agreement." Fields, 363 F.3d at 263. The employment contract in Fields, however, did not differentiate between termination with or without cause. Id.
[12] Fields is also distinguishable from this case in that the plaintiff in Fields was fired due to alleged misconduct. Here, Plaintiff admitted to falsely reporting trades to outside trade publications. This difference between the two cases is not insignificant.
[13] In section IV.B.1. of this Opinion, infra, the Court finds that there is a genuine issue of material fact of whether Plaintiff's false reporting constitutes disloyalty to the Company under the "faithless servant doctrine."
[14] Plaintiff alleges that the Company's state law counterclaims should be preempted by section 514(a) of ERISA, which states that the provisions of ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." Pl.'s Mem. Opp'n at 9-10 (citing 29 U.S.C. § 1144(a)). The Court disagrees. First, the Company's counterclaim based upon the faithless servant doctrine arises out of federal common law, which governs the enforcement and administration of top hat pension plans. Second, with respect to the Company's state law counterclaims based upon intentional misrepresentation and unjust enrichment, they do not "relate to any employee benefit plan" since they seek recovery of, inter alia, all compensation paid to Plaintiff generally.
[15] As secondary authority for this point, Plaintiff cites to a comment from Section 469 of the Restatement (Second) of Agency, which sets forth the faithless servant doctrine ("[a]n agent who, without the acquiescence of his principal, acts for his own benefit or for the benefit of another in antagonism to or in competition with the principal in a transaction is not entitled to compensation."). Pl.'s Mem. Opp'n at 13 (quoting RESTATEMENT (SECOND) OF AGENCY § 469 cmt.a).
[16] Plaintiff's citation to Comment (a) of Section 469 of the Restatement (Second) of Agency excludes the portion of Comment (a) that goes on to say that "[a]n agent is entitled to no compensation for a service which constitutes a violation of his duties of obedience. . . . This is true even though the disobedience results in no substantial harm to the principal's interests and even though the agent believes that he is justified in so acting." RESTATEMENT (SECOND) OF AGENCY § 469 cmt.a.
[17] The Court will not address Plaintiff's other argument that the Company's unjust enrichment claim is independently barred by the presence of a express contracts, specifically the PEP and the ICDP. Pl.'s Mem. Opp'n at 19. The Company's claim does not arise out of either the PEP or the ICDP, but rather out of Plaintiff's employment generally.
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914 F.2d 252
Boylanv.First National Bank*
NO. 90-3139
United States Court of Appeals,Fifth Circuit.
AUG 29, 1990
1
Appeal From: E.D.La.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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"pile_set_name": "FreeLaw"
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875 F.2d 862
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.Daniel Lee CAHILL, Petitioner-Appellant,v.Terry L. MORRIS, Respondent-Appellee.
No. 88-3704.
United States Court of Appeals, Sixth Circuit.
April 10, 1989.
Before BOYCE F. MARTIN, Jr. and MILBURN, Circuit Judges, and BARBARA K. HACKETT,* District Judge.
PER CURIAM.
1
Cahill appeals the judgment of the district court denying his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254 claiming that 1) he was mentally incompetent at the time he entered his guilty plea due to hallucinations resulting from an overdose of drugs three days prior to the plea hearing and 2) that he was denied the effective assistance of counsel because counsel failed to investigate the effects of the overdose.
2
On October 14, 1981, a grand jury indicted Cahill on five counts. Two counts of aggravated robbery, two counts of theft of drugs and one count of having a weapon while on parole. On November 4, 1981, Cahill entered a plea of guilty and was convicted of aggravated burglary and having a weapon while under parole and was given an aggregate sentence of eight to thirty years. From October 5, 1981 to November 1, 1981 Cahill was placed on the psychiatric range at the jail because Falls View Psychiatric Hospital, a state institution of Ohio, had diagnosed him as having had a drug induced acute psychotic episode. On November 1, 1981, inmates notified jail guards that Cahill appeared to be suffering from a drug overdose. Cahill was taken to Akron City Hospital and his stomach was pumped. The hospital discharged Cahill at about 10:00 p.m. on November 1, 1981 and he returned to a holding cell at the jail. At 9:00 a.m. the next morning on November 2, 1981, Thomas Ciccolini, Cahill's attorney, visited him at the jail. Ciccolini found Cahill alert and discussed plea negotiations. Cahill mentioned that he was at the hospital but did not say why. Later on November 2, 1981, a psychiatric social worker, Adkins, interviewed Cahill. Adkins prepared a four page report of his interview with Cahill and concluded that Cahill was not suicidal. From the time of his overdose until he entered his plea, Cahill consumed no drugs or alcohol. Ciccolini met Cahill again on November 3, 1981, and discussed the plea hearing scheduled for November 4, 1981. At the plea hearing on November 4, 1981, Cahill entered a plea of guilty to aggravated burglary and to having a weapon while on parole. The remaining counts were dismissed.
3
Cahill did not take a direct appeal from his conviction. On January 9, 1985, he filed in the trial court of Ohio a pro se petition for post conviction relief claiming that: 1) he was mentally incompetent when he entered his guilty plea due to hallucinations from an overdose of drugs, and 2) he received ineffective assistance of counsel. On September 12, 1985, the trial court issued a decision dismissing the petition. Cahill appealed the dismissal of his petition to the Court of Appeals of Summit County, 9th Appellate District of Ohio, where he claimed that: 1) the trial court erred in not holding an evidentiary hearing to determine if his guilty plea was voluntary, and 2) his counsel rendered ineffective assistance for failing to investigate his competency to enter a plea in view of his attempted suicide three days before the plea hearing. The court of appeals overruled each assignment of error and affirmed the judgment of the trial court. Cahill sought leave in the Ohio Supreme Court to appeal the decision of the court of appeals. Cahill presented essentially the same issues to the Supreme Court as he had to the court of appeals. On July 9, 1986, the Ohio Supreme Court denied leave to appeal and dismissed the appeal for lack of a substantial constitutional question. On September 23, 1986, Cahill filed a pro se petition for a writ of habeas corpus in the district court, alleging that his guilty plea was involuntary because he was mentally incompetent and counsel rendered ineffective assistance in failing to investigate his mental competency.
4
On April 22, 1987, the district court referred Cahill's petition for writ of habeas corpus to a magistrate. The magistrate issued a decision in which he found that an evidentiary hearing was necessary on Cahill's claim of ineffective assistance of counsel. On December 8, 1987, the magistrate held an evidentiary hearing on Cahill's claims for ineffective assistance of counsel and his claim for an involuntary guilty plea because of mental incompetence due to a drug overdose. The magistrate found that Cahill had exhausted his state remedies as to the grounds for relief advanced by Cahill in his petition for federal habeas corpus relief. The magistrate found that the state court findings with regard to Cahill's claim of an involuntary guilty plea were not adequately developed nor reliable and not supported by the record. The magistrate held that the Sec. 2254(d) presumption of correctness as to state court findings concerning a involuntary guilty plea did not apply, and it was proper for the magistrate to hold an evidentiary hearing on the issue of whether Cahill's guilty plea was voluntary.
5
Following the evidentiary hearing, the magistrate issued a report and recommendation. The magistrate held that Cahill failed to establish that he was not competent to enter a guilty plea under the standards set forth in Dusky v. United States, 362 U.S. 402 (1960). The magistrate further held that Cahill had not carried his burden of satisfying either prong of Strickland v. Washington, 466 U.S. 668 (1984), or Hill v. Lockhart, 474 U.S. 52 (1985), and denied his claim of ineffective assistance of counsel. The magistrate refused to admit opinion testimony of a Richard Cassner, a doctor of pharmacy, stating that the foundation evidence indicated that Dr. Cassner had no expertise in the area of mental competence, and, therefore, could provide no opinion as to whether Cahill was competent to enter a plea in November, 1981.
6
On June 30, 1988, the district court issued an order denying Cahill's objections and adopting the magistrate's report and recommendation. The district court noted that the magistrate had conducted an exhaustive evidentiary hearing and had produced a transcript in excess of 250 pages. The district court declared that the magistrate had properly considered Cahill's testimony and had properly applied Dusky v. United States, 362 U.S. 402 (1960). The district court stated that the magistrate also had properly considered Cahill's ineffective assistance of counsel argument and in recommending that claim be rejected, had appropriately applied the Hill v. Lockhart, 474 U.S. 52, 59 (1985) modification of the test outlined in Strickland v. Washington, 466 U.S. 668 (1984). The district court stated that it had give de novo consideration to Cahill's lengthy objection to the magistrate's report and recommendation and found Cahill's arguments to be without merit. Specifically, the district court considered Cahill's objection to the magistrate's refusal to hear and consider the opinion testimony of Dr. Cassner and found no error in the magistrate's position. The district court stated that even if the court were, in its de novo review, to give consideration to the proffered testimony of Cassner, it would not have changed the outcome.
7
The district court found that Cahill was afforded competent counsel at all stages of the proceedings in the Summit County Common Pleas Court and that Cahill did enter into a voluntary guilty plea with a full understanding of the consequences of the plea and the plea was intelligently made.
8
We affirm the judgment of the district court.
*
The Honorable Barbara K. Hackett, United States District Judge for the Eastern District of Michigan, sitting by designation
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00191-CR
TODD PECK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 102nd District Court
Bowie County, Texas
Trial Court No. 17F1221-102
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
Todd Peck was convicted by a Bowie County jury of continuous sexual abuse of a young
child. 1 Following the jury’s recommendation, the trial court sentenced him to life without parole
and assessed a fine of $10,000.00.
Peck’s attorney has filed a brief which states that he has reviewed the record and has found
no genuinely arguable issues that could be raised on appeal. The brief sets out the procedural
history of the case and summarizes the evidence elicited during the course of the trial court
proceedings. Meeting the requirements of Anders v. California, counsel has provided a
professional evaluation of the record demonstrating why there are no arguable grounds to be
advanced. Anders v. California, 386 U.S. 738, 743–44 (1967); In re Schulman, 252 S.W.3d 403,
406 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 509–10 (Tex.
Crim. App. 1991); High v. State, 573 S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.]
1978). Counsel also filed a motion with this Court seeking to withdraw as counsel in this appeal.
On or about March 14, 2019, counsel mailed to Peck copies of the brief and motion to
withdraw and explained Peck’s rights to review the appellate record and to file a brief of his own.
Counsel also sent Peck copies of the reporter’s and clerk’s records. On June 10, 2019, Peck filed
his pro se response.
We have determined that this appeal is wholly frivolous. We have independently reviewed
the entire appellate record and, like counsel, have determined that no arguable issue supports an
appeal. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). In the Anders
1
See TEX. PENAL CODE ANN. § 21.02.
2
context, once we determine that the appeal is without merit, we must affirm the trial court’s
judgment. Id.
We affirm the judgment of the trial court. 2
Ralph K. Burgess
Justice
Date Submitted: July 8, 2019
Date Decided: July 10, 2019
Do Not Publish
2
Since we agree that this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request
to withdraw from further representation of appellant in this case. See Anders, 386 U.S. at 744. No substitute counsel
will be appointed. Should appellant desire to seek further review of this case by the Texas Court of Criminal Appeals,
he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary
review. Any petition for discretionary review (1) must be filed within thirty days from either the date of this opinion
or the date on which the last timely motion for rehearing was overruled by this Court, see TEX. R. APP. P. 68.2, (2) must
be filed with the clerk of the Texas Court of Criminal Appeals, see TEX. R. APP. P. 68.3, and (3) should comply with
the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure, see TEX. R. APP. P. 68.4.
3
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Order entered October 27, 2015
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-01101-CV
IN THE INTEREST OF T.A.S. AND C.W.S., CHILDREN
On Appeal from the 59th Judicial District Court
Grayson County, Texas
Trial Court Cause No. FA-13-2197
ORDER
This is an accelerated appeal. Appellant’s brief was due October 11, 2015. On October
13, 2015, we notified appellant the time for filing her brief had expired. We instructed her to
file, within ten days, her brief and a proper motion to extend time for filing said brief. To date,
no brief or motion has been filed.
We ORDER appellant to file, on or before November 2, 2015, her brief and a proper
motion to extend time to file her brief. If appellant fails to file her brief and a proper motion by
November 2, 2015, this appeal will be dismissed without further notice. See TEX. R. APP. P.
38.8(a)(1), 42.3(b).
/s/ MOLLY FRANCIS
PRESIDING JUSTICE
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[Cite as State v. Kearns, 2014-Ohio-5577.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
: Appellate Case No. 2014-CA-12
Plaintiff-Appellee :
: Trial Court Case No. 13-CR-285
v. :
:
JEANA M. KEARNS : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 19th day of December, 2014.
...........
KEVIN S. TALEBI, Atty. Reg. #0069198, by WESLEY E. SOMOGY, Atty. Reg. #0089037,
Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
Attorneys for Plaintiff-Appellee
THEODORE D. VALLEY, Atty. Reg. #0070867, Baldwin Valley Law, LLC, 854 East
Franklin Street, Centerville, Ohio 45459
Attorney for Defendant-Appellant
.............
2
HALL, J.
{¶ 1} Jeana M. Kearns appeals from her conviction and sentence following a guilty
plea to one count of cocaine possession, a fifth-degree felony.
{¶ 2} In her sole assignment of error, Kearns contends the trial court abused its
discretion in sentencing her to seven months in prison. She argues that the facts and
circumstances warranted community control sanctions.
{¶ 3} Upon review, we see nothing in the record indicating that Kearns moved for a
stay of her sentence pending appeal, or that this court or the trial court granted a stay. To the
contrary, the record reflects that Kearns was conveyed to prison in mid-March 2014. (See Doc.
#43). Even without jail-time credit, which the trial court did not award, her seven-month
prison term expired in mid-October 2014. We take judicial notice that she is not listed as an
inmate on the Ohio Department of Rehabilitation and Correction’s website which means that
she has been released from prison and has not been placed on post-release control. See State v.
Erdman, 2d Dist. Montgomery No. 25814, 2014-Ohio-2997, ¶ 3 (taking judicial notice that an
appellant’s name did not appear on the website).
{¶ 4} Where an appellant challenges only the imposition of a sentence that has been
served, and not the underlying conviction, there is no meaningful relief this court can provide.
Id. at ¶ 4. Under such circumstances, the appeal is moot. Id. We find that to be the case here.
Because Kearns has served the sentence she challenges, her appeal is dismissed as moot.
.............
FAIN, J., and DONOVAN, J., concur.
3
Copies mailed to:
Kevin S. Talebi
Wesley E. Somogy
Theodore D. Valley
Hon. Nick A. Selvaggio
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798 F.Supp. 358 (1992)
Arnold L. LANE and Barbara Lane, Plaintiffs,
v.
G & C TOWING COMPANY, INC., et al., Defendants.
Civ. A. No. 6:92-0042.
United States District Court, S.D. West Virginia, Parkersburg Division.
August 19, 1992.
Walter C. Hornbeck, Lawrence & Schletker, Covington, Ky., for plaintiffs.
Virginia C. Colburn, Thomas W. Pettit, Vinson, Meek, Pettit & Colburn, Huntington, W.Va., for defendants.
*359 MEMORANDUM OPINION AND ORDER
HADEN, Chief Judge.
Pending is Defendants' motion for partial summary judgment. The issue is whether the spouse of an injured Jones Act seaman may recover for loss of society and consortium based on a general maritime action. The Court concludes that such damages are not recoverable and, therefore, grants Defendants' motion for partial summary judgment.
Under Rule 56(c), Federal Rules of Civil Procedure, summary judgment is proper only:
"[I]f the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law."
Plaintiff Arnold Lane is alleging personal injuries resulting from exposure to excessive noise, dust, asbestos and diesel fumes during his years of employment with Defendant G & C Towing Company, Inc. He brought this action pursuant to the Jones Act, 46 U.S.C.A.App. § 688 and general maritime law. As a result of the alleged injuries, Plaintiff's spouse seeks damages for loss of society and consortium. Defendant G & C Towing moves for partial summary judgment to prevent recovery of such damages.
The Court's decision to grant summary judgment rests primarily on Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). In Miles, plaintiff sought recovery of non-pecuniary, loss of society damages for the wrongful death of her son. Her son was a Jones Act seaman. The Court refused to allow recovery, stating that it "would be inconsistent with our place in the constitutional scheme were we to sanction more expansive remedies in a judicially created cause of action in which liability is without fault than Congress has allowed in cases of death resulting from negligence." Id. 498 U.S. at ___, 111 S.Ct. at 326. The Court also noted the shift from general maritime remedies to more uniform statutory remedies: "Today we restore a uniform rule applicable to all actions for the wrongful death of a seaman, whether under Death on the High Seas Act, the Jones Act or general maritime law." Id. 498 U.S. at ___, 111 S.Ct. at 326.
Based on the holding in Miles, if the Jones Act applies, then remedies beyond those provided in the Jones Act are precluded. Therefore, since the Jones Act has traditionally limited recovery to pecuniary losses, Plaintiff in the present case may not recover non-pecuniary loss of consortium damages under general maritime law.
In opposing the motion, Plaintiff partially relies on Sea Land Services v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). The Gaudet case involved a general maritime action to recover for the wrongful death of Plaintiff's husband, a longshoreman. Because the incident occurred in territorial waters and involved a longshoreman rather than a seaman, the Court never considered whether the remedies under the Jones Act or Death on the High Seas Act preclude general maritime remedies. The Court ultimately permitted recovery of nonpecuniary, loss of society damages based on a general maritime action.
Contrary to the situation in Gaudet, the present case involves a Jones Act seaman. Hence the Gaudet case is not helpful in determining the preclusive effect of Jones Act remedies.
Plaintiff also relies on American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980). In this case the wife of a longshoreman sought recovery of loss of society damages due to her husband's personal injury. Because the accident took place in state territorial waters, the court held that the Death on the High Seas Act was inapplicable. The court then stated that while longshoremen are sometimes treated as seamen, the Jones Act still "lacks preclusive effect even with respect to true seamen." Alvez, supra, at 283, 100 S.Ct. at 1678. The court ultimately awarded *360 loss of society damages based on general maritime law.
In the opinion of this Court, Alvez, insofar as it permitted recovery of loss of society, was overruled by the holding in Miles.
Lastly, Plaintiff argues that the Jones Act only precludes general maritime remedies in wrongful death actions, and not personal injury actions. The Court disagrees, based on the language of the Jones Act statute and the interpretations of other district courts. These courts have consistently held that dependents of a Jones Act seaman are not allowed to recover for loss of society and consortium regardless of whether the seaman suffered personal injuries or was killed. Breland v. Western Oceanic, Inc., 755 F.Supp. 718 (W.V.La. 1991); Anglada v. Tidewater, 752 F.Supp. 722 (E.D.La.1990); Cater v. Placid Oil Co., 760 F.Supp. 568 (E.D.La.1991); Melancon v. Petrostar Corp., 762 F.Supp. 1261 (W.D.La.1991).
Accordingly, the Court grants Defendants' motion for partial summary judgment on the claim for loss of society and consortium.
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243 F.Supp. 282 (1965)
Edward L. WINN and Gertrude S. Winn, Plaintiffs,
v.
The UNITED STATES of America, Defendant.
Gus RAU, Jr., and Lael J. Rau, Plaintiffs,
v.
The UNITED STATES of America, Defendant.
Paul L. TAYLOR and Madeline E. Taylor, Plaintiffs,
v.
The UNITED STATES of America, Defendant.
Civ. A. Nos. 13227-4-13229-4.
United States District Court W. D. Missouri, W. D.
June 18, 1965.
*283 Alfred Kuraner, of Kuraner, Oberlander, Lamkin, Dingman & O'Laughlin, Kansas City, Mo., R. Eugene McGannon, of Hoskins, King, Springer & McGannon, Kansas City, Mo., for plaintiffs.
F. Russell Millin, U. S. Atty., and Calvin K. Hamilton, Asst. U. S. Atty., Kansas City, Mo., Louis F. Oberdorfer, Asst. Atty. Gen., Edward S. Smith, Jerome Fink, Robert W. Ryan, Jr., Attys., Dept. of Justice, Washington, D. C., for defendant.
BECKER, District Judge.
Each of these consolidated civil actions is a suit for the refund of federal income taxes and interest thereon. Because the actions involve common questions of law and fact, they have been consolidated for trial and determination.
Plaintiffs have complied with all conditions precedent to the institution of these actions. Jurisdiction to determine the actions exists under Section 1346 of Title 28, U.S.C.
In each of the consolidated actions the plaintiffs are husband and wife who timely filed joint federal income tax returns for the taxable year ended December 31, 1954. In each case after audit of the 1954 joint federal income tax return, the Commissioner of Internal Revenue determined that the plaintiff taxpayers had erroneously reported proceeds from the sale of the capital stock of Interstate Rental Corporation ("Interstate" hereinafter) as long term capital gain. The Commissioner further determined that the proceeds of the sale of said capital stock were the proceeds of sale of stock of a "collapsible corporation" of which the taxpayers in each case owned more than five percent; that therefore the proceeds were taxable as ordinary income under the provisions of Section 341 of the 1954 Internal Revenue Code (formerly Section 117(m), Internal Revenue Code of 1939). Pursuant to this determination the Commissioner issued separate statutory notices of deficiency to the plaintiffs Winn, the plaintiffs Rau, and the plaintiffs Taylor.
Thereafter, the plaintiffs paid the income tax deficiencies proposed in the notices of deficiency and the assessed interest thereon in the following amounts on the following dates:
Income Tax Assessed
Deficiency Interest
Amount Date Amount Date
Plaintiffs $9,371.16 7-31-58 $ 96.71 10-15-58 (Credit 1954)
Winn 1,852.02 10-17-58
Plaintiffs 8,818.77 7-31-58 91.01 10-15-58 (Credit 1954)
Rau 1,742.85 10-23-58
Plaintiffs 1,994.27 8-6-58 396.08 10-14-58
Taylor 18.63 10-15-58 (Credit 1954)
After timely filing of claims for refund and denial thereof, the plaintiffs instituted these actions.
At all times herein mentioned, Winn-Rau Corporation ("Winn-Rau" hereinafter) was a business corporation with *284 a total outstanding issue of 1,030 shares of common capital stock owned as follows:
Plaintiffs Winn 264 shares
Plaintiffs Rau 264 shares
Larry Winn, Jr. 251 shares
Kurt E. Rau 126 shares
Herb Rau 125 shares
At all times mentioned herein, the plaintiffs Winn, together with their son and daughter, owned 14.62 percent of the capital stock of another business corporation named Meadowlake Corporation ("Meadowlake" hereinafter).
Prior to 1950, Meadowlake acquired unimproved lands in Johnson County, Kansas, near Kansas City, Missouri, for development as a residential area. These lands were subdivided by Meadowlake in a subdivision known as "Meadowlake Subdivision". In the years 1950 and 1951, Meadowlake sold portions of Meadowlake Subdivision to Winn-Rau. Winn-Rau developed these adjoining portions of Meadowlake Subdivision as jobs numbered 1, 2, and 3 (see plat, Parties Ex. 15).
On the portion of the Meadowlake Subdivision designed Job No. 1, Winn-Rau built 105 houses, all of which were sold to the public. On Job No. 2 of Meadowlake Subdivision, Winn-Rau built 105 houses, all of which were sold to the public (Lot No. 1, Block 17, of Job No. 2 was later acquired from Deemer, an individual, by Interstate). On Job No. 3, Winn-Rau built 176 houses, 95 of which were sold to the public and 81 of which were sold to Interstate under the option agreement hereinafter mentioned.
In the years 1952 and 1953, Winn-Rau acquired for development as a residential area approximately 340 acres of land in Wyandotte County, Kansas, near Kansas City, Missouri, which Winn-Rau caused to be platted as Highland Crest Addition. During 1954, Winn-Rau built in this addition 253 houses, which were sold to the public, and an additional 153 houses which were built under contract for Interstate as hereinafter described.
Winn-Rau recorded its direct costs of labor and material under Job Nos. 1, 2, and 3, of Meadowlake Subdivision under the separate job numbers without allocation to the individual houses in each job.
Interstate was incorporated under the laws of the State of Kansas on April 2, 1952.
Plaintiffs Winn purchased 39 shares of the common capital stock of Interstate in April 1952 at a cost of $975. These 39 shares were sold by agreement dated November 22, 1954, for a total sales price of $82,977.55. Of the total purchase price, plaintiffs Winn received $21,872.88 in the calendar year 1954, a sum less than 30 percent of the total sales price. These 39 shares were held by the owners more than six months prior to the sale thereof and were never held for sale to customers in the ordinary course of the owners' trade or business.
Plaintiffs Rau purchased 39 shares of the common capital stock of Interstate in April 1952 at a cost of $975. These 39 shares were sold by agreement dated November 22, 1954, for a total sales price of $82,977.55. Of the total purchase price, plaintiffs Rau received $21,872.88 in the calendar year 1954, a sum less than 30 per cent of the total sales price. These 39 shares were held by the owners more than six months prior to the sale thereof, and were never held for sale to customers in the ordinary course of the owners' trade or business.
Plaintiffs Taylor purchased 20 shares of the common capital stock of Interstate in April 1952 at a cost of $500. These 20 shares were sold by agreement dated November 22, 1954, for a total sales price of $42,552.59. Of the total purchase price, plaintiffs Taylor received $11,216.86 in the calendar year 1954, a sum less than 30 percent of the total sales price. These 20 shares were held by the owners more than six months prior to the sale thereof and were never held for sale to customers in the ordinary course of the owners' trade or business.
*285 The agreement of sale of the shares of the capital stock of Interstate dated November 22, 1954, was executed by the plaintiffs and others as sellers and Dr. Marcel L. Mooney (or his nominee) as purchaser (Parties Ex. 10). This was an arm's length transaction with an unrelated party as purchaser. The total purchase price payable to the plaintiffs and others as sellers of all the authorized and outstanding capital stock of Interstate, was determined by negotiation on the basis of the net worth of Interstate with the equity in the houses in Meadowlake Subdivision valued at $2,100 per unit and the equity in the houses in Highland Crest valued at $1,000 per unit.
Following its incorporation in April 1952, Interstate acquired from Winn-Rau an option to purchase from time to time over a period of two years any one or more of the homes owned by Winn-Rau in Meadowlake Subdivision for specified prices. In 1952 and 1953 Interstate purchased 81 houses in Meadowlake Subdivision from Winn-Rau under the option agreement mentioned above, and also purchased from Deemer the house in Meadowlake Subdivision mentioned earlier. In 1953, Interstate purchased an additional nine houses in Meadowlake Subdivision from Meadowlake. Upon acquisition by Interstate, each of the 91 houses in Meadowlake Subdivision was leased to an individual tenant. Houses with one-car garages were leased for $125 a month. Houses with two-car garages were leased for $150 a month.
Prior to October 31, 1954, Interstate had sold 61 of the 91 houses which it had owned in Meadowlake Subdivision.
In 1954, Interstate constructed, under agreement with the Federal Housing Administration ("FHA" hereinafter), 153 rental houses in Highland Crest Subdivision, approximately 15 miles from Meadowlake Subdivision. Under the agreement with FHA, Interstate obligated itself to rent these houses and agreed not to sell them for a period of at least two years. Interstate purchased the land in Highland Crest Subdivision from Winn-Rau and contracted for the construction of the rental houses by Winn-Rau. During May 1954, the 153 houses were completed by Winn-Rau. These 153 houses were rented by Interstate as its Highland Crest rental project. All were in one integrated project involving property similar in kind.
QUESTIONS PRESENTED
The principal question presented is whether the plaintiffs have sustained the burden of showing that the Commissioner was in error in determining that the sale of plaintiffs' stock in Interstate in November 1954 was the sale of stock of a collapsible corporation as defined in Section 341(b) (1) of the Internal Revenue Code of 1954 (formerly Section 117(m) (2) (A), Internal Revenue Code of 1939). If the plaintiffs have sustained this burden, they are entitled to recover in this action. If they have not, their claim for refund should be denied, under Section 341(a) of the Internal Revenue Code of 1954. The subsidiary questions will be discussed hereinafter.
STATUTE INVOLVED
The material portions of the statute applying to this case, Section 341(a), 341(b), 341(d), and 341(d) (2), are as follows:
"§ 341. Collapsible corporations
"(a) Treatment of gain to shareholders. Gain from
"(1) the sale or exchange of stock of a collapsible corporation,
"(2) a distribution in partial or complete liquidation of a collapsible corporation, which distribution is treated under this part as in part or full payment in exchange for stock, and
"(3) a distribution made by a collapsible corporation which, under section 301(c) (3) (A), is treated, to the extent it exceeds the basis of the stock, in the same manner as a gain from the sale or exchange of property,
to the extent that it would be considered (but for the provisions of *286 this section) as gain from the sale or exchange of a capital asset held for more than 6 months shall, except as provided in subsection (d), be considered as gain from the sale or exchange of property which is not a capital asset.
"(b) Definitions.
"(1) Collapsible corporation. For purposes of this section, the term `collapsible corporation' means a corporation formed or availed of principally for the manufacture, construction, or production of property, for the purchase of property which (in the hands of the corporation) is property described in paragraph (3), or for the holding of stock in a corporation so formed or availed of, with a view to
"(A) the sale or exchange of stock by its shareholders (whether in liquidation or otherwise), or a distribution to its shareholders, before the realization by the corporation manufacturing, constructing, producing, or purchasing the property of a substantial part of the taxable income to be derived from such property, and
"(B) the realization by such shareholders of gain attributable to such property.
"(2) Production of purchase of property. For purposes of paragraph (1), a corporation shall be deemed to have manufactured, constructed, produced, or purchased property, if
"(A) it engaged in the manufacture, construction, or production of such property to any extent,
"(B) it holds property having a basis determined, in whole or in part, by reference to the cost of such property in the hands of a person who manufactured, constructed, produced, or purchased the property, or
"(C) it holds property having a basis determined, in whole or in part, by reference to the cost of property, manufactured, constructed, produced, or purchased by the corporation.
"(3) Section 341 assets. For purposes of this section, the term `section 341 assets' means property held for a period of less than 3 years which is
"(A) stock in trade of the corporation, or other property of a kind which would properly be included in the inventory of the corporation if on hand at the close of the taxable year;
"(B) property held by the corporation primarily for sale to customers in the ordinary course of its trade or business;
"(C) unrealized receivables or fees, except receivables from sales of property other than property described in this paragraph; or
"(D) property described in section 1231(b) (without regard to any holding period therein provided), except such property which is or has been used in connection with the manufacture, construction, production, or sale of property described in subparagraph (A) or (B).
In determining whether the 3-year holding period specified in this paragraph has been satisfied, section 1223 shall apply, but no such period shall be deemed to begin before the completion of the manufacture, construction, production, or purchase.
"(4) Unrealized receivables. For purposes of paragraph (3) (C), the term `unrealized receivables or fees' means, to the extent not previously includible in income under the method of accounting used by the corporation, any rights (contractual or otherwise) to payment for
*287 "(A) goods delivered, or to be delivered, to the extent the proceeds therefrom would be treated as amounts received from the sale or exchange of property other than a capital asset, or
"(B) services rendered or to be rendered.
* * * * * *
"(d) Limitations on application of section. In the case of gain realized by a shareholder with respect to his stock in a collapsible corporation, this section shall not apply
* * * * * *
"(2) to the gain recognized during a taxable year, unless more than 70 percent of such gain is attributable to the property so manufactured, constructed, produced, or purchased; and **."
REGULATIONS INVOLVED
The material portions of the Treasury Regulations on Income Tax (1954 Code) involved in this case are Sections 1.341-2 (a) (2), 1.341-2(a) (3), 1.341-2(a) (4), 1.341-5(b), 1.341-5(c), and 1.341-5(c), (2), which are as follows:
"§ 1.341-2. Definitions
"(a) Determination of collapsible corporation.
* * * * * *
"(2) Under section 341(b) (1) the corporation must be formed or availed of with a view to the action therein described, that is, the sale or exchange of its stock by its shareholders, or a distribution to them prior to the realization by the corporation manufacturing, constructing, producing, or purchasing the property of a substantial part of the taxable income to be derived from such property, and the realization by the shareholders of gain attributable to such property. This requirement is satisfied in any case in which such action was contemplated by those persons in a position to determine the policies of the corporation, whether by reason of their owning a majority of the voting stock of the corporation or otherwise. The requirement is satisfied whether such action was contemplated, unconditionally, conditionally, or as a recognized possibility. If the corporation was so formed or availed of, it is immaterial that a particular shareholder was not a shareholder at the time of the manufacture, construction, production, or purchase of the property, or if a shareholder at such time, did not share in such view. Any gain of such a shareholder on his stock in the corporation shall be treated in the same manner as gain of a shareholder who did share in such view. The existence of a bona fide business reason for doing business in the corporate form does not, by itself, negate the fact that the corporation may also have been formed or availed of with a view to the action described in section 341 (b).
"(3) A corporation is formed or availed of with a view to the action described in section 341(b) if the requisite view existed at any time during the manufacture, production, construction, or purchase referred to in that section. Thus, if the sale, exchange, or distribution is attributable solely to circumstances which arose after the manufacture, construction, production, or purchase (other than circumstances which reasonably could be anticipated at the time of such manufacture, construction, production, or purchase), the corporation shall, in the absence of compelling facts to the contrary, be considered not to have been so formed or availed of. However, if the sale, exchange or distribution is attributable to circumstances present at the time of the manufacture, construction, production, or purchase, *288 the corporation shall, in the absence of compelling facts to the contrary, be considered to have been so formed or availed of.
"(4) The property referred to in section 341(b) is that property or the aggregate of those properties with respect to which the requisite view existed. In order to ascertain the property or properties as to which the requisite view existed, reference shall be made to each property as to which, at the time of the sale, exchange, or distribution referred to in section 341(b) there has not been a realization by the corporation manufacturing, constructing, producing, or purchasing the property of a substantial part of the taxable income to be derived from such property. However, where any such property is a unit of an integrated project involving several properties similar in kind, the determination whether the requisite view existed shall be made only if a substantial part of the taxable income to be derived from the project has not been realized at the time of the sale, exchange, or distribution, and in such case the determination shall be made by reference to the aggregate of the properties constituting the single project.
* * * * * *
"§ 1.341-5. Application of section
* * * * * *
"(b) The following facts will ordinarily be considered sufficient (except as otherwise provided in paragraph (a) of this section and paragraph (c) of this section) to establish that a corporation is a collapsible corporation:
"(1) A shareholder of the corporation sells or exchanges his stock, or receives a liquidating distribution, or a distribution described in section 301(c) (3) (A),
"(2) Upon such sale, exchange, or distribution, such shareholder realizes gain attributable to the property described in subparagraphs (4) and (5) of this paragraph, and
"(3) At the time of the manufacture, construction, production, or purchase of the property described in subparagraphs (4) and (5) of this paragraph, such activity was substantially in relation to the other activities of the corporation which manufactured, constructed, produced, or purchased such property.
The property referred to in subparagraphs (2) and (3) of this paragraph is that property or the aggregate of those properties which meet the following two requirements:
"(4) The property is manufactured, constructed, or produced by the corporation or by another corporation stock of which is held by the corporation, or is property purchased by the corporation or by such other corporation which (in the hands of the corporation holding such property) is property described in section 341 (b) (3), and
"(5) At the time of the sale, exchange, or distribution described in subparagraph (1) of this paragraph, the corporation which manufactured, constructed, produced, or purchased such property has not realized a substantial part of the taxable income to be derived from such property.
In the case of property which is a unit of an integrated project involving several properties similar in kind, the rules of this subparagraph shall be applied to the aggregate of the properties constituting the single project rather than separately to such unit. Under the rules of this subparagraph, a corporation shall be considered a collapsible corporation by reason of holding *289 stock in other corporations which manufactured, constructed, produced, or purchased the property only if the activity of the corporation in holding stock in such other corporations is substantial in relation to the other activities of the corporation.
"(c) The absence of any of the facts set forth in paragraph (b) of this section or the presence of the following facts will ordinarily be considered sufficient (except as otherwise provided in paragraph (a) of this section) to establish that a corporation is not a collapsible corporation:
* * * * * *
"(2) In the case of a corporation subject to paragraph (b) of this section with respect to the manufacture, construction, or production (either by the corporation or by another corporation the stock of which is held by the corporation) of property, the amount of the unrealized taxable income from such property is not substantial in relation to the amount of the taxable income realized (after the completion of a material part of such manufacture, construction, or production, and prior to the sale, exchange, or distribution referred to in paragraph (b) (1) of this section) from such property and from other property manufactured, constructed, or produced by the corporation."
SPECIFIC DECISIVE QUESTIONS
Applying the statutes and regulations to the factual and legal claims of the parties in this case, the following specific decisive questions appear:
1. Did the sale occur prior to the realization by Interstate of a substantial part of the income to be derived?
2. Was Interstate formed or availed of principally for the manufacture, construction, production, or purchase of Section 341 assets with a view to (a) the sale or exchange of stock by its shareholders prior to the realization by Interstate of a substantial portion of its net income to be derived from such property, and (b) the realization by such shareholders of gain attributable to such property?
3. Was Meadowlake Subdivision an unintegrated project with respect to Interstate, in which event the 70 percent limitation of Section 341(d) (2) is inapplicable?
If the answer to any one of the three questions is negative, the taxpayers are entitled to prevail in these cases. In determining the appropriate answer to the general and to the specific decisive questions, the rule that the burden of proving facts sufficient to warrant relief rests upon the taxpayers, is recognized and applied. No fact favorable to the taxpayers will be assumed unless stipulated or proved by a preponderance of the evidence. Upon this basis the three questions are answered as follows:
Question No. 1, the "Realization" Question
The answer to question number one involves a finding of fact as well as a conclusion of law. First, a finding of fact must be made upon what percentage of the net income to be derived from the corporate property had been realized at the time of the sale.
Plaintiffs submit that at the time of sale Interstate had realized 45.797 percent of the income to be derived (Plaintiffs' Ex. 5).
Defendant contends that at the time of the sale Interstate had realized only 30.8 percent of the income to be derived. The calculation in this contention of defendant results from treating the original contract price for the sale of Interstate stock "less certain adjustments" as the income to be derived.
As a matter of fact, the evidence establishes that Interstate had realized approximately *290 40 percent of the income to be derived at the time of sale.
Upon this finding of fact the question of law must be determined. On this question the defendant places its principal reliance upon the case of Abbott v. Commissioner (C.A. 3) 258 F.2d 537. If the doctrine of the Abbott case is sound, the defendant is correct in its claim that Interstate had not realized a substantial part of the income to be derived at the time of sale. This follows because the Abbott case (by a divided Court) held that the inquiry properly is whether a substantial part of the income to be derived remains unrealized. In this case the unrealized portion is obviously substantial.
But the weight of authority is now against the rule of the Abbott case. In two subsequent cases Courts of Appeals have rejected the doctrine of the Abbott case and have given the statute an interpretation more in keeping with its language rather than its assumed purpose. Commissioner v. Kelley (C.A. 5) 293 F.2d 904; Commissioner v. Zongker (C. A. 10) 334 F.2d 44.
In the Kelley case (also by a divided Court), Judge Wisdom exhaustively analyzed the statute in question, its origins, and reviewed the critical comment by writers on the statute and its objectives. The opinion of Judge Wisdom appears to be unassailable unless one ignores the plain language of the statute, now Section 341, Internal Revenue Code of 1954.
In the Kelley case the Court held that one-third of the income realized at the time of sale was a substantial part; that the test was whether a substantial part had been realized; that the doctrine of the Abbott case is unsound; that therefore the corporation in question was not a collapsible corporation. Further the Court conceded:
"The effect of our holding is to leave the loophole two-thirds open to these taxpayers. Section 117(m), as we feel we should construe it, seems therefore a poor sort of tool for plugging loopholes. But the best workman can work only with the tools he has. If Congress wants a better job done, Congress should provide a tool that will not just plug the loophole `a substantial part of the way'." (Footnote omitted.) 293 F.2d 904, l. c. 913.
Later in the Zongker case, supra, the Court of Appeals for the Tenth Circuit followed the Kelley case in a unanimous opinion. The percentage of income realized at the time of sale in the Zongker case was 34 percent. In footnote 1 at page 46 of 334 F.2d, an addition was made to Judge Wisdom's list of current legal commentaries favorable to the view followed in the Kelley and Zongker cases.
Therefore, following the Kelley case, it is concluded that the sale in the case at bar did not occur prior to the realization by Interstate of a substantial part of the income to be derived. This conclusion has been reached after careful consideration of Braunstein v. Commissioner, 374 U.S. 65, 83 S.Ct. 1663, 10 L.Ed.2d 757. That case (while against the taxpayer on a different legal question) confirms Judge Wisdom's holding that the statute and regulations in question must be interpreted as they plainly read rather than to effect their general purpose to close a tax avoidance loophole. Other cases cited by the parties on this question are not directly in point or do not represent controlling authorities.
Although the finding and conclusion on this question determines this case in favor of plaintiffs, the remaining questions will be determined in order that this opinion may be complete.
Question No. 2, the "View" Question
From the evidence in this case it appears as a matter of fact that taxpayers did not form or at any time employ Interstate with view to the sale or exchange of stock prior to the realization of a substantial part of the net income to be derived from manufacture, construction, production, or purchase of Section 341 assets.
*291 In reaching this finding, full effect has been given (without critical examination) to defendant's contentions concerning the applicable legal standards, including the following from the Brief of the Defendant, at pages 23 and 24:
"The Treasury Regulations under Section 341(b) of the Internal Revenue Code of 1954 state that the `with a view to' or intent requirement is satisfied in any case in which the sale or exchange of stock or the distribution to shareholders was contemplated by those persons in a position to determine the policies of the corporation, whether by reason by their owning a majority of the voting stock of the corporation or otherwise. The requirement is satisfied whether such action was contemplated, unconditionally, conditionally, or as a recognized possibility. If the corporation was so formed or availed of, it is immaterial that a particular shareholder was not a shareholder at the time of the construction or purchase of the property, or, if a shareholder at such time, did not share in such view. Any gain of such a shareholder on his stock in the corporation shall be treated in the same manner as gain of a shareholder who did share in such view. Section 1.341-2(a) (2), Appendix, infra. A corporation is formed or availed of with a view to the action described in Section 341 (b) if the requisite view existed at any time during the construction or purchase referred to in that section. Thus, if the sale is attributable solely to circumstances which arose after the construction or purchase (other than circumstances which reasonably could be anticipated at the time of such construction or purchase), the corporation shall, in the absence of compelling facts to the contrary, be considered not to have been so formed or availed of. However, if the sale is attributable to circumstances present at the time of the construction or purchase, the corporation shall, in the absence of compelling facts to the contrary, be considered to have been so formed or availed of. Section 1.341-2(a) (3), Appendix, infra.
"At least two Courts of Appeals have gone so far as to indicate that no subjective intent is required to be shown, and that intent will be inferred where there is a collapsible transaction, i. e., sale or exchange of stock or liquidation in whole or in part, within the statutory three-year period and while a substantial part of taxable income remains to be realized."
The cases of Burge v. Commissioner (C. A.4) 253 F.2d 765, 74 A.L.R.2d 664 and Glickman v. Commissioner (C.A.2) 256 F.2d 108, relied on by the defendant, have been followed.
Briefly stated, the evidence in this case shows that Interstate was formed for the purpose of renting houses which Winn-Rau was unable to sell. These houses were in Job No. 3. The earliest commitments on these houses were in June 1951. In October 1950, the Board of Governors of the Federal Reserve System, with the concurrence of the Administrator of the Housing and Home Finance Agency, promulgated "Regulation X" restricting residential real estate construction credit, both private and government aided. Minimum down payments were sharply increased. The regulation was designed to help reduce the high inflationary pressures by restricting the flow of funds into the mortgage market, and thereby to reduce new home construction activity in 1951 to assure availability of labor and materials in the defense program of the Korean conflict (Plaintiffs' Ex. 7).
Winn-Rau's officers did not become aware of the effect of Regulation X on the salability of its Job No. 3 homes until the spring of 1952.
Regulation X did not apply to Winn-Rau homes under construction or on which commitments had been made, which continued to sell readily after Regulation X became effective.
*292 When the drastic effect of Regulation X became apparent, Winn-Rau's officers decided to form Interstate to rent the unsalable houses, and to secure permanent loans by Interstate, thereby relieving Winn-Rau of the construction loans and improving credit of Winn-Rau. To have ceased building at this time would have involved considerable losses to Winn-Rau because of commitments to contractors for construction of 176 planned homes and because of anticipated deterioration of houses which would be left unfinished, numbering nearly one hundred.
At that time Interstate expected to remain in the rental business indefinitely. In early 1954 Interstate purchased land from Winn-Rau and constructed 153 rental houses in Highland Crest Addition. These houses were constructed for defense workers under a liberal financing agreement with FHA which provided that they could not be sold for two years.
Interstate encountered immediate difficulties with the defense rental houses because of the bad habits of the defense worker tenants, which it was required by agreement to accept. These tenants were partly transients, frequently failed to pay rent, vacated without notice frequently, and damaged the houses. Interstate then began to suffer financial reverses which prompted it to sell its stock. Fortunately for the taxpayers and unfortunately for the purchasers, the stock was sold for what proved to be a handsome price to purchasers whose agent initiated the sale negotiations. (Subsequent events deemed irrelevant to the issue here show that the new owners of Interstate had difficulties with Highland Crest and failed to earn a profit on their investment after allowances for depreciation.) The stock of Interstate was sold rather than the real estate and improvements because of the agreement not to sell them for two years.
On these facts it is concluded that the requisite view, described in Section 341 and the regulations thereunder, does not exist.
Question No. 3, the 70 Percent Limitation Integrated Project Question
Assuming (contrary to the holdings, supra) that Section 341 is otherwise applicable, the remaining question is whether the 70 percent limitation of Section 341(d) (2), quoted above, renders Section 341 inapplicable with respect to Interstate. The answer to this question depends in turn upon whether or not with respect to Interstate the 30 houses in Meadowlake purchased from Winn-Rau constitute an integrated project. The parties are in substantial agreement that this is the critical issue.
If more than 70 percent of the gain from the sale of the property of Interstate is attributable to "collapsible assets" as referred to in Section 341(b), the limitation of Section 341(d) (2) is not applicable. The defendant submits its contentions in tabular form as follows:
"Percent of Taxpayers'
Gain on Interstate
Stock Attributable to
Interstate Assets
"Collapsible Assets
"153 Houses in Highland Crest 51.86%
" 30 Houses in Meadowlake 29.03%
_______
80.89%
"Non-collapsible Assets
"Other assets 19.11%
"Since the percentage of gain attributable to collapsible assets is 80.89%, Section 341(a) (2) does not operate to remove the taxpayers from the ambit of Section 341."
Plaintiffs contend that this tabulation is erroneous because, among other reasons, the 30 houses in Meadowlake were an integrated project with respect to Interstate. (Assuming, as stated above, that Section 341 is otherwise applicable.)
The integrated project standard is found in Treasury Regulations, Section 1.341-2(a) (4) and Section 1.341-5(b) quoted above. In essence, the Commissioner has defined an integrated project *293 as one involving several properties similar in kind.
The parties have stipulated that Highland Crest was an integrated project. The defendant points to this as an excellent example of an integrated project with regard to Interstate, pointing out that Interstate planned, constructed, and sold in one transaction all 153 houses in Highland Crest under a unified plan. While conceding that Meadowlake subdivision may have been an integrated project, or a total of three integrated projects, with regard to the builder Winn-Rau, it contends that the 91 houses in Meadowlake subdivision purchased by Interstate at various times were not an integrated project with regard to Interstate for the reasons: (a) the 91 houses were purchased at 11 different dates over a period of 17 months; and (b) the houses were purchased from 3 different and unrelated parties, Deemer, Winn-Rau, and Meadowlake. A number of the houses were sold by Interstate individually to different purchasers over the entire period during which the plaintiff taxpayers held Interstate stock, with 2 sales occurring in the first tax year, 25 sales occurring in the second tax year, and 34 sales occurring in the third tax year. While there are no controlling judicial authorities on the question, it is found and concluded that the defendant is correct in its contention that the 91 houses in Meadowlake were not an integrated project with regard to Interstate. (This renders inoperative the stipulation of the parties that in the event the Court finds that the houses located in the Meadowlake Addition constituted units of an integrated project, involving several properties similar in kind within the meaning of Treasury Regulations, Section 1.341-2(a) (4), a substantial part of the taxable income to be derived from that integrated project had been realized at the time of the sale of the capital stock of Interstate.)
It is further concluded that, assuming Section 341 otherwise to be applicable, the Highland Crest property was a collapsible asset.
Therefore, it is found and concluded that the Government is correct in its contention that the percentage of the gain of the plaintiff taxpayers on Interstate stock attributable to collapsible assets is 80.89 percent, assuming Section 341 to be otherwise applicable. This conclusion renders the 70 percent limitation of Section 341(d) (2) inapplicable (upon the assumptions heretofore made).
CONCLUSION
In view of the findings and conclusions in favor of the taxpayers under Question 1 and Question 2 above, the plaintiffs are entitled to recover in these actions. Plaintiffs are directed to submit forms of judgment on notice under the Rules of this Court.
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908 F.2d 968Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Angela ANUNUSO, Defendant-Appellant.
No. 89-5817.
United States Court of Appeals, Fourth Circuit.
Submitted: March 29, 1990.Decided: June 25, 1990.Rehearing and Rehearing In Banc Denied Oct. 29, 1990.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Herbert F. Murray, Senior District Judge. (CR-87-463-HM).
William Scott Little, Stark & Little, Baltimore, Md., for appellant.
Breckinridge L. Willcox, United States Attorney, Martin S. Himeles, Jr., Assistant United States Attorney, Baltimore, Md., for appellee.
D.Md.
AFFIRMED.
Before DONALD RUSSELL, WILKINSON and WILKINS, Circuit Judges.
PER CURIAM:
1
Angela Anunuso, a citizen of Nigeria, pled guilty to conspiracy to import heroin into the United States. 21 U.S.C. Sec. 963. On appeal, she contends that her guilty plea was not entered knowingly and voluntarily because she was unfamiliar with the English language and with the American judicial system and thus did not fully understand the charges against her or the consequences of her guilty plea.
2
This argument is totally unsupported by the record. Appellant does not suggest that the district court failed in any way to comply with the requirements of Fed.R.Crim.P. 11, which states the conditions under which a district court can accept a guilty plea. Moreover, appellant concedes that the district court judge questioned her numerous times during her arraignment to ensure that she understood the charges against her and the consequences of her plea. The judge reviewed each of her rights in detail, and stated that she should inform him if she did not understand anything he said. The judge also inquired into the nature and extent of her five-hour discussion with counsel. Finally, the record does not support appellant's claim of linguistic difficulty. To the contrary, she stated at her arraignment that she was educated in English in Nigeria, and that she could read and write the language. The transcript of the arraignment reveals that she spoke and understood English well.
3
We conclude that the district court's finding that appellant's guilty plea was knowing and voluntary was not clearly erroneous, Stone v. Cardwell, 620 F.2d 212, 213 (9th Cir.1980), and we affirm its judgment. 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 in the decisional process.
AFFIRMED
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429 S.E.2d 759 (1993)
110 N.C. App. 397
NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY,
v.
David R. WINGLER and Teresa Ham Wingler.
No. 9223SC376.
Court of Appeals of North Carolina.
June 1, 1993.
*760 Willardson & Lipscomb by William F. Lipscomb, Wilkesboro, for plaintiff-appellee.
Franklin Smith, Elkin, for defendants-appellants.
*761 LEWIS, Judge.
The issues presented by this appeal arise out of a homeowner's insurance policy and an unfortunate fire. On 11 April 1990, David Wingler entered into a handwritten "Installment/Purchase Agreement" (hereafter "Agreement") to purchase a home in Wilkes County from Grace Wilson Prevette and Worth Prevette (hereafter "Prevette"). The terms of the Agreement were that David Wingler would pay at least $500 a month for twelve months towards the purchase price of $62,000, with the remaining balance due within 30 days of the final monthly payment. It was further agreed that homeowner's insurance would be carried jointly with the premiums being split equally between David Wingler and Prevette. In the event of a major loss, it was agreed that David Wingler would have the option to repair the home or pay the remaining cash balance to Prevette. Regardless of the actual status of the Agreement, it was agreed that the property would be considered sold to David Wingler unless he failed to pay the full purchase price in the time allotted.
On 19 June 1990 a coinsurance policy was issued on the Prevette home to David Wingler by North Carolina Farm Bureau Mutual Insurance Company (hereafter "Farm Bureau"), with Prevette listed as mortgagee. The policy provided for coverage in the amounts of: $50,000 for loss to the dwelling, $25,000 for loss to personal property, $5,000 for loss to other structures, and $10,000 for loss of use.
After entering into the Agreement, David Wingler married Teresa Wingler (hereafter "the Winglers") and the couple resided in the home until 4 February 1991, when a fire destroyed much of the house. According to the Winglers, they were awakened at approximately 5:00 a.m. by flames in the doorway of their basement bedroom. The Winglers immediately exited the house with their children and then called the fire department from a neighbor's house. The Winglers did not have time to remove any of their personal belongings and most were lost in the fire.
On 11 February 1991, the Winglers submitted a proof of loss statement to Farm Bureau in the amount of $76,071.27. This amount represented the value of the home plus loss and damage to personal property. Farm Bureau's investigation of the fire revealed traces of gasoline leading from the basement stairwell up to the first floor. Farm Bureau also learned that the Winglers had been trying to sell the house for several months. On the basis of this information, the Winglers' claim was denied.
On 15 May 1991, Farm Bureau initiated the present Declaratory Judgment action against the Winglers asserting that the Winglers were barred from recovering anything under the policy for having participated in the burning of insured property, making material misrepresentations and failing to produce requested documents. Farm Bureau also requested that the trial court determine the respective interests of the Winglers and Prevette.
After suit was filed, the Winglers submitted their First Set of Interrogatories and First Request for Production of Documents seeking the names of all persons having any knowledge of the allegations in Farm Bureau's complaint. Thereafter, the Winglers filed a Second Request for Production of Documents requesting all documentation in the possession of Farm Bureau or any of its agents that related to Farm Bureau's allegations. The Winglers were particularly interested in the reports of Farm Bureau's Special Investigator, Jimmy Ledbetter. Farm Bureau objected to most of the information sought claiming that it had been prepared in anticipation of litigation and was protected by work product immunity. The Winglers filed a Motion to Compel Discovery which was heard on 16 December 1991. The trial court ordered Farm Bureau to produce most of the information requested with the exception of any reports prepared by Jimmy Ledbetter which the court determined to be work product and not discoverable.
Thereafter, in December of 1991, Farm Bureau moved for summary judgment as to Prevette and the amount payable to her under the policy. The trial court determined *762 that David Wingler had an insurable interest in the home of $4000 presumably based upon having paid eight installment payments under the Agreement. The trial court then concluded that Prevette was entitled to the remaining $46,000 under the policy as mortgagee. Farm Bureau also sought but was denied summary judgment against David Wingler on the basis that he had failed to provide his 1989 and 1990 income tax returns as required by the policy.
Two days after Farm Bureau's Motion for Summary Judgment was heard, the Winglers filed a Motion to File Amended Answer, Counterclaim and Third-Party Complaint. The Winglers failed to attach their proposed amendments nor did they assert any specific reasons as to why their motion should be allowed. As a result, the trial court in its discretion denied the motion to amend.
The Winglers gave Notice of Appeal to this Court on 19 February 1992, excepting to the trial court's entry of summary judgment in favor of Prevette, as well as the trial court's denial of their motion to amend. Farm Bureau has also given Notice of Appeal, assigning as error the denial of its motion for summary judgment as to David Wingler.
I.
The essence of the Winglers' first assignment of error is that the trial court erred in not ordering complete disclosure of all the documents requested. Before reaching the merits of this issue, we must first determine whether this issue is properly before this Court. Ordinarily orders denying or granting discovery are interlocutory and not appealable unless they affect a substantial right which would be lost if the ruling was not reviewed prior to final judgment. Dworsky v. The Travelers Ins. Co., 49 N.C.App. 446, 271 S.E.2d 522 (1980). However, an order denying discovery is immediately appealable if the discovery sought would not have delayed trial or have caused the opposing party any unreasonable annoyance, embarrassment, oppression or undue burden or expense, and if the information desired is highly relevant to a determination of the critical question to be resolved in the case. Id.
In Travelers, plaintiffs sought the entire contents of an insurance claim file, but the record in that case failed to disclose what material and relevant evidence was being sought. As a result, this Court held that plaintiffs had failed to show that the information sought was so important to the outcome of the matter as to amount to a substantial right, and dismissed plaintiffs appeal. We find the facts of this case to be indistinguishable from Travelers. In this matter, the Winglers have failed to include in the record the documents which they sought and which the trial court viewed in camera. Without the ability to view these documents for ourselves, it is impossible to determine this issue.
The Winglers have cited Walker v. Liberty Mut. Ins. Co., 84 N.C.App. 552, 353 S.E.2d 425 (1987), in support of their argument that they will be deprived of a substantial right unless they are allowed to appeal. The Winglers' reliance on Walker is unfounded. In Walker this Court addressed the issue of whether or not an order granting discovery presents an appealable issue. As part of its opinion this Court reasoned that when a discovery order is enforceable by sanctions pursuant to Rule 37(b) then it is considered a final judgment and immediately appealable. Id. However, in cases denying discovery, sanctions are not needed and they are only appealable if they affect a substantial right. In the present case there were no sanctions involved and the Winglers have failed to demonstrate a substantial right that will be lost. Therefore, Walker is inapplicable.
It is undeniable that the Winglers have met the first part of the Travelers' test that the desired discovery would not have delayed trial or caused any undue burden, delay, annoyance or oppression to Farm Bureau. However the Travelers' test for appeal from a discovery order includes a second part, and this is where the Winglers have fallen short. We therefore dismiss the Winglers' first assignment of error as interlocutory.
*763 II.
For their second assignment of error, the Winglers claim the trial court erred when it granted summary judgment in favor of Prevette. More particularly, the Winglers seem to be upset by the division of the insurance proceeds that has resulted.
The Agreement used by the Winglers and Prevette is essentially a long term contract for the sale of land where the vendee buys property on the installment method with the transfer of the deed reserved for later. Webster's Real Estate Law in North Carolina, § 138 (3d ed. 1988). Webster's states that these long term contracts are often analogous to mortgages and for this reason it is easy to understand why Prevette was listed on the insurance policy as a mortgagee instead of as the owner. Under the installment method of financing, title to the property remains with the vendor, in this case Prevette, until payment is made in full. Id.
We have reviewed the language in the Agreement and do not feel that it in any way alters the normal property interests of the parties. Prevette and David Wingler stated in the Agreement that insurance would be carried jointly. They also provided that in the event of a fire or similar loss David Wingler would have the sole decision of whether or not to repair the property or to pay the remaining balance on the property to Prevette. However, the Agreement made no mention of how any insurance proceeds would be divided. Therefore, we are guided by general principles of insurance, as well as the specific terms of the policy.
It is well established in North Carolina that an insurable interest is essential to the validity of an insurance contract, United States Fidelity & Guaranty Co. v. Reagan, 256 N.C. 1, 122 S.E.2d 774 (1962), and the extent of a claimant's recovery is typically limited by the policy itself to the claimant's insurable interest. See Harris v. North Carolina Farm Bureau Mut. Ins. Co., 91 N.C.App. 147, 370 S.E.2d 700 (1988). The express terms of the policy here, provided that Farm Bureau would not be liable to David Wingler for more than his insurable interest at the time of the fire. Our courts have defined an insurable interest as one which "furnishes a reasonable expectation of pecuniary benefit from the continued existence of the subject of the insurance." Collins v. Quincy Mut. Fire Ins. Co., 39 N.C.App. 38, 42, 249 S.E.2d 461, 463 (1978), aff'd, 297 N.C. 680, 256 S.E.2d 718 (1979); see also Jerome v. Great American Ins. Co., 52 N.C.App. 573, 279 S.E.2d 42 (1981).
In determining the extent of the Winglers' insurable interest for this appeal, the only portion of the policy which is applicable is the $50,000 coverage on the dwelling, because this is the only portion of the policy to which the trial court granted summary judgment. The Winglers claim that they have an insurable interest in the dwelling by virtue of their possession and claim that the trial court's grant of summary judgment deprives them of that interest. We agree that the Winglers have an insurable interest in the dwelling but we do not agree that the trial court's ruling has deprived them of that interest. Although the Agreement stated that the parties would consider the home to be sold to David Wingler, legal title had not yet passed at the time of the fire. Therefore, if the Winglers acquired any insurable interest in the dwelling structure, it was limited to the amount of equity which they had paid towards the $62,000 purchase price. This is supported by language in C.J.S. which provides:
[A] vendee in possession of real property under a contract for its purchase, although he has not paid the whole of the consideration or performed all the conditions of the sale, has an insurable interest therein, at least to the extent of the amount paid....
44 C.J.S. Insurance § 229(b) (1993). At $500 a month for a period of eight months the only equity the Winglers had accumulated in the dwelling was $4000. Based on this calculation the trial court subtracted the $4000 from the total dwelling coverage of $50,000 and granted summary judgment in favor of Prevette for $46,000. Although we feel the proper calculation would have *764 been to determine the percentage $4000 was of $62,000 and then apply this percentage to the policy amount of $50,000, this was an issue for Prevette to appeal and since she is not a party to this appeal we affirm the trial court's grant of summary judgment. The Winglers may still proceed against the remaining $4000 of coverage on the dwelling, the $25,000 coverage on personal property, and the $10,000 of coverage for loss of use if they are not barred for other reasons.
III.
The Winglers' third assignment of error addresses the propriety of the trial court's denial of their motion to amend. The denial of a motion to amend is generally an interlocutory order. Hudspeth v. Bunzey, 35 N.C.App. 231, 241 S.E.2d 119,disc. rev. denied, 294 N.C. 736, 244 S.E.2d 154 (1978). However when the trial court's ruling involves an amendment to an answer to add a compulsory counterclaim, then the denial is immediately appealable because it affects a substantial right. Id. A counterclaim is considered compulsory if it "arises out of the transaction or occurrence that is the subject matter of the opposing party's claim...." N.C.G.S. § 1A-1, Rule 13(a) (1990). We have reviewed the record and find the Winglers' counterclaims to be compulsory because they arise out of the fire and Farm Bureau's subsequent conduct. When a counterclaim is omitted then leave of court is necessary to add the counterclaim to the answer by way of an amendment. N.C.S.G. § 1A-1, Rule 13(f). The granting or denial of a motion to amend is directed to the sound discretion of the trial court and is not reviewable absent a clear showing of abuse of discretion. House of Raeford Farms, Inc. v. City of Raeford, 104 N.C.App. 280, 408 S.E.2d 885 (1991). However, the fact that the Winglers' counterclaims were compulsory does not effect the discretion of the trial court in granting or denying the motion to amend. SeeGrant & Hastings, P.A. v. Arlin, 77 N.C.App. 813, 336 S.E.2d 111 (1985), disc. rev. denied, 316 N.C. 376, 342 S.E.2d 894 (1986).
When the Winglers filed their motion to amend, they failed to file their proposed amended pleadings. At least one prominent commentator in North Carolina has stated: "A motion to amend should be accompanied by the proposed new pleading and should set forth the grounds on which it is based with particularity." 1 Wilson, North Carolina Civil Procedure § 15-4 (1989). We find this to be the preferred practice in this State because without the proposed pleading the trial court is placed in the difficult position of deciding whether leave of court is required, and the reviewing court is unable to determine whether the trial court abused its discretion.
Since we do not have the benefit of the Winglers' proposed amendments our review of the trial court's decision is quite limited. In addition the trial court did not state the reasons for its denial of the Winglers' amendments. We have therefore, in our discretion, undertaken an examination of the record for apparent reasons upon which the trial court may have denied the Winglers' motion. See United Leasing Corp. v. Miller, 60 N.C.App. 40, 298 S.E.2d 409 (1982), disc. rev. denied, 308 N.C. 194, 302 S.E.2d 248 (1983).
We have reviewed all the facts surrounding the Winglers' motion to amend and find ample reasons to support the trial court's denial of their motion. The Winglers sought to add a claim for deceptive and unfair trade practices, but as stated in Kinnard v. Mecklenburg Fair, Ltd., 46 N.C.App. 725, 266 S.E.2d 14, aff'd, 301 N.C. 522, 271 S.E.2d 909 (1980), such a claim greatly changes the nature of the defense and increases the stakes of the lawsuit with the possibility of treble damages. Therefore, given that substantial discovery had already taken place and several months had transpired since the Winglers filed their answer, we cannot say that the trial court abused its discretion in denying the Winglers' motion to amend. The Winglers' third assignment of error is overruled.
IV.
Farm Bureau filed its own appeal assigning as error the trial court's denial of *765 its motion for summary judgment on the basis that David Wingler had not complied with all policy requirements when he failed to supply copies of his tax returns. We note at the outset that the denial of a motion for summary judgment is an interlocutory and nonappealable order. Iverson v. TM One, Inc., 92 N.C.App. 161, 374 S.E.2d 160 (1988). Farm Bureau has obviously recognized the interlocutory nature of its appeal because it also filed a Petition for a Writ of Certiorari urging that it should not be put to the expense of trying this case. We see no difference between Farm Bureau's case and any other case where summary judgment has been denied. We deny Farm Bureau's petition and dismiss its appeal as interlocutory.
The decision of the trial court is hereby,
Affirmed.
JOHNSON and JOHN, JJ., concur.
| {
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} |
Filed 6/21/12 (S163273 & S179552, both filed 6/21/12, are companion cases; S163273 is the lead case)
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S179552
v. )
) Ct.App. 3 C060376
JARVONNE FEREDELL JONES, )
) Sacramento County
Defendant and Appellant. ) Super. Ct. No. 08F04254
____________________________________)
Defendant Jarvonne Feredell Jones, a convicted felon, carried a loaded and
concealed firearm. We must decide to what extent, if any, he may be punished
separately for the crimes of possession of a firearm by a felon, carrying a readily
accessible concealed and unregistered firearm, and carrying an unregistered loaded
firearm in public. The question requires us to interpret Penal Code section 654,1
which prohibits multiple punishment for ―[a]n act . . . that is punishable in
different ways by different provisions of law.‖ Because different provisions of
law punish in different ways defendant‘s single act, we conclude that section 654‘s
plain language prohibits punishment for more than one of those crimes.
1 All further statutory citations are to the Penal Code unless otherwise
indicated.
1
I. FACTUAL AND PROCEDURAL HISTORY
On May 26, 2008, police searched the car defendant, a convicted felon, was
driving and found in a door panel a loaded .38-caliber revolver that was not
registered to him. Defendant said he had bought the gun already loaded three days
earlier ―for protection.‖ He explained that he had kept the gun at his
grandmother‘s house and had ―just picked the gun up from there and that‘s why
the gun was in the car.‖
A jury convicted defendant of three crimes: possession of a firearm by a
felon (former § 12021, subd. (a)(1) [now § 29800, subd. (a)(1) (Stats. 2010, ch.
711, § 6)]; count one), carrying a readily accessible concealed and unregistered
firearm (former § 12025, subd. (b)(6) [now § 25400, subd. (c)(6) (as amended by
Stats. 2011, ch. 15, § 543)]; count two), and carrying an unregistered loaded
firearm in public (former § 12031, subd. (a)(2)(F) [now § 25850, subd. (c)(6) (as
amended by Stats. 2011, ch. 15, § 544)]; count three). The superior court
sentenced him to state prison for the upper term of three years on each count, to be
served concurrently, plus a one-year enhancement for a prior prison term, for a
total sentence of four years.
Defendant appealed. He argued that execution of the sentences for counts
two and three had to be stayed under section 654. The Court of Appeal agreed
that the sentence for either count two or three had to be stayed, but it held that
multiple punishment is appropriate as between the first count and either of the
other two counts. It modified the judgment to stay execution of the sentence on
count three and affirmed the judgment as modified.
We granted defendant‘s petition for review to decide whether section 654
prohibits multiple punishment for his convictions.
2
II. DISCUSSION
As relevant, section 654, subdivision (a), provides: ―An act or omission
that is punishable in different ways by different provisions of law shall be
punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more
than one provision.‖ We must decide how this provision applies to defendant‘s
three convictions.
The trial court imposed concurrent sentences. But doing so is not correct if
section 654 prohibits multiple punishment. ―It has long been established that the
imposition of concurrent sentences is precluded by section 654 [citations] because
the defendant is deemed to be subjected to the term of both sentences although
they are served simultaneously.‖ (People v. Miller (1977) 18 Cal.3d 873, 887.)
Instead, the accepted ―procedure is to sentence defendant for each count and stay
execution of sentence on certain of the convictions to which section 654 is
applicable.‖ (Id. at p. 886; see also People v. Sloan (2007) 42 Cal.4th 110, 116.)
Accordingly, although there appears to be little practical difference between
imposing concurrent sentences, as the trial court did, and staying sentence on two
of the convictions, as defendant urges, the law is settled that the sentences must be
stayed to the extent that section 654 prohibits multiple punishment. So the issue is
squarely presented. Does section 654 prohibit multiple punishment in this case?
When arrested, defendant was carrying, and thus possessing, a single
firearm, which seems to be a single physical act. Because defendant is a felon and
the gun was both loaded and concealed, that act is made punishable by three
different provisions of law, specifically, former sections 12021, subdivision (a)(1),
12025, subdivision (b)(6), and 12031, subdivision (a)(2)(F). Thus, by its terms,
section 654 seems to preclude punishment for more than one of those provisions.
3
But the question is not so simple. Two four-decades-old decisions — one
from the Court of Appeal that is almost directly on point, and an earlier four-to-
three decision from this court — strongly support the Court of Appeal‘s
conclusion that punishment for at least two of these provisions of law is
permissible. (In re Hayes (1969) 70 Cal.2d 604 (Hayes); People v. Harrison
(1969) 1 Cal.App.3d 115 (Harrison).) Harrison‘s holding, and the Court of
Appeal‘s in this case, were reasonable in light of Hayes, although, as we will
explain, the Hayes rationale would actually permit punishment for all three crimes,
a conclusion that would run afoul of more recent Court of Appeal decisions.
We first examine exactly what the Court of Appeal did and why. It
concluded that a felon who possessed or carried a single gun may not be punished
separately if the gun is an inherently unlawful firearm, such as a sawed-off rifle.
But a felon may be punished separately for possessing a gun in an unlawful way,
such as having it loaded or concealed. Even then, such a felon may be punished
only once even if, as here, the possession is unlawful in more than one way. The
Court of Appeal based this conclusion on precedent. The court was reasonable to
do so, as precedent supports all parts of its conclusion.
As the Court of Appeal explained, cases have held that section 654
precludes multiple punishment when a felon possesses an inherently unlawful
firearm. (People v. Scheidt (1991) 231 Cal.App.3d 162, 170 [sawed-off shotgun];
People v. Perry (1974) 42 Cal.App.3d 451, 456 [sawed-off rifle].) Additionally,
cases not involving felons have precluded multiple punishment for possessing a
single firearm in two unlawful ways. (People v. Hurtado (1996) 47 Cal.App.4th
805, 808, 816 [carrying a concealed and loaded firearm]; In re Joseph G. (1995)
32 Cal.App.4th 1735, 1743-1744 [carrying a loaded firearm in a public place and
carrying a concealed weapon].) The Court of Appeal followed these cases.
4
But the Court of Appeal also followed an earlier decision that permitted
separate punishment for (1) possession of a concealable firearm by a felon and (2)
possessing a loaded firearm, even though both crimes involved the same firearm.
(Harrison, supra, 1 Cal.App.3d 115.) The Harrison court explained that the ―two
statutes strike at different things. One is the hazard of permitting ex-felons to have
concealable firearms, loaded or unloaded; the risk to public safety derives from the
type of person involved. The other strikes at the hazard arising when any person
carries a loaded firearm in public. Here, the mere fact the weapon is loaded is
hazardous, irrespective of the person . . . carrying it. [¶] The ‗intent or objective‘
underlying the criminal conduct is not single, but several, and thus does not meet
another of the tests employed to determine if Penal Code section 654 is violated.
(Neal v. State of California (1960) 55 Cal.2d 11, 19-20 . . . .) For an ex-convict to
carry a concealable firearm is one act. But loading involves separate activity, and
while no evidence shows that appellant personally loaded the pistol, there seem[s]
little distinction between loading and permitting another to do so. Thus, two acts,
not a single one, are necessarily involved and bring our case outside the
prohibition against double punishment for a single act or omission.‖ (Harrison,
supra, at p. 122.)
As did the Court of Appeal, we could follow all of these cases and
announce that when the defendant is convicted of multiple crimes for possessing
or carrying a single firearm, including possession by a felon, the rule is that (1) he
may be punished for possession by a felon, (2) he may not be punished separately
for possessing an inherently unlawful firearm, (3) he may be punished separately
for possessing a firearm in an unlawful way but only once, even if he possesses it
in more than one unlawful way. Authority supports all components of this rule.
But such a rule would make little, if any, sense. Why should separate punishment
be prohibited for possessing an inherently unlawful firearm but permitted
5
(although only once) for possessing a firearm in an unlawful manner? The
Legislature has outlawed these various types of unlawful possession for separate
reasons that ―strike at different things,‖ to use Harrison‘s phrase. (Harrison,
supra, 1 Cal.App.3d at p. 122.) Harrison‘s logic would seem to permit separate
punishment for possessing an inherently dangerous weapon as well as possessing a
firearm in an unlawful way, and also for each different way in which the
possession was unlawful. Moreover, this rule would bear little relationship to
section 654‘s actual language.
Harrison, supra, 1 Cal.App.3d 115, relied heavily on Hayes, supra, 70
Cal.2d 604. In Hayes, the defendant drove while intoxicated and while possessing
an invalid license. In so doing, he violated two different penal statues: (1) driving
while intoxicated and (2) driving with an invalid license. This court, by a four-to-
three vote, held that section 654 does not prohibit multiple punishment for the two
crimes even though they were committed simultaneously. It divided the single
physical act of driving into each component of that act that is made punishable in
different ways by different provisions of law. It summarized its reasoning: ―In
summation, then, section 654 of the Penal Code proscribes multiple punishment
for a single ‗act or omission which is made punishable‘[2] by different statutes,
i.e., a single criminal act or omission. Since the mere act of driving is made
punishable by no statute, it is not the type of act or omission referred to in section
654. The acts ‗made punishable‘ which this petitioner committed were (1) driving
2 Section 654 had slightly different language at the time of Hayes, supra, 70
Cal.2d 604, than today. As enacted in 1872 and as still in effect in 1969 at the
time of Hayes, section (a) of the statute provided: ―An act or omission which is
made punishable in different ways by different provisions of this Code may be
punished under either of such provisions, but in no case can it be punished under
more than one . . . .‖ The language difference is irrelevant to this issue.
6
with a suspended license and (2) driving while intoxicated, two separate and
distinct criminal acts; that they were committed simultaneously and that they share
in common the neutral noncriminal act of driving does not render petitioner‘s
punishment for both crimes in conflict with Penal Code section 654.‖ (Hayes, at
p. 611.)
Chief Justice Traynor dissented. He relied heavily on section 654‘s plain
language in concluding that the statute permitted only one punishment for the
single act of driving, even though that act violated two criminal statutes. ―The
Attorney General contends, however, that Vehicle Code sections 14601 and 23102
[the criminal provisions at issue] have different public purposes directed at distinct
evils, and that the driver who violates both statutes simultaneously should be
doubly punished because he is invading two social interests that the Legislature
had designated for distinct protection by the enactment of two different statutes.
In a jurisdiction without a multiple punishment rule like that of Penal Code section
654, this ‗distinct evil‘ test might aid the courts in ascertaining whether the
Legislature intended cumulative punishments for simultaneous violation of
statutes like Vehicle Code sections 14601 and 23102. [Citations.] In California,
however, when the rule of section 654 precluding multiple punishment applies, the
courts cannot invoke the ‗distinct evil‘ test to evade that statutory rule.‖ (Hayes,
supra, 70 Cal.2d at p. 613 (dis. opn. of Traynor, C. J.).)
The rationale of Hayes, supra, 70 Cal.2d 604, would permit multiple
punishment in many cases when a single physical act is made punishable by
different provisions of law. Different provisions of law punishing the same
physical act — for example, driving while intoxicated and on an expired license,
or a felon‘s carrying a loaded and concealed firearm — are generally directed at
distinct societal evils. It might make sense to punish these distinct evils
separately, and a criminal justice system could logically and reasonably do so.
7
But doing so would be contrary to section 654‘s plain language, which prohibits
multiple punishment for ―[a]n act or omission that is punishable in different ways
by different provisions of law.‖
In this case, for example, Hayes‘s rationale would seem to permit
punishment for all three of defendant‘s crimes. The act of firearm possession, by
itself, is innocent. Thus, under Hayes, we would have to consider the unlawful
components of that act, i.e., defendant was a felon, the firearm was loaded, and the
firearm was concealed. To adapt Hayes‘s rationale to this case, the fact that these
acts ―were committed simultaneously and that they share in common the neutral
noncriminal act of [gun possession] does not render [defendant‘s] punishment for
[all three] crimes in conflict with Penal Code section 654.‖ (Hayes, supra, 70
Cal.2d at p. 611.)
Indeed, Hayes itself comes very close to saying that punishment for these
precise crimes is permissible. It gives an example of how its analysis would work
in a different situation: ―Similarly, for example, if an individual went for a walk
in possession of a loaded gun while he was intoxicated and unclothed, he would
by the single neutral act of walking — or, more accurately, being in a ‗public
place‘ — simultaneously violate three separate and unrelated statutes. (Pen. Code,
§§ 12031, subd. (a); 647, subd. (f); 314.) Those three statutes, however, would be
violated not by the one noncriminal act of being in a public place but necessarily
by three simultaneous though separate criminal acts. Once again, we must
distinguish identical noncriminal acts from simultaneous criminal acts ‗made
punishable‘ by law.‖ (Hayes, supra, 70 Cal.2d at p. 608, fn. omitted.) It is hard to
imagine how each crime in this example could be punished, but not each crime in
this case.
The more recent Court of Appeal cases have generally ignored Hayes,
supra, 70 Cal.2d 604, and many of their results limiting multiple punishment seem
8
inconsistent with its reasoning. The four cases discussed above that the Court of
Appeal cited and distinguished make no effort to reconcile their holdings with
Hayes. (People v. Hurtado, supra, 47 Cal.App.4th 805; In re Joseph G., supra, 32
Cal.App.4th 1735; People v. Scheidt, supra, 231 Cal.App.3d 162; and People v.
Perry, supra, 42 Cal.App.3d 451.) None of these cases cites Hayes. None
explains why multiple punishment should be prohibited for possessing an
inherently unlawful firearm but not for possessing a firearm in an unlawful way, or
why the latter may only be punished once even if the possession was unlawful in
more than one way.
We believe the current state of the law is untenable. The more recent Court
of Appeal cases discussed above are mutually consistent and have reached results
that we believe are more consistent with section 654‘s plain language than that of
Harrison, supra, 1 Cal.App.3d 115. Harrison is the anomaly, not the more recent
cases. We need a rule that is consistent with the current cases, that can lead to
predictable results, and that more closely tracks section 654‘s plain language.
Accordingly, we disapprove People v. Harrison, supra, 1 Cal.App.3d 115, and
hold that a single possession or carrying of a single firearm on a single occasion
may be punished only once under section 654.
We must also decide what to do with Hayes, supra, 70 Cal.2d 604. Its
rationale is dubious and overbroad. Over the years, it has led to inconsistent and
unpredictable results. Numerous cases, generally more recent ones, have found a
section 654 violation in a way that seems inconsistent with Hayes‘s rationale. (In
addition to the cases discussed above, see, e.g., People v. Williams (2009) 170
Cal.App.4th 587, 645-646 [654 prohibits multiple punishment for possession of a
firearm by a felon and possession of a controlled substance while armed]; People
v. Lopez (2004) 119 Cal.App.4th 132, 137-139 [654 prohibits multiple punishment
9
for unlawful possession of a firearm and unlawful possession of ammunition].)
These cases simply do not cite Hayes.
Hayes, supra, 70 Cal.2d 604, has been followed on occasion, including at
least once by this court. In In re Michael B. (1980) 28 Cal.3d 548, 556-557, this
court invoked Hayes to permit multiple punishment for vehicle theft and driving
without a license. (See also People v. Martinez (2007) 156 Cal.App.4th 851, 857
[multiple punishment permitted for driving on a suspended license and driving
under the influence of alcohol]; People v. Butler (1986) 184 Cal.App.3d 469, 471-
474 [multiple punishment permitted for felony hit and run and vehicular
manslaughter]; People v. Rowland (1971) 21 Cal.App.3d 371, 374-377 [multiple
punishment permitted for receiving stolen property and petty theft through
acquiring a credit card (i.e., some of the same stolen property) without the owner‘s
consent with intent to use or sell it].) Martinez is essentially the Hayes situation.
Butler (vehicular manslaughter followed by fleeing the scene) and Michael B.
(stealing the car and driving it) seem to have been two-act cases. Rowland was
analyzed as a two-act case — one act of acquiring the stolen property and a later
act of keeping the credit cards for the purpose of using or selling them. Thus, it
appears that Michael B., Butler, and Rowland may have been correct even apart
from Hayes.
In People v. Correa (June 21, 2012, S163273) __ Cal.4th __, also decided
today, we are disapproving language in one of our cases to bring our section 654
jurisprudence closer to the statutory language. We should do the same here.
Accordingly, we conclude that In re Hayes, supra, 70 Cal.2d 604, has no
continuing vitality, and we overrule it. Section 654 prohibits multiple punishment
for a single physical act that violates different provisions of law. This rule is
generally consistent with the holdings of more recent Court of Appeal decisions
that would otherwise be hard to reconcile with Hayes, and, especially important,
with section 654‘s plain language.
10
We recognize that what is a single physical act might not always be easy to
ascertain. In some situations, physical acts might be simultaneous yet separate for
purposes of section 654. For example, in Hayes, both the majority and the
dissenters agreed that, to use Chief Justice Traynor‘s words, ―simultaneous
possession of different items of contraband‖ are separate acts for these purposes.
(Hayes, supra, 70 Cal.2d at p. 612 (dis. opn. of Traynor, C. J.); see id. at pp. 606-
607 (maj. opn.).) As Chief Justice Traynor explained, ―the possession of one item
is not essential to the possession of another separate item. One does not possess in
the abstract; possession is meaningless unless something is possessed. The
possession of each separate item is therefore a separate act of possession.‖ (Id. at
p. 613.) We do not intend to cast doubt on the cases so holding.1
The Attorney General argues that separate acts did occur here. She notes
that defendant told the police that he had obtained the gun three days before it was
found in his car, and he had kept it at his grandmother‘s house. She argues that
keeping the gun at the house and carrying it in the car were separate acts. The
Court of Appeal acknowledged this argument but refused to rely on it. It
explained that ―the People did not argue defendant was guilty of possession three
days before his arrest: The prosecutor mentioned defendant‘s admission that he
bought the gun three days before to bolster the theory that defendant knowingly
possessed the gun, not to base liability on possession before the date of arrest.‖
The Court of Appeal was correct.
The record establishes that the jury convicted defendant of each crime due
to his being caught with the gun in the car on May 26, 2008, not due to any
1 The Court of Appeal in this case also discussed cases concerning how
section 654 applies to a defendant who is convicted of possession of a firearm by a
felon and of committing a separate crime with that firearm. (See People v. Jones
(2002) 103 Cal.App.4th 1139, 1144-1146 [collecting and discussing the cases].)
These cases concern a very different situation, and we do not intend to cast doubt
on them.
11
antecedent possession. The amended information alleged that defendant
committed all three crimes on or about May 26, 2008, the day he was arrested, and
the verdicts all found defendant guilty as charged. The prosecutor‘s entire jury
argument based defendant‘s guilt on his possessing the gun when arrested and not
earlier. He began his argument by stating that the evidence showed ―that on the
date in question Mr. Jones possessed the firearm in question. And that‘s why
we‘ve got him charged with being a felon in possession of a firearm, possessing a
concealed firearm, possessing a loaded firearm.‖ Later, he explained to the jury
that there were ―three different counts for the same exact conduct.‖ Thus,
defendant‘s guilt on all three charges was premised solely on his having the gun in
his car when arrested on May 26, 2008, not on any different acts. We express no
opinion on what the outcome might be under other facts.
Additionally, section 12021 criminalizes possessing the firearm, while
sections 12025 and 12031 criminalize carrying it. But under the facts of this case,
the possession and the carrying were the same act, not two separate acts.
Defendant had the gun in his car when arrested, which meant he both carried it and
possessed it. Again, we express no opinion on what the outcome might be under
other facts.
The separate opinions in this case agree with the outcome here and with our
overruling of Hayes, supra, 70 Cal.2d 604, and disapproving of Harrison, supra, 1
Cal.App.3d 115, both of which had found multiple acts in what were actually
single-act cases. But, instead of finding a single act, they would instead rely on a
test generally applied when there has been a course of conduct rather than a single
criminal act, namely, the ―intent and objective‖ test created in Neal v. State of
California, supra, 55 Cal.2d 11. (See generally People v. Latimer (1993) 5
Cal.4th 1203, 1207-1212.) They argue that because defendant told the police he
possessed the gun for protection, and the evidence showed no other intent or
objective, we should find a single objective that may be punished but once.
12
Finding a single objective here might resolve this particular case. But what
if the evidence also showed that the defendant wanted to intimidate rival gang
members, or go hunting, or harbored any other of the myriad possible objectives
for illegally possessing a firearm? Would multiple punishment be allowed in that
case? Or what if the evidence does not show what the defendant‘s objective was?
A defendant does not have to talk to the police. What is the court to do then?
Rather than force the court to divine what objective or objectives the defendant
might have had in possessing the firearm, we find it better to rely on section 654‘s
actual language in resolving this single-act case. Moreover, it would be harder to
overrule or disapprove past cases for diverging from the statutory language if we
were to decide the case on a basis that bears no relation at all to that language.
Accordingly, we conclude this case should be decided on the basis that it involves
a single act or omission that can be punished but once.
It might make sense to punish more severely a firearm possession that
violates multiple penal provisions than a firearm possession that violates only one
penal provision. Any time it wishes, the Legislature can change the law and
permit multiple punishment in a situation like this. But we must interpret the
statutes as they exist. Because defendant‘s convictions were based on a single act,
section 654 prohibits multiple punishment. As previously noted, we overrule In re
Hayes, supra, 70 Cal.2d 604, and disapprove People v. Harrison, supra, 1
Cal.App.3d 115.
13
III. CONCLUSION
We reverse the judgment of the Court of Appeal and remand the matter to
that court for further proceedings consistent with this opinion.
CHIN, J.
WE CONCUR:
KENNARD, ACTING C. J.
BAXTER, J.
CORRIGAN, J.
SEPULVEDA, J.*
_____________________________
* Associate Justice of the Court of Appeal, First Appellate District, Division Four,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
14
CONCURRING OPINION BY WERDEGAR, J.
Although I agree with the majority‘s result, I write separately to explain my
view of the correct approach to applying Penal Code section 654 in this case and
cases generally.1
The majority concludes that pursuant to section 654, defendant, a felon
found with a loaded pistol in his car, can be punished only once notwithstanding
his behavior violated three different criminal statutes. Although I agree with this
result, I join Justice Liu‘s separate opinion because the majority does not
persuasively explain how it has determined defendant committed only one
punishable act. As Justice Liu states, we should apply the test set forth in Neal v.
State of California (1960) 55 Cal.2d 11, 19 (Neal), which held that ―[w]hether a
course of criminal conduct is divisible and therefore gives rise to more than one
act within the meaning of section 654 depends on the intent and objective of the
actor. If all of the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.‖ (Italics added;
see conc. opn. of Liu, J., post, at p. 1.) Because the evidence demonstrates
defendant acted with but a single objective, Neal compels the conclusion that
defendant may be punished only once for his crimes.
1 All subsequent statutory references are to the Penal Code unless otherwise
stated.
1
The majority‘s failure to rely on Neal, supra, 55 Cal.2d 11, is as puzzling as
it is mischievous. The Neal intent-and-objective test has been the law for over 50
years and, as Justice Liu explains, was questioned but ultimately endorsed by this
court in People v. Latimer (1993) 5 Cal.4th 1203. (See id. at p. 1216 [―[A]t this
late date, any changes must be made by the Legislature, which obviously has the
authority to modify the rule any time it chooses.‖]; see also People v. Britt (2004)
32 Cal.4th 944, 952 [noting our criticism in Latimer].) Despite this court‘s
invitation to the Legislature to reexamine the statute, the Legislature has neither
abrogated nor amended it. Under the circumstances, we should find the
Legislature has acquiesced in the Neal test and simply apply it here. By failing to
do so, the majority creates uncertainty where none previously existed.
I.
More than a century old and deceptively simple in its terms,2 section 654
has nonetheless confounded courts through the years. Just recently, this court
faced how, or whether, section 654 applied to criminal sentence enhancement
provisions. We concluded that for the particular enhancements involved in that
case, the Legislature had specifically addressed the issue in section 1170.1,
permitting the sentencing court to impose both a firearm use enhancement
(§ 12022.5, subd. (a)) and a great bodily injury enhancement (§ 12022.7, subd. (e))
for essentially the same act: shooting the victim. (People v. Ahmed (2011) 53
Cal.4th 156.) I agreed with this reasoning but joined the concurring opinion of my
colleague Justice Liu to disavow the majority‘s unnecessary discussion of how
2 Section 654, subdivision (a) provides: ―An act or omission that is
punishable in different ways by different provisions of law shall be punished under
the provision that provides for the longest potential term of imprisonment, but in
no case shall the act or omission be punished under more than one provision. An
acquittal or conviction and sentence under any one bars a prosecution for the same
act or omission under any other.‖
2
section 654 might apply to enhancement provisions in general. (Ahmed, at pp.
168-169 (conc. opn. of Liu, J.).)
In People v. Correa (June 21, 2012, S163273) __ Cal.4th ___, filed the
same day as the instant case, the question of application of section 654 arises with
respect to a felon apprehended in simultaneous possession of seven illegal
firearms. Did he commit one punishable act of being a felon in possession of a
firearm (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1)) or seven
punishable acts? The Correa majority holds the defendant may be punished seven
separate times. As I explain in my separate opinion in Correa, I agree with that
result because the Legislature amended former section 12001 to add subdivision
(k), which provides that each illegal weapon is a separate crime, and the
Legislature must have intended by this amendment that each conviction could be
separately punished. (Correa, at p. ___ [pp. 1, 4] (conc. opn. of Werdegar, J.).)
Finally, this court in a divided opinion recently decided People v. Mesa
(June 4, 2012, S185688) __ Cal.4th ___, in which we held that section 654
prohibits punishing a defendant for both an assault with a firearm (§ 245, subd.
(a)(2)) and participation in a criminal street gang (§ 186.22, subd. (a)), when both
crimes are based on the same act: shooting the victim. Together with the instant
case, that makes four cases in this court involving the application of section 654 in
just six months (Ahmed, Jones, Correa, Mesa). The confusion concerning the
scope and meaning of the statute thus continues unabated.
Over the years, we have attempted to bring certainty to the application of
section 654 by glossing the statutory language in two principal ways. First, we
found the ―act or omission‖ referenced in the section could be a course of conduct
that includes several acts indivisible in time if pursued according to a single
objective or intent. (People v. Beamon (1973) 8 Cal.3d 625, 639; Neal, supra, 55
Cal.2d at p. 19.) If those acts have separate and independent objectives or intents,
however, multiple punishment is permissible, even if the acts are very close in
3
time. (People v. Harrison (1989) 48 Cal.3d 321, 335.) Second, despite no explicit
reference to victims in section 654, we held that a single act can be punished more
than once if it impacts multiple victims. (People v. Oates (2004) 32 Cal.4th 1048,
1063; People v. King (1993) 5 Cal.4th 59, 78; People v. McFarland (1989) 47
Cal.3d 798, 803; Neal, at pp. 20-21.) In addition, we have opined that section 654
applies to limit the punishment for multiple violations of the same criminal statute
(Neal, at p. 18, fn. 1), although the section speaks only of acts or omissions
―punishable in different ways by different provisions of law‖ (§ 654, italics
added).
These interpretations of section 654 are admittedly strangers to the statute‘s
actual wording. Nevertheless, they have until recently stood the test of time, have
not been altered by the Legislature, and are now part of the fabric of the law. But
despite our best efforts, no coherent approach to applying the statute has emerged.
Indeed, in seeking to bring clarity to the statute, we have come full circle.
In this case, for example, we overrule one of our earlier decisions on the subject,
In re Hayes (1969) 70 Cal.2d 604, which held a defendant who drove while
intoxicated and with a suspended license committed two, separately punishable
acts. (Maj. opn., ante, at p. 10.) And in People v. Correa, supra, __ Cal.4th ___,
___, the majority disapproves the venerable and long-followed interpretation of
section 654 that made it applicable to multiple violations of the same statute.3
3 See, e.g., People v. Davey (2005) 133 Cal.App.4th 384, 389 (§ 654 has
been ―interpreted also to preclude multiple punishment for more than one violation
of a single Penal Code section, if the violations all arise out of a single criminal
act‖); People v. Hall (2000) 83 Cal.App.4th 1084, 1088 (same); People v.
Gbadebo-Soda (1989) 215 Cal.App.3d 1371, 1375 (same); People v. Anderson
(1987) 191 Cal.App.3d 207, 214 (same).
4
Although, as noted, this court has on a number of occasions urged the
Legislature to intervene and clarify the law,4 with but one exception not applicable
here5 the Legislature has not enacted any substantive modification of section 654.
Thus, the terms of the section remain largely the same as they were 50 years ago
when we decided Neal, supra, 55 Cal.2d 11.
II.
That the Legislature has not acted to clarify the applicability of section 654
does not mean it has been inactive in addressing the question of multiple
punishment for a single act or omission. Rather, as I will discuss, the Legislature
4 People v. Latimer, supra, 5 Cal.4th at page 1216; see also People v. Benson
(1998) 18 Cal.4th 24, 29 (―the Legislature is free to authorize the designation of
such prior felony convictions as separate priors‖ to permit multiple punishment
despite § 654); People v. Ahmed, supra, 53 Cal.4th at page 169 (conc. opn. of
Liu, J.) (―[T]he Legislature may wish to clarify the scope of Penal Code section
654 in general, and how that statute applies to criminal sentence enhancements in
particular.‖).
5 Members of this court had previously urged the Legislature to amend
section 654 to specify that where a defendant stands convicted of multiple crimes
stemming from the same act, the trial court should choose the crime carrying the
longest single sentence as the base term. (People v. Norrell (1996) 13 Cal.4th 1,
12 (conc. opn. of Baxter J.) [―Just as the Legislature could presumably repeal the
statute altogether, so too may it amend the statute to ensure that a defendant
convicted of multiple crimes does not receive more lenient treatment by virtue of
section 654 than he could have received if the statute did not apply.‖]; id. at p. 23
(conc. & dis. opn. of Arabian, J., joined by Kennard and George, JJ.) [―I hope the
Legislature will heed my call, and amend that statute . . . .‖].)
―The provision of section 654 requiring the longest available term of
imprisonment was added by the Legislature in response to a judicial decision
permitting trial courts to choose a lesser sentence. (See People v. Kramer (2002)
29 Cal.4th 720, 722-723 . . . ; Stats. 1997, ch. 410, § 1, p. 2753.) The amendment
was intended to require punishment commensurate with culpability, and avoid the
anomaly of a lesser sentence being imposed because the defendant had been
convicted of two crimes instead of one.‖ (People v. Ceja (2010) 49 Cal.4th 1, 7-
8.)
5
has indicated in many substantive criminal statutes themselves, either expressly or
impliedly, whether or not section 654 applies to limit multiple punishment.
The restriction on multiple punishment for the same act or omission is
statutory only, and the Legislature—short of constitutional limits imposed by the
Eighth Amendment to the United States Constitution and article I, section 17 of
the California Constitution—can freely modify or alter the scope of section 654.
Although we previously have opined that, ―[h]ad the Legislature intended to
override the century-old ban of section 654 on multiple punishment of violations
based on the ‗same act or omission,‘ it would have made that purpose explicit‖
(People v. Siko (1988) 45 Cal.3d 820, 824), the Legislature has not always been so
―explicit‖ in its wishes with regard to the section‘s applicability.
Yet the Legislature has on some occasions made its intent clear. For
example, section 1170.1, the default criminal sentencing statute, begins: ―Except
as otherwise provided by law, and subject to Section 654,‖ the offender shall be
sentenced in a certain manner. (§ 1170.1, subd. (a), italics added.) Similarly,
section 32000, subdivision (c), concerning the manufacture, importation or sale of
unsafe handguns, provides: ―Violations . . . are cumulative with respect to each
handgun and shall not be construed as restricting the application of any other law.
However, an act or omission punishable in different ways by this section and other
provisions of law shall not be punished under more than one provision, but the
penalty to be imposed shall be determined as set forth in Section 654.‖ (Italics
added.) Other examples of penal statutes that explicitly note the applicability of
section 654 include section 422.6, subdivision (d), concerning the crime of
interfering with a person‘s exercise of his or her civil rights (―the penalty to be
imposed shall be determined as set forth in Section 654‖), and section 627.10,
concerning crimes committed on school grounds (―no punishment shall be
imposed contrary to Section 654‖). In these instances the Legislature has made
6
clear that section 654 applies to limit imposition of multiple punishment for the
same act or omission.
The Legislature has also fashioned penal laws that expressly exempt their
operation from section 654‘s limits on multiple punishment. For example, section
30615, concerning commission of a crime with an assault weapon, provides:
―Notwithstanding Section 654 or any other provision of law, any person who
commits another crime while violating this article may receive an additional,
consecutive punishment of one year for violating this article, in addition and
consecutive to the punishment, including enhancements, which is prescribed for
the other crime.‖ (Italics added.)
In addition to these instances of an express mention of the applicability vel
non of section 654, courts in a number of situations have been able to discern the
Legislature‘s implied intent regarding the section. For example, in People v.
Benson, supra, 18 Cal.4th at page 31, we held the phrase ―[n]otwithstanding any
other provision of law‖ in the ―Three Strikes‖ law meant a prior conviction for
which the sentence was stayed pursuant to section 654 could still count as a strike
even though the statutory language made no express reference to section 654.
Nor was People v. Benson the only case to find an implied exception to
section 654‘s general application. As we observed in People v. Palacios (2007)
41 Cal.4th 720, 730: ―[C]ourts have repeatedly upheld the Legislature‘s power to
override section 654 by enactments that do not expressly mention the statute. In
People v. Hicks (1993) 6 Cal.4th 784, 791-792 . . . , we held that the Legislature,
in enacting section 667.6, subdivision (c),[6] was not required to cite section 654 to
demonstrate its intent to create an exception to its provisions. In People v.
6 Section 667.6, subdivision (c), in 1993 as now, provided in pertinent part:
―In lieu of the term provided in Section 1170.1, a full, separate, and consecutive
term may be imposed for each violation of‖ enumerated offenses. (Italics added.)
7
Ramirez (1995) 33 Cal.App.4th 559, 573 . . . , the court held that, with regard to
section 667, subdivision (e),[7] ‗A statute which provides that a defendant shall
receive a sentence enhancement in addition to any other authorized punishment
constitutes an express exception to section 654.‘ In People v. Powell (1991) 230
Cal.App.3d 438, 441 . . . , a case predating the enactment of the Three Strikes law,
the court concluded that Health and Safety Code section 11370.2[8] authorized
double punishment in addition to any other authorized penalty, thus prevailing
over section 654 even though section 654 was not mentioned in the statute.‖
People v. Palacios itself is a good example of a case in which we found
section 654 inapplicable despite the absence of an express exemption. Palacios
7 Section 667, subdivision (e), the Three Strikes provision, provided in 1995,
as now, that a Three Strikes offender should be sentenced to a Three Strikes
sentence ―in addition to any other enhancement or punishment provisions which
may apply . . . .‖ (Italics added.)
8 Health and Safety Code section 11370.2 provides in pertinent part:
―(a) Any person convicted of a violation of, or of a conspiracy to violate, [Health
and Safety Code] Section 11351, 11351.5, or 11352 shall receive, in addition to
any other punishment authorized by law, including Section 667.5 of the Penal
Code, a full, separate, and consecutive three-year term for each prior felony
conviction of, or for each prior felony conviction of conspiracy to violate [certain
enumerated drug crimes], whether or not the prior conviction resulted in a term of
imprisonment. [¶] (b) Any person convicted of a violation of, or of a conspiracy
to violate, [Health and Safety Code] Section 11378.5, 11379.5, 11379.6, 11380.5,
or 11383 shall receive, in addition to any other punishment authorized by law,
including Section 667.5 of the Penal Code, a full, separate, and consecutive three-
year term for each prior felony conviction of, or for each prior felony conviction
of conspiracy to violate [certain enumerated drug crimes], whether or not the prior
conviction resulted in a term of imprisonment. [¶] (c) Any person convicted of a
violation of, or of a conspiracy to violate, [Health and Safety Code] Section 11378
or 11379 with respect to any substance containing a controlled substance specified
in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in
addition to any other punishment authorized by law, including Section 667.5 of
the Penal Code, a full, separate, and consecutive three-year term for each prior
felony conviction of, or for each prior felony conviction of conspiracy to violate
[certain enumerated drug crimes], whether or not the prior conviction resulted in a
term of imprisonment.‖ (Italics added.)
8
concerned section 12022.53, the so-called ―10-20-life law‖ (see People v. Jones
(2009) 47 Cal.4th 566, 570 [§ 12022.53 is ―also known as ‗the 10-20-life law‘ ‖]),
which severely punishes the use of a firearm while committing certain serious or
violent felonies. Although section 12022.53 does not mention section 654,
subdivisions (b), (c) and (d) all begin with the phrase ―[n]otwithstanding any other
provision of law‖ and subdivision (f) provides in part: ―Only one additional term
of imprisonment under this section shall be imposed per person for each crime.‖
(Italics added.) Considering this statutory language, we held that despite the
Legislature‘s failure to expressly exempt the ―10-20-life law‖ from section 654,
enhancement sentences imposed pursuant to the statute were not limited by section
654, and ―[t]o hold otherwise would contravene the plain language of section
12022.53.‖ (People v. Palacios, supra, 41 Cal.4th at p. 723.)
Even where a sentencing statute does not say it applies ―notwithstanding
any other provision of law,‖ or that a sentence should be imposed ―in addition to
any other punishment authorized by law,‖ or that a ―full, separate, and consecutive
term may be imposed,‖ the Legislature sometimes specifies in other ways that
more than one punishment is permissible for the same act. For example, section
12022.53, subdivision (e) sets forth the conditions for imposing for the same act
both a ―10-20-life‖ enhancement and a criminal street gang enhancement
(§ 186.22, subd. (b)): the principal in an enumerated crime must have personally
used and/or intentionally discharged a firearm, and/or proximately caused great
bodily injury or death. (See People v. Jones, supra, 47 Cal.4th at pp. 580-581
(conc. opn. of Werdegar, J.).) Similarly, as we held in People v. Ahmed, supra, 53
Cal.4th 156, section 1170.1, subdivisions (f) and (g) state specifically that the
single act of shooting someone can be the basis for two enhancements: one for
firearm use and one for inflicting great bodily injury.
In short, some penal statutes expressly reference section 654 or the
availability of multiple punishment, but for many that do not the courts have found
9
an implied exception to the ban on multiple punishment for the same act or
omission, such as when the statute provides that a sentencing scheme applies
―notwithstanding any other provision of law‖ or otherwise ―include[s] language
expressly authorizing multiple punishments.‖ (People v. Le (2006) 136
Cal.App.4th 925, 933.)
Against this background and also relevant to the application of section 654
is the Legislature‘s action in greatly increasing the lengths of individual criminal
sentences. As we have often recognized, ―the purpose of section 654 is to ensure
that a defendant‘s punishment will be commensurate with his culpability.‖
(People v. Correa, supra, __ Cal.4th at p. ___ [p. 11]; see also People v. Ceja,
supra, 49 Cal.4th at p. 8; People v. Britt, supra, 32 Cal.4th at p. 953; People v.
Kramer, supra, 29 Cal.4th at pp. 723-724; People v. Latimer, supra, 5 Cal.4th at
p. 1211; People v. Perez (1979) 23 Cal.3d 545, 550-551; Neal, supra, 55 Cal.2d at
p. 20.) Viewing the statute in this light, we can infer the greater a defendant‘s
punishment for committing an act under one provision of law, the more congruent
with legislative intent application of section 654‘s prohibition on multiple
punishment is likely to be.
The punishments prescribed for various criminal activities have been on an
upward spiral for many years. In the last 34 years (that is, since the advent of the
determinate sentencing law),9 base terms for many felonies have doubled or even
9 ―California‘s determinate sentencing law became operative on July 1, 1977,
replacing the prior system under which most offenses carried an indeterminate
sentence. (Added by Stats. 1976, ch. 1135, § 273, p. 5140 and as amended by
Stats. 1977, ch. 165, § 1 et seq., pp. 639-680.) In enacting the new sentencing
scheme, the Legislature declared that the purpose of imprisonment is punishment,
and that this purpose is ‗best served by terms proportionate to the seriousness of
the offense with provision for uniformity in the sentences of offenders committing
the same offense under similar circumstances.‘ (§ 1170, subd. (a)(1).)‖ (People v.
Black (2005) 35 Cal.4th 1238, 1246.)
10
tripled. In 1978, the punishment for all types of first degree robbery was two,
three or four years. (Former § 213; Stats. 1977, ch. 165, § 5, p. 642.) Today, the
punishment for robbery in concert in a home (what is commonly referred to as a
home invasion robbery) is three, six or nine years. (§ 213, subd. (a)(1)(A).) In
1978, the punishment for any attempted murder was five, six or seven years in
prison. (Former § 664; Stats. 1977, ch. 165, § 12, p. 644.) Today, an attempted
premeditated and deliberate murder carries a penalty of life in prison. (§ 664,
subd. (a).) In 1978, the punishment for forcible rape, including of a person under
14 years of age, was three, four or five years. (Former § 264; Stats. 1976, ch.
1139, § 154, p. 5106.) Today, forcible rape of a person under 14 carries a base
term of nine, 11 or 13 years. (§ 264, subd. (c)(1).) The penalty for forcible
sodomy of a child under 14 has likewise increased from two, three or four years
(former § 286, subd. (c); Stats. 1977, ch. 490, § 1, pp. 1613-1614) to nine, 11 or 13
years (§ 286, subd. (c)(2)(B)), and forcible oral copulation of a minor from two,
three or four years (former § 288a, subd. (c); Stats 1977, ch. 490, § 2, p. 1614) to
eight, 10 or 12 years (§ 288a, subd. (c)(2)(B)). The punishments for many other
sexual crimes mirror these increases.
Not only has the Legislature increased the base sentences for crimes, it has
enacted enhancements such as the ―10-20-life law‖ (§ 12022.53) and the Street
Terrorism Enforcement and Prevention Act (STEP Act) (§ 186.22, subds. (b)-(j)),
as well as alternative sentencing schemes such as the Three Strikes law (§ 667,
subds. (b)-(i); see also § 1170.12 [enacted by initiative measure]), the one strike
law (§ 667.61) and the provision of full term consecutive sentences for violent sex
offenses (§ 667.6), which together have transformed the penal consequences of
criminal activity such that sentences of more than 100 years—essentially life in
prison without any possibility of release within the offender‘s lifetime—are not
uncommon.
11
I mention these sentencing changes not to comment on their wisdom or
appropriateness; short of constitutional limits, the setting of criminal penalties is
for the Legislature and not the judiciary. But the advent of such increased
sentences is relevant to the concern of section 654, which was first enacted in
1872 and applied during the long period in which criminal sentencing was
governed by the indeterminate sentencing law, that the sentences be
commensurate with an offender‘s personal culpability. Today, under the
determinate sentencing law, sentences for a single ―act or omission‖ often are so
long that, absent an express or implied exception, one may reasonably infer that
application of section 654‘s ban on multiple punishment for the same act would be
most congruent with the legislative intent in enacting such increased sentence
provisions.
III.
Considering the many times the Legislature has expressly or impliedly
provided that section 654 does or does not apply to limit multiple punishment, and
in light of the length of criminal sentences today, we should find section 654
generally applicable in all situations to prohibit multiple punishment, unless an
offender engaged in a course of conduct and acted with multiple intents (People v.
Harrison, supra, 48 Cal.3d at p. 335), or impacted multiple victims (People v.
Oates, supra, 32 Cal.4th at p. 1063), or some express or implied statutory
exception to the section‘s applicability exists. Because the Legislature often
specifically addresses the multiple punishment possibility when enacting criminal
statutes, and frequently establishes by implication exceptions to the rule against
multiple punishment for the same act or omission, we should simply assume that
in the absence of an exception, section 654 will apply. Close cases, such as the
present one, in which it may be difficult to discern whether the defendant
committed one act or several and hence the extent of his or her culpability, should
be resolved in favor of finding one act, for the Legislature will clarify when an act
12
is multiple or singular.10 In short, we should assume the longest base term (plus
any applicable enhancements) as provided by the Legislature for a defendant‘s act
is sufficient to meet the Legislature‘s penological, retributive and rehabilitative
goals.
With these caveats in mind, I concur with the majority‘s result here that
defendant Jarvonne Feredell Jones may be punished only once for his possession
of a loaded firearm.
WERDEGAR, J.
I CONCUR:
LIU, J.
10 For example, for possession of heroin or cocaine, it might be difficult in the
abstract to determine whether the offender has committed one act or several.
Suppose he is arrested in possession of 12 separately packaged kilos of cocaine; is
that one act or 12? The Legislature has impliedly settled the matter: it is one act
subject to an additional enhancement term based on the overall weight of the
contraband. (Health & Saf. Code, § 11370.4, subd. (b)(3).)
13
CONCURRING OPINION BY LIU, J.
I agree with the court that Penal Code section 654 (section 654) permits
only one punishment in this case. I also agree with our decision to overrule In re
Hayes (1969) 70 Cal.2d 604 and to disapprove People v. Harrison (1969) 1
Cal.App.3d 115. Unlike the court, however, I would not rest the judgment in this
case on the ground that Jones‘s three crimes involved ―a single physical act.‖
(Maj. opn., ante, at p. 10.) In applying section 654, reasonable minds can and
often do differ on how to define the ―act‖ that constitutes a crime; as explained
below, the present facts provide a case in point. Today‘s opinion provides little
guidance for making that determination, as revealed by the court‘s repeated
assertion that ―[w]e express no opinion on what the outcome might be under other
facts.‖ (Maj. opn., ante, at p. 12.) The lack of guidance all but invites future
litigation, and California courts will continue to struggle to achieve consistent and
predictable application of section 654.
I prefer that we decide today‘s case on the basis of precedent — imperfect
precedent, but precedent nonetheless. In situations where it is debatable whether
separate crimes arise from a single physical act, we have determined the
applicability of section 654 by examining the ―intent and objective of the actor‖
and prohibiting multiple punishment ―[i]f all of the offenses were incident to one
objective.‖ (Neal v. State of California (1960) 55 Cal.2d 11, 19 (Neal).) The Neal
test has been criticized. But this court unanimously reaffirmed the test — warts
and all — in People v. Latimer (1993) 5 Cal.4th 1203, 1205-1206 (Latimer) after
lengthy and thoughtful consideration of whether it should be overruled. Despite
1
its shortcomings, the Neal test is our precedent, and it is squarely applicable to this
case.
I.
Some section 654 cases indisputably involve a physically indivisible single
act that is punishable in different ways by different provisions of law. In such
cases, multiple punishment is prohibited by the plain language of section 654:
―An act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest potential
term of imprisonment, but in no case shall the act or omission be punished under
more than one provision.‖
Thus, for a single act of driving, a defendant may be punished only once for
driving under the influence (Veh. Code, § 23152, subd. (a)) and driving with a
blood-alcohol level of .08 percent or greater (id., subd. (b)). (People v. Duarte
(1984) 161 Cal.App.3d 438, 447.) A defendant may be punished only once for
attempted murder, assault with intent to murder, and malicious use of explosives
for the single act of planting a bomb in the victim‘s car. (People v. Kynette (1940)
15 Cal.2d 731, 762, overruled on another ground in People v. Bonelli (1958) 50
Cal.2d 190, 197.) A defendant may be punished only once for possession of a
sawed-off shotgun and possession of a concealable firearm by a felon based upon
the same act of possessing a single firearm. (People v. Scheidt (1991) 231
Cal.App.3d 162, 170 [― ‗it was the single possession of a sawed-off rifle that was
made punishable by two different penal statutes‘ ‖]; People v. Perry (1974) 42
Cal.App.3d 451, 456 [―Here the single act made punishable by two different
statutes was the illegal possession of a firearm capable of concealment upon the
person‖].) In all of these cases, there was no question as to the physical
indivisibility of the act.
As the court acknowledges, however, ―what is a single physical act might
not always be easy to ascertain.‖ (Maj. opn., ante, at p. 10.) This is such a case.
2
Police found a concealed and loaded firearm in the car that defendant, a convicted
felon, was driving. He was convicted under three separate statutes for possession
of a firearm by a felon, carrying a concealed firearm, and carrying a loaded
firearm, respectively. The court concludes that this case involves a single act and
on that basis holds that ―a single possession or carrying of a single firearm on a
single occasion may be punished only once under section 654.‖ (Maj. opn., ante,
at p. 9.) Although this is a reasonable conclusion, it is not apparent how the court
defines this single act. It would be equally reasonable to conclude that there were
two criminal acts in this case: the act of possessing the firearm, which was
complete and ongoing from the time defendant took possession of the firearm, and
a separate criminal act when defendant placed the firearm in his car and
transported it. It might even be reasonable to conclude that there were three
criminal acts if one were to separately count the act of loading the firearm with
ammunition. To ask how many physical acts were committed in a case like this is
to plunge ourselves into insoluble metaphysical difficulties.
It is instructive to compare the reasoning in People v. Coltrin (1936) 5
Cal.2d 649 with the reasoning of People v. Brown (1958) 49 Cal.2d 577 (Brown),
which overruled Coltrin. This court held that the defendant in Coltrin could be
punished both for performing an unlawful abortion and for murder when the
defendant performed an abortion on a 16-year-old girl that resulted in her death.
The court reasoned that ― ‗[t]he act of committing an abortion and the act of
killing a person while attempting to do this are not merely the same act made
punishable in different ways.‘ . . . [A]s a practical matter it cannot be said that the
two charges involve but one act. The act of committing an abortion may be done
without causing the death of the party operated upon. The act which causes the
death of the same person is usually another act, careless or otherwise, which, while
it may be committed in connection with the first and about the same time, involves
a further and additional element.‖ (Coltrin, 5 Cal.2d at p. 661.)
3
Over two decades later, we reached the opposite conclusion in Brown,
supra, 49 Cal.2d 577, on similar facts. Overruling Coltrin, we reasoned that when
the defendant performed an abortion that resulted in the death of the victim, ―[i]t is
artificial to say that the act which caused death in the Coltrin case, and the act
which caused death in the present case, was another act than that which constituted
the abortion.‖ (Brown, at p. 593.) The Coltrin court reasonably concluded that the
act of committing an abortion and the act of murdering the victim in the process
are separate acts. The Brown court reached the equally reasonable conclusion that
the defendant committed only a single act. These cases illustrate that asking
whether separate crimes involve ―a single physical act‖ (maj. opn., ante, at p. 10)
is not a very illuminating inquiry where it is reasonably arguable that the crimes
involved more than one act.
Another complication of the court‘s approach is that it seems to suggest
different results depending on how a prosecutor chooses to draft the accusatory
pleading. In this case, the Attorney General argues that separate acts occurred
because defendant told the police he had obtained the gun three days before it was
discovered in the car and had kept it at his grandmother‘s house. The court rejects
this argument on the ground that the accusatory pleading did not charge defendant
with possessing the gun before the date he was arrested. But if the accusatory
pleading had charged defendant with possessing the gun before the date of the two
unlawful carrying charges, would that have changed the outcome? Does the
distinction make a difference? The court does not say, leaving prosecutors to
wonder whether the lesson here is simply that they should draft the accusatory
pleading differently in cases such as this.
To be sure, section 654 is a sufficiently beguiling statute that it makes sense
to proceed cautiously and avoid broad pronouncements. In People v. Ahmed
(2011) 53 Cal.4th 156, I saw no need for the court to invent a new rule that
― ‗when applied to multiple enhancements for a single crime, section 654 bars
4
multiple punishment for the same aspect of a criminal act‘ ‖ because the case
involved no ―actual dispute on that question.‖ (Id. at p. 169 (conc. opn. of Liu,
J.).) Here, there is an actual dispute concerning the applicability of section 654,
and there is a decent argument that defendant‘s possession of the gun was a
separate act from his carrying offenses. Because it cannot be said that defendant‘s
crimes indisputably involved a single act, we cannot resolve this case on the plain
language of section 654. (Cf. ante, at pp. 2-3 [discussing indisputably single-act
cases].) At the same time, we do not need to invent a new rule to decide this case.
We need only apply our settled precedent.
II.
Where reasonable minds can differ on whether multiple crimes involve a
single act, we have applied the ―intent and objective‖ test set forth in Neal, supra,
55 Cal.2d at page 19: ―Whether a course of criminal conduct is divisible and
therefore gives rise to more than one act within the meaning of section 654
depends on the intent and objective of the actor. If all of the offenses were
incident to one objective, the defendant may be punished for any one of such
offenses but not for more than one.‖
We have applied the Neal test to bar multiple punishment in cases
involving multiple acts united by a single common objective. (See, e.g., People v.
Britt (2004) 32 Cal.4th 944, 953 (Britt) [sex offender‘s failure to inform former
county of new address and separate failure to register in new county ―achiev[ed]
the common end of avoiding police surveillance‖]; Latimer, supra, 5 Cal.4th at
p. 1216 [―Although the kidnapping and the rapes were separate acts, the evidence
does not suggest any intent or objective behind the kidnapping other than to
facilitate the rapes.‖]; People v. Beamon (1973) 8 Cal.3d 625, 639 [kidnapping and
robbery united by a ―single intent and objective‖ to rob the victim]; People v.
McFarland (1962) 58 Cal.2d 748, 762 [burglary and grand theft ―were motivated
by one objective, theft‖].)
5
Because a well-developed body of precedent has applied Neal to cases that
unquestionably involve multiple acts, it follows that the Neal test is the approach
best supported by our case law for resolving cases that arguably involve multiple
acts. The Neal test readily resolves the instant case: Defendant possessed and
carried a loaded and concealed weapon ― ‗for protection‘ ‖ (maj. opn., ante, at p.
2), and no evidence suggests any other purpose. Because his three crimes shared a
common intent and objective, section 654 prohibits multiple punishment. Under
the Neal test, the outcome would be the same on these facts whether or not the
prosecutor charged defendant with antecedent possession of the gun, and whether
or not the prosecutor chose to argue defendant‘s antecedent possession to the jury.
The Neal test has not been without controversy, and in 1993, the court in
Latimer expressly considered whether to overrule it. The court opined that Neal
does not always ensure commensurability between punishment and culpability:
―A person who commits separate, factually distinct, crimes, even with only one
ultimate intent and objective, is more culpable than the person who commits only
one crime in pursuit of the same intent and objective.‖ (Latimer, supra, 5 Cal.4th
at p. 1211.) The defendant in Latimer kidnapped the victim, drove her to the
desert, and raped her. The court said ―[t]he kidnapping was a completely separate
crime; it should be separately punishable.‖ (Ibid.) But despite this concern, the
court undertook an extended discussion of stare decisis and declined to overrule
Neal. Instead, the court unanimously reaffirmed Neal on the ground that ―[t]he
Legislature has enacted substantial legislation reflecting its acceptance of the Neal
rule.‖ (Id. at p. 1214; see id. at p. 1216 [―The Neal rule . . . has influenced so
much subsequent legislation that stare decisis mandates adherence to it.‖]; see also
id. at p. 1217 (conc. opn. of Mosk, J.) [―I do not join in the criticism of Neal.‖].)
Given the court‘s unanimity in reaffirming the Neal test as well as our application
of Neal to prohibit multiple punishment in Latimer (id. at p. 1216) and again as
6
recently as 2004 (see Britt, supra, 32 Cal.4th at p. 953), the ―intent and objective‖
test is well-settled in our jurisprudence.
The Neal test requires courts to apply the appropriate level of specificity or
generality in identifying the defendant‘s intent and objective. In Britt, where a
convicted sex offender moved from one county to another without informing
either county and thereby committed two crimes, we said that ―finding separate
objectives here — to mislead or conceal information the law enforcement agency
in each county — parses the objectives too finely. . . . Here the objective —
avoiding police surveillance — was achieved just once, but only by the
combination of both reporting violations.‖ (Britt, supra, 32 Cal.4th at p. 953.)
The court in Britt distinguished People v. Perez (1979) 23 Cal.3d 545, 550-554,
which held that section 654 did not bar multiple punishment for multiple sexual
offenses that occurred during an attack lasting 45 minutes to an hour. Rejecting
the defendant‘s contention that ―his sole intent and objective was to obtain sexual
gratification,‖ we said that ―[s]uch an intent and objective is much too broad and
amorphous to determine the applicability of section 654. Assertion of a sole intent
and objective to achieve sexual gratification is akin to an assertion of a desire for
wealth as the sole intent and objective in committing a series of separate thefts.‖
(Perez, supra, 23 Cal.3d at p. 552.)
As these cases show, the application of Neal‘s ―intent and objective‖ test is
not algorithmic. But this court has acknowledged that ―[b]ecause of the many
differing circumstances wherein criminal conduct involving multiple violations
may be deemed to arise out of an ‗act or omission,‘ there can be no universal
construction which directs the proper application of section 654 in every instance.‖
(People v. Beamon, supra, 8 Cal.3d at p. 636.) The court suggests it will be
difficult to apply Neal where a defendant may have multiple objectives or where
the evidence does not show what the defendant‘s objective was. (Maj. opn., ante,
at pp. 12-13.) Notwithstanding such difficulties, we have not hesitated to ―focus
7
on the question whether defendant should be deemed to have entertained single or
multiple criminal objectives‖ in a wide range of scenarios. (People v. Perez,
supra, 23 Cal.3d at p. 552; see Latimer, supra, 5 Cal.4th at p. 1216 [finding single
objectives for kidnapping and rape even though ―[i]t could be argued that
defendant had two intents‖]; People v. Harrison (1989) 48 Cal.3d 321, 326, 334-
338 [rejecting defendant‘s claim of single objective for multiple sexual offenses
during an attack on a single victim lasting seven to ten minutes].) The Neal test is
not perfect, but we recognized its imperfections in Latimer and reaffirmed it
anyway. (Latimer, supra, 5 Cal.4th at p. 1210-1211.)
In this case, the Neal test avoids the conceptual difficulty of determining
whether one or more physical acts were involved and provides more guidance to
courts and prosecutors than the court‘s approach. Under Neal, it does not matter
whether Jones picked up the gun three days earlier or possessed the firearm earlier
that day. It does not matter whether he loaded or concealed the gun before his car
was stopped. And it does not matter — in future cases with identical facts —
whether the prosecutor charges the defendant with antecedent possession or argues
that point to the jury. What matters is that Jones‘s triply unlawful conduct was
united by a single common objective. Accordingly, our precedent dictates that
Jones may not be punished more than once under section 654.
LIU, J.
I CONCUR:
WERDEGAR, J.
8
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Jones
__________________________________________________________________________________
Unpublished Opinion XXX NP opn. filed 12/10/09 – 3d Dist.
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S179552
Date Filed: June 21, 2012
__________________________________________________________________________________
Court: Superior
County: Sacramento
Judge: Jaime R. Roman
__________________________________________________________________________________
Counsel:
Sandra Uribe and Deanna Lamb, under appointments by the Supreme Court, and Morgan H. Daly, under
appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jennevee H. De
Guzman, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Deanna Lamb
Central California Appellate Program
2407 J Street, Suite 301
Sacramento, CA 95816
(916) 441-3792
Jennevee H. De Guzman
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
9916) 327-1145
| {
"pile_set_name": "FreeLaw"
} |
493 F.3d 977 (2007)
UNITED STATES of America, Appellee,
v.
Jay Todd HESSMAN, Appellant.
No. 06-2360.
United States Court of Appeals, Eighth Circuit.
Submitted: February 14, 2007.
Filed: July 20, 2007.
Rehearing and Rehearing Denied August 30, 2007.
*978 Counsel who presented argument on behalf of the appellant was Joseph J. Hrvol, Council Bluffs, Iowa.
Counsel who presented argument on behalf of the appellee was AUSA John H. Lammers, Sioux City, Iowa. Also appearing *979 on the brief is AUSA Janet L. Petersen, Sioux City, Iowa.
Before RILEY, MELLOY and SHEPHERD, Circuit Judges.
Rehearing and Rehearing En Banc Denied August 30, 2007.
SHEPHERD, Circuit Judge.
Jay Todd Hessman was convicted at a jury trial of conspiracy to manufacture and distribute five grams or more of methamphetamine after having been previously convicted of a felony drug offense. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. He was sentenced to 360 months of imprisonment. On appeal, Hessman asserts that the district court[1] erred in: denying his motion to dismiss based upon the Speedy Trial Act, 18 U.S.C. § 3161; its handling of government hearsay testimony; admitting evidence of prior convictions; refusing a jury instruction offered by Hessman; failing to grant a downward departure at sentencing; and applying an enhancement for prior drug convictions. We affirm.
I.
The indictment in this case was filed on October 24, 2002, Hessman was arraigned on November 15, 2002, and trial was scheduled for January 6, 2003. After several motions to continue were granted, trial was scheduled for March 24, 2003, however on March 3, 2003, Hessman filed a motion to suppress evidence seized from his residence pursuant to a search warrant, and the trial was again continued. The district court granted the motion to suppress, and on May 9, 2003, the district court granted the motion of the United States to continue the trial to allow it to pursue an interlocutory appeal. On June 1, 2004, this court reversed the district court and found that the evidence was not subject to suppression. See United States v. Hessman, 369 F.3d 1016 (8th Cir.2004). The certified judgment from this court was received and docketed by the district court on August 16, 2004. On September 8, 2004, Hessman moved to continue the trial to allow him to petition the Supreme Court of the United States for writ of certiorari with respect to this court's decision on the suppression issue. The district court granted the motion for continuance and excluded the period of September 8, 2004, to the date of trial for Speedy Trial purposes. The order also instructed the parties to "notify the court when a ruling was issued on Hessman's petition for certiorari."
On January 10, 2005, the Supreme Court denied the petition for writ of certiorari and so notified the clerk of this court. Hessman v. United States, 543 U.S. 1072, 125 S.Ct. 917, 160 L.Ed.2d 809 (2005); see Sup.Ct. R. 16(3) ("Whenever the Court denies a petition for a writ of certiorari, the Clerk will prepare, sign, and enter an order to that effect and will notify forthwith counsel of record and the court whose judgment was sought to be reviewed."). On January 20, 2005, the clerk of this court mailed to the district court a memorandum and a copy of the Supreme Court order. However, the district court never received this communication nor did counsel for the United States or Hessman advise the district court of the Supreme Court's action.
On March 11, 2005, the counsel for Hessman filed a motion in the district court seeking leave to withdraw. The filing of this motion apparently prompted the district court to investigate the status of Hessman's certiorari petition, and the court discovered that the petition had been denied two months earlier. On March 14, 2005, the district court entered an order *980 granting the motion of Hessman's attorney for leave to withdraw, setting trial to begin on May 16, 2005, and finding that the time from September 8, 2004, until May 16, 2005 was excluded for Speedy Trial purposes. The trial was subsequently continued and began on November 10, 2005. It is undisputed that the time period from March 14, 2005, to the date of trial, is excluded for Speedy Trial purposes.
On May 13, 2005, Hessman filed a motion alleging that the Speedy Trial Act had been violated and that the excludable time period related to his Supreme Court petition ended on January 11, 2005. By order entered on June 16, 2005, the district court denied the motion to dismiss finding that time period from January 11, 2005, to March 11, 2005, the date the court learned of the action of the Supreme Court, is excludable as "delay resulting from any interlocutory appeal." See 18 U.S.C. § 3161(h)(1)(E). The district court further found that the parties had a court-ordered duty to advise the district court of any action by the Supreme Court and that both parties had failed to do so. On November 7, 2005, Hessman proceeded to trial and was convicted on November 10, 2005.
II.
With respect to the appeal of Speedy Trial issues, we review the district court's findings of fact for clear error and its legal conclusions de novo. United States v. Titlbach, 339 F.3d 692, 698 (8th Cir.2003) (quotation marks and citations omitted). Under the Speedy Trial Act, a defendant's trial must commence within 70 days of the latter of the filing of the indictment or the defendant's arraignment. 18 U.S.C. § 3161(c)(1); United States v. McKay, 431 F.3d 1085, 1091 (8th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 2345, 164 L.Ed.2d 859 and ___ U.S. ___, 127 S.Ct. 46, 166 L.Ed.2d 48 (2006). Delays occasioned by continuances granted on motion of the defendant are excluded from the 70 day period. 18 U.S.C. § 3161(h)(8). Where the rights of a defendant under the Speedy Trial Act are violated, the indictment must be dismissed. 18 U.S.C. § 3162(a)(2). However, "the burden is on the defendant to show his right to a speedy trial has been violated." United States v. Cordova, 157 F.3d 587, 599 (8th Cir.1998).
In this case, 24 days of the 70 day Speedy Trial period elapsed from the date of Hessman's arraignment to December 9, 2002, the date of the filing of Hessman's first motion to continue trial. Another 23 days elapsed from August 16, 2004, the date the district court received the certified judgment from this court with respect to the interlocutory appeal until September 8, 2004, the date on which Hessman filed a motion for continuance in order to allow him to seek certiorari on the suppression issue. Therefore, a total of 47 days elapsed, with 23 days remaining of the 70 day Speedy Trial time limit. The parties agree that Speedy Trial tolling resumed on September 8, 2004.
Hessman asserts that Speedy Trial Act tolling ended on January 10, 2005 when the Supreme Court denied certiorari. If so, the Speedy Trial time period expired on February 2, 2005. The United States argues that tolling continued until March 11, 2005, thus, no Speedy Trial Act violation occurred.
Although the district court found excludable the time period which began on September 8, 2004, as delay occasioned by an interlocutory appeal, see 18 U.S.C. § 3161(h)(1)(E), and the parties have characterized the delay in this same fashion, the time period in question is more accurately described as "[a]ny period of delay resulting from a continuance granted by any judge . . . at the request of the defendant or his counsel." 18 U.S.C. § 3161(h)(8)(A); United States v. Leone, *981 823 F.2d 246, 248 n. 2 (8th Cir.1987) (Speedy Trial Act excludes periods of delay resulting from a continuance granted at the request of the defendant).[2]
On August 4, 2004, we denied Hessman's petition for rehearing with respect to our judgment reversing the district court's grant of Hessman's motion to suppress. While Hessman could have moved for a stay of the mandate pending his filing of a petition for writ of certiorari in the Supreme Court, he elected not to do so. See Fed. R.App. P. 41(d)(2) (a party may move to stay the mandate pending the filing of petition for certiorari in the Supreme Court; absent good cause, the stay may not exceed 90 days unless the party who obtained the stay files a petition for the writ and so notifies the clerk of the court of appeals; the mandate must issue immediately when a copy of a Supreme Court order denying the petition for writ of certiorari is filed); Sup.Ct. R. 13 (a petition for writ of certiorari seeking review of a judgment of a United States court of appeals is timely when filed within 90 days from the date of denial of rehearing). Thus, upon the receipt of our certified judgment on August 16, 2004, the district court was again vested with jurisdiction and could proceed. United States v. Arrellano-Garcia, 471 F.3d 897, 900 (8th Cir. 2006) (the district court is without jurisdiction to act until the mandate is received from the court of appeals); see also United States v. Scalf, 760 F.2d 1057, 1059 (10th Cir.1985) (an application to seek certiorari has no effect on the finality of an appellate decision unless the mandate of the court is stayed or withdrawn).
Having failed to request a stay of the mandate, Hessman filed for an open-ended continuance from the district court so his prosecution would be stayed while he sought certiorari. This motion was granted and both parties were ordered to notify the district court when a ruling was made on the petition. There is no rule requiring the Clerk of the Supreme Court to officially notify the district court of the action of the Supreme Court with respect to a petition for certiorari to review a decision of the court of appeals. However, Supreme Court Rule 16(3) does require the Supreme Court Clerk to notify counsel "forthwith" of the Supreme Court's grant or denial of certiorari, therefore the district court was justified in ordering Hessman and the United States to notify the court when a ruling was issued on the petition.[3] This order was entirely appropriate under the circumstances and was not objected to by Hessman. While "[a] defendant has no duty to bring himself to trial," Barker v. Wingo, 407 U.S. 514, 527, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we find that the requirements of the order of continuance which was granted at Hessman's request were appropriate. See United States v. Twitty, 107 F.3d 1482, 1489 (11th Cir.1997) (in speedy trial context, finding significant that defendant did not object to terms of order of continuance).
*982 The record does not explain why the district court did not receive the courtesy notice from the clerk of our court advising of the Supreme Court's action. Whatever the explanation, that the communication was not received is of no import in view of the fact that neither the Supreme Court nor this court was required to advise the district court of the disposition of the petition for writ of certiorari. Since neither the United States nor Hessman notified the district court of the disposition of the petition as ordered by the district court, we agree that the excludable delay occasioned by the continuance granted at Hessman's request did not end until March 11, 2005, when the district court learned of the denial of the petition "by mere happenstance." Since another excludable period began on March 14, 2005, and continued until trial, no Speedy Trial Act violation occurred.
III.
Hessman also asserts trial error. We review evidentiary rulings for an abuse of discretion. United States v. Durham, 470 F.3d 727, 731 (8th Cir.2006). At trial, the United States presented the testimony of two witnesses, Jamie Carlson and Travis Kicklighter, relating out of court statements by others, to which Hessman objected as inadmissible hearsay. Specifically, Carlson testified that Kicklighter told him that he cooked methamphetamine with Hessman and that Kicklighter and Hessman used methamphetamine together, and Kicklighter testified that Hessman told him that Hessman had stabbed himself in the leg in a Fort Dodge, Iowa, hotel room. In countering Hessman's hearsay objections, the United States argued that these out-of-court statements were not hearsay but were statements against Hessman made by co-conspirators "during the course and in the furtherance of the conspiracy." See Fed.R.Evid. 801(d)(2)(E).
The district court conditionally allowed the statements, following the procedure outlined in United States v. Bell, 573 F.2d 1040, 1044 (8th Cir.1978) (the district court may conditionally allow testimony as to the statement of an alleged co-conspirator subject to later proof, by a preponderance of independent evidence, that the declarant was a co-conspirator). After the testimony was conditionally presented, the district court found both statements to be inadmissible as not in furtherance of the conspiracy. The district court overruled Hessman's motion for mistrial and, continuing to follow the Bell procedure, instructed the jury to disregard the testimony in question. See id. (where the court determines that the government has failed to carry its burden of proving by a preponderance of the evidence that the statement was made by a coconspirator in furtherance of the conspiracy, the court will give a cautionary instruction to the jury to disregard the statement where such an instruction will suffice to cure any prejudice).
On appeal, Hessman does not argue that the procedure approved in Bell was not followed by the district court nor does he identify any other alleged error in the district court's handling of this testimony. Instead, he asks that the en banc court overrule Bell. However, as Hessman implicitly concedes, this panel remains bound by Bell. See United States v. Lippman, 369 F.3d 1039, 1044 (8th Cir.2004) (a panel of the circuit court may not overrule circuit precedent); United States v. Wilson, 315 F.3d 972, 973-74 (8th Cir.2003) (only the court en banc can overrule circuit precedent). To the extent Hessman asks that this case be heard en banc and that the en banc court overrule Bell, we find that Hessman has failed to request hearing en banc in the manner and in the time required by the Federal Rules of Appellate Procedure and the rules of this court. See Fed. R.App. P. 35(b), (c) (a party may petition for a hearing en banc no later than *983 the date when the appellee's brief is due); 8th Cir. R. 35A (a party seeking an en banc proceeding must file 21 copies of a petition for hearing en banc).
Hessman also asserts that the district court committed error in admitting evidence of three prior drug-related convictions. Prior to trial, via motion in limine, Hessman asked that the United States be prohibited from referring to, or offering into evidence, any prior conviction of the defendant. At trial, over Hessman's objection, the district court admitted evidence as to three prior state court drug convictions. Specifically, the district court ruled that evidence as to Hessman's convictions on March 30, 2000, for possession of methamphetamine, and on March 24, 1997, for possession of marijuana with the intent to deliver and manufacturing a controlled substance, were admissible pursuant to Federal Rule of Evidence 404(b).
Rule 404(b) provides that evidence of a prior bad act such as a conviction may not be offered solely to prove the defendant's criminal propensity but is admissible if it is relevant to a material issue, such as intent, and if it is established by a preponderance of the evidence, more probative than prejudicial, and similar in kind and close in time to the charged offense. The requirement to balance probative value and prejudice is found in Rule 403 . . . [W]e construe Rule 404(b) as a rule of inclusion and have frequently upheld the admission of prior drug convictions in cases where the defendant denied committing the charged drug offense.
United States v. Cook, 454 F.3d 938, 941 (8th Cir.2006) (internal citations omitted).
Evidence of Hessman's March 2000 and two 1997 drug convictions was relevant to the issue of Hessman's knowledge and intent, both elements of the charged offense. United States v. Adams, 401 F.3d 886, 894 (8th Cir.) (prior convictions for possessing and distributing drugs are relevant under Rule 404(b) to show knowledge and intent to commit a charge of conspiracy to distribute drugs) cert. denied, 546 U.S. 966, 126 S.Ct. 492, 163 L.Ed.2d 373 (2005). The convictions are also similar in kind and close in time to the charged conspiracy to manufacture methamphetamine from March through May 2000, for which Hessman was tried. See id. (four-year interval found to be "well within the bounds of admission") (quoting United States v. Frazier, 280 F.3d 835, 847 (8th Cir.2002)). Further, the district court instructed the jury that the evidence of Hessman's prior convictions should be considered only with respect to the issues of knowledge and intent, thus minimizing the danger of unfair prejudice. United States v. Edelmann, 458 F.3d 791, 810 (8th Cir. 2006) (limiting instruction found to cure whatever unfair prejudice defendant may have suffered by admission of Rule 404(b) evidence); United States v. Lothridge, 332 F.3d 502, 504 (8th Cir.2003) (limiting instruction that evidence of prior convictions could only be used to decide whether defendant had requisite knowledge and intent diminished danger of unfair prejudice arising from admission of such evidence).
Hessman also asserts that the district court erred in refusing to give his proposed instruction on reasonable doubt. Hessman's proposed instruction, in addition to containing the language contained in the Eighth Circuit's Model Criminal Jury Instruction § 3.11 (2000), included the following language taken from Iowa criminal jury instructions:
But, if, after a full and fair consideration of all the evidence or lack of evidence produced by the State you are not firmly convinced of the defendant's guilt, then you have a reasonable doubt and you should find the defendant not guilty.
Iowa Crim. Jury Instructions, Instruction 110.10 (Iowa Bar Assoc.2004).
*984 The court refused to give Hessman's requested instruction and instead gave the model instruction. Because the instruction given by the district court has been specifically upheld by this court, we summarily reject Hessman's argument. United States v. Mallen, 843 F.2d 1096, 1101-02 (8th Cir.1988); United States v. Risken, 788 F.2d 1361, 1371 (8th Cir.1986) (instruction consistent with Eighth Circuit Model Criminal Jury Instruction § 3.11 upheld).
IV.
Hessman also asserts sentencing error. "The correct application of the guidelines is a question of law subject to de novo review, while a factual determination of the sentencing court is reviewed under a clearly erroneous standard." United States v. Tirado, 313 F.3d 437, 440 (8th Cir.2002) (citation omitted).
Hessman argues that the district court erred in declining to afford him downward departures based upon his exceptional family circumstances, acceptance of responsibility, and his rehabilitation since the date of the offense. "The discretionary denial of a motion for downward departure is unreviewable unless the [district] court failed to recognize its authority to depart." United States v. Vasquez, 433 F.3d 666, 670 (8th Cir.2006) cert. denied, ___ U.S. ___, 127 S.Ct. 3041, ___ L.Ed.2d ___ (2007) (quoting United States v. Andreano, 417 F.3d 967, 970 (8th Cir.2005) cert. denied, ___ U.S. ___, 126 S.Ct. 1118, 163 L.Ed.2d 925 (2006)). Hessman does not allege that the district court did not recognize its authority to depart, and our review of the record reveals that the court indeed recognized that it possessed such authority but declined to exercise it. Accordingly, the district court's refusal to depart downward is unreviewable.
Hessman also asserts that the district court erred in sentencing him based upon a drug quantity determined by the court by applying a preponderance of the evidence standard, rather than following the jury's finding as to drug quantity, which was based upon a reasonable doubt determination.
As part of its verdict, the jury responded to a written question posed by the court by finding that 5 grams or more but less than 50 grams of actual (pure) methamphetamine was involved in the conspiracy. At sentencing, the district court determined that the United States had proven by a preponderance of the evidence that the defendant was accountable for 9.8 grams of actual methamphetamine and 480.69 grams of methamphetamine mixture as reflected in the presentence report. This yielded a base offense level of 32. United States Sentencing Commission, Guidelines Manual, § 2D 1.1(a)(3)(c)(4) (Nov.1998).
In sentencing Hessman, the district court properly acknowledged that the government had the burden of proving drug quantity by a preponderance of the evidence. United States v. Marshall, 411 F.3d 891, 894 (8th Cir.2005) ("The government bears the burden of proving drug quantity by a preponderance of the evidence."); United States v. Mickelson, 378 F.3d 810, 821 (8th Cir.2004) (sentencing court is required to find drug quantity by a preponderance of the evidence). Further, "[t]he district court can impose a sentence based on a higher drug quantity determination than the jury's finding so long as the sentence does not exceed the statutory maximum of the convicted offense." United States v. Johnston, 353 F.3d 617, 625 (8th Cir.2003) (per curiam). Based upon the jury's finding that 5 to 50 grams of methamphetamine were involved in the conspiracy, coupled with Hessman's prior drug conviction, the statutory sentencing range was 10 years to life imprisonment. Because the 360 month sentence, imposed *985 by the district court, was within this statutory sentencing range, no error occurred. Id.; see also United States v. Titlbach, 300 F.3d 919, 922 (8th Cir.2002) (sentence of 88 months, less than the statutory maximum for the crime, did not violate defendant's constitutional rights.)
Hessman further contends that the district court erred by finding that he qualified as a career offender by virtue of the two 1997 drug convictions. Hessman argues that these convictions should be considered related and should not count separately under the provisions of USSG § 4A1.2(a)(2), which states that prior sentences imposed in unrelated cases are to be counted separately, but prior sentences imposed in related cases are to be treated as one sentence.
Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). Otherwise, prior sentences are considered related if they resulted from offenses that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.
USSG § 4A1.2, comment. (n. 3).
"In assessing whether the offenses were part of a single common scheme or plan, we consider (1) the time period, (2) the participants, (3) the victims, (4) the motive, (5) the modus operandi, (6) the location, (7) the offenses, (8) whether a common investigation uncovered the offenses and (9) whether the defendant jointly planned the offenses." United States v. Lynch, 477 F.3d 993, 996 (8th Cir.2007).
Evidence presented at trial revealed that Hessman was charged with possession of marijuana with intent to deliver in Dickinson County, Iowa, on April 17, 1996, after Hessman was stopped while driving a pickup truck, which contained approximately six ounces of pre-packaged marijuana. On May 5, 1996, Hessman was charged in Emmet County, Iowa, with manufacturing a controlled substance, "black tarry" marijuana, in a residence. Although Hessman disputed the circumstances of the May 5, 1996 charge, the district court, as was its right, disbelieved his testimony. See United States v. Mugan, 441 F.3d 622, 632 (8th Cir.) (district court disbelieved witness's testimony, and this credibility determination is entitled to deference), cert. denied, ___ U.S. ___, 127 S.Ct. 191, 166 L.Ed.2d 157 (2006). These charges were prosecuted as separate cases. On March 24, 1997, Hessman pled guilty to and was convicted of each charge. He was sentenced to separate but concurrent sentences.
The district court's finding that the two convictions are unrelated as defined by USSG § 4A1.2 is amply supported by the evidence. The offenses occurred on different dates, and Hessman was arrested for the first offense prior to committing the second. Further, the offenses occurred at different locations and in different counties. The first offense involved the possession of packaged marijuana, while the second involved "cooking" marijuana to create a derivative. The second offense involved participants that were not involved in the first. The two offenses were discovered through separate investigations by different law enforcement organizations. Finally, while the two offenses resulted in convictions which occurred on the same date, the cases were not consolidated and retained separate case numbers.
V.
For the foregoing reasons, we affirm the conviction and sentence.
NOTES
[1] The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.
[2] That the delay in question is more accurately characterized as occasioned by a continuance granted at the request of the defendant is exemplified by the fact that although Hessman obtained the continuance on September 9, 2004, he did not file his petition for writ of certiorari in the Supreme Court until November 19, 2004, over two months later. Hessman has not explained the reason for this delay.
[3] This court routinely mails copies of letters from the Supreme Court advising of the denial of a petition for a writ of certiorari to the district court solely as a matter of courtesy. Such was the case with the January 20, 2005 memorandum from the clerk of this court to the clerk of the United States District Court for the Northern District of Iowa.
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362 F.2d 67
W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant,v.Von CARSTEDT, individually and doing business as C-Air Aviation, Appellee.
No. 19474.
United States Court of Appeals Ninth Circuit.
May 6, 1966.
Charles Donahue, Solicitor of Labor, Bessie Margolin, Asso., Robert E. Nagle, Carin A. Clauss, Attys., Dept. of Labor, Washington, D. C., Altero D'Agostini, Atty., Dept. of Labor, San Francisco, Cal., for appellant.
Fred F. Wehrle, Eilers, Wehrle & Anderson, Los Angeles, Cal., for appellee.
Before BARNES and HAMLEY, Circuit Judges, and JAMESON, District Judge.
HAMLEY, Circuit Judge:
1
The Secretary of Labor brought this action against Von Carstedt, individually and doing business as C-Air Aviation, to enjoin future violation of the Fair Labor Standards Act (Act).1 After a trial the district court made findings of fact and conclusions of law upholding defendant's claim to exemption from the requirements of the Act. A judgment consistent therewith was entered and the Secretary appeals.
2
This case involves the application of the Act to twenty workers who were employed by defendant during various parts of the period from February 18, 1961 to February 18, 1963. These employees, who worked at defendant's airport facilities in Long Beach, California, were concededly within the general coverage of the Act. Defendant claimed, however, that during the period from February 18, 1961 to May 15, 1962 they came within the fisheries exemption of the Act, section 13(b) (4), 29 U.S.C. § 213(b) (4), and that from May 15, 1962 to February 18, 1963, they came within the retail establishment exemption of the Act, section 13(a) (2), 29 U.S.C. § 213(a) (2). The trial court upheld this claim. Plaintiff contends that, under the facts, neither exemption applies.
3
We consider first the trial court's findings and conclusions to the effect that the twenty employees were covered by the fishery operations exemption from February 18, 1961 to May 15, 1962. This exemption, contained in section 13(b) (4) of the Act, provides that section 7, relating to overtime, shall not apply to:
4
"* * * any employee employed in the canning, processing, marketing, freezing, curing, storing, packing for shipment, or distributing of any kind of fish, shellfish, or other aquatic forms of animal or vegetable life, or any byproduct thereof; * * *."2
5
During this period defendant had an arrangement with an organization of Mexican fishermen, called the Cooperativa, under which he purchased, at La Paz, Mexico, fresh fish caught off the coast of that country. The fish were picked up at La Paz by airplanes owned by defendant,3 flown to Long Beach or such other airport as might be designated by Customs, transferred to trucks, and delivered to wholesale outlets in the Los Angeles area.
6
No other aircraft being available to provide the air transportation phase of this operation, defendant, in January 1961, purchased eight surplus military aircraft from the Air Force. It was necessary to modify these aircraft in substantial respects. This involved the removal of bomb racks and bomb bay equipment, closing of gun ports and bomb bay doors, installation of decks and deck blockheads, removal and capping of turrets, installation of radios, overhauling engines, and putting styrofoam under the floors which made it possible to store ice and transport perishable goods.
7
In making these modifications, defendant utilized hangar and ground facilities at Long Beach Municipal Airport. The twenty employees here in question, some of whom were licensed by the Federal Aviation Agency, are mechanics, mechanic's helpers, welders and sheet metal workers employed at that plant. They modified all eight planes; this work required from four to twelve months for each plane.4 The employees put in an average of forty-five or fifty-five hours a week throughout the entire period in question.
8
Some of these employees also helped maintain the aircraft once they were being used for carrying fish. Some also helped transfer fish to trucks upon arrival at the Long Beach Airport. These additional activities occupied approximately eight percent of each work week for each employee while the fishery operations were in progress. However, during a substantial part of the period here in question (February 18, 1961 to May 15, 1962) there was very little fishery operation. Due to difficulties with the Cooperativa only six loads of fish were flown in from La Paz during the eight and a half months from September, 1961 through May 15, 1962. One employee, who went to work for defendant at the airport in August, 1960, testified without contradiction that he first saw a planeload of fish in the latter part of 1961 or the first part of 1962. Another employee who worked for defendant from February to August, 1962, stated that he never saw a load of defendant's fish come into the airport.
9
During the period for which defendant claimed the fisheries exemption, these employees also worked on ten other aircraft which were not used in the fishing business and which apparently did not belong to defendant. No evidence was introduced as to what this work consisted of or how much of the employees' time was so occupied.
10
The Secretary concedes that to the extent these employees serviced airplanes which were transporting fish, and helped in the unloading of fish at the airport, they were engaged in the "marketing" and "distributing" of fish, within the meaning of the section 13(b) (4) exemption. Under the undisputed testimony, however, such duties occupied no more than eight percent of their time and, in many workweeks appear not to have been performed at all. The performance of this small amount of concededly exempt work would not entitle defendant to claim the exemption. The performance of any substantial amount of nonexempt work in any workweek defeats an otherwise applicable exemption.5
11
The district court understood this and did not rest its holding on the small amount of concededly exempt work which was performed. Indicating that it also regarded as exempt the work performed in modifying airplanes for use in the fish operation, the court found that, during the period in question, these employees "* * * spent not less than eighty per cent of each workweek in activities that were necessary to the conduct of the operation of said fishing business of defendant."
12
The section 13(b) (4) exemption is not confined to workmen who come into physical contact with the fish being canned, processed, marketed, frozen, cured, stored, packed for shipment or distributed. It also includes workmen who are substantially engaged in work which is necessary to the performance of these activities conducted by their employers. See Mitchell v. Trade Winds Company, 5 Cir., 289 F.2d 278, 282; McComb v. Consolidated Fisheries Co., 3 Cir., 174 F.2d 74, 78; Waller v. Humphreys, 5 Cir., 133 F.2d 193, 194.6
13
But the concept "work necessary to these activities" is inherently imprecise and is capable of either a narrow or an expansive interpretation. The structural modification of airplanes was necessary to defendant's fishery operations in the sense that he required air transportation and this was the only way he could obtain usable airplanes. So, too, we suppose, the work of constructing fishing vessels performed by employees of the person who needed them for fishing could be said to be work necessary to the fishing operation if these vessels could not be obtained in any other way.
14
This broad view of the exemption, however, finds no support in the cases called to our attention which have announced and applied the "work necessary to the activities" principle. In McComb, for example, by application of this concept, a night watchman, a cook, an office employee, and several carpenters and maintenance men employed at or in connection with the employer's fish processing plant, were held to be performing work necessary to the fish processing operation and so covered by the exemption. In Waller, giving effect to this principle, the court included within the exemption employees of a fish processing plant who served as nightwatchmen, raised the steam in the boilers early each morning, and blew the whistle calling other workmen to their duties.
15
It is our view that, in applying the principle that work necessary to the exempt activity is exempt, a line should be drawn between work which is a normal and recognized incident of the exempt activity, and that which is not. It is reasonable to assume that Congress intended to extend the exemption to work customarily or frequently associated with the exempt activity. It does not seem likely that Congress intended to extend the exemption beyond this to cover work which, although necessary to the enterprise under the peculiar circumstances of a particular case, is ordinarily disassociated with the exempt activity.
16
In so holding, we have not overlooked the statement in the Senate Committee report (note 6 above), the segmentation between different employees of an employer engaged in an exempt operation is to be avoided. The Committee's reference to the McComb case, however, leads us to believe that what the Committee had in mind was segmentation of employees of the type involved in that case — a nightwatchman, cook, office employee, carpenters and maintenance men — who are directly and necessarily involved in fish processing. We doubt that the Committee would have regarded it as undesirable "segmentation" if the court in McComb had excluded from the exemption workmen of that fish processor engaged in constructing required new buildings on the plant site, even assuming no other means of constructing them were available.7
17
In Waller as well as in McComb, the work held to be exempt was a normal and recognized incident of the exempt activity. This cannot be said of the mechanical, sheetmetal, welding and other work entailed in structurally modifying airplanes so that they could be used to transport fresh or frozen fish. We accordingly hold that the workmen in question were not covered by the fisheries exemption of the Act during the period from February 18, 1961 to May 15, 1962.
18
This brings us to the second branch of the case, involving the trial court's findings and conclusions to the effect that these twenty employees were covered by the retail establishment exemption during the period from May 15, 1962 to February 18, 1963. Insofar as here pertinent, this exemption, contained in section 13(a) (2), provides that section 6, relating to minimum wage, and section 7, relating to overtime, shall not apply to:
19
"* * * any employee employed by any retail or service establishment, more than 50 per centum of which establishment's annual dollar volume of sales of goods or services is made within the State in which the establishment is located, * * *. A `retail or service establishment' shall mean an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry; * * *." 29 U.S.C. § 213(a) (2).8
20
On or about May 15, 1962, after the Mexican Government had closed down defendant's fish operation in Mexico, he operated an aviation repair station at the Long Beach Airport. Pursuant to this plan, he entered into a lease with the City of Long Beach for two hangars and two acres of "tie-down" space. About the same time he applied for a Federal Aviation Agency license to operate an aviation repair station, which license was issued about February 15, 1963. As required by the licensing regulations of that agency, his establishment included a machine shop, equipment for lathing and sheet metal work, and welding facilities. The twenty employees referred to above constituted the working force in this operation, continuing their usual duties as welders, mechanics, sheet metal workers and helpers.
21
The character of defendant's business during this period was established mainly by an exhibit submitted by him stating income received for the year from February 18, 1962 to February 18, 1963. According to these figures, about fifty-eight percent of his gross income ($57,390 out of a total of $99,214) was derived from the modification of seven or eight aircraft for a single customer, Cisco Aircraft, Inc. These planes were modified for use in Cisco's forestry spraying operations in New Mexico and Montana. The modification work, which required a substantial part of the time of the twenty employees, involved converting surplus military aircraft, making tanks, and installing spray booms and other equipment. This work was performed on a time and material basis.
22
In addition to the Cisco Aircraft job, appellant argues that the following comparable work performed by defendant was nonretail: for $1,299, a B-26 was modified for Tallmantz Aviation for use in commercial aerial photography; for Art Holst ($1,291) and Harold Jordan ($1,000) two aircraft were modified and rebuilt for their individual use.9
23
There is also evidence that during the period in question some parts were made to order,10 and some planes were repaired, overhauled and maintained. However, the annual dollar volume of the sales of goods and services of this character fell far short of the seventy-five percent provision of section 13(a) (2). Thus even assuming that, as to these goods and service, the other statutory retail establishment criteria apply, these miscellaneous sales would not be sufficient, standing alone, to qualify defendant for that exemption.
24
The correctness of the district court's determination must therefore stand or fall on whether the character of the sales made to Cisco Aircraft, Inc., Tallmantz Aviation, Holst, Jordan and Weiner, entitle defendant to classification as a retail establishment within the meaning of section 13(a) (2) and (4). Indeed, since the sales to Cisco Aircraft, Inc., alone account for fifty-eight percent of defendant's gross income defendant cannot prevail unless the Cisco transactions fall within the retail category.
25
Under a literal reading of section 13 (a) (2), a "retail service establishment" is an establishment seventy-five percent of whose annual dollar volume of sales of goods or services meets both of two tests. One of these is that such sales are not for resale. The sales to Cisco were clearly not for resale, and so this first test was met.
26
The other is that such sales are "recognized as retail sales or services in the particular industry." To prove that this second test was also met, defendant produced the testimony of James Conroy, who has been in the aviation industry for thirty-one years, and who was the service manager of a similar business. He testified that he understood establishments such as defendant's to be "generally recognized as retail in the industry." Further elaborating, he expressed the opinion that all sales "to the user or owner" were recognized as retail in the aircraft business or aviation industry. It is fair to assume that Conroy would so classify the sales defendant made to Cisco. Plaintiff produced no testimony as to whether the operation of aviation repair stations in general, or defendant's in particular, or the particular sales made to Cisco were or would be recognized as retail in the aviation industry.
27
The district court, accepting this literal construction of section 13(a) (2), and finding that the sales were not for resale and, on Conroy's testimony, that they were recognized as retail sales or services in the aviation industry, held the exemption applicable.
28
In Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 86 S.Ct. 737, 15 L.Ed.2d 694, affirming the opinion of this court reported at 335 F.2d 952, the Supreme Court refused to give section 13(a) (2) such a literal reading. Relying on what it found to be the most persuasive legislative history and concluding that a contrary view would compel results inconsistent with those Congress contemplated, the Supreme Court rejected industry usage as conclusive.11
29
Having rejected the industry usage test as the single touchstone, the Supreme Court discussed the meaning to be given to the term "retail." The Court indicated that the first inquiry should be whether the sale of the particular type of goods or services in question could ever qualify as retail whatever the terms of sale. Only if the answer to this question is affirmative, the Court said, is it necessary to determine the terms or circumstances that make a sale of those goods or services a retail sale.
30
The typical retail transaction, the Court stated, is one involving goods or services that are frequently acquired for family or personal use.12 The Court went on to point out that sales of such goods or services can be retail whether made to private householders or to business users, but added: "* * * but the goods and services listed nearly all share the common characteristic that they are often purchased by householders."
31
The Supreme Court recognized in its opinion, however, that Congress also intended the retail exemption to extend in some measure beyond consumer goods and services to embrace certain products almost never purchased for family or noncommercial use. The Court listed farm implements and small trucks as examples of goods falling in this category. The Supreme Court stated that it could not draw a precise line between such articles and those like industrial machinery which can never be sold at retail. But the Court called attention to the following characteristics of such items as small trucks and farm implements, which offer some guidance: (1) their employment is very widespread as is that of consumer goods; (2) they are often distributed in stores or showrooms and by means not dissimilar to those used for consumer goods; and (3) perhaps it can be said that they are frequently used in commercial activities of limited scope. Finally, the Court observed, "* * * the list of strictly commercial items whose sale can be deemed retail is presumably very small * * *."13
32
In the light of the premises thus established, the Supreme Court held that since more than twenty-five percent of the dollar volume of sales made by Idaho Sheet Metal Works derived from the fabrication, installation and maintenance of sheet metal products consisting of vats, storage tanks, hoods and the like for use by five potato processing companies, Idaho Sheet Metal Works was disqualified as a retail establishment.14
33
Applying to the case before us the analysis made by the Supreme Court in the Idaho Sheet Metal case, the conclusion is inescapable that defendant is not entitled to the retail establishment exemption. Approximately fifty-eight percent of its sales during the year commencing February 18, 1962, were derived from the work of structurally modifying seven or eight aircraft for Cisco Aircraft, Inc., so that the planes could be used in Cisco's forestry spraying operations. Needless to say the service thus performed and the goods thus sold were not of a kind which is often the subject of a "typical retail transaction," as the Supreme Court explains that term.
34
Nor do they fall in that limited category of strictly commercial items, such as small trucks and farm equipment which, the Supreme Court said, may also be encompassed by the retail exemption. They have none of the characteristics listed by the Supreme Court as differentiating the sale of small trucks and farm implements from the sale of clearly nonexempt items such as industrial machinery. On the contrary, they have the same characteristics as those of the sales which led the Supreme Court to deny exempt status to Idaho Sheet Metal Works, Inc., as listed in note 14. Under these circumstances, testimony of industry usage, which is no firmer here than in the Idaho Sheet Metal case, cannot save defendant from nonexempt status.
35
Reversed.
Notes:
1
52 Stat. 1060 (1938), as amended, 29 U.S.C. §§ 201-219 (1964). The violations sought to be enjoined relate to the overtime, record-keeping and shipping provisions of the Act, sections 7, 11(c) and 15(a) (1), 29 U.S.C. §§ 207, 211(c) and 215(a) (1), respectively
2
In the original Act, the exemption applicable to on-shore fishery operations, other than canning, was section 13(a) (5) which provided a minimum wage and overtime exemption for both off-shore and on-shore fishery activities. By amendment effective September 1961 Congress transferred on-shore activities to section 13(b) (4) which is an overtime exemption only. Defendant pleaded section 13 (a) (5) as a defense for the period prior to September 1961. We shall hereafter refer only to section 13(b) (4), as did the trial court
3
Defendant eventually established a refrigeration plant at La Paz
4
Only four or five of these planes were actually used in defendant's fishery operations
5
See Mitchell v. Hunt, 5 Cir., 263 F.2d 913, 917; Mitchell v. Stinson, 1 Cir., 217 F.2d 210, 217; Tobin v. Blue Channel Corp., 4 Cir., 198 F.2d 245, 248. See, also, 29 C.F.R. § 784.116 (1965)
6
In its report on H.R. 3935 which became the Fair Labor Standards Amendments of 1961 (see note 2, above) the Senate Committee on Labor and Public Welfare indicated its approval of this principle. The Committee said, in part:
"The present exemptions in sections 13(a) (5) and 13(b) (4) have been judicially interpreted to apply to all employees employed in the seafood industry including any employee who participates in activities which are necessary to the conduct of the operations specifically described in the exemptions. (McComb v. Consolidated Fisheries Company, 174 F.2d 74, C.A.3, 1949). These interpretations are consistent with the congressional purpose of treating all employees of one establishment in the same manner under the act and of avoiding segmentation as between different employees of the same employer engaged in the named operations." S. Rep.No.145, 87th Cong., 1st Sess. 33 (1961), U.S.Code Cong. & Admin.News 1961, p. 1652.
7
In this connection it is worthy of note that section 13(b) (4), unlike certain other exemptions provided for in the Act, is phrased in terms of "any employee employed in" certain named activities, and its application therefore depends upon the character of the employee's work, rather than the identity of the employer. See Mitchell v. Trade Winds Co., 5 Cir., 289 F.2d 278, 282. Compare section 13(a) (9) ("any employee of a street, suburban or interurban electric railway * * *"), section 13(a) (12) ("any employee of an employer engaged in the business of operating taxi cabs"), section 13(b) (2) ("any employee of an employer subject to the provisions of part I of the Interstate Commerce Act"), section 13(b) (3) ("any employee of a carrier by air * * *")
8
Section 13(a) (4), which qualifies section 13(a) (2) to some extent, reads as follows:
"§ 213. Exemptions.
* * * * * * *
"(4) any employee employed by an establishment which qualifies as an exempt retail establishment under clause (2) of this subsection and is recognized as a retail establishment in the particular industry notwithstanding that such establishment makes or processes at the retail establishment the goods that it sells: Provided, That more than 85 per centum of such establishment's annual dollar volume of sales of goods so made or processed is made within the State in which the establishment is located; * * *." 29 U.S.C. § 213(a) (4).
9
Appellant also contends, and appellee concedes, that the work of modifying several planes for relicensing and eventual resale, performed for E. O. Weiner for a charge of $4,581, was nonretail
10
Defendant did almost no business in the sale of stocked aircraft parts
11
Our decision inIdaho Sheet Metal Works, Inc., was rendered after the judgment had been entered in the case before us. The decision of the Supreme Court therein was rendered after the oral argument on this appeal. We called for, and received, supplemental briefs commenting on that decision.
12
As examples of sales that could qualify as retail, the Supreme Court referred to the House Conference Report which lists sales made:
"`* * * by the grocery store, the hardware store, the coal dealer, the automobile dealer selling passenger cars or trucks, the clothing store, the dry goods store, the department store, the paint store, the furniture store, the drug store, the shoe store, the stationer, the lumber dealer, etc. * * *'. House Conf.Rep., p. 25 (sale of farm machinery is another example given)." 383 U.S. at 203, 86 S.Ct. at 746.
13
The Court also made the following qualifying statement:
"Within the category of goods and services that can be sold at retail, naturally not every sale can be so classified. The exemption itself excludes any sale for resale and beyond that, reference in the legislative history, n. 14, supra, and common parlance certainly suggest that the term retail becomes less apt as the quantity and the price discount increases in a particular transaction."
14
Explaining this conclusion, the Court said:
"The type of equipment described plainly appears to have no private or non-commercial utility. Nor does it bear much resemblance to those strictly commercial articles earlier named that may be sold at retail. Unlike small trucks and farm equipment, the market for these goods is highly limited, and far from being stock items purchased off the shelf, these articles were generally fabricated to meet individual specifications." (Footnote omitted.)
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FILED
OCTOBER 1, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 35696-5-III
Respondent, )
)
V. ) UNPUBLISHED OPINION
)
ENRIQUE MURILLO, JR., )
)
Appellant. )
FEARING, J. - Some facts on appeal support a finding of probable cause, while
other facts discount a finding of probable cause to arrest Enrique Murillo, during which
arrest an officer found methamphetamine on Murillo's person. After weighing all facts,
we uphold the determination of probable cause and the conviction of Murillo for
possession of a controlled substance because an informant provided information
incriminating Murillo that was also against the informant's penal interest. Nevertheless,
because the to-convict instruction failed to identify the controlled substance as
methamphetamine, we remand to the prosecution for resentencing. We also remand for
corrections of two errors in the judgment and sentence.
FACTS
The principal question on appeal surrounds whether the trial court erred when
No. 35696-5-III
State v. Murillo
denying Enrique Murillo’s motion to suppress evidence found on his person during an
arrest. Thus, we glean our facts from testimony during a suppression hearing. The State
claims those facts support the trial court’s conclusion that law enforcement officers held
probable cause to arrest Murillo.
On August 24, 2017, Kennewick Police Officer Cory McGee saw a white
Mitsubishi Eclipse parked near 4412 W. 7th in Kennewick. The Mitsubishi bore no
license plate, and all usable parts had been stripped from the vehicle. Officer McGee
called Benton County emergency services, which reported the Mitsubishi as stolen.
Other Kennewick Police Department officers arrived at the vicinity of the
Mitsubishi Eclipse. The officers noticed a trail of oil leading from the white Mitsubishi
to the driveway of a nearby address, 723 S. Volland Street. Outside of this residence,
officers found a Toyota truck reported as stolen, which truck displayed a stolen license
plate. The officers saw another license plate in a nearby garbage dumpster.
Kennewick Police Department officers approached the house at 723 S. Volland
and spoke with Jenna Ross, Jessica Miller, and a man who identified himself as Jonathan
Watts. Miller denied knowledge of the white Mitsubishi. Ross denied knowledge of the
Mitsubishi and Toyota being stolen, but she disclosed that an individual she called
“Cousins” brought the white Mitsubishi to the Volland address. Clerk’s Papers (CP) at
106. Ross knew not who transported the Toyota pickup to the residence.
2
No. 35696-5-III
State v. Murillo
Detective Marco Monteblanco also interviewed Jonathan Watts. Watts denied
stealing the vehicles but admitted to working on the Mitsubishi with a person he called
“Cousins.” CP at 106. Kennewick Police Detective Daniel Todd assumed the
questioning of Watts. We do not know if Todd’s questioning of Watts occurred at the
police station or at the Volland address. Watts informed Detective Todd that he had
resided at the Volland Street address for a few days, and the residents at the home were
Jenna Ross and Tyler Hoyt. Watts stated that Cousins worked on the Mitsubishi and
possibly removed parts from the car.
Jonathan Watts described Cousins, to Detective Daniel Todd, as a Hispanic male
with a spider web tattoo on his elbow. Watts believed Cousins’ real name started with
the letter E. Watts claimed that Cousins lived in an apartment complex, which contained
the name “Sage,” on Hood Avenue, east of Tweedt Street in Kennewick. CP at 107. He
also identified the color of the apartment complex. Watts said that Cousins drove to the
Volland residence in a green Kia.
Law enforcement officers journeyed to Sage Creek Apartments on Hood Avenue,
where they saw a dark blue Kia Optima. Detective Daniel Todd texted a picture of the
Kia to another officer. The other officer showed the photograph to Jonathan Watts, who
confirmed that Cousins drove the car. Detective Todd’s research unearthed that Enrique
Murillo owned the Kia Optima.
3
No. 35696-5-III
State v. Murillo
Kennewick Detective Rick Runge prepared and showed a photo montage to
Jonathan Watts. Watts identified the picture of Enrique Murillo as the person he knew as
“Cousins.” CP at 107.
Kennewick Police Department officers stopped Enrique Murillo’s vehicle as he
left his apartment. Officers arrested Murillo. During a search incident to arrest, Officer
Jeff Sagen grabbed a bag with white crystal from Murillo’s person. The contents of the
bag later tested positive as methamphetamine.
Later on August 24, officers interrogated Jonathan Watts again. Watts admitted
that he gave a false name and his true name was James Whitney. Whitney further
conceded he had stolen the Toyota Truck and the white Mitsubishi.
PROCEDURE
The State of Washington charged Enrique Murillo with one count of possession of
a controlled substance, in violation of RCW 69.50.4013(1). The sole charge read:
That the said ENRIQUE MURILLO, JR in the County of Benton,
State of Washington, on or about the 24th day of August, 2017, in violation
of RCW 69.50.4013(1), did unlawfully possess a controlled substance, to
wit: methamphetamine, contrary to the form of the Statute in such cases
made and provided, and against the peace and dignity of the State of
Washington.
CP at 1 (emphasis added).
Enrique Murillo moved to suppress the methamphetamine found on his person on
the ground that officers lacked probable cause to arrest him. He argued that Jenna Ross’
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No. 35696-5-III
State v. Murillo
and James Whitney’s informant tips failed to establish probable cause to arrest him under
the Aguilar-Spinelli test.
After an evidentiary hearing, the trial court denied Enrique Murillo’s motion to
suppress. During its oral ruling, the trial court noted that the question of probable cause
was “a close call.” Report of Proceedings (RP) (Oct. 25, 2017) at 47. The trial court
entered the following conclusions of law:
1. The Aguilar-Spinelli test established in Spinelli v. United States,
393 U.S. 410, (1969) and Aguilar v. Texas, 378 U.S. 108 (1964) is the
proper framework to analyze whether an informant’s tip is sufficient to
establish probable cause.
2. Assuming that both the basis of knowledge prong and the veracity
prong are met under Aguilar-Spinelli, the information taken at face value
constitutes probable cause to arrest the defendant for possession of a stolen
motor vehicle.
3. The basis of knowledge prong is satisfied, and the defendant
conceded this[.]
4. Neither James Whitney, nor Jenna Ross had an established track
record of providing reliable information to police.
5. Although the officers could adequately establish that Enrique
Murillo was the individual that Ross and Whitney referred to when
describing Cousins, officers were unable to corroborate the allegations that
it was he that had brought the white Mitsubishi to the residence and
possibly worked on it or removed parts from it.
6. Nevertheless, James Whitney’s and Jenna Ross’s statements to
police were against penal interest and weigh in favor of finding that the
veracity prong is satisfied. Specifically, James Whitney’s statement that he
worked on the stolen vehicle with the defendant, was against his penal
interest.
7. The fact that Jenna Ross and James Whitney independently gave
a similar account of who had worked on or brought the white Mitsubishi to
the house lends credibility to both Ross’s and Whitney’s accounts and
weighs in favor of finding that the veracity prong is satisfied.
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No. 35696-5-III
State v. Murillo
8. The fact that Whitney knew the first letter of Cousins’ real name,
the car he drove[,] and where he lived lends credibility to Whitney’s
account.
9. The identification of Enrique Murillo as Cousins during the photo
lineup lends credibility to Whitney’s account.
10. Even though neither Ross nor Whitney had an established track
record, under the circumstances, their statements satisfy the veracity prong
of the Aguilar-Spinelli test.
11. At the time Murillo was arrested, officers had probable cause to
arrest for the felony crime of possession of a stolen motor vehicle.
12. The resulting search incident to arrest was lawful, and the
alleged controlled substance discovered during such search is admissible in
trial.
CP at 108-09.
The prosecution proceeded to a jury trial. Officer Jeff Sagen of the Kennewick
Police Department testified that he arrested Enrique Murillo, searched his person, and
found a red baggie with a crystalline substance in it. Forensic scientist Jayne Wilhelm
testified that she tested the white crystalline material and found it to contain
methamphetamine.
Enrique Murillo testified in his own defense. Murillo averred that, on the morning
of his arrest, he changed into a pair of shorts that he grabbed from a dirty pile of clothes
on the floor of his home. Murillo claimed that the shorts he wore at the time of his arrest
did not belong to him and that he lacked knowledge that the pocket of the shorts
contained methamphetamine.
The trial court delivered to the jury a set of jury instructions. Jury instruction 7
declared:
6
No. 35696-5-III
State v. Murillo
It is a crime for any person to possess a controlled substance.
CP at 88. Jury instruction 8, the to-convict instruction, read:
To convict the defendant of the crime of possession of a controlled
substance, each of the following elements of the crime must be proved
beyond a reasonable doubt:
(1) That on or about August 24th, 2017, the defendant possessed a
controlled substance; and
(2) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements has been
proved beyond a reasonable doubt, then it will be your duty to return a
verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a
reasonable doubt as to any one of these elements, then it will be your duty
to return a verdict of not guilty.
CP at 89 (emphasis added). Note that instruction 8 did not mention methamphetamine as
the controlled substance. Instruction 10 stated:
Methamphetamine is a controlled substance.
CP at 92. The verdict form for the charge stated:
We, the jury, find the defendant ENRIQUE MURILLO JR., ____
[write in “not guilty” or “guilty”] of the crime of Unlawful Possession of a
Controlled Substance as charged in Count I.
CP at 96 (emphasis added). Several jury instructions referenced the crime of possession
of a controlled substance. Nevertheless, none of the jury instructions informed the jury as
to the nature of the charge found in count I.
The jury found Enrique Murillo guilty. The court sentenced Murillo as a felon to
six months plus one day confinement. The judgment and sentence contains the following
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No. 35696-5-III
State v. Murillo
provisions, among others:
5.5 Any violation of this Judgment and Sentence is punishable by up
to 60 days of confinement per violation. RCW 9.94A.634[.]
....
5.6b FELONY FIREARM OFFENDER REGISTRATION. The
defendant is required to register as a felony firearm offender. The specific
registration requirements are in the “Felony Firearm Offender Registration”
attachment.
CP at 119 (boldface omitted).
LAW AND ANALYSIS
Enrique Murillo challenges both his conviction and his sentence. He challenges
his conviction on the basis that Kennewick Police Department officers lacked probable
cause to arrest him and thus the trial court should have suppressed evidence of the
methamphetamine seized during his arrest. He challenges his sentence on the ground
that, although the jury found that he possessed a controlled substance, the jury never
expressly found he possessed methamphetamine and thus a sentence based on possessing
methamphetamine must be struck. We address the conviction first.
Probable Cause for Arrest
This appeal contains discrete facts that, although in isolation are not unique, when
combined form a distinctive configuration. Some factors discount the presence of
probable cause, while other factors support the existence of probable cause. After
analyzing the facts, we conclude the most important factor to be James Whitney’s
statement against penal interest and this factor created probable cause despite Whitney
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No. 35696-5-III
State v. Murillo
providing law enforcement a false name.
To review the facts, Officer Cory McGee spotted a stolen white Mitsubishi
Eclipse, without a license plate and with all usable parts stripped therefrom. McGee and
other officers noticed a trail of oil leading to 723 Volland Street, in front of which
officers discovered another stolen vehicle. At the Volland Street address, officers spoke
to three people. All denied knowledge of stolen vehicles, but two, Jenna Ross and James
Whitney, identified a man named Cousins as the one who brought the Mitsubishi to the
neighborhood. Whitney admitted to working on the Mitsubishi with Cousins. Whitney
stated Cousins was a Hispanic man, with a spider tattoo on his elbow, whose real name
started with an “E,” who lived in an apartment complex on Hood Avenue that contained
the name “Sage,” and who drove a green Kia. On follow-up to Whitney’s information,
officers went to Sage Creek Apartments on Hood Avenue, saw a blue Kia Optima, and
learned that Enrique Murillo owned the Kia. Whitney then confirmed, through a
photograph, Murillo as Cousins and the blue Kia Optima as Cousins’ car.
We isolate three critical facts. First, James Whitney spoke to officers in person
and provided a false name. Second, Whitney implicated himself by conceding he worked
on the disassembled car. Third, Whitney provided details about Cousins, aka Enrique
Murillo, later confirmed by law enforcement, but the details did not implicate Cousins in
any crime. Did these facts justify the arrest of Murillo for stealing a vehicle or
possession of a stolen car? The answer lies in whether the officers possessed reason to
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No. 35696-5-III
State v. Murillo
believe the truth of the information disclosed by Whitney and the other witness
implicating Enrique Murillo, Jenna Ross.
On appeal, Enrique Murillo attacks the credibility of informants Jenna Ross and
James Whitney. The State argues that law enforcement could rely on the statements from
Ross and Whitney because each provided a statement against penal interest.
In retrospect, James Whitney, if not also Jenna Ross, provided misleading, if not
false, information to Kennewick police officers about the theft of motor vehicles. At
least, the State never prosecuted Murillo with stealing or possessing a stolen car, the
allegations that led to his arrest. Nevertheless, this court does not view, with hindsight,
information used by law enforcement to form probable cause. State v. Remboldt, 64 Wn.
App. 505, 509, 827 P.2d 282 (1992).
Officers seized methamphetamine from Enrique Murillo’s person when arresting
him, without an arrest warrant or a search warrant, for allegedly stealing a motor vehicle
or possession of the stolen vehicle. As a general rule, warrantless searches and seizures
are per se unreasonable under the Fourth Amendment to the United States Constitution
and article I, section 7 of the Washington State Constitution. State v. Doughty, 170
Wn.2d 57, 61, 239 P.3d 573 (2010). The burden falls on the State to demonstrate that a
warrantless seizure falls into a narrow exception to the rule. State v. Doughty, 170 Wn.2d
at 61. We purportedly “jealously and carefully” draw these exceptions. State v. Garvin,
166 Wn.2d 242, 249, 207 P.3d 1266 (2009). A search incident to arrest is one such
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No. 35696-5-III
State v. Murillo
exception to the warrant requirement. State v. Gaddy, 152 Wn.2d 64, 70, 93 P.3d 872
(2004). Under article I, section 7, a lawful custodial arrest is a constitutionally required
prerequisite to any search incident to arrest. State v. Gaddy, 152 Wn.2d at 70. Therefore,
we must determine if law enforcement lawfully arrested Enrique Murillo.
A police officer holds authority to arrest a person absent a warrant when the
officer possesses probable cause to believe that a person committed or is committing a
felony. RCW 10.31.100. Theft of a motor vehicle and possession of a stolen motor
vehicle qualify as Class B felonies. RCW 9A.56.065; RCW 9A.56.068.
The existence of probable cause is determined by an objective standard. State v.
Gaddy, 152 Wn.2d 64 (2004). Probable cause exists when the facts and circumstances
within the arresting officer’s knowledge and of which the officer has reasonably
trustworthy information justify a person of reasonable caution to conclude the suspect
committed an offense. State v. Terrovona, 105 Wn.2d 632, 643, 716 P.2d 295 (1986).
Probable cause constitutes the likelihood of a crime, not proof of a crime beyond a
reasonable doubt. State v. Gaddy, 152 Wn.2d at 70.
When a law enforcement officer relies on an informant to gain probable cause for
an arrest, article I, section 7 of the Washington Constitution requires adherence to the
two-pronged test arising from the United States Supreme Court decisions of Aguilar-
Spinelli. State v. Smith, 102 Wn.2d 449, 455, 688 P.2d 146 (1984); Aguilar v. Texas, 378
U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S.
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No. 35696-5-III
State v. Murillo
410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). The Aguilar-Spinelli test requires: (1) a
showing that the informant has a sufficient basis of knowledge, and (2) a showing of the
veracity of the informant. State v. Smith, 102 Wn.2d at 455. The second prong seeks to
evaluate the truthfulness of the informant. State v. Lair, 95 Wn.2d 706, 709, 630 P.2d
427 (1981). To satisfy both prongs, the State must prove the underlying circumstances
showed that the informant was credible and obtained the information in a reliable
manner. State v. Gaddy, 152 Wn.2d 64, 72 (2004). The State must satisfy both prongs of
the Aguilar-Spinelli test, unless the State shows probable cause by an independent police
investigation corroborating the informant’s tip to the extent the investigation cures the
tip’s deficiency. State v. Vickers, 148 Wn.2d 91, 112, 59 P.3d 58 (2002).
Enrique Murillo agrees that the State satisfied the basis of knowledge prong.
Murillo challenges the fulfillment of the veracity of the informant prong.
The State may fulfill the veracity prong of the Aguilar-Spinelli test in one of two
ways: (1) the informant has a history of providing credible information, or (2) if the
informant never provided information in the past and even if law enforcement knows
nothing about the informant, the facts and circumstances under which the informant
supplied the information reasonably support an inference that the informant spoke the
truth. State v. Chamberlin, 161 Wn.2d 30, 41-42, 162 P.3d 389 (2007). We agree with
Enrique Murillo that Jenna Ross and James Whitney lacked any history of providing
reliable information to the police. The State does not argue otherwise.
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No. 35696-5-III
State v. Murillo
If a police investigation reveals suspicious activity along the lines of the criminal
behavior proposed by the informant, the corroborating investigation may satisfy the
requirements of Aguilar-Spinelli. The corroborating information must point to suspicious
activities or indications of criminal activity along the lines suggested by the informant.
State v. Maxwell, 114 Wn.2d 761, 769, 791 P.2d 223 (1990). The amount and kind of
detailed information given by an informant may also enhance his reliability. State v.
O’Connor, 39 Wn. App. 113, 122, 692 P.2d 208 (1984). Still, Washington courts have
never considered corroboration as a prerequisite to a reasonable inference of truthfulness.
State v. Patterson, 83 Wn.2d 49, 56, 515 P.2d 496 (1973); State v. O’Connor, 39 Wn.
App. at 120.
The law deems the circumstances under which the informant supplied the
information to encompass whether the informant implicated himself or herself in criminal
activity. If the informant has no record of reliable information, the State may still satisfy
the veracity prong by showing that the informant’s accusation qualifies as a declaration
against penal interest. State v. Jackson, 102 Wn.2d 432, 437, 688 P.2d 136 (1984).
When a person admits self-incriminating activity to the police, we presume the statement
is true. State v. Chenoweth, 160 Wn.2d 454, 483, 158 P.3d 595 (2007). Statements
against penal interest are intrinsically reliable because a person is unlikely to make a self-
incriminating admission that leads to prosecution unless it is true. State v. Chenoweth,
160 Wn.2d at 483; State v. Lair, 95 Wn.2d at 711 (1981).
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No. 35696-5-III
State v. Murillo
Jenna Ross and James Whitney gave law enforcement each’s purported respective
names. The informant’s identification of himself or herself is not alone a sufficient
ground on which to credit the informer. State v. Duncan, 81 Wn. App. 70, 78, 912 P.2d
1090 (1996). Nevertheless, Washington courts hold that an informant’s willingness to
come forward and identify himself or herself to be a strong indicator of reliability. State
v. Chenoweth, 160 Wn.2d 454, 483 (2007); State v. Chamberlin, 161 Wn.2d at 42 n.7. If
law enforcement knows the identity of an informant, as opposed to the informant being
anonymous or professional, the necessary showing of reliability is relaxed. State v.
Gaddy, 152 Wn.2d 64, 72-73 (2004). Apparently psychology supports the proposition
that an anonymous reporter will more likely employ rumor or irresponsible conjecture or
be marred by self-interest. State v. Gaddy, 152 Wn.2d 64, 72-73. An anonymous
reporter will not suffer ramifications from supplying false information, including the
crime of false reporting, but one disclosing one’s name renders himself criminally liable
for false accusations. State v. Chenoweth, 160 Wn.2d 454 (2007); RCW 9A.76.175. The
law deems citizen informants presumptively reliable. State v. Gaddy, 152 Wn.2d at 73.
Enrique Murillo insists that James Whitney was an anonymous informant since
Whitney gave a false name. This contention holds some, but only limited, appeal. Most
anonymous informers speak by telephone. James Whitney spoke to law enforcement
officers in person at his temporary home. Officers could thereafter locate him at the
residence and identify him by his physical appearance. To this extent, Whitney was a
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No. 35696-5-III
State v. Murillo
known informant. Although we do not review probable cause in hindsight, law
enforcement later located Whitney and spoke again to him, at which time he admitted his
true name and his stealing of the motor vehicle.
One might argue that law enforcement officers should have asked Whitney for
identification to confirm his true name before relying on his remarks about Cousins or
Enrique Murillo. Law enforcement routinely asks citizens for identification in other
settings.
Enrique Murillo cites no decision wherein the court holds or even discusses
whether law enforcement should procure identification from an informer before relying
on the informer’s disclosures. We find only one decision, in which a court discussed an
informer giving a false name. In State v. Duncan, 81 Wn. App. 70 (1996), the State
charged James Duncan with possession of a controlled substance. Duncan’s girlfriend,
Sara DaVee, initiated law enforcement’s search of Duncan’s person. Nevertheless,
DaVee gave the false name of Meda Hansen. Hansen complained to Officer Bill Guyer
of a domestic dispute, during which Duncan pulled her hair. Guyer noticed red marks on
Hansen’s face and loose hair. Hansen added that she recently saw Duncan take fourteen
ounces of marijuana from a storage unit. Based on this information, law enforcement
procured a warrant to search the storage unit. This court affirmed the superior court’s
suppression of the marijuana found in the storage unit.
In State v. Duncan, this court noted that law enforcement’s affidavit in support of
15
No. 35696-5-III
State v. Murillo
the search warrant failed to explain Sara DaVee’s credibility or reliability. The court
wrote:
Police did not check her identity, address, phone number,
employment, residence or length of residence, or family history.
81 Wn. App. at 77. Officer Bill Guyer’s observation of DaVee’s head and hair confirmed
domestic violence, but did not confirm the possession of marijuana. The opinion did not
indicate when law enforcement learned that DaVee gave a false name, and, assuming law
enforcement learned before applying for a search warrant, the importance of the false
name. This court held that law enforcement lacked probable cause to search the storage
unit, but we relied on the lack of confirming information with regard to marijuana in
storage rather than DaVee giving a false name. Thus, Duncan does not hold that law
enforcement must necessarily ask an informant for identification.
James Whitney supplied law enforcement information about Cousins’ real name,
the brand of car he drove, and his residence. Police confirmed the accuracy of the
information. In turn, Whitney correctly identified Enrique Murillo in the photo line-up.
Whitney gave the wrong color of the Kia, but some people see blue when others see
green and vice versa.
The veracity of the informant increases if law enforcement’s investigation
corroborates the informant’s tip. State v. Vickers, 148 Wn.2d 91 (2002). Nevertheless,
corroboration of innocuous facts only shows that the informer has some familiarity with
16
No. 35696-5-III
State v. Murillo
the suspect’s affairs. State v. Jackson, 102 Wn.2d 432, 438 (1984). Such corroboration
only justifies an inference that the informer has some knowledge of the suspect and his
activities, not that criminal activity is occurring. State v. Jackson, 102 Wn.2d 432, 438.
The information Whitney supplied law enforcement merely confirmed that Whitney
knew Murillo. The information did not validate Murillo’s alleged illegal activities or his
involvement with the white Mitsubishi.
Enrique Murillo legitimately challenges the trial court’s conclusion of law 6,
which declared that Jenna Ross and James Whitney uttered statements against her or his
respective penal interests. We agree that Ross did not implicate herself. During her
interview with officers, Ross denied knowledge that the Toyota pickup and the
Mitsubishi were stolen. She claimed that Cousins brought the white Mitsubishi to the
house, but that she had no clue how the Toyota arrived in the vicinity. These statements
do not subject Ross to criminal liability.
We agree with the State that James Whitney voiced a statement against penal
interest. Whitney’s acknowledgement of work in stripping a car and work on a
disassembled vehicle with a person allegedly barely known implicated Whitney as an
accomplice or principal in stealing a car or possession of a stolen car. In State v.
Chenoweth, this court agreed that an informant provided reliable information when he
told an officer that he assisted the accused in making methamphetamine. Because the
testimony of an accomplice suffices to convict beyond a reasonable doubt, statements by
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No. 35696-5-III
State v. Murillo
the accomplice should suffice to present probable cause for an arrest of the defendant.
Craig v. Singletary, 127 F.3d 1030, 1044-45 (11th Cir. 1997).
The law deems a statement against penal interest reliable because the informant
more likely tells the truth if he speaks against his advantage. This rationale assumes that
the informant knows that his comments implicate him. We lack any evidence that James
Whitney knew that his disclosures implicated him. He may not have known the car to be
stolen, or, assuming he knew the car to be stolen, he did not know that working on the car
rendered him an accomplice. We find no case law, however, that demands the State
show that the informant knew he spoke against his interests.
One could argue that James Whitney lied about Enrique Murillo bringing the car
to the neighborhood in order to shift principal blame onto Murillo and deflect primary
guilt from him. One case recognizes this possibility. Craig v. Singletary, 127 F.3d 1030,
1045-46 (11th Cir. 1997). Nevertheless, the federal court rejected this possibility as a
reason to discount statements against penal interest.
Once again, Enrique Murillo legitimately emphasizes James Whitney’s provision
of a false identity. Murillo contends that, since Whitney gave an ersatz name, his report
does not qualify as a statement against interest. We answer similarly to our answer with
regard to the informant identifying himself. Law enforcement knew the location of
Whitney and could confront him on giving false information. We also must view the
evidence in the light of the officers’ knowledge at the time of the arrest of Enrique
18
No. 35696-5-III
State v. Murillo
Murillo, not in hindsight. State v. Remboldt, 64 Wn. App. 505, 509 (1992).
After reviewing the many factors relevant to a determination of the veracity of
James Whitney and his statement implicating Enrique Murillo with the possession of the
Mitsubishi, we conclude, based on a combination of factors, that law enforcement
officers possessed probable cause to arrest Enrique Murillo at the time of his seizure. We
primarily rely on Whitney’s uttering of a statement against penal interest. Case law
repeatedly emphasizes the strength of such statements. Although Whitney primarily
supplied innocuous information to law enforcement, he still supplied accurate details.
Although he provided a false name, he did not anonymously call law enforcement. Law
enforcement knew his location and his looks. We know of the false identity only in
retrospect. Because law enforcement possessed probable cause to arrest Enrique Murillo,
we affirm his conviction.
Sentence
Enrique Murillo asks this court to remand for resentencing because the omission
of the identity of the controlled substance in the to-convict instruction constituted harmful
error for purposes of sentencing. The State contends that the omission of the name of the
controlled substance from the to-convict instruction was not error and that, even if error,
the omission was harmless error as to Murillo’s sentence. We agree with Murillo.
The State charged, in the information, that Enrique Murillo “did unlawfully
possess a controlled substance, to wit: methamphetamine.” CP at 1. Jury instruction 8
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No. 35696-5-III
State v. Murillo
directed the jury to convict Enrique Murillo if it found that Murillo “possessed a
controlled substance.” CP at 89. But the jury instruction omitted the word
“methamphetamine.” Instruction 10 informed the jury that methamphetamine is a
controlled substance, but the instruction did not apprise the jury that the State only
charged Murillo with possessing methamphetamine, and not one or more other
substances. Murillo postulates that the jury could have convicted him of possessing a
controlled substance other than methamphetamine, when the State never charged him
with possessing another substance. The jury verdict only read that the jury found Murillo
guilty of possessing a controlled substance, not of possessing methamphetamine.
The omission of the nature of the controlled substance from a to-convict jury
instruction can implicate both the accused’s conviction and sentence, but we need not
address the implications on the conviction in this appeal. A to-convict instruction must
include each essential element of the crime charged. State v. Smith, 131 Wn.2d 258, 263,
930 P.2d 917 (1997); State v. Clark-El, 196 Wn. App. 614, 618, 384 P.3d 627 (2016).
When the identity of a controlled substance increases the statutory maximum sentence
which the defendant may face on conviction, the identity of the substance becomes an
essential element. State v. Goodman, 150 Wn.2d 774, 778, 83 P.3d 410 (2004). As we
analyze later, the nature of the controlled substance could increase Enrique Murillo’s
sentence. Therefore, the trial court committed error when omitting the word
“methamphetamine” from jury instruction 8.
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No. 35696-5-III
State v. Murillo
The omission of an essential element from the to-convict instruction is subject to
harmless error analysis for purposes of the accused’s conviction. State v. Brown, 147
Wn.2d 330, 332, 58 P.3d 889 (2002). Enrique Murillo impliedly and correctly concedes
harmless error for purposes of his conviction.
We must still address whether, for purposes of sentencing, we may apply harmless
error analysis to the error in Enrique Murillo’s to-convict jury instruction and, if so,
whether harmless error occurred. RCW 69.50.4013, under which the State charged
Murillo, declares:
(1) It is unlawful for any person to possess a controlled substance
unless the substance was obtained directly from, or pursuant to, a valid
prescription or order of a practitioner while acting in the course of his or
her professional practice, or except as otherwise authorized by this chapter.
(2) Except as provided in RCW 69.50.4014, any person who violates
this section is guilty of a class C felony punishable under chapter 9A.20
RCW.
(3)(a) The possession, by a person twenty-one years of age or older,
of useable marijuana, marijuana concentrates, or marijuana-infused
products in amounts that do not exceed those set forth in RCW
69.50.360(3) is not a violation of this section, this chapter, or any other
provision of Washington state law.
(b) The possession of marijuana, useable marijuana, marijuana
concentrates, and marijuana-infused products being physically transported
or delivered within the state, in amounts not exceeding those that may be
established under RCW 69.50.385(3), by a licensed employee of a common
carrier when performing the duties authorized in accordance with RCW
69.50.382 and 69.50.385, is not a violation of this section, this chapter, or
any other provision of Washington state law.
(4)(a) The delivery by a person twenty-one years of age or older to
one or more persons twenty-one years of age or older, during a single
twenty-four hour period, for noncommercial purposes and not conditioned
upon or done in connection with the provision or receipt of financial
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No. 35696-5-III
State v. Murillo
consideration, of any of the following marijuana products, is not a violation
of this section, this chapter, or any other provisions of Washington state
law.
Note that the controlled substance offender’s sentence may vary depending on the nature
of the controlled substance. RCW 69.50.4014 reads:
Except as provided in RCW 69.50.401(2)(c) or as otherwise
authorized by this chapter, any person found guilty of possession of forty
grams or less of marijuana is guilty of a misdemeanor.
The constitutional right to a jury trial requires that a sentence be authorized by a
jury’s verdict. State v. Morales, 196 Wn. App. 106, 109, 383 P.3d 539 (2016). If a court
imposes a sentence not authorized by the jury’s verdict, harmless error analysis does not
apply. State v. Williams-Walker, 167 Wn.2d 889, 900-01, 225 P.3d 913 (2010). The law
requires the trial court “to impose only the lowest possible sentence for unlawful
possession of a controlled substance.” State v. Gonzalez, 2 Wn. App. 2d 96, 114, 408
P.3d 743, review denied, 190 Wn.2d 1021, 418 P.3d 790 (2018).
In analyzing whether the omission of “methamphetamine” in Enrique Murillo’s to-
convict jury instruction was harmless error as to his sentence we review four Washington
decisions: State v. Sibert, 168 Wn.2d 306, 230 P.3d 142 (2010) (plurality opinion); State
v. Rivera-Zamora, 7 Wn. App. 2d 824, 435 P.3d 844 (2019); State v. Gonzalez, 2 Wn.
App. 2d 96 (2018); and State v. Clark-El, 196 Wn. App. 614 (2016). In State v. Sibert, a
jury convicted Richard Sibert of three counts of delivery of a controlled substance and
one count of possession of a controlled substance with intent to deliver. The to-convict
22
No. 35696-5-III
State v. Murillo
instruction omitted the identity of the specific controlled substance. Nevertheless, each
of the four to-convict instructions began by stating: “‘to convict the Defendant . . . of the
crime of delivery of a controlled substance as charged . . . .’” 168 Wn.2d at 312
(emphasis added). Unfortunately, we do not know if any jury instruction expressly
identified the charges as possession and delivery of methamphetamine. We also do not
know if the jury verdict referenced methamphetamine or asked the jury to convict or not
convict Sibert of the crime “as charged.” Four of the Supreme Court justices ruled that
the omission in the jury instruction did not constitute error.
The Washington Supreme Court decided State v. Sibert by a plurality. Justice
Barbara Madsen concurred in result only. Judge Madsen did not pen a separate opinion.
A plurality opinion has limited precedential value and is not binding on the courts. In re
Personal Restraint of Isadore, 151 Wn.2d 294, 302, 88 P.3d 390 (2004). Another court
cannot assess the correct holding of an opinion signed by four justices when, as here, the
fifth vote, concurring in the result only, is unaccompanied by an opinion. Kailin v.
Clallam County, 152 Wn. App. 974, 985, 220 P.3d 222 (2009). As noted by this court, in
State v. Clark-El, 196 Wn. App. at 619 (2016), we cannot assess the holding in Sibert.
Four justices dissented in State v. Sibert on the basis that the omission in the jury
instruction constituted error and harmless error does not apply to an error in sentencing.
The identity of the controlled substance affected the applicable seriousness level of the
crime. According to the dissenters, because the jury found Richard Sibert guilty of an
23
No. 35696-5-III
State v. Murillo
unidentified controlled substance, the trial court lacked authority to impose a sentence
beyond the standard range for any controlled substance under the charging statute.
In State v. Rivera-Zamora, 7 Wn. App. 2d 824 (2019), this court found
instructional error harmless as to the defendant’s sentence. Bogar Rivera-Zamora
appealed convictions for delivery of a controlled substance, methamphetamine, and
possession of a controlled substance with intent to deliver. The to-convict instruction did
not identify the controlled substance. Nonetheless, the charging document identified
methamphetamine as the substance Rivera-Zamora allegedly possessed with the intent to
deliver. More importantly, even though the elements instruction omitted the word
“methamphetamine,” the verdict form stated that the jury found Rivera-Zamora guilty of
unlawful possession of a controlled substance with intent to deliver—methamphetamine.
In other words, the verdict entered by the jury identified the controlled substance as
methamphetamine. This court held that the trial court did not err in sentencing Rivera-
Zamora because the jury “expressly found that Mr. Rivera-Zamora possessed
methamphetamine with intent to deliver.” State v. Rivera-Zamora, 7 Wn. App. 2d at 830.
Accordingly, the error in the elements instruction was harmless as to both the conviction
and sentence.
In State v. Gonzalez, 2 Wn. App. 2d 96 (2018), the State charged Leonel Gonzalez
with unlawful possession of a controlled substance, methamphetamine, under former
RCW 69.50.4013 (2015). Although the forensic examination of the controlled substance
24
No. 35696-5-III
State v. Murillo
revealed both methamphetamine and cocaine, the amended information mentioned only
possession of methamphetamine and not cocaine. The to-convict instruction declared
that the State must prove “the defendant possessed a controlled substance. . . .” State v.
Gonzalez, 2 Wn. App. 2d at 104. The to-convict instruction omitted the type of
controlled substance, but the instruction referred to the offense “as charged in Count II.”
State v. Gonzalez, 2 Wn. App. 2d at 104. One instruction mentioned methamphetamine
being a controlled substance.
On appeal, the Gonzalez court discussed the application of harmless error to the
conviction and to sentencing. The court noted that former RCW 69.50.4013(2), (3), and
(5) impose different maximum sentences based on the type and amount of the controlled
substance possessed. One charged under the statute could be guilty of a misdemeanor.
The statute also excluded penalties for the possession of marijuana under some
circumstances altogether.
The Gonzalez court reasoned that, without specifying the identity of the controlled
substance, the to-convict instruction could allow the jury to convict a defendant and
impose a class C felony sentence based on the possession of any controlled substance,
including any amount of marijuana. The court stated that, if a court imposes a sentence
not authorized by the jury’s verdict, harmless error analysis does not apply. The court
held that, because the jury’s verdict did not specify the controlled substance Gonzalez
unlawfully possessed, the only authorized sentence was the lowest possible sentence for
25
No. 35696-5-III
State v. Murillo
unlawful possession of a controlled substance. The court impliedly ruled that the use of
the words “as charged in count II” did not save the to-convict instruction from
constitutional error. The court remanded for resentencing on the possession of a
controlled substance conviction.
In State v. Clark-El, 196 Wn.2d 614, 618 (2016), the State charged Randolph
Clark-El with one count of delivery of a controlled substance, “to-wit: methamphetamine
. . . a class B felony.” Nevertheless, the to-convict instruction failed to identify the nature
of the controlled substance. Also, the jury verdict did not specify the type of controlled
substance. The court remanded for resentencing.
Enrique Murillo’s appeal occupies the interstices among the four Washington
decisions. Murillo’s to-convict instruction did not identify the possessed controlled
substance as methamphetamine. The to-convict instruction also failed to refer to
possession of a controlled substance “as charged.” A separate jury instruction referenced
methamphetamine, and no other drug, as a controlled substance. The verdict form did
not specify the nature of the controlled substance. The verdict form asked the jury to
convict or acquit Murillo of the offense “as charged.” The information only charged
Murillo with possession of methamphetamine. Nevertheless, no jury instruction
informed the jury that the State only charged Murillo with possession of
methamphetamine.
26
No. 35696-5-III
State v. Murillo
We conclude the omission of the identity of the controlled substance from Enrique
Murillo’s to-convict instruction constituted harmful error. The case law preaches the
primacy of the to-convict instruction and the need to mention the nature of the controlled
substance in the instruction. Murillo’s to-convict instruction lacked any mention of
methamphetamine. The error in the to-convict instruction may be absolved if the verdict
form expressly identifies the controlled substance. Murillo’s verdict form did not include
the word “methamphetamine.” The verdict form asked the jury to convict or acquit
Murillo “as charged,” but no instruction, let alone the to-convict instruction, listed the
charged substance as methamphetamine. The to-convict instruction also failed to employ
the phrase “possession of a controlled substance as charged.” We also note that a
majority of the Washington Supreme Court has never expressly adopted a harmless error
analysis for sentencing when the to-convict instruction fails to identify the controlled
substance.
All of the Washington decisions holding that the absence of the identity of the
controlled substance in the to-convict instruction remand for resentencing without
directing the resentencing court of the sentence to enter. The law requires the trial court
to impose only the lowest possible sentence for possession of a controlled substance.
State v. Gonzalez, 2 Wn. App. 2d 96, 114 (2018); State v. Clark-El, 196 Wn. App. 614,
624 (2016). We hold that the lowest offense consistent with the jury’s express finding of
possession of a controlled substance is possession of marijuana of forty grams or less
27
No. 35696-5-III
State v. Murillo
under RCW 69.50.4014. RCW 69.50.4014 provides:
Except as provided in RCW 69.50.401(2)(c) or as otherwise
authorized by this chapter, any person found guilty of possession of forty
grams or less of marijuana is guilty of a misdemeanor.
Thus, the resentencing court should sentence Enrique Murillo to a misdemeanor sentence.
Judgment and Sentence Corrections
The judgment and sentence contains the following two provisions:
5.5 Any violation of this Judgment and Sentence is punishable by up
to 60 days of confinement per violation. RCW 9.94A.634[.]
....
5.6b FELONY FIREARM OFFENDER REGISTRATION. The
defendant is required to register as a felony firearm offender. The specific
registration requirements are in the “Felony Firearm Offender Registration”
attachment.
CP at 119. Enrique Murillo argues that both paragraphs contain errors. The State
concedes error. Remand to the trial court for correction of any errors constitutes the
remedy for errors in the judgment and sentence. State v. Healy, 157 Wn. App. 502, 516,
237 P.3d 360 (2010).
The legislature recodified RCW 9.94A.634 as RCW 9.94B.040, effective August
1, 2009. LAWS OF 2008, ch. 231 § 56. RCW 9.94B.040 applies only to crimes
committed before July 1, 2000. State v. Bigsby, 189 Wn.2d 210, 214, 399 P.3d 540
(2017). Enrique Murillo’s charged crime of unlawful possession of a controlled
substance occurred on August 24, 2017, well after July 1, 2000. Therefore, paragraph 5.5
authorizing sanctions under former RCW 9.94A.634 constitutes error.
28
No. 35696-5-III
State v. Murillo
Section 5.6b of the judgment regarding felony firearm offender registration is also
inaccurate. RCW 9.41.330(1) declares:
Whenever a defendant in this state is convicted of a felony firearm
offense . . . the court must consider whether to impose a requirement that
the person comply with the registration requirements of RCW 9.41.333 and
may, in its discretion, impose such a requirement.
(Emphasis added.) RCW 9.41.010(10)(e) defines “felony firearm offense” as “[a]ny
felony offense if the offender was armed with a firearm in the commission of the
offense.”
Enrique Murillo’s crime does not meet the definition of “felony firearm offense.”
The superior court convicted Murillo of unlawful possession of a controlled substance,
and the record does not suggest that Murillo bore a firearm at the time of his arrest.
Legal Financial Obligations
The trial court assessed legal financial obligations at sentencing of a $500 victim
penalty assessment fee, a $200 criminal filing fee, and a $100 DNA fee. Although
mandatory when imposed, the criminal filing fee and DNA fee are no longer mandatory
under new legislation as explained in State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714
(2018). The DNA fee is mandatory if the offender has yet to have his DNA collected by
the State.
The trial court found Enrique Murillo indigent at the sentencing. As a result, he
asks that the criminal filing fee be struck from his judgment and sentence. Murillo also
29
No. 35696-5-111
State v. Murillo
requests that the DNA fee be struck. Murillo has criminal convictions in the state of
Washington which occurred in 1996 and 1998. Prior to 2002, the DNA identification
statute required every person convicted of a felony sex offense or violent offense to
provide a blood sample for DNA. LA ws OF 1989, ch. 350. Murillo's late nineties
convictions do not include a felony sex offense or violent offense. Therefore, we
conclude the State has never collected his DNA.
Pursuant to Ramirez, we remand for the trial court to strike the criminal filing fee.
The $100 DNA collection fee shall remain.
CONCLUSIONS
We affirm the conviction of Enrique Murillo for possession of a controlled
substance. We remand to the superior court for resentencing of Murillo for a
misdemeanor and for the trial court to strike sections 5.5 and 5.6b from the judgment and
sentence. We remand for the striking of the $200 criminal filing fee.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Fearing, J.
I CONCUR:
l,... ._ "~" (. t ~ ~ tM. \
Lawrence-Berrey, C .J.
30
No. 35696-5-III
KORSMO, J. (dissenting)- Even though State v. Sibert, 168 Wn.2d 306, 230 P.3d
142 (2010) (plurality opinion), provides no governing analysis, it does provide a
governing result. We are bound by that result, even if not the analysis, under the facts of
this case. We are required to affirm by the results of that case and also because the error
is absolutely harmless.
As to the latter proposition first, I concur in the reasoning of Judge Melnick in his
dissent in State v. Gonzalez, 2 Wn. App. 2d 96, 116-120, 408 P.3d 743 (2018) (Melnick,
J., dissenting in part). The error is absolutely harmless because the evidence presented at
trial presented only one controlled substance for the jury's consideration-
methamphetamine-and Mr. Murillo agreed that he possessed the substance. Here, the
information alleged that Mr. Murillo possessed methamphetamine. Clerk's Papers (CP)
at 1. The jury was advised that the "defendant in this case is charged with unlawful
possession of a controlled substance, methamphetamine." Supplemental Report of
Proceedings (Oct. 30, 2017) at 5. The elements instruction omitted the identity of the
controlled substance, but the jury was instructed that methamphetamine was a controlled
substance. CP at 89, 92. The instructions did not identify any other controlled substance.
The defense proposed, and received, an instruction on unwitting possession. CP at 72-74,
No. 35696-5-III
State v. Murillo-Dissent
93. The verdict form stated that the jury found Mr. Murillo "guilty of the crime of
unlawful possession of a controlled substance as charged in count I." CP at 97. In other
words, the only issue in this case was whether or not Mr. Murillo possessed the substance
innocently. Because both sides agreed that Murillo possessed methamphetamine, it is
harder to conceive of a stronger harmless error case.
To reach the opposite result, the majority here adopts the analysis of the dissent in
Sibert without saying so. Of course, a dissent does not state the law. See Cole v.
Harvey/and, LLC, 163 Wn. App. 199,207,258 P.3d 70 (2011) ("But the meaning of a
majority opinion is not found in a dissenting opinion."). In doing so, the majority
overlooks a basic rule of construction for a case without a governing rationale. In those
circumstances, this court must apply the holding of the narrowest concurring opinion.
Davidson v. Hensen, 135 Wn.2d 112, 128, 954 P.2d 1327 (1998); Kai/in v. Clallam
County, 152 Wn. App. 974, 985-986, 220 P.3d 222 (2009). When the concurring vote is
simply a "result only," the narrowest holding is the outcome of the case. Kai/in, 152 Wn.
App. at 985; Kitsap All. of Prop. Owners v. Cent. Puget Sound Growth Mgmt. Hr 'gs. Bd.,
152 Wn. App. 190, 197, 217 P .3d 365 (2009).
The Sibert plurality found there was no error in omitting the identity of the
controlled substance under the facts of the case and affirmed the judgment and sentence.
168 Wn.2d at 317. Justice Madsen concurred in the result only and did not state a reason
for that result. The primary dissenting opinion (three justices) concluded that the error
2
No. 35696-5-III
State v. Murillo-Dissent
was not harmless and resulted in an unauthorized sentence. 168 Wn.2d at 318-325
(Alexander, J., dissenting). The solo dissent of Justice Sanders concluded that harmless
error analysis did not apply and the verdict form also violated Blakely v. Washington, 542
U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Id. at 326-334 (Sanders, J.,
dissenting).
Here, the Sibert result controls because the relevant facts are largely identical. In
each instance, the verdict forms incorporated the charges referenced in the charging
document. 1 The jury in this case was aware of the controlled substance identified in the
charging document due to the court's preliminary instruction to the panel, as well as the
argument of the parties that Mr. Murillo possessed methamphetamine. In both cases, the
only controlled substance identified in the instructions was methamphetamine, and it was
the only controlled substance identified in the evidence. 2 In addition, this case had the
added feature that Mr. Murillo admitted that he possessed methamphetamine.
Accordingly, the verdict here reflects the same verdict as Sibert-the jury found that the
charge in the information was proved beyond a reasonable doubt. Thus, the result must
be the same.
1
The elements instructions in Sibert referenced the counts "as charged" in the
information, resulting in the jury convicting him "as charged." 168 Wn.2d at 312-313.
The verdict form here used the same "as charged" language. CP at 97.
2 Sibert, 168 Wn.2d at 313; CP at 92.
3
I
I
No. 35696-5-111
State v. Murillo-Dissent
Because of both the Sibert result and the fact that the controlled substance was not
a disputed element in this case, the error was completely harmless. The judgment and
sentence should be affirmed.
4
I
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618 F.2d 781
Securities and Exchange Commissionv.Mize
78-1049
UNITED STATES COURT OF APPEALS Fifth Circuit
5/21/80
S.D.Tex., 615 F.2d 1046
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FILED
MAY 17, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33423-6-111
Respondent, )
)
v. )
)
MAURICIO LEON DELGADO, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. -Mauricio Leon Delgado appeals from his 2015 Grant County
conviction of second degree rape with forcible compulsion. He contends the jury
instruction on reasonable doubt, which defines reasonable doubt as "one for which a
reason exists," is unconstitutional because it shifts the burden of proof and requires the
jury to articulate a reason. He also asks this court, if we affirm his conviction, to exercise
our discretion and decline to impose appellate costs. Because the reasonable doubt
instruction is identical to Washington Pattern Jury Instruction (WPIC) 4.01, the approved
pattern instruction on reasonable doubt, we affirm. We do not award appellate costs to
the prevailing party because the State is not requesting them.
FACTS
Mr. Delgado took a female acquaintance to a hotel room and raped her in June
2014. The State charged him with second degree rape with forcible compulsion, or
No. 33423-6-111
State v. Delgado
alternatively, with third degree rape. RCW 9A.44.050(1)(a), .060. At his trial, the judge
instructed the jury on reasonable doubt:
The defendant is presumed innocent. This presumption continues
throughout the entire trial unless during your deliberations you find it has
been overcome by the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise
from the evidence or lack of evidence. It is such a doubt as would exist in
the mind of a reasonable person after fully, fairly, and carefully considering
all of the evidence or lack of evidence. If, from such a consideration, you
have an abiding belief in the truth of a charge, you are satisfied beyond a
reasonable doubt as to that charge.
Clerk's Papers at 65. The jury found him guilty of second degree rape with forcible
compulsion.
CONSTITUTIONALITY OF THE REASONABLE DOUBT INSTRUCTION
Mr. Delgado assigns error to the reasonable doubt jury instruction. We review a
challenge to the language of a jury instruction de novo, in the context of the instructions
as a whole. State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007); In re Pers.
RestraintofHegney, 138 Wn. App. 511,521,158 P.3d 1193 (2007). Jury instructions are
upheld on appeal if they allow the parties to argue their theories of the case, do not
mislead the jury, and properly inform the jury of the applicable law. Bennett, 161 Wn.2d
at 307.
Mr. Delgado's reasonable doubt jury instruction was taken nearly verbatim from
WPIC 4.01. See 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL 4.01, at 85 (3d ed. 2008). He argues the language in WPIC
2
No. 33423-6-111
State v. Delgado
4.01 that defines a reasonable doubt as "one for which a reason exists" tells jurors that
they must be able to articulate a reason for having a reasonable doubt. Id. (emphasis
added). Thus, he contends, jurors must have more than just a reasonable doubt; they
must be able to articulate that doubt. He also contends this instruction is substantially
similar to the fill-in-the-blank prosecutorial arguments that Washington courts have
invalidated because those arguments shift the burden of proof to the defendant.
We first note that Mr. Delgado did not object to the propriety of WPIC 4.01 at
trial. A defendant generally waives the right to appeal an error unless he or she raised an
objection at trial. State v. Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253 (2015). One
exception to this rule is made for manifest errors affecting a constitutional right. RAP
2.5(a)(3); Kalebaugh, 183 Wn.2d at 583. An error is manifest if the appellant can show
actual prejudice. State v. O'Hara, 167 Wn.2d 91, 99,217 P.3d 756 (2009). Mr. Delgado
claims an error of constitutional magnitude. But he shows neither error nor prejudice.
Washington courts have approved the relevant language of WPIC 4.01 as
constitutionally sound for decades. As noted in State v. Thompson, 13 Wn. App. 1, 533
P.2d 395 (1975), the phrase "a doubt for which a reason exists"
does not direct the jury to assign a reason for their doubts, but merely
points out that their doubts must be based on reason, and not something
vague or imaginary. A phrase in this context has been declared satisfactory
in this jurisdiction for over 70 years.
3
No. 33423-6-III
State v. Delgado
Thompson, id. at 5 (citing State v. Harras, 25 Wash. 416, 65 P. 774 (1901)). The
Washington Supreme Court has consistently endorsed the language of WPIC 4.01. See,
e.g., Bennett, 161 Wn.2d at 318 (the Supreme Court exercises its "inherent supervisory
power" to require trial courts to use only WPIC 4.01 in instructing juries on the burden of
proof); State v. Emery, 174 Wn.2d 741, 759-60, 278 P.3d 653 (2012) (the prosecutor in
closing argument properly described reasonable doubt as a doubt for which a reason
exists).
Most recently, the Washington Supreme Court in Kalebaugh, 183 Wn.2d at 584,
reaffirmed that WPIC 4.01 was the correct legal instruction on reasonable doubt. The
trial judge in Kalebaugh gave a proper instruction from WPIC 4.01 in his preliminary
remarks to prospective jurors, but then attempted to further explain that reasonable doubt
was "' a doubt for which a reason can be given.'" Id. at 585 (emphasis by Supreme
Court). Kalebaugh, id. at 586, disfavored the judge's "offhand explanation," in part
because that language suggested that a reason must be given to doubt the defendant's
guilt. The error was held harmless, however, because the trial judge properly instructed
the jury at the end of the case with the language ofWPIC 4.01. Id.
Mr. Delgado's assertion that WPIC 4.01 is similar to the "fill-in-the-blank"
prosecutorial argument held improper in Emery, 174 Wn.2d at 759-60, is without merit.
The prosecutor in Emery told the jury in closing argument that "' in order for you to find
the defendant not guilty, ... you'd have to say, quote, I doubt the defendant is guilty, and
4
No. 33423-6-III
State v. Delgado
my reason is blank. A doubt for which a reason exists. If you think you have a doubt,
you must fill in that blank.'" Id. at 750-51. This statement was inappropriate because it
subtly shifted the burden of proving the case to the defendant to disprove. Id. at 760.
The prosecutor's improper and potentially confusing statement did not support relief,
however. Emery concluded that even if the appellants could show that the statement was
incurable, they could not show a substantial likelihood that it affected the jury's verdict.
Id. at 764 n.14. The jury was properly instructed on reasonable doubt with a WPIC 4.01
instruction, and the Court assumed-as it must-that the jury followed the instruction.
Id.
APPELLATE COSTS
Recognizing that he may be unsuccessful in this appeal, Mr. Delgado asks us to
decline to impose the appellate costs authorized in RCW 10.73.160 and RAP 14.2.
Under RCW 10.73.160(1), courts have discretion to require a criminal defendant to pay
appellate costs. These costs are limited to the expenses incurred by the State in
prosecuting or defending an appeal or collateral attack, and cannot include "expenditures
to maintain and operate governmental agencies." RCW 10.73.160(2). The State may
request recoupment of fees for the court-appointed counsel and the expenses incurred in
producing the report of proceedings and clerk's papers. RCW 10.73.160(2), (3). RAP
14.2 states that a commissioner or clerk of the appellate court will award costs to the
party that substantially prevails on appeal unless the appellate court directs otherwise.
5
No. 33423-6-111
State v. Delgado
In this case, the State asserts that it will not seek appellate costs. Consequently,
the issue is moot and no continuing or substantial public interest requires a ruling. See
State v. Hunley, 175 Wn.2d 901, 907, 287 P.3d 584 (2012) (the court generally will not
consider an issue if it can no longer provide effective relief).
CONCLUSION
We are bound by the approval of the WPIC 4.01 reasonable doubt language in
Kalebaugh and its predecessors. See State v. Gore, 101 Wn.2d 481,487, 681 P.2d 227
(1984). Accordingly, we hold that Mr. Delgado cannot show manifest error justifying
review under RAP 2.5(a)(3) of the unpreserved objection to the WPIC 4.01 beyond
reasonable doubt instruction.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
&aw.~1ft·
iddoway, J.
WE CONCUR:
Pennell, J.
6
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770 F.Supp. 1339 (1991)
The HOME INDEMNITY COMPANY, a New Hampshire corporation, Plaintiff,
v.
FARM HOUSE FOODS CORPORATION, a Wisconsin corporation, and the Diana Corporation, a Delaware corporation, Defendants.
Civ. A. No. 90-C-559.
United States District Court, E.D. Wisconsin.
July 30, 1991.
*1340 Gary P. Lantzy, Kohner, Mann & Kailas, Milwaukee, Wis., for Home Indem. Co.
W. Stuart Parsons and Susan LaCava, Quarles & Brady, Milwaukee, Wis., for Diana Corp.
Michael J. McDonagh, Farm House Foods Corp., Milwaukee, Wis., for Farm House Foods Corp.
DECISION AND ORDER
REYNOLDS, Senior District Judge.
BACKGROUND
On June 8, 1990, plaintiff Home Indemnity Company ("Home Indemnity") commenced an action in this court against defendants Farm House Foods Corporation ("Farm House") and Diana Corporation ("Diana") alleging that they had breached a contract they entered into with Home Indemnity by not paying Home Indemnity $629,935.02 in premiums due on insurance policies for the period April 1, 1988 to April 1, 1989. Home Indemnity is incorporated in New Hampshire and has its principal place of business in New York (Complaint ¶ 1). Farm House is incorporated in Wisconsin with its principal place of business in Wisconsin (Farm House Answer ¶ 2). Diana is incorporated in Delaware with its principal place of business in Wisconsin (Diana Answer ¶ 3). Thus, this court has subject matter jurisdiction to adjudicate this dispute pursuant to Title 28 United States Code § 1332(a)(1).
On July 3, 1990, Diana answered Home Indemnity's complaint. Diana admits that it was a named insured on the insurance policies issued by Home Indemnity, but denies that it is liable for any premiums owed to Home Indemnity (Answer ¶¶ 5-6, 11, 18). Diana, however, admits that Farm House owes premiums to Home Indemnity (Answer ¶ 6). On October 2, 1990, Farm House filed an amended answer in which it admits that it is liable to Home Indemnity for unpaid premiums (Answer ¶ 6). Farm House, however, denies that the amount it owes Home Indemnity is $629,935.02 (Id.).
On February 28, 1991, Diana moved this court to enter an order prohibiting Home Indemnity from offering at trial the expert legal testimony of University of Wisconsin Law School Professor, Kenneth B. Davis, Jr. ("Davis"). Diana argues that Home Indemnity should be prohibited from having Davis testify at trial on his opinions concerning the question of law as to whether or not Diana's corporate veil should be pierced. On April 15, 1991, Home Indemnity opposed Diana's motion. Home Indemnity argues that the question of piercing a corporate veil is extremely complex and that the jury would benefit from Davis' expert testimony on this question.
On March 1, 1991, Diana moved this court for partial summary judgment. Diana requests this court to find that (1) the contract creating the obligation to pay premiums was solely between Home Indemnity and Farm House and (2) Home Indemnity is estopped from piercing Diana's corporate veil. On April 15, 1991, Home Indemnity opposed Diana's motion and moved this court to enter summary judgment against Farm House/Diana finding that both defendants are liable for the premiums owed on the insurance policies. Home Indemnity argues that in addition to defendant Farm House being liable for the premiums, defendant Diana also is liable because: (1) Diana was a named insured; (2) there was a de facto merger between Diana and Farm House; and (3) Diana is a mere continuation of Farm House. In addition, Home Indemnity claims that there is no dispute as to the amount owed under the policies by Farm House/Diana. On May 3, 1991, Diana opposed Home Indemnity's motion for summary judgment.
Farm House did not file a brief in opposition to Home Indemnity's motion for summary judgment. However, on April 8, 1991, Farm House moved this court to appoint a special master to determine the amount of money which was due on the insurance premiums. Farm House argues *1341 that (1) the $629,935.01 in premiums claimed by Home Indemnity is grossly overstated and (2) that reference to a special master is necessary because the premium in question is a retrospective insurance premium whose calculation is an extremely technical and complex factual question. On April 23, 1991, Home Indemnity opposed Farm House's motion for reference to a special master and argued that calculating a retrospective premium is not a complicated matter.
On May 3, 1991, Diana moved this court for a continuance of the discovery deadline to enable it to conduct additional discovery on the question of the amount of premiums due under the policies. On May 16, 1991, Home Indemnity opposed Diana's motion on the ground that there is no genuine issue as to any material fact as to the amount of insurance premiums due to Home Indemnity from Farm House/Diana.
On May 29, 1991, Farm House moved this court to strike various portions of Home Indemnity's reply brief relating to Home Indemnity's motion for summary judgment. Farm House requests this court to strike those portions of Home Indemnity's brief which request this court to enter summary judgment against Farm House on the ground that Farm House failed to file a brief in opposition to Home Indemnity's summary judgment motion. Farm House argues that it was not required to file a responsive brief because Home Indemnity's motion was directed at a non-party: "Farm House Foods Corporation/Diana Corporation." On June 7, 1991, Home Indemnity opposed Farm House's motion, and on June 25, 1991, Home Indemnity filed with this court copies of documents generated by the insurance coordinator of Farm House, Sandra Woodley ("Woodley"), which refers to "Farm House Foods Corporation/Diana Corporation."
On July 18, 1991, Farm House sent to this court a letter in which it requested an adjournment of the September 10, 1991 trial date in this action because Farm House's general counsel had a scheduling conflict.
This court: (1) denies Diana's motion for partial summary judgment; (2) grants partial summary judgment in favor of Home Indemnity holding Farm House and Diana liable for the premiums owed on insurance policies WC-K98 54 34, BA-K98 80 59, and GL-K98 71 46; (3) denies Home Indemnity's motion for summary judgment on the amount of premiums it is entitled to under the policies; (4) denies as moot Diana's motion in limine regarding the expert testimony of Davis; (5) denies Farm House's motion for reference to a special master; (6) grants Diana's motion for a continuance of the discovery deadline to permit them to conduct additional discovery on the issue of the amount of premiums Home Indemnity is entitled to; (7) denies Farm House's motion to strike; and (8) denies Farm House's motion for an adjournment of the trial date.
FACTS
In December of 1987, Farm House was the parent of Diana and owned approximately 56% of Diana's stock (Feb. 28, 1991 Woodley Aff. ¶ 2; Apr. 15, 1991 Lantzy Aff. Exh. 240 at 17). During December 1987, the board of directors for Diana approved a tender offer for the stock of its parent, Farm House (Woodley Aff. ¶ 3). The tender offer was made on March 3, 1988, and involved an exchange of three shares of Farm House stock for one share of Diana stock (Mar. 1, 1991 Diana Brief Exh. 37 at 1). The purpose of the tender offer was to have Diana acquire ownership of more than 50% of the Farm House shares, thereby giving Diana the power to exercise absolute control over Farm House and its operating subsidiaries (Id. at 4).
The tender offer was successful, and as a result of the stock exchange in April 1988 Diana's ownership in Farm House increased from approximately 22% to approximately 93%, and Farm House's ownership in Diana was reduced from approximately 56% to approximately 36% (Lantzy Aff. Exh. 240 at 17). In addition, in April 1988, Farm House sold to Diana its entire holding of Diana stock for an $18,549,000 promissory note of Diana bearing interest at 12.5% per annum (Id.). This note was subsequently paid off by Diana (Id.).
*1342 In December 1987, Farm House was interested in purchasing workers' compensation, general liability, and auto/fleet insurance for itself and its subsidiaries for the period April 1, 1988 to April 1, 1989 (Woodley Aff. ¶¶ 1-4). Farm House's insurance coordinator and the person responsible for coordinating the purchase of the insurance policies in question in this action was Sandra Woodley (Id.).
On January 29, 1988, Woodley met with Home Indemnity account executive Mark Hilgart ("Hilgart") to discuss Farm House's insurance needs (Id. at ¶ 5). Woodley informed Hilgart at this time that Diana was in the process of preparing a tender offer for Farm House whereby Diana would become Farm House's parent (Id.). Farm House selected Home Indemnity as its insurer, and the policies whose premiums are in dispute in this action, WC-K98 54 34, BA-K98 80 59, and GL-K98 71 46, became effective on April 1, 1988 (Id. at ¶ 10). Diana was a named insured for these policies (Apr. 12, 1991 Hilgart Aff. Exhs. 1 & 2).
On October 10, 1988, Woodley, on behalf of Farm House, entered into a "Premium Agreement (Incurred Loss Retrospective Plan)" ("the Agreement") with Home Indemnity which set forth the formula for calculating the retrospective premiums for the insurance policies in question (Woodley Aff. ¶ 14; Exh. 23). Neither Farm House nor Diana has paid Home Indemnity the retrospective premiums which Home Indemnity claims it is entitled to for insurance policies WC-K98 54 34, BA-K98 80 59, and GL-K98 71 46 (Complaint ¶ 5; Diana Answer ¶ 6; Farm House Answer ¶ 6).
ANALYSIS
I. Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that a federal district court shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions, and affidavits indicate that no material facts are in dispute and that the moving party is entitled to judgment as a matter of law. Howland v. Kilquist, 833 F.2d 639, 642 (7th Cir.1987). The party moving the court for summary judgment has the burden of proving that no material facts are in dispute, and the court must review the record with all reasonable inferences being drawn in favor of the non-moving party. Becker v. Tenenbaum-Hill Associates, Inc., 914 F.2d 107, 110 (7th Cir.1990); Reardon v. Wroan, 811 F.2d 1025, 1027 (7th Cir.1987).
Diana claims that there are no material facts in dispute regarding the legal issue of whether or not it is liable to Home Indemnity for the insurance premiums and has moved this court for partial summary judgment. Home Indemnity responded by agreeing that there are no material facts in dispute concerning the issue of liability, and moved this court for summary judgment against both Diana and Farm House. The record substantiates Diana's and Home Indemnity's claim that the issue of liability can and should be decided via summary judgment. Thus, assuming without deciding that Davis's expert testimony would be proper, Diana's motion in limine regarding the question of whether or not Home Indemnity should be allowed to have Davis testify at trial on his opinions concerning whether or not Diana is liable as a result of the piercing of Diana's corporate veil is moot.
A. Diana Corporation's Liability
1. Liability Under the Insurance Policies
The insurance policies in question, WC-K98 54 34, BA-K98 80 59, and GL-K98 71 46, which were issued by Home Indemnity for the period 4-1-88 to 4-1-89 state that the insured party is:
Farm House Foods Corporation
(See Endorsement A)
111 E. Wisconsin Avenue, Suite 1900
Milwaukee, WI 53202
(Apr. 12, 1991 Hilgart Aff. Exh. 1). Endorsement A amends these policies to include Diana as a named insured (Id. Exh. 2). The "Premium" section of the conditions of the policies states in pertinent part:
At the close of each period (or part thereof terminating with the end of the policy *1343 period) designated in the declarations as the audit period the earned premium shall be computed for such period and, upon notice thereof to the named insured, shall become due and payable. If the total earned premium for the policy period is less than the premium previously paid, the company shall return to the named insured the unearned portion paid by the named insured.
(Id. Exh. 4 (emphasis added)). Thus, under the terms and conditions of the insurance policies in question, Diana, as a named insured, is liable to Home Indemnity for the payment of the premiums.
2. Liability Under the Premium Agreement
On October 10, 1988, Home Indemnity and Farm House entered into the Premium Agreement. The Agreement states under the Premium Obligation section:
A. The premiums for the Annual Term ("Annual Policy Premium") shall be paid in accordance with the terms of this Agreement, which modifies and supercedes [sic] the provision in the Policies regarding premium obligations.
B. The final premium for the Policies is the sum of:
1. The Retrospective Premium; and
2. The Non-Subject Premium.
(Feb. 28, 1991 Woodley Aff. ¶ 14, Exh. 23 at 1 (emphasis added)). The Agreement also states that it applies to those insurance policies listed in Schedule A to the Agreement (Id. at Exh. 23 at 1). Schedule A in turn lists policies WC-K98 54 34, BA-K98 80 59, and GL-K98 71 46 (Id. Exh. 23). The language of the Agreement unambiguously states that its terms, not those of the insurance policies, determine who is obligated to pay the premiums for the policies.
The Agreement declares that "[a]ll payments due and owing under this Agreement shall be paid by the Insured...." (Id. Exh. 23 at 2). The Agreement also pronounces that Farm House is the Insured (Id. Exh. 23 at 1). Thus, this court concludes that under the terms of the Agreement only Farm House, not Diana, has an obligation to pay the premiums for policies WC-K98 54 34, BA-K98 80 59, and GL-K98 71 46.
Home Indemnity, however, argues that the Agreement applies only to a portion of the premiums under the policies (Apr. 12, 1991 Hilgart Aff. ¶ 8). Home Indemnity claims that the Agreement does not eliminate Diana's obligation to pay the non-retrospective, e.g. the standard portion, of the insurance policy premium. This argument is unpersuasive because there is no language in the Agreement which states that it applies only to the retrospective portion of the insurance premium. The Agreement repeatedly refers to a "Retrospective Premium," not a retrospective portion of a premium. Thus, this court concludes that the Agreement applies to the total retrospective premium due under the policies.
3. De Facto Merger and Continuation of Identity
Home Indemnity argues that Diana is liable for the premiums of the insurance policies because there was a de facto merger between Home Indemnity and Diana, and Diana is a mere continuation of Farm House. The Seventh Circuit Court of Appeals has stated that the general rule in Wisconsin is that a corporation which purchases the assets of another corporation does not automatically acquire the obligations of the selling corporation. Leannais v. Cincinnati, Inc., 565 F.2d 437, 439-40 (7th Cir.1977); Travis v. Harris Corp., 565 F.2d 443, 446-47 (7th Cir.1977).
The court of appeals, however, also acknowledged that there are:
four well-recognized exceptions to the general rule under which liability may be imposed on a purchasing corporation: (1) when the purchasing corporation expressly or impliedly agreed to assume the selling corporation's liability; (2) when the transaction amounts to a consolidation or merger of the purchasing and seller corporations; (3) when the purchaser corporation is merely a continuation of the seller corporation; or (4) when the transaction is entered into fraudulently *1344 to escape liability for such obligations.
Leannais, 565 F.2d at 439. The court of appeals elaborated on the second exception to the general rule and held that:
When the seller corporation retains its existence while parting with its assets, a "de facto merger" may be found if the consideration given by the purchaser corporation be shares of its own stock.
Id. (citing Bazan v. Kux Machine Co., 358 F.Supp. 1250 (E.D.Wis.1973)). The rationale for the requirement that the purchaser corporation is liable under the de facto merger test only when it uses stock to make the purchase is "that liability should be imposed only where the seller's stockholders retain an interest in the manufacturing operations [the assets sold by the seller]." Armour-Dial, Inc. v. Alkar Engineering Corp., 469 F.Supp. 1198, 1201 (E.D.Wis.1979) (citing Note, 27 Hastings L.J. 1307, 1318 (1976)).
The court of appeals also elaborated on the third exception and held that:
The key element of a "continuation" is a common identity of the officers, directors and stockholders in the selling and purchasing corporations.
Leannais, 565 F.2d at 440. In addition, the court of appeals has stated that the test is not the continuation of the business operation, but instead the continuation of the corporate entity. Travis, 565 F.2d at 447.
The Wisconsin Supreme Court has considered the rational for the de facto merger and continuation exceptions to the general corporate liability rule and has stated:
As Fletcher, supra [Cyclopedia Corporations, Vol. 15, sec. 7122, p. 188], points out, the rule and its exceptions were designed initially to protect contract or quasi-contract creditors of a dissolved [or insolvent] business organization and, hence, as a general group, all four exceptions are irrelevant to tort except as to the extent that the second and third exceptions are indicia of "identity." These exceptions are declaratory of tests to be applied to encourage "piercing the corporate veil" and to look to the substance and effect of business transformations or reorganizations to determine whether the original organization continues to have life or identity in a subsequent and existing business organization.
They can be viewed also as tests for "privity" with the subsequent organization even if the dealings were only between the original business organization and the ultimate consumer or the party injured.
Exceptions two and three to the corporate rule demonstrate that, when it is the same business organization that one is dealing with, whether it be by consolidation, merger, or continuation, liability may be enforced. These are tests of identity. Suit is possible in these circumstances, because there would be privity with the actual seller or manufacturer, i.e., the exceptions are guidelines to determine under what circumstances the original entity continues to exist, albeit in an altered form.
Tift v. Forage King Industries, Inc., 108 Wis.2d 72, 78-79, 322 N.W.2d 14 (1982) (emphasis added). In the present case, this court finds that both the de facto merger and continuation tests indicate that there is privity between Home Indemnity and Diana, and therefore Diana is liable for the insurance premiums.
On March 3, 1988, Diana offered to exchange its stock for all of the currently issued and outstanding Farm House shares not owned by Diana (Mar. 1, 1991 Diana Brief Exh. 37 at 1). Diana offered to exchange one share of its stock for three shares of Farm House stock (Id.). At that time, Farm House was a holding company and its assets were the subsidiaries which it controlled (Apr. 15, 1991 Lantzy Aff. ¶ 5 Dep. Exh. 262). The Proxy Statement/Prospectus prepared in connection with Diana's exchange offer states:
Purpose of Offer
Diana is seeking to acquire the Farm House Shares pursuant to the Offer because Diana believes that.... In addition, because the Offer will result in the ownership by Diana of more than 50% *1345 of the Farm House Shares, Diana will obtain the power to exercise absolute control over Farm House and its operating subsidiaries, namely RCOA, Entree and Worcester, and thus will obtain the ability to protect (and, possibly, to enhance) its present investment in these companies.
(Mar. 1, 1991 Diana Brief Exh. 37 at 4 (emphasis added)). Diana's offer was successful and it obtained absolute control over Farm House and its subsidiaries (Feb. 28, 1991 Woodley Aff. ¶ 11). Thus, Diana used its stock to purchase the assets of Farm House, and the de facto merger doctrine is applicable.
The three-to-one stock exchange provided a double benefit to Diana, as Diana simultaneously gained control over Farm House and its subsidiaries while it significantly reduced its exposure to Farm House and Farm House's creditors. This win-win result for Diana was best described in the public offer made by FH Acquisition Corporation, a subsidiary of Farm House, to purchase certain debts of Farm House from creditors:
In April 1988, Diana purchased, pursuant to an exchange offer (the "1988 Exchange Offer") an aggregate of 6,678,534 Farm House Shares in exchange for an aggregate of 2,226,178 authorized but unissued Diana Shares. This exchange increased Diana's ownership in Farm House from approximately 22% to approximately 93%, and reduced Farm House's ownership in Diana from approximately 56% to approximately 36%. Also in April 1988, Farm House sold to Diana its entire holding of Diana Stock for an $18,549,000 promissory note of Diana bearing interest at 12.5% per annum, which note was subsequently paid.
(Lantzy Aff. Exh. 240 at 17).
Diana argues that the de facto merger test cannot be applied to hold them liable because Farm House remains a separate corporate entity (May 3, 1991 Brief at 4). Although Farm House and Diana entered into an agreement in June 1988 whereby they merged, Diana President, Richard Fisher ("Fisher"), claims that this agreement never became effective (Apr. 15, 1991 Farm House Brief Exh. 241; Fisher Dep. at 23). The facts, however, indicate that Farm House is a shell corporation which is being used to insulate Diana from Farm House's creditors. This is best seen by applying the continuation test to the Diana-Farm House stock exchange. This test reveals that a de facto merger between Diana and Farm House has occurred.
First, the majority of the officers, directors, and principal stockholders of Farm House continued to be officers, directors, and principal stockholders of Diana after the exchange of stock. Prior to the exchange, Donald Runge ("Runge"), President of Farm House, and Richard Fisher ("Fisher"), President of Diana, were officers for Farm House (Mar. 1, 1991 Diana Brief Exh. 37; Lantzy Aff. Exh. 245 at 2). Runge and Fisher were officers of Diana both before and after the stock exchange (Id.). In addition, both Runge and Fisher were on the board of directors for Farm House prior to the exchange and on Diana's board both prior to and after the exchange (Id.). Finally, prior to the exchange, Runge and Fisher were the principal stockholders in Farm House as they owned 16.7 and 17.1 percent of Farm House's outstanding voting shares (Id. at 12). After the exchange, Runge and Fisher were the principal stockholders in Diana and together they owned approximately 33.5 percent of Diana's stock (Apr. 15, 1991 Lantzy Aff. Exh. 240 at 18).
Second, during the 1988 fiscal year, April 1987 to April 1988, Farm House had 11 employees performing corporate functions at its headquarters. Diana, on the other hand, had only four employees: a president, controller, assistant controller, and account assistant (Lantzy Aff. Exh. 124 Exh. A). The vice-president and general counsel for Farm House at this time was Michael J. McDonagh ("McDonagh") (Id.) After the exchange of stock and during the 1989 fiscal year, a large number of Farm House corporate office employees continued to work for the corporate offices of Diana: (1) Farm House's general counsel, McDonagh, became the general counsel for Diana; (2) Farm House's accounting clerk, *1346 Lori Gottschalk, became the accounts payable clerk for Diana; (3) Farm House's secretary, Deborah Windis, became a secretary for Diana, and (4) Farm House's receptionist, Lori Ulrich, became the receptionist for Diana (compare Lantzy Aff. Exh. 124 to Exh. 125). Interestingly, Diana's general counsel after the exchange, McDonagh, has since returned to Farm House to become their "counsel to the corporation," and he is representing Farm House in this action (Dec. 21, 1990 Linn Aff. Exh.). In addition, on July 20, 1990, McDonagh filed with this court an affidavit in which he stated "[t]hat he is not the general counsel of Farm House and is not an employee of Farm House." (Jul. 19, 1990 McDonagh Aff. ¶ 2). This affidavit and the fact that McDonagh currently claims to be the "counsel to the corporation" for Farm House is further evidence that Diana is a mere continuation of Farm House and that the two corporations have undergone a de facto merger. Furthermore, both before and after the exchange, Farm House's and Diana's corporate headquarters were both located at 111 East Wisconsin Ave., Suite 1900, Milwaukee, Wisconsin (Fisher Dep. at 5; Lantzy Aff. Exh. 124).
Finally, the only two employees who were nominally employed by Farm House after the exchange of stock were: (1) Runge, who was president of Farm House and (2) Sandra Woodley, who remained the insurance coordinator for Farm House (Lantzy Aff. Exh. 125). However, Runge resigned as president of Farm House in November 1989, and Woodley was required to obtain the blessing of Fisher, Diana's president, before she could approve the insurance program for Farm House/Diana (Mar. 22, 1991 Fisher Dep. at 58; Apr. 15, 1991 Brief Exhs. 229, 256). In fact, when drafting memoranda or letters regarding insurance for Farm House Woodley continually referred to the insurance program as being for Farm House/Diana (Id. Exh. 255; Jun. 25, 1991 Lantzy letter Exhs. 132-34, 136). Thus, this court concludes that Diana is a continuation of Farm House, that a de facto merger between Diana and Farm House occurred, and grants partial summary judgment in favor of Home Indemnity holding that Diana is liable to Home Indemnity for the retrospective insurance premiums Farm House promised to pay Home Indemnity for policies WC-K98 54 34, BA-K98 80 59, and GL-K98 71 46.
B. Farm House Foods Corporation
Farm House has not contested Home Indemnity's claim that Farm House is liable to Home Indemnity for the unpaid portion of the retrospective insurance premiums. In fact, in Farm House's answer to Home Indemnity's complaint, it admits that it is liable to Home Indemnity for the premiums of policies WC-K98 54 34, BA-K98 80 59, and GL-K98 71 46 (Farm House Answer ¶ 6). Thus, this court grants partial summary judgment in favor of Home Indemnity and holds that Farm House is liable to Home Indemnity for the retrospective insurance premiums for policies WC-K98 54 34, BA-K98 80 59, and GL-K98 71 46.
This court, however, denies Home Indemnity's request for summary judgment in the amount of $629,935.02. Although Farm House did not file a brief in opposition to Home Indemnity's motion for summary judgment, Farm House has contested Home Indemnity's claim that it owes Home Indemnity $629,935.02 in its brief in support of its motion for the appointment of a special master. Farm House argues that (1) the computation of a retrospective insurance premium is extremely complex; (2) Home Indemnity has significantly overstated the amount which is due under the policies, and (3) a special master should be utilized to calculate the amount that Farm House owes Home Indemnity. In addition, Farm House has moved this court to strike portions of Home Indemnity's brief requesting that summary judgment be entered against Farm House because Farm House did not file a brief in opposition to Home Indemnity's summary judgment motion.
II. Motion to Strike
Farm House's basis for its motion to strike is that Home Indemnity's cross-motion for summary judgment was not against a party named in this action. Farm *1347 House argues that the caption which Home Indemnity used in its summary judgment motion, "Farm House Foods Corporation/Diana Corporation," does not explicitly name Farm House, but instead names a nonparty. The record in this action, however, contains numerous documents where Farm House used the term "Farm House/Diana," both before and after the exchange of stock, when referring to the corporate entity responsible for payment of the insurance premiums (Apr. 15, 1991 Home Indemnity Brief Exhs. 132-34, 136; Lantzy Aff. Exh. 255). Thus, Farm House's argument that there is no party by this name is meritless and its motion to strike is denied.
III. Motion to Appoint a Special Master
Rule 53 of the Fed.R.Civ.P. provides a federal district court with the authority to appoint a special master to resolve complicated factual questions. Rule 53(b), however, states that:
A reference to a master shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated;
The Seventh Circuit Court of Appeals has considered the breadth of Rule 53 and has stated:
In this more than in any other circuit we must be alert to the danger of overusing special masters, for it was overuse by one of our district judges that led the Supreme Court to issue a writ of mandamus in La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957).
Jack Walters & Sons Corp. v. Morton Bldg., Inc., 737 F.2d 698, 712 (7th Cir.1984), cert. denied, 469 U.S. 1018, 105 S.Ct. 432, 83 L.Ed.2d 359 (1984).
Farm House argues that the calculation of the retrospective premium which it owes to Home Indemnity is a complex matter and ill suited for determination by a jury. This court disagrees because the Agreement entered into between Farm House and Home Indemnity sets forth the exact formula to be used for calculating the final premium for the policies in question:
B. The final premium for the Policies is the sum of:
1. The Retrospective Premium; and
2. The Non-Subject Premium.
(Feb. 28, 1991 Woodley Aff. ¶ 14, Exh. 23 at 1).
The only aspect of this formula that Farm House argues is complicated is the calculation of the retrospective premium. The Agreement, however, also sets forth the exact formula for calculating the retrospective premium:
The Retrospective Premium is calculated according to the following formula.
a. (Basic Premium plus (Excess Loss Premium time LCF [Loss Conversion Factor]) plus Modified Losses) multiplied by Tax Multiplier.
(Id. at 3). In addition, the Agreement explicitly provides: (1) numerical values for (a) the Loss Conversion Factor (109%) and (b) the Tax Multiplier (1.069); and (2) formulas for calculating the (a) Basic Premium, (b) Excess Loss Premium, and (c) Modified Losses (Id. at 2-3). Thus, the determination of the retrospective premium is not complicated, but instead, merely requires a close reading of the Agreement and a precise calculation.
Farm House, however, argues that it anticipates having testimony at trial concerning the calculation of the retrospective premium which will further complicate the issue for the jury. Farm House states that it:
anticipates at least three major areas of inquiry: the Home's failure to use industry tables and the suitability of the values it chose to use; claim administration and adjustment problems causing the overstatement of incurred losses; and changes to the premium due to a decrease in business and errors in The Home's audit.
(Apr. 8, 1991 Brief at 9). These issues, however, do not increase the complexity of the formula which will be used to calculate the premium. Instead, the issues only pertain to what numerical values should be *1348 used for the various factors included in the formula. The question of which numerical values should be used is a question of material fact which should be decided by the jury. Thus, this court denies Farm House's motion for the appointment of a special master.
Diana has moved this court for a continuance of the discovery deadline in this action to permit them to conduct additional discovery on the amount of premium Home Indemnity is entitled to. As noted above, there is a genuine dispute as to the material question of which numerical values should be used in the retrospective premium formula prescribed in the Agreement. Thus, this court grants Diana's motion and extends the deadline for conducting discovery on the amount of retrospective premium Home Indemnity is entitled to from Diana and Farm House to August 23, 1991.
IV. Request to Adjourn the Trial
On July 18, 1991, corporate counsel to Farm House, McDonagh, notified this court in a letter that he had a scheduling conflict with the September 10, 1991 trial date in this action. In McDonagh's letter, he informed this court that counsel for co-defendant Diana has no objection to adjourning the trial. McDonagh, however, did not contact Home Indemnity's counsel to see if he was agreeable to an adjournment. This court construes Farm House's letter request as a motion to adjourn the trial date and denies the motion.
IT IS THEREFORE ORDERED that defendant Diana Corporation's motion for partial summary judgment is DENIED.
IT IS FURTHER ORDERED that plaintiff Home Indemnity Company's motion for summary judgment against defendants Farm House Foods Corporation and Diana Corporation is GRANTED IN PART and DENIED IN PART:
(1) summary judgment is GRANTED holding defendants Farm House Foods Corporation and Diana Corporation liable to plaintiff Home Indemnity Company for the premiums for insurance policies WC-K98 54 34, BA-K98 80 59, and GL-K98 71 46.
(2) summary judgment is DENIED on the issue of the amount of money that defendants Farm House Foods Corporation and Diana Corporation owe to Home Indemnity Company under the Premium Agreement.
IT IS FURTHER ORDERED that defendant Diana Corporation's motion in limine to exclude the testimony of plaintiff expert witness Kenneth B. Davis, Jr. is MOOT.
IT IS FURTHER ORDERED that defendant Farm House Foods Corporation's motion to have the calculation of the amount of money owed to plaintiff Home Indemnity Company under the Premium Agreement referred to a special master is DENIED.
IT IS FURTHER ORDERED that defendant Diana Corporation's motion for a continuance of the discovery deadline is GRANTED, and the deadline for conducting discovery on the issue of the amount of retrospective premium plaintiff Home Indemnity Company is entitled to from Diana and defendant Farm House Foods Corporation is extended until August 23, 1991.
IT IS FURTHER ORDERED that defendant Farm House Food Corporation's motion to adjourn the September 10, 1991 trial date is DENIED.
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-263-CR
CHRISTIAN JOHNSON APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
------------
MEMORANDUM OPINION
(footnote: 1)
------------
Christian Johnson appeals the trial court’s judgment adjudicating his guilt for aggravated robbery and sentencing him to ten years’ confinement. We affirm.
Appellant’s court-appointed appellate counsel has filed a motion to withdraw as counsel and a brief in support of that motion. In the brief, counsel avers that, in his professional opinion, this appeal is frivolous. Counsel’s brief and motion meet the requirements of
Anders v. California
(footnote: 2) by presenting a professional evaluation of the record demonstrating why there are no arguable grounds for relief. Appellant has also filed a pro se brief, in which he complains that (1) his trial counsel was ineffective for not cross-examining Betty Hughes, a State’s witness, or objecting to her testimony
(footnote: 3) and (2) after adjudicating appellant’s guilt, the trial court should have placed him on community supervision rather than giving him prison time.
Once an appellant’s court-appointed counsel files a motion to withdraw on the ground that the appeal is frivolous and fulfills the requirements of
Anders
, this court is obligated to undertake an independent examination of the record and essentially to rebrief the case for appellant to see if there is any arguable ground that may be raised on appellant’s behalf.
(footnote: 4) Because this is an appeal from the trial court’s adjudication of appellant’s deferred adjudication community supervision, our independent review for potential error is limited to errors not affecting the decision to adjudicate and post-adjudication matters unrelated to appellant’s conviction.
(footnote: 5)
The trial court’s decision to adjudicate appellant’s guilt is not appealable.
(footnote: 6)
Our independent review of the record reveals that counsel has correctly determined that there are no arguable grounds for relief. The record does not reveal any pre-adjudication errors unrelated to the decision to adjudicate or any post-adjudication errors unrelated to appellant’s conviction. Regarding appellant’s complaint that his trial counsel was ineffective,
the appellate record is undeveloped and does not reflect the motives behind counsel’s decision not to cross-examine Hughes or object to her testimony.
(footnote: 7) Thus, we are not in a position to fairly evaluate the merits of appellant’s claim.
(footnote: 8)
Further, concerning appellant’s complaint regarding his punishment, the trial court’s decision to sentence appellant to a period of confinement rather than granting him community supervision was within the court’s discretion.
(footnote: 9) Moreover, t
he ten-year sentence imposed by the trial court is at the lower end of the punishment range for the adjudicated offense.
(footnote: 10)
Therefore, we hold that the trial court did not err by imposing this sentence
.
(footnote: 11)
Having carefully reviewed the record, we overrule appellant’s complaints on appeal, grant appellate counsel’s motion to withdraw, and affirm the trial court’s judgment.
PER CURIAM
PANEL F: CAYCE, C.J.; DAUPHINOT and HOLMAN, JJ.
DO NOT PUBLISH
Tex. R. App. P.
47.2(b)
DELIVERED: August 31, 2007
FOOTNOTES
1:See
Tex. R. App. P.
47.4.
2:386 U.S. 738, 87 S. Ct. 1396 (1967).
3:Although appellant mistakenly states that this testimony was admitted at the guilt-innocence phase of the adjudication proceeding, it was admitted at punishment.
4:See Stafford v. State
, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
5:See Davis v. State,
195 S.W.3d 708, 710-12 (Tex. Crim. App. 2006);
Hargesheimer v. State,
182 S.W.3d 906, 912 (Tex. Crim. App. 2006);
id.
at 914 (Johnson, J., concurring).
6:Hargesheimer,
182 S.W.3d at 912. Effective June 15, 2007, the legislature amended article 42.12, section 5(b) of the code of criminal procedure
(1) to omit the provision that no appeal may be taken from a trial court’s determination adjudicating guilt and (2) to provide that a trial court’s revocation of deferred adjudication community supervision is reviewable in the same manner as a revocation hearing in which an adjudication of guilt had not been deferred.
See
Act of May 28, 2007, 80th Leg., R.S., S.B. 909, § 5 (to be codified at
Tex. Code Crim. Proc. Ann.
art. 42.12, § 5(b)).
Appellant’s guilt was adjudicated in July 2006, however, so this amendment does not apply to this case.
7:See Salinas v. State
, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).
8:See
Thompson
v. State
, 9 S.W.3d 808, 813-14 & n.6 (Tex. Crim. App. 1999) (stating that ineffective assistance claims are usually best addressed by a post-conviction writ of habeas corpus).
9:See
Tex. Code Crim. Proc. Ann.
art. 42.12, § 5(b) (Vernon 2006).
10:See
Tex. Penal Code Ann.
§§ 12.32(a), 29.03(b) (Vernon 2003) (providing that the punishment range for aggravated robbery is 5-99 years).
11:Jordan v. State,
495 S.W.2d 949, 952 (Tex. Crim. App. 1973);
Dale v. State,
170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.) (both holding that punishment assessed within statutory limits generally is not excessive).
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44 Ill. App.2d 309 (1963)
194 N.E.2d 547
Edwin Nowak, Plaintiff-Appellee,
v.
Robert W. Schrimpf, Donald F. Schrimpf, d/b/a Piasa Oil Company, Defendants-Appellants, and Fred Feazel, Defendant-Appellee.
Gen. No. 63-M-17.
Illinois Appellate Court Fourth District.
November 18, 1963.
Burroughs, Simson & Burroughs, of Edwardsville, and Emerson Baetz, of Alton, for appellants.
Listeman and Bandy, Brady, Donovan & Hatch, all of East St. Louis, for plaintiff-appellee.
SCHEINEMAN, J.
This is an appeal by defendants doing business as Piasa Oil Co., from a judgment of $10,000 entered on a jury verdict in favor of plaintiff against both defendants, Piasa Oil Co. and Fred Feazel. The latter defendant was named as an appellee herein but he has not appeared.
*310 The case involves a three vehicle collision that occurred on February 23, 1957, about 3:30 a.m., on U.S. Highway 67 between Alton and East Alton, Illinois. The highway is a concrete road, 50 feet wide, consisting of 4 lanes, two for westbound traffic and two for eastbound. The pavement was wet and it was raining lightly. The posted speed limit was 45 m.p.h.
According to the plaintiff, he was driving a 1 1/2 ton truck going west at about 35 m.p.h. in the outside, or northermost, westbound lane. Defendant Feazel, driving a Ford passenger car and also going west at about 40 or 45 m.p.h., passed plaintiff's truck, using the inside westbound lane. At this same time a petroleum tanker unit, consisting of a tractor and two tank trailers belonging to the defendants was coming from the opposite direction moving eastwardly in the eastbound portion of the highway. A collision first occurred between the Feazel car and the Piasa Oil Co. tanker after which the tanker veered over into the westbound traffic lanes and hit the plaintiff's truck.
The complaint charged the Piasa Oil Co. with the following acts of negligence: (a) Excessive speed. (b) Failure to keep a proper lookout. (c) Crossing over from the eastbound lanes to the westbound lanes. (d) Failure to have the truck equipped with proper lights. (e) Driving with obscured windshield. (f) Moving truck from one lane to another without giving a proper signal. (g) Failure to have truck under control so as to be able to stop it short of danger, and (h) in all respects driving the truck in a careless, negligent, and improper manner.
On motion, the court struck charges (d) and (e) on the basis that there was no evidence to support them. The same ruling would seem to have applied to the charge (a), excessive speed, since the evidence concerning the speed of defendant's truck was his own *311 testimony that his speed was about 25 m.p.h., and the testimony of the other defendant, Feazel, that defendant's speed was 40 to 45 m.p.h. This is all the evidence there was bearing on the subject of the speed of the truck.
The decisive question in this case is whether plaintiff's version of the accident at the trial constitutes a judicial admission which would defeat his claim against defendant Piasa Oil Co. The following is a summary of plaintiff's testimony:
He said that he was driving west toward Alton in the right hand lane of the four lane highway. That when he was 75 feet or 100 feet east of a tavern on the south side of the road, he noticed Feazel's car beside him going about 40 or 45 m.p.h.; that after it passed him it turned, like it was going into the tavern premises across the road; that it gradually went over into the inner eastbound lane, then in between the two eastbound lanes, "I was watching him all the time wondering which way he was going to go next." Plaintiff also stated that he had seen the Piasa Oil Co. tanker coming east in the outermost eastbound lane, that it had its lights on, that its tires were splashing water on the south shoulder of the road, that just before the Feazel car hit the Piasa tanker the Piasa truck, "was taking off on the shoulder to the south side of the road," that after the collision the Piasa truck came across the highway and hit his truck on the left side.
Under further questioning the plaintiff repeated his story in substantially the same way, except that he mentioned prior to the impact the defendant's truck swerved to the left, but he added that the front part of the truck was still on the shoulder when the collision took place. He repeated that, prior to the collision, the Piasa truck had turned to the left, but he *312 added, "that it then went to the shoulder and the collision occurred, that after the collision the truck came over and hit his truck in the westbound lanes."
It will be observed that the plaintiff gave no statement indicating excessive speed on the part of the truck or failure to keep a proper lookout or that it was driving with an obscured windshield. And he further directly negatived any defect about the lights, as charged in the complaint, and he negatives any turn to the left by the truck into a westbound lane, until after the collision had occurred on the shoulder of the eastbound side of the pavement.
The plaintiff's story was corroborated in substantial part by other witnesses. The driver of the Piasa truck also said that the car hit him as he was trying to evade it to the right, that he was hit behind his left front wheel and the impact broke his air brake lines, jammed his throttle wide open, and put his steering gear out of commission so that he shot across the road and hit plaintiff's truck, that he had no control, no brakes, no steering, while just a short time previous to the collision he had tried his air brakes and they were working.
A witness standing at the tavern testified he saw the Feazel car come across the highway into the eastbound lanes and run into the Piasa truck. A tow truck driver and a police officer arriving on the scene found the Feazel car straddling the two eastbound lanes after the accident. Examination of the Piasa truck after the accident disclosed that the steering assembly was broken, the throttle bent and jammed open, and the brake line broken.
The only testimony contradicting any of this was that of Feazel who obviously tried to put the blame on the Piasa truck, asserting that it came across and hit his car when he was completely on the north side of the middle of the road.
*313 It will be observed that the plaintiff's own testimony contradicts that of defendant Feazel in that plaintiff places the point of impact clear over to the farthest part of the eastbound lanes and partly on the shoulder, and twice he stated, "After the collision the Piasa truck came across the highway."
We note at another point in the examination of the plaintiff he was specifically asked the following question: "I thought just before the collision you said the truck was coming back toward the center line of the highway?" He answered: "Just before the collision he was in the center lane and then he went to the shoulder and right then they had the collision."
[1] It is the law that a judicial admission by a party which contradicts his allegations defeats recovery. Huber v. Black and White Cab Co., 18 Ill. App.2d 186, 151 NE2d 641; Tennes v. Tennes, 320 Ill. App. 19, 50 NE2d 132; Miller v. Stevens, 63 SD 10, 256 NW 152.
The defense relies largely upon McCormack v. Haan, 20 Ill.2d 75, 160 NE2d 239, which does not depart from the rules contained in our other citations, but does say that the whole testimony of the party must be evaluated and not just a part of it. The case involved a situation where the plaintiff on the stand admitted that the defendant had stopped before entering an intersection. The Supreme Court's view of the entire testimony was that the plaintiff's testimony had only conceded that the defendant stopped, but held that it was the duty of the defendant, even after the stopping, "to ascertain whether or not it was safe to enter the protected intersection, and if it was not reasonably safe to do so, he should have yielded the right of way to the oncoming vehicle."
[2] In the case now before this court an evaluation of the total testimony of the plaintiff discloses that he is contending the defendant's truck, confronted *314 by a sudden emergency, was attempting to avoid a collision by swerving off onto the right shoulder, and that then the Feazel car struck it, and after this collision it came across the road into the westbound lanes. Taking this as the fact and noting the uncontradicted testimony that the truck was so disabled the driver had no possibility of managing it after the collision, the conclusion becomes inescapable that no case is made out against the defendant's truck. It affirmatively appears from plaintiff's own testimony that defendant committed no actionable fault upon which the plaintiff is entitled to predicate liability and the motion for directed verdict should have been granted. Accordingly, the judgment is reversed.
Judgment reversed.
CULBERTSON, P.J. and HOFFMAN, J., concur.
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 BANK OF AMERICA, N.A.,
3 Plaintiff-Appellee,
4 v. NO. 34,567
5 JEROME T. ROYBAL, and
6 AMY J. ROYBAL,
7 Defendants-Appellants.
8 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
9 Raymond Z. Ortiz, District Judge
10 Weinstein & Riley, P.S.
11 Jason Bousliman
12 Albuquerque, NM
13 for Appellee
14 Gleason Law Firm, LLC
15 Deirdre Gleason
16 Heath, MA
17 for Appellants
18 MEMORANDUM OPINION
19 VANZI, Chief Judge.
1 {1} Husband and wife, Jerome Roybal and Amy Roybal (Homeowners), appeal
2 from the district court’s order denying their motion to vacate a foreclosure judgment
3 due to the foreclosing bank’s, Bank of America (BOA), lack of standing. This appeal
4 implicates a recent New Mexico Supreme Court case that clarified that a party who
5 fails to challenge standing prior to the completion of a trial on the merits or while
6 litigation is still active waives his standing arguments. See Deutsche Bank Nat’l Tr.
7 Co. v. Johnston, 2016-NMSC-013, ¶¶ 15-19, 369 P.3d 1046. Given this clarification,
8 we affirm the district court and hold that Homeowners waived their right to challenge
9 BOA’s standing because service was proper and they did not raise their standing
10 challenge prior to the district court’s entry of the final judgment. Because resolution
11 of this issue is dispositive of this appeal, we need not reach the other issues raised by
12 Homeowners.
13 BACKGROUND
14 {2} BOA filed a foreclosure complaint against Homeowners, and after three failed
15 attempts at personal service, the district court granted BOA leave to complete service
16 by posting and required the posting to be followed by a first class mailing of the
17 summons and complaint. Homeowners made no appearance nor did they answer the
18 summons and complaint, and the district court granted BOA a default judgment. BOA
19 then purchased the foreclosed property at a special master’s sale.
2
1 {3} Subsequently, Homeowners filed a motion to reinstate the case, alleging that
2 they were never served with any of the documents filed in the case, including the
3 foreclosure complaint. Homeowners additionally alleged that BOA failed to establish
4 its standing because the promissory note attached to the foreclosure complaint did not
5 contain a special indorsement indicating that BOA was the holder at the time the
6 complaint was filed. Homeowners also filed a motion to vacate the default judgment
7 and foreclosure sale and dismiss for lack of subject matter jurisdiction, which the
8 district court denied. This appeal followed.
9 DISCUSSION
10 {4} This case turns on whether Homeowners properly raised the issue of BOA’s
11 standing after entry of the default judgment. “We review the district court’s denial of
12 a motion to set aside a default judgment for abuse of discretion.” Ortiz v. Shaw, 2008-
13 NMCA-136, ¶ 12, 145 N.M. 58, 193 P.3d 605. Homeowners argue that the default
14 judgment should be set aside under Rule 1-060(B) NMRA because they did not have
15 the opportunity to raise the standing issue prior to entry of the default judgment since
16 they were improperly served under Rule 1-004(F) NMRA. In light of our Supreme
17 Court’s recent holding in Johnston, however, we hold that under the facts of this case,
18 Homeowners were properly served under Rule 1-004 and, as a result, the district court
3
1 did not err when it also ruled that Homeowners waived any standing arguments by
2 failing to raise them before the entry of the default judgment.
3 Service Was Proper Under Rule 1-004
4 {5} As a preliminary matter, we address the question of whether Homeowners were
5 properly served with the summons and complaint. We defer to the district court’s
6 findings of fact when its findings are supported by substantial evidence. See Bank of
7 N.Y. v. Romero, 2014-NMSC-007, ¶ 18, 320 P.3d 1 (explaining that an appellate court
8 reviews a district court’s findings of fact for substantial evidence). “Substantial
9 evidence means relevant evidence that a reasonable mind could accept as adequate to
10 support a conclusion.” Id. (internal quotation marks and citation omitted). On appeal,
11 the appellate courts “resolve all disputed facts and indulge all reasonable inferences
12 in favor of the trial court’s findings.” Id. (internal quotation marks and citation
13 omitted). Under Rule 1-004(F)(1),
14 [p]ersonal service of process shall be made upon an individual by
15 delivering a copy of a summons and complaint or other process . . . to the
16 individual personally; or if the individual refuses to accept service, by
17 leaving the process at the location where the individual has been found;
18 and if the individual refuses to receive such copies or permit them to be
19 left, such action shall constitute valid service; or . . . by mail or
20 commercial courier service.
4
1 However, Rule 1-004(J) provides that, where it has been shown by affidavit that
2 service cannot otherwise be reasonably made under Rule 1-004, a moving party may
3 seek leave of the court to effect service “by any method or combination of methods
4 . . . that is reasonably calculated under all of the circumstances to apprise the
5 defendant of the existence and pendency of the action and afford a reasonable
6 opportunity to appear and defend.”
7 {6} Here, BOA attempted to personally serve Homeowners with the summons and
8 complaint at Homeowners’ residence on three separate occasions. In his affidavit of
9 attempted service, the process server stated that he first attempted to serve
10 Homeowners on August 13, 2013, at 10:45 a.m., but that there was no answer, so he
11 left a note on their door. On that date, he verified with a neighbor that Homeowners
12 lived at that address. On August 15, 2013, the process server attempted service again
13 at 2:00 p.m. and again received no response. He verified with a different neighbor that
14 Homeowners lived at that address. Noticing that the first note had been removed from
15 the door, the process server left a card taped to the garage door. The process server
16 made a third attempt to serve Homeowners on August 19, 2013 at 6:00 p.m. Despite
17 “several times ringing the doorbell, knocking and calling out ‘Hello[,]’ ” there was no
18 response even though the garage door was open and two vehicles registered to
19 Homeowners were parked in the garage. The process server testified to the same
5
1 effect. On August 22, 2013, BOA filed a motion with the district court for leave to
2 effect personal service of process by posting pursuant to Rule 1-004(J). The district
3 court granted leave for BOA to serve the summons and complaint for foreclosure by
4 posting it at Homeowners’ residence, followed by a first class mailing of the summons
5 and complaint to that address. In compliance with the court’s order, the process server
6 posted two copies of the summons and complaint along with the district court’s order
7 “in the most public part of [Homeowners’] premises,” while BOA mailed the same
8 documents along with a copy of the certificate of mailing to Homeowners’ address via
9 first class mail.
10 {7} Homeowners allege that they were never served with any of the documents filed
11 in the case, including the foreclosure complaint. Homeowners provided affidavits to
12 the district court stating that they never received the posting of the foreclosure
13 complaint. Further, Homeowners stated that they were both working when the process
14 server attempted service the first two instances and that on the third occasion, they
15 were likely out for their regular evening walk. Finally, Homeowners alleged that they
16 did not receive the complaint by mail or posting.
17 {8} The district court denied Homeowners’ motion to vacate default judgment and
18 foreclosure sale and dismiss for lack of jurisdiction because it found that the process
19 server’s testimony and affidavits were credible and that Homeowners were properly
6
1 served by posting. In addition, the district court found that Homeowners had
2 attempted to deliberately avoid service. We defer to the court’s factual findings and
3 conclude that they were supported by substantial evidence as established by the
4 process server’s affidavits and testimony. See Romero, 2014-NMSC-007, ¶ 18; Perez
5 v. Int’l Minerals & Chem. Corp., 1981-NMCA-022, ¶ 13, 95 N.M. 628, 624 P.2d 1025
6 (“We will not weigh the evidence or determine the credibility of witnesses [as t]he
7 trier of facts is the sole judge of the credibility of witnesses and the weight to be given
8 their testimony.” (internal quotation marks omitted)). Accordingly, we hold that
9 service was proper and that Homeowners had an opportunity, but failed, to file a
10 responsive pleading raising their standing challenge before entry of the default
11 judgment.
12 Homeowners Waived Their Rule 1-060(B) Standing Arguments
13 {9} In Johnston,1 our Supreme Court clarified New Mexico law on whether
14 standing is jurisdictional. The Court explained that,
1
19 We acknowledge Homeowners’ supplemental brief in chief, which addresses
20 the Johnston case. We note, however, that while the supplemental brief accurately
21 reflects our Supreme Court’s statement that prudential standing is a “vital procedural
22 safeguard,” see Johnston, 2016-NMSC-013, ¶ 21, Homeowners did not address the
23 Court’s emphasis on “active litigation” and subsequent discussion clarifying that “a
24 final judgment from a cause of action that may have lacked standing . . . is not
25 voidable under Rule 1-060(B) due to a lack of prudential standing.” See Johnston,
26 2016-NMSC-013, ¶¶ 18, 33-34.
7
1 [a]s a general rule, standing in our courts is not derived from the state
2 constitution, and is not jurisdictional. However, when a statute creates a
3 cause of action and designates who may sue, the issue of standing
4 becomes interwoven with that of subject matter jurisdiction. Standing
5 then becomes a jurisdictional prerequisite to an action. . . . [W]e take this
6 opportunity to clarify . . . and hold that mortgage foreclosure actions are
7 not created by statute. Therefore, the issue of standing in those cases
8 cannot be jurisdictional.
9 Johnston, 2016-NMSC-013, ¶ 11 (alteration, internal quotation marks, and citations
10 omitted). Johnston further explained that, because a cause of action to enforce a
11 promissory note is not created by statute, standing is not jurisdictional in such a case.
12 Id. ¶ 10; see also id. ¶ 12 (stating that “an action to enforce a promissory note fell
13 within the district court’s general subject matter jurisdiction . . . because it was not
14 created by statute”). Accordingly, standing in foreclosure cases is a prudential
15 consideration that “can be raised for the first time at any point in an active
16 litigation[.]” Id. ¶¶ 10, 18. Our Supreme Court went on to hold that “standing must be
17 established as of the time of filing suit in mortgage foreclosure cases[.]” Id. ¶ 20. It
18 nevertheless stated that, because standing is not jurisdictional, the possibility remains
19 that a homeowner can waive the issue. Id. ¶ 15.
20 {10} Moreover and important to our analysis here, Johnston held that “a final
21 judgment on any . . . cause of action [other than one that lacks standing as a
22 jurisdictional matter], including an action to enforce a promissory note . . . is not
23 voidable under Rule 1-060(B) due to a lack of prudential standing.” Johnston, 2016-
8
1 NMSC-013, ¶ 34 (emphasis added). Because a default judgment necessarily precludes
2 trial and is a final order thus ending “active litigation,” see Gallegos v. Franklin,
3 1976-NMCA-019, ¶ 25, 89 N.M. 118, 547 P.2d 1160, in the present case, the final
4 judgment granting BOA default judgment is not voidable under Rule 1-060(B) due
5 to a lack of prudential standing. See Gallegos, 1976-NMCA-019, ¶ 25 (noting that a
6 default judgment is a final judgment).
7 {11} In Johnston, the Court held that the homeowner did not waive standing because
8 he raised the issue during “active litigation,” i.e., in a motion prior to trial. 2016-
9 NMSC-013, ¶¶ 17-18. In contrast, in this case, Homeowners filed their first motion
10 challenging BOA’s standing over two months after the default judgment was entered,
11 and they filed the motion to vacate the default judgment and foreclosure sale because
12 of BOA’s alleged lack of standing ten months after the entry of the default judgment.
13 Based on the record before us, service was proper and Homeowners had ample
14 opportunity to raise the issue of standing before entry of the default judgment. Yet
15 Homeowners did not challenge BOA’s standing until months after “active litigation”
16 was complete. Consequently, under Johnston, they waived their right to do so. See id.
17 ¶¶ 15-19. The district court did not abuse its discretion in denying Homeowners’ Rule
18 1-060(B) motion to vacate the default judgment and foreclosure sale in this case.
19 CONCLUSION
9
1 {12} We affirm.
2 {13} IT IS SO ORDERED.
3 __________________________________
4 LINDA M. VANZI, Chief Judge
5 WE CONCUR:
6 _________________________________
7 JAMES J. WECHSLER, Judge
8 _________________________________
9 TIMOTHY L. GARCIA, Judge
10
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54 U.S. 25 (____)
13 How. 25
JOHN DOE, EX. DEM. HALLETT & WALKER, EXECUTORS OF JOSHUA KENNEDY, DECEASED, PLAINTIFFS IN ERROR,
v.
ALFRED R. BEEBE, GEORGE W. HILLIARD, ALEXANDER M. CARR, CHARLES T. KETCHUM AND JOHN HORSFELDT.
Supreme Court of United States.
It was argued by Mr. Campbell, for the plaintiffs in error.
Mr. Chief Justice TANEY delivered the opinion of the court.
This is an action of ejectment; and the plaintiffs in error claim title to the premises under a contract of sale made by Morales, the Spanish Intendant at Pensacola, with a certain William McVoy, for twenty arpents of land on the west side of the River Mobile, bounding on the river; which contract was afterwards confirmed by an act of Congress.
The contract with McVoy was made in 1806. He subsequently assigned his interest to William J. Kennedy and Joshua Kennedy, *26 and the latter became the sole owner by an assignment from the former. An act of Congress was passed in 1832, confirming the title of Joshua Kennedy upon two conditions: 1st. That the confirmation should amount to nothing more than the relinquishment of the right of the United States at that time in the land; and, 2dly, That the lands before that time sold by the United States, should not be comprehended within the act of confirmation. And in 1837, a patent was issued to Joshua Kennedy, reciting in full this act of Congress under which it was granted.
It is admitted in the record, that the land in question was below high-water mark when the United States sold the land on which Fort Charlotte stood, in the town of Mobile. These lands were divided into lots and sold in 1820 and 1821, and patents were issued to the purchasers in the year last mentioned. The defendants made title to three of these lots, which bounded on the river, and it was admitted that at the time of the sale high water extended over their eastern limits; and that the land now in controversy was reclaimed from the water and filled up by those under whom the defendants claimed.
The question, therefore, to be decided in this case is, whether the title obtained under McVoy's contract, confirmed by the act of Congress in 1832; or the title obtained under the sale of the lots in 1820 and 1821, is the superior and better title.
The principles of law on which this question depends, have already been decided in this court in Pollard v. Hagan, 3 How. 212, and in Goodtitle v. Kibbe, 9 How. 477, 478. And, according to the decisions in these two cases, the title under the sale of the lots is the superior one.
The judgment of the Supreme Court of the State of Alabama must, therefore, be affirmed.
Order.
This cause came on to be heard on the transcript of the record, from the Supreme Court of the State of Alabama, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged, by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby affirmed with costs.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0375p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioner-Appellant, -
DANTA DAVIS,
-
-
-
No. 03-2262
v.
,
>
DENNIS STRAUB, Warden, -
Respondent-Appellee. -
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 02-73319—Gerald E. Rosen, District Judge.
Argued: March 17, 2005
Decided and Filed: September 1, 2005
Before: MERRITT and ROGERS, Circuit Judges; HOOD, Chief District Judge.*
_________________
COUNSEL
ARGUED: John R. Minock, CRAMER, MINOCK & GALLAGHER, Ann Arbor, Michigan, for
Appellant. Janet A. Van Cleve, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan,
for Appellee. ON BRIEF: John R. Minock, CRAMER, MINOCK & GALLAGHER, Ann Arbor,
Michigan, for Appellant. Janet A. Van Cleve, OFFICE OF THE ATTORNEY GENERAL, Lansing,
Michigan, for Appellee.
MERRITT, J., delivered the opinion of the court, in which HOOD, D. J., joined. ROGERS,
J. (pp. 10-12), delivered a separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
MERRITT, Circuit Judge. This case arises from a petition for a writ of habeas corpus by
prisoner Danta Davis, who was convicted, along with co-defendant Nathan Bell, for the murders of
Sheila Jones and her two young children in 1996. It presents an interesting issue of conflict between
a defendant’s right to present a defense under the Sixth Amendment and a witness’s right to invoke
the Self-incrimination Clause. The trial court allowed a crucial defense witness to invoke a blanket
assertion of his Fifth Amendment privilege and refuse to answer any questions at all. Both the
*
The Honorable Joseph M. Hood, Chief United States District Judge for the Eastern District of Kentucky, sitting
by designation.
1
No. 03-2262 Davis v. Straub Page 2
Michigan Court of Appeals and the District Court found this approach to be in error but found it to
be harmless. The District Court based this determination on the belief that even admitting his
presence at the scene of the crime could incriminate the witness. However, this fact had already
been clearly established and admitted by the witness in a properly Mirandized statement to police.
As the Supreme Court has said, “where there can be no further incrimination, there is no basis for
the assertion of the privilege.” Mitchell v. United States, 526 U.S. 314, 326 (1999).
Both petitioner Davis and co-defendant Bell received multiple concurrent life sentences as
well as additional sentences for home invasion, mutilation of a body and receiving and concealing
stolen property. A magistrate judge recommended that Davis’s habeas petition be dismissed; this
recommendation was adopted by the District Court. We have granted Certificates of Appealability
on three issues: 1) whether the trial court’s decision to sustain a crucial defense witness’s blanket
invocation of his Fifth Amendment privilege denied Davis a fair trial and his right to present a
defense, 2) whether Davis’s trial counsel provided ineffective assistance by failing to offer into
evidence prior exculpatory statements made by a witness who invoked his Fifth Amendment
privilege not to testify, and 3) whether the manner in which the prosecutor raised Fifth Amendment
concerns about a crucial defense witness amounted to prosecutorial misconduct and intimidation.
Summary of Facts
Sheila Jones and her two children, seven-year-old Darquelle Ray and four-year-old
Shawanna Ray, were murdered on September 26, 1996. Jones was killed in the home of Davis’s
father, Jimmy Motley, while the children were killed in their own home, down the street from
Motley’s. Motley, the boyfriend of Jones, was in jail at the time of the murders. Davis, Bell and
others were in Motley’s home on the evening of September 26, when Motley called to speak with
Jones, as he frequently did. Davis went down the street to Jones’s home and brought her back to
Motley’s house, where she was killed later that evening. The children were killed soon thereafter.
Davis and Bell were tried in a joint trial before separate juries. The prosecution’s theory of
the case was that Davis and Bell cooperated in beating and killing Jones and her children. Davis’s
theory of the case was that Bell killed Jones and the children by himself and that Davis assisted only
in disposing of Jones’s body, which Davis admitted doing out of fear of retribution from Bell and
his family if he refused. Bell confessed to the murders, but also attempted to incriminate Davis,
while Davis maintains his innocence. Most of the witnesses implicating Davis were related to or
affiliated with Bell. The record reflects no physical evidence linking Davis to the murders. In
Davis’s testimony at the trial, he claimed the only person (other than himself and Bell) in the house
when Jones was being beaten was then fifteen-year-old Damaris Jourdan.1
Jourdan’s pre-trial statements strongly tend to exonerate Davis of the murder. He made two
statements to police approximately one week after the murders, on October 2, 1996, and October
3, 1996. Both Jourdan’s mother and father were present for the first statement, which was not
Mirandized. In that statement, Jourdan reported witnessing Bell, and Bell alone, beating,
“stomping,” and grabbing Jones by the neck, both inside the house and in the front yard and finally
dragging her from the yard into the garage. Jourdan then reported leaving the area.
The day after his first statement, the police brought Jourdan and his mother back to the
station for another interview. This time, they read him his rights “per the Miranda Warning Card,
which he stated he waived.” His mother was also informed of his rights. They then informed
Jourdan that another suspect had implicated him in the crime. After waiving his right to remain
silent and to have an attorney present, Jourdan denied any involvement in the murders. He reiterated
1
This name is sometimes spelled “Jordan” in the record.
No. 03-2262 Davis v. Straub Page 3
his statement from the previous day and elaborated somewhat, stating that, just before leaving, he
heard Jones breathing in the garage and saw Bell standing nearby holding a black and yellow
handled screwdriver. Jourdan reportedly said to Bell, “Leave her alone,” to which Bell responded,
“She saw my face.”
Approximately ten months later, Jourdan gave a statement to a private investigator hired by
Davis’s defense counsel. This statement, while more detailed, is very consistent with the earlier
ones given to police.2 In addition to the details recited earlier, Jourdan reported that Bell told him
that he planned on killing Jones’s children (who were still in their home down the street), because
they knew where their mother had gone. Bell reportedly attempted to get Jourdan’s help in killing
the children. Jourdan reported that he refused to help and walked off alone before Jones was killed.
He repeatedly told the investigator that neither he nor Davis had hit or stabbed Jones at any time and
that Davis was not even outside to witness the violence. His eyewitness account is consistent with
Davis’s testimony at trial. Jourdan’s account exonerates himself and strongly tends to exonerate
Davis of murder.
Apparently unaware that either the prosecutor or the trial judge would prompt Jourdan to
assert his Fifth Amendment privilege, Davis’s defense counsel, Phillip Beauvais, identified Jourdan
by name in his opening statement and told the jury to expect to hear him recount the version of
events described above. During the trial, after Jourdan was called by the defense and sworn in as
a witness, Prosecutor Arthur Busch requested a sidebar. The judge excused the jury and discussed
the prosecutor’s concerns on the record. Busch informed the court, within earshot of Jourdan, that
Jourdan was a suspect in the case and should be informed of his Fifth Amendment rights before he
testified. After questioning Jourdan briefly, the judge obtained counsel for him, who spoke with
Jourdan and his parents and reviewed relevant documents. On advice of counsel appointed by the
judge, Jourdan invoked his Fifth Amendment privilege against self-incrimination and refused to
testify. The trial court did not follow the normal procedure of putting the witness on the stand and
allowing him to invoke the privilege as to individual questions. See Hoffman v. United States, 341
U.S. 479, 486-87 (1951); In re Morganrath v. Fitzsimmons, 718 F.2d 161, 167 (6th Cir. 1983).
Instead, the court allowed Jourdan not to testify or answer any questions at all, stating “whether or
not he testifies is a choice that is his alone under these circumstances.” This sparked a heated
exchange between Davis’s defense counsel and the prosecutor.
BEAUVAIS: I think what is happening today is that this young man is afraid that
if he takes the stand and testifies truthfully and that truthful testimony
will help Danta Davis that, in fact, the Prosecutor will then, as
retribution for him testifying, will then charge him with a crime. I
believe the only reason that this was brought forward at this
particular time was to keep this young man from testifying. And I
believe that because of that my client is being denied his right to a
fair trial and is denied his right to have his witnesses appear,
witnesses that can certainly exonerate this person.
***
BUSCH: This is not an intimidating thing, that is to try and protect the
People’s right, as well as Mr. Jourdan’s right. Quite frankly, if we
had our druthers, we would prefer him to testify in this matter
because we think it would bring out the truth. But there is no – there
2
The record of Jourdan’s statement to the private investigator is in question and answer format, similar to a trial
transcript, while the statements to the police are summaries, apparently written by an officer present at the interviews.
No. 03-2262 Davis v. Straub Page 4
is no merit to any allegation that our office somehow is involved in
some intimidation of Mr. Jourdan. We have made it clear
throughout, since this trial started, to defense counsel that at some
point if [Jourdan] was to be summoned that he would need to have
counsel and that there should be some discussion of that with this
particular individual.
The trial continued without Jourdan’s testimony, and both Davis and Bell were convicted and
received multiple life sentences. No charges have been brought against Jourdan for the murders.
Davis made a motion for a new trial based, in part, on his objections to the handling of
Jourdan’s testimony by the prosecutor and trial judge. This resulted in an evidentiary hearing where
both defense counsel Beauvais and prosecutor Busch testified regarding their discussions and actions
about Jourdan leading up to the trial.
It is undisputed that the prosecutor never charged Jourdan with any participation in the
crime. Busch testified that police had notified him that some evidence existed implicating Jourdan
in the crime, primarily the testimony of Bell that Jourdan had also stabbed Jones. At the time of
Davis’s trial, however, Busch did not believe the case was strong enough to pursue charges against
Jourdan, although he did allegedly make some additional efforts to develop the evidence after
Davis’s trial concluded. Busch testified that prior to Jourdan’s appearance in court, he had had
several conversations with Beauvais, at least once in chambers with the trial judge, wherein he
raised his Fifth Amendment concerns and notified Beauvais of the need for Jourdan to have separate
representation. Before issuing his order regarding the motion for a new trial, the judge reported that
he remembered discussions in chambers about Jourdan before he was called, but could not
remember the precise issues raised.
Beauvais repudiated Busch’s account and claimed the only conversations they had had
regarding Jourdan pertained to possible hearsay objections to his testimony. Furthermore, Beauvais
testified that he would not have mentioned Jourdan by name in his opening statement, nor would he
have called him to the stand in front of the jury, if the prosecutor or the court had made him aware
of potential Fifth Amendment concerns. Jourdan’s name appeared on both the defense and the
prosecution’s witness lists, which were exchanged long before trial. Beauvais, therefore, gave
notice to the prosecutor of Jourdan’s upcoming appearance and provided ample time for him to
notify defense counsel of his concerns prior to opening statements.
The court denied Davis’s motion for a new trial finding that defense counsel “knew or should
have known - with emphasis on the should have known - that Mr. Jordan [sic] required some
treatment outside the presence of the jury before he was called to the stand.” It rejected his claim
that the prosecutor had acted improperly or in an intimidating fashion by alerting the court of his
constitutional concerns.
Davis then appealed to the Michigan Court of Appeals, which held that the trial judge had
misstated the law in determining that the witness, not the court, could decide for himself if the
privilege applied. Nevertheless, it affirmed the lower court’s decision because “the trial court also
found that there was a reasonable basis for Jordan [sic] to fear self-incrimination.” See J.A. at 42
(State v. Davis, No. 207725 (Mich. Ct. App. Dec. 26, 2000) (unpublished), citing People v. Dyer,
425 Mich.572, 578, 390 N.W.2d 645, 648-49 (1986)).
Davis properly and timely exhausted his claims in state court and then filed this petition for
a writ of habeas corpus in federal district court. A magistrate judge issued a report and
recommendation denying his petition, which was adopted by the District Court. In the report, the
Magistrate Judge found that Jourdan’s blanket assertion of the privilege did not provide grounds to
No. 03-2262 Davis v. Straub Page 5
grant the writ because “[e]ven his admission that he was present during the murder, although
undisputed and not sufficient in itself to convict him of any crime, would be one link in the chain
of evidence establishing his guilty.”
Analysis
I.
Long ago, the Supreme Court held that, for a witness to invoke his Fifth Amendment
privilege, the danger of self-incrimination must be “real and probable,” not “imaginary and
unsubstantial.” Brown v. Walker, 161 U.S. 591, 608 (1896). This holding has never been overruled.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d),
habeas may be granted if a state court’s decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States; or . . . was based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding.” The state court’s decision here was contrary to Supreme
Court precedent.
As the Michigan Court of Appeals observed, the procedure used by the trial court was
improper. We agree with this view of the case. The proper procedure would have been to put the
witness on the stand and rule on the questions one at a time. See Hoffman, 341 U.S. at 486-87; In
re Morganroth, 718 F.2d at 167. In this way, the court can address the question of whether the
witness has “reasonable cause to apprehend danger” from answering specific questions. Only this
approach can balance a defendant’s right to present a defense, see Washington v. Texas, 388 U.S.
14, 19 (1967), with the privilege against self-incrimination. See Hoffman, 341 U.S. at 486 (“The
witness is not exonerated from answering merely because he declares that in so doing he would
incriminate himself – his say-so does not of itself establish the hazard of incrimination. It is for the
court to say whether his silence is justified . . . . To sustain the privilege, it need only be evident
from the implications of the question [asked]. . . that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous because injurious disclosure could
result.”) (emphasis added). The Court has cabined the “reasonable cause” standard by stating that
the privilege does not extend where the danger is of an “imaginary and unsubstantial character.”
See Ohio v. Reiner, 532 U.S. 17, 21 (2001) (per curiam). We find that, as to his potential testimony
exculpating Davis, Jourdan did not have “reasonable cause to apprehend danger” of self-
incrimination.
Due to the Court’s serious concerns about the inherently coercive and involuntary nature of
custodial interrogations, it has established “extraordinary” procedural safeguards to ensure
individuals’ Fifth Amendment rights are protected when they are questioned by police. See Miranda
v. Arizona, 384 U.S. 436, 467-68 (1966); Minnesota v. Murphy, 465 U.S. 420, 430 (1984). Absent
additional coercion or misconduct, an individual’s decision to answer questions after receiving and
understanding the prescribed Miranda warning, is considered not to have been “compelled” and
whatever statement is made may be used against that individual in a later prosecution. See
Minnesota, 465 U.S. at 429-30 (“But if he chooses to answer, his choice is considered to be
voluntary since he was free to claim the privilege and would suffer no penalty as the result of his
decision to do so . . . . [T]he Miranda Court required the exclusion of incriminating statements
obtained during custodial interrogation unless the suspect fails to claim the Fifth Amendment
privilege after being suitably warned of his right to remain silent and of the consequences of his
failure to assert it.”).
In the instant case, the entire premise for allowing Jourdan to invoke a blanket assertion of
his Fifth Amendment rights was his admission that he was present at the scene. The theory is that
this fact could have been incriminating; and, therefore, any relevant information he might provide,
No. 03-2262 Davis v. Straub Page 6
even if it was exculpatory, would likewise be incriminating. But Jourdan’s post-Miranda statement
to police, which at the very least included an admission that he was present during the beating of
Jones, would clearly be admissible against him were he to be criminally prosecuted for these
murders, just as properly Mirandized confessions are admissible in subsequent prosecutions against
the defendants who made them. See Miranda, 384 U.S. at 476-77. Jourdan’s mother was present
during the second interview, and she was also made aware of his rights. There is no indication that
the police exerted any undue influence with respect to his decision not to remain silent. Nor did
Jourdan request an attorney at any time. It is unreasonable to assert that disclosure of this well-
established, undeniable fact during Davis’s trial would have incriminated Jourdan any more than had
already been done. As the Supreme Court has said, “where there can be no further incrimination,
there is no basis for the assertion of the privilege.” Mitchell, 526 U.S. at 326.
It is uncontroverted (by Jourdan or anyone else) that Jourdan was present at Motley’s house
on the evening of September 26, 1996. See J.A. at 61 (Davis v. Straub, No. 02-CV-73319-DT Mag.
Judge Report & Recommendation (E.D. Mich. Aug. 14, 2003) (“It was clear that Jordan [sic] was
present at the scene of the crime”). In addition to his three statements (one given after he was
Mirandized) that admitted his presence, both Bell and Davis reported his presence, as did several
others who testified at the trial. There reaches a point where a piece of evidence, which all parties
agree is only incriminating in the most minimal and remote way, is so overwhelmingly and
definitively established that it cannot be constitutionally used to stonewall introduction of other
evidence that is highly exculpatory of a criminal defendant. The Fifth Amendment may not be used
in such a mechanistic manner that it subsumes a criminal defendant’s Sixth Amendment right to
present a defense, merely in order to avoid having a witness testify to a fact that is already3 clearly
established and uncontroverted by the witness in his own previous Mirandized statement.
This does not mean that Jourdan would be barred from asserting his Fifth Amendment
privilege in response to any question at all. It merely means that admitting his presence at the scene
could no longer provide a “reasonable basis to fear self-incrimination.” Any damage had already
been done by his prior, properly Mirandized statements to police. If Jourdan had taken the stand,
we do not know for sure whether he would have admitted or denied his presence, testified in accord
with his prior statements, or admitted his presence but then invoked the privilege with respect to
additional questions. But, unlike cases where the individual invoking the privilege is also the
defendant, in the instant case the Sixth Amendment creates a countervailing right in Davis that
requires the court to compel Jourdan to respond to questions that raise only “imaginary and
unsubstantial risk” of further incrimination. Questions regarding Jourdan’s presence at the scene
3
In Washington v. Texas, 87 U.S. 14 (1967), the Supreme Court clearly established the Sixth Amendment right
to present a defense:
The right to offer the testimony of witnesses, and to compel their attendance, if necessary,
is in plain terms the right to present a defense, the right to present the defendant’s version of the facts
as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has
the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has
the right to present his own witnesses to establish a defense. This right is a fundamental element of
due process of law.
....
We hold that the petitioner in this case was denied his right to have compulsory process for
obtaining witnesses in his favor because the State arbitrarily denied him the right to put on the stand
a witness who was physically and mentally capable of testifying to events that he had personally
observed, and whose testimony would have been relevant and material to the defense.
Id. at 19, 23. It is worth noting that the prosecution can easily avoid the self-incrimination problem by giving a witness
like Jourdan immunity and calling him to the stand.
No. 03-2262 Davis v. Straub Page 7
fall into this category, and it was a violation of Davis’s Sixth Amendment rights not to compel him
to respond to them.
It was, therefore, an unreasonable application of Supreme Court case law for the Michigan
Court of Appeals to affirm the trial court’s decision that Jourdan could avoid any questions because
he had a reasonable basis to fear self-incrimination, and invoke a blanket assertion of the Fifth
Amendment. If Jourdan had testified in a manner consistent with his prior statements then he would
have provided a great deal of relevant, exculpatory (as to Davis), eyewitness testimony that in no
way incriminated Jourdan. And if, in order to tell the truth, Jourdan would have had to testify in a
manner that was inconsistent with his prior statements (e.g., admitting he stabbed Jones) then he
could have properly invoked the privilege in response to specific questions and the trial judge could
have evaluated each of his claims in a more particularized and constitutional manner.
Alternatively, a serious additional constitutional problem would arise if, contrary to our
holding here, we were to conclude that the penal threat to Jourdan was sufficiently great to allow
him to invoke his Fifth Amendment privilege. If we should agree with the Michigan court in that
respect, it seems clear that Davis’s counsel committed a serious error in failing, after the trial court’s
ruling, to offer Jourdan’s three exculpatory statements in evidence as declarations against penal
interest.
After the trial court prevented Jourdan’s live testimony, defense counsel’s failure to offer
these statements, which counsel already had in hand and which strongly tended to exonerate Davis
of the murder, surely constituted ineffective assistance of counsel. Had the statements come into
evidence, the probability of a different outcome seems great. Jourdan was the only eyewitness other
than Davis and Bell. His statements are strongly exculpatory. Counsel’s opening statement and
primary defense at the trial would have been confirmed as promised rather than remain unheard,
unexplained and unproved to the jury. Few trial errors are more devastating to the accused than the
failure to offer definitive evidence promised in the opening statement and anticipated by the jury.
The penal interest exception to the hearsay rule is well accepted under the Confrontation
Clause, and the Michigan Supreme Court has interpreted the exception broadly. In People v.
Barrera, 547 N.W.2d 280, 287 (Mich. 1996), the Court held that the phrase “tended to subject”
found in the rule, should be read as “includ[ing] a broad scope of inculpatory statements,” that
includes more than direct confessions and “need only be a ‘brick in the wall’ of proving the
declarant’s guilt.”
In this case, the Michigan Court of Appeals rejected Davis’s ineffective assistance of counsel
claim under Strickland v. Washington, 466 U.S. 668 (1984), because it found that the failure to offer
the statements was not prejudicial to Davis.4 This ruling is unacceptable. Had counsel offered the
statements tending to exonerate Davis, the trial court would have been governed by the broad
interpretation that the Michigan Supreme Court has given to the penal interest exception to the
hearsay rule. Instead, counsel never presented this documentary evidence to the trial court and never
gave the jury an opportunity to consider the three exculpatory statements that were consistent with
Davis’s testimony and vital to the defense theory of the case. This runs directly counter to the
principle announced by the Michigan Supreme Court when it discussed the penal interest exception:
4
The Michigan Court of Appeals’ no-prejudice ruling, under state law and under Strickland, is purely
hypothetical. The court did not review any ruling by the trial court on the penal interest exception because no trial court
ever considered the admissibility of these statements. This fact distinguishes the instant case from those under Estelle
v. McGuire, 502 U.S. 62 (1991), which prohibited federal habeas courts “inquir[ing] as to evidence that was properly
admitted or improperly excluded under state law.” Johnson v. Karnes, 198 F.3d 589, 593 n.3 (6th Cir. 1999) (emphasis
added).
No. 03-2262 Davis v. Straub Page 8
[T]he defendant’s right to present exculpatory evidence in his defense and the
rationale and purpose underlying [the against penal interest exception,] of ensuring
the admission of reliable evidence must reach a balance. We believe they may be
viewed as having an inverse relationship: the more crucial the statement is to the
defendant’s theory of defense, the less corroboration a court may constitutionally
require for its admission.
Barrera, 547 N.W.2d at 291.
Considering the facts of this case, the prosecution cannot have it both ways. It is
unreasonable to claim both that Jourdan’s testimony about what he witnessed threatened his penal
interest to such a degree that it triggered the Fifth Amendment, while at the same time claiming that
the statements were inadmissible as declarations against his penal interest. The two arguments are
mutually inconsistent, especially when one considers the extent to which Davis’s Sixth Amendment
rights are also at stake. The prosecution’s arguments are designed simply to prevent the jury from
hearing the persuasive testimony of the only eyewitness in any form, either from the stand or in the
form of written evidence. The effect of these arguments, which were accepted by the Michigan
Court of Appeals, was to violate Davis’s right to mount a defense or, in the alternative, to receive
the effective assistance of counsel in doing so.
II.
In Webb v. Texas, 409 U.S. 95, 98 (1972), the Supreme Court established a standard for
finding a constitutional violation for witness intimidation: “the unnecessarily strong terms used by
the judge could well have exerted such duress on the witness’ mind as to preclude him from making
a free and voluntary choice whether or not to testify.” The following year, we applied Webb to a
case where the prosecutor sent a Secret Service agent to communicate ex parte with a potential
witness and threaten prosecution if he testified. “[T]he Government’s action here substantially
interfered with any free and unhampered determination the witness might have made as to whether
to testify and if so as to the content of such testimony.” United States v. Thomas, 488 F.2d 334, 336
(6th Cir. 1973). The prosecutor’s conduct in the instant case simply does not rise to the level of
intimidation present in Webb and Thomas. Here, the prosecutor requested a sidebar with the judge,
wherein he informed the court that the witness was a suspect and should be informed of his
constitutional rights. The judge then proceeded to briefly question the witness and quickly
appointed independent counsel to advise him of his rights. Neither the prosecutor’s nor the judge’s
conduct was unconstitutional, especially considering the ethical obligation, imposed on prosecutors
by the ABA’s model guidelines, to
advise a witness who is to be interviewed of his or her rights against self-
incrimination and the right to counsel whenever the law so requires. It is also proper
for a prosecutor to so advise a witness whenever the prosecutor knows or has reason
to believe that the witness may be the subject of a criminal prosecution.
ABA Standards for the Administration of Criminal Justice § 3-3.2(b).
Regardless of the prosecutor’s motives or the propriety of waiting until the witness was
called to the stand to inform the court of his concerns, we cannot say that the Michigan Court of
Appeals unreasonably applied Supreme Court precedent in its holding that the prosecutor did not
intimidate Jourdan into invoking the privilege.
No. 03-2262 Davis v. Straub Page 9
Conclusion
Accordingly, the judgment of the District Court is REVERSED and the cause is
REMANDED with instructions to issue a conditional writ of habeas corpus requiring petitioner
Davis to be released unless a new trial is initiated within one-hundred eighty days.
No. 03-2262 Davis v. Straub Page 10
________________________________________________
CONCURRING IN PART, DISSENTING IN PART
________________________________________________
ROGERS, Circuit Judge, concurring in part and dissenting in part. Like the majority, I am
troubled that in this case the jury did not hear eye-witness testimony that may well have
strengthened Davis’s case. Yet, under the limited review permitted by AEDPA, 28 U.S.C. § 2254
(2005), I am simply unable to conclude that the Michigan Court of Appeals’ decision was contrary
to, or an unreasonable application of, Supreme Court law. While I concur in Part II of the majority
opinion, holding that no unconstitutional intimidation by the prosecution occurred, I respectfully
dissent from the majority’s holding that the state courts acted contrary to established Supreme Court
law, either by permitting a witness to give a blanket assertion of his Fifth Amendment right against
self-incrimination, or by finding no ineffective assistance of counsel when defense counsel failed
to offer the same witness’ prior out-of-court statements as declarations against interest.
The witness Jourdan invoked his Fifth Amendment right not to testify, after consulting with
independent counsel, and without (as the majority agrees) unconstitutional intimidation by the
prosecution. The trial court did not require Jourdan to take the stand and invoke his right in
response to each question. The only way to hold that this procedure was “contrary to” established
Supreme Court law is to determine that Supreme Court case law requires defense witnesses invoking
the Fifth Amendment right against self-incrimination to take the stand and invoke the right on a
question-by-question basis.
Such a rule doubtless has merit, see In re Morganroth, 718 F.2d 161, 167 (6th Cir. 1983),
although it could be argued that the trial court should have discretion to permit blanket invocation
of the right in appropriate circumstances.1 But neither the petitioner nor the majority has cited a
Supreme Court case holding that such a procedure is required for the benefit of criminal defendants.
The majority relies upon Hoffman v. United States, 341 U.S. 479, 486-87 (1951), but that
case states no rule proscribing a blanket assertion of the privilege. In fact, Hoffman upheld the
invocation of the privilege as to very preliminary questions. The opinion in Hoffman does state at
one point, “To sustain the privilege, it need only be evident from the implications of the question,
in the setting in which it is asked, that a responsive answer to the question or an explanation of why
it cannot be answered might be dangerous because injurious disclosure could result.” 341 U.S. at
486-87. In context, the Court may have been simply admonishing trial courts to use their good
judgment when determining whether a responsive answer would tend to incriminate the witness.
Id. at 486. The sentence by its terms, and certainly in context, does not necessarily imply—and
clearly does not hold—that defense witnesses must always take the stand in order to invoke the
privilege. Indeed, the Court immediately followed by saying: “The trial judge in appraising the
claim ‘must be governed as much by his personal perception of the peculiarities of the case as by
the facts actually in evidence.’” Id. at 487 (citing Ex parte Irvine, 74 F. 954, 960 (C.C.S.D. Ohio
1896) (Taft, J.)).
1
Defendant suggests that the first question for Jourdan would have been: “Were you present?” A strong case
can be made that such an initial question could properly warrant invocation of the privilege. See Hoffman v. United
States, 341 U.S. 479 (1951). If so, it is arguably a pointless formality, within a trial court’s discretion to forgo, to insist
that the witness take the stand.
No. 03-2262 Davis v. Straub Page 11
It is true that our circuit in Morganroth, supra, stated as follows:
A blanket assertion of the privilege by a witness is not sufficient to meet the
reasonable cause requirement and the privilege cannot be claimed in advance of the
questions. The privilege must be asserted by a witness with respect to particular
questions, and in each instance, the court must determine the propriety of the refusal
to testify. See Hoffman, 341 U.S. at 486-88.
718 F.2d at 167. The issue resolved in Morganroth, however, was not whether the invocation of the
privilege required that the witness to take the stand. The witness in that case had in fact taken the
stand. Instead, the issue was whether the witness “must supply personal statements . . . or . . .
evidence with respect to each question propounded to him to indicate the nature of the criminal
charge which provides the basis for his fear of prosecution” in the particular context of possible
incrimination for perjury. Id. at 169. Such a requirement was warranted where the witness feared
incriminating himself of perjury by giving testimony inconsistent with prior sworn testimony,
because “the incriminating nature of the answer is not evident from the implications of the question
in the setting in which it is asked[.]” Id. Not only is this a different issue, but also the issue was
raised in the context of an appeal by a witness from an order directing him to testify, not in the
context of a criminal defendant’s right to present testimony. The statement in Morganroth about
blanket assertions and particular questions is thus at best dictum with respect to the issue presented
in this case: whether a criminal defendant has a due process right to invoke the Fifth Amendment
without taking the stand and responding to individual questions, regardless of the circumstances.
In any event, AEDPA calls for us to interpret clearly established federal law, “as determined by the
Supreme Court of the United States,” not the United States Courts of Appeals. Indeed, the Supreme
Court has considered that a state court may disagree with the law of its federal circuit: “A federal
court may not overrule a state court for simply holding a view different from its own, when the
precedent from [the Supreme] Court is, at best, ambiguous.” Mitchell v. Esparza, 540 U.S. 12, 17
(2003).
The Supreme Court’s decision in Washington v. Texas, 388 U.S. 14 (1967), also fails to
warrant a grant of habeas corpus under AEDPA. It is true that, entirely outside the Fifth
Amendment self-incrimination context, Washington v. Texas clearly established that, under the Sixth
Amendment, a state may not arbitrarily deny a defendant the right to call a witness whose testimony
is relevant and material to the defense. Washington, 388 U.S. at 19. The Michigan Court of
Appeals’ decision, however, was neither contrary to nor an unreasonable application of Washington
v. Texas.
Washington v. Texas does not hold that a defendant has the right to present any and all
witnesses. The Court addressed the limits of a defendant’s right to call witnesses and held that a
state cannot create “arbitrary rules that prevent whole categories of defense witnesses from testifying
on the basis of a priori categories that presume them unworthy of belief.” Id. at 22. The Court
proceeded to hold that Texas’ rule against allowing purported accomplice testimony was an
“absurdity.” Id. Because the Court did not consider the question of a witness’s Fifth Amendment
privilege against self-incrimination anywhere in its opinion, it cannot be said that the Court created
clearly established law against a blanket assertion of the privilege in that case. See id. at 23 n.21
(“Nothing in this opinion should be construed as disapproving testimonial privileges, such as the
privilege against self-incrimination . . . , which [is] based on entirely different considerations from
those underlying the common-law disqualifications for interest.”).
This leaves only one remaining basis for granting the writ—that Davis received ineffective
assistance of counsel when defense counsel failed to try to introduce Jourdan’s prior unsworn
statements into evidence. Constitutionally ineffective assistance of counsel requires both that
defense counsel’s services fell below that of a reasonably competent attorney and that the deficiency
No. 03-2262 Davis v. Straub Page 12
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish
prejudice, it would be necessary to show that Jourdan’s prior unsworn statements were admissible.
But the contrary was held by the Michigan Court of Appeals, which determined as a matter of state
evidence law that Jourdan’s prior statements would not have been admissible in any event. See
People v. Davis, No. 207725, 2000 WL 33385391, at *3 (Mich. Ct. App. Dec. 26, 2000) (per
curiam) (“[The statements] do not qualify as statements against penal interest for purposes of MRE
804(b)(3).”). We are bound by the state court’s determination of its own law. Hutchison v.
Marshall, 744 F.2d 44, 46 (6th Cir. 1984); see also Vroman v. Brigano, 346 F.3d 598, 604 (6th Cir.
2003); Israfil v. Russell, 276 F.3d 768, 771 (6th Cir. 2001); Duffel v. Dutton, 785 F.2d 131, 133 (6th
Cir. 1986). Because we cannot logically grant the writ based on ineffective assistance of counsel
without determining that the state court erred in its interpretation of its own law, we are constrained
to uphold the district court’s denial of the writ.
Finally, a different result is not required by the asserted tension between a constitutional
holding that a witness may not be required to testify for fear of providing an incriminating statement
and a state-law evidentiary holding that prior statements by the same witness were not admissible
as statements against penal interest. The majority cites no authority for the proposition that these
determinations are legal mirror-images of each other, and certainly the Supreme Court has not so
held as a matter of constitutional law.
I therefore reach the conclusion that under AEDPA the writ was properly denied.
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29 So.3d 1135 (2010)
INGRAM
v.
STATE.
No. 5D10-31.
District Court of Appeal of Florida, Fifth District.
March 2, 2010.
Decision Without Published Opinion Affirmed.
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958 F.2d 380
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Grant YEROOMIAN, Defendant-Appellant.
No. 91-50596.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 5, 1992*.Decided March 17, 1992.
Before CANBY, KOZINSKI and FERNANDEZ, Circuit Judges.
1
MEMORAMDUM**
2
Defendant Grant Yeroomian ("Yeroomian") appeals his conviction for failing to report the transportation from the United States of more than $10,000, in violation of 31 U.S.C. § 5316(a)(1)(A) (1988), and making a materially false statement, in violation of 18 U.S.C. § 1001 (1988). We now affirm.
3
Yeroomian's first challenge to his conviction is that he received ineffective assistance of counsel because his trial counsel failed to cross-examine customs officials regarding the absence of notice to Yeroomian of the reporting requirements. We review ineffective assistance claims on direct appeal "only if 'the defendant's legal representation was so inadequate as obviously to deny him his sixth amendment right to counsel' and 'the trial court's failure to take notice sua sponte of the problem' amounted to plain error." United States v. Laughlin, 933 F.2d 786, 789 n. 1 (9th Cir.1991) (quoting United States v. Wagner, 834 F.2d 1474, 1482 (9th Cir.1987)). In this case, the record before us does not reveal either that Yeroomian's legal representation obviously denied him his right to counsel or that the trial court's failure to take notice of the problem constituted plain error. In this case, the transcript shows that Yeroomian's counsel competently pursued the chosen strategy: attempting to convince the jury that Yeroomian did not speak English and could not understand the customs agents. Counsel was not ineffective, much less "so inadequate as obviously to deny [Yeroomian] his sixth amendment right to counsel."
4
Yeroomian's second contention is that the evidence was insufficient to convince a rational finder of fact that he had actual knowledge of the reporting requirements or that he intentionally made false statements regarding his transportation of currency. The basis of Yeroomian's claim is that the evidence was inadequate to demonstrate that he understood English well enough either to understand the reporting requirements or to make false statements about them. At trial, the government presented both the testimony of a United States Customs Inspector who asserted that Yeroomian understood him and the testimony of two bank tellers who testified that Yeroomian spoke to them in English whenever he went to the bank. In light of this testimony, a reasonable finder of fact could have concluded that Yeroomian understood the English language and that, therefore, he both understood the reporting requirements and intentionally made false statements to the Customs Inspector.
5
For these reasons, the district court's ruling is
6
AFFIRMED.
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
DAVID M. BARICKO, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-1304
BARNETT
TRANSPORTATION, INC. and
YORK RISK SERVICES
GROUP,
Appellees.
____________________________/
Opinion filed January 17, 2017.
An appeal from an order of Judge of Compensation Claims.
Mark A. Massey, Judge.
Date of Accident: August 15, 2013.
Michael J. Winer and John F. Sharpless of Law Office of Michael J. Winer, P.A.,
Tampa, for Appellant.
Nicholas A. Shannin of Shannin Law Firm, P.A., Orlando, for Appellees.
PER CURIAM.
AFFIRMED.
WOLF and LEWIS, JJ., CONCUR; WETHERELL, J., CONCURS WITH
OPINION.
2
WETHERELL, J., concurring.
Amongst the six issues raised by the Claimant in this workers’ compensation
appeal is a claim that the Judge of Compensation Claims (JCC) erred in applying
the Daubert1 test codified in section 90.702, Florida Statutes, because that test is not
applicable unless and until it is adopted by the Florida Supreme Court in In re
Amendments to the Florida Evidence Code, Case No. SC16-181. This claim is
unpreserved, and it is also frivolous.
This court specifically held in Giaimo v. Florida Autosport, Inc., 154 So. 3d
385, 388 (Fla. 1st DCA 2014), that the Daubert test now applies in workers’
compensation proceedings. See also Booker v. Sumter Cty. Sheriff’s Office, 166
So. 3d 189 (Fla. 1st DCA 2015). Although not explicated in the opinion, this holding
was grounded on the settled principle that “the Florida Evidence Code applies in
workers’ compensation proceedings,” United States Sugar Corp. v. G.J. Henson, 823
So. 2d 104, 107 (Fla. 2002), and the fact that the Daubert test is now specifically
codified in the Florida Evidence Code. See ch. 2013-107, § 1, Laws of Fla.
(amending § 90.702, Fla. Stat.); § 90.101, Fla. Stat. (“This chapter shall be known
and may be cited as the ‘Florida Evidence Code.’”). The JCC was bound
by Giaimo—and the plain language of section 90.702—and therefore did not err in
applying the Daubert test.
1
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
3
Additionally, although the Florida Supreme Court has the authority to adopt
procedural rules for judicial proceedings under article V, section 2(a) of the Florida
Constitution,2 it is well established that the Court does not have the authority to
establish procedural rules for executive branch quasi-judicial proceedings such as
those under chapter 440, Florida Statutes. See Amendments to the Fla. Rules of
Workers’ Comp. Procedure, 891 So. 2d 474, 478 (Fla. 2004) (“Given that the [Office
of Judges of Compensation Claims] is not an article V court, but rather part of an
executive branch department, we find that this Court has no authority under the
Florida Constitution . . . to promulgate rules of practice and procedure for this
executive entity.”). Accordingly, even if in In re Amendments to the Florida
Evidence Code, supra, the Court declines to adopt the Daubert test in section 90.702
for judicial proceedings because the test is procedural in nature,3 that decision will
have no impact whatsoever on the applicability of the Daubert test in workers’
compensation proceedings.
2
This provision states in relevant part: “The supreme court shall adopt rules for the
practice and procedure in all courts . . . .” (emphasis added).
3
See, e.g., In re Amendments to Fla. Evidence Code, 782 So. 2d 339, 341-42 (Fla.
2000) (recognizing that the Florida Evidence Code contains both substantive law
and procedural requirements and adopting all of the amendments to the Code enacted
by the Legislature from 1996 to 1999 “to the extent they are procedural,” except for
the 1998 amendment to the former testimony hearsay exception in section
90.803(22), Florida Statutes).
4
Finally, this claim was recently considered—and rejected as meritless—by
our sister court in Crane Co. v. DeLisle, 2016 WL 6658470 (Fla. 4th DCA Nov. 9,
2016):
[The plaintiff] also argues that this court lacks the
authority to apply Daubert, as incorporated through
section 90.702, Florida Statutes . . . because it is a
legislative change to the evidence code that has not yet
been approved by the Florida Supreme Court. However,
statutes are presumed to be constitutional and are to be
given effect until declared otherwise. Further, we, and
other Florida appellate courts, have applied the statute to
the admission of testimony. We therefore find that this
argument lacks merit.
Id. at *3 n.7 (citations omitted).
For these reasons (and because the other five issues raised by the Claimant
lack merit and do not warrant a written opinion), I concur in the disposition of this
appeal by a “PCA.”
5
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303 S.C. 169 (1991)
399 S.E.2d 593
The STATE, Respondent
v.
Samuel L. BROWN, Appellant.
23304
Supreme Court of South Carolina.
Heard November 13, 1990.
Decided January 7, 1991.
*170 Dale E. Cobb, Jr., Belk, Cobb & Chandler, Charleston, for appellant.
Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Miller W. Shealy, Jr., Columbia, and Sol. Charles M. Condon, Charleston, for respondent.
Heard Nov. 13, 1990.
Decided Jan. 7, 1991.
GREGORY, Chief Justice:
Appellant was convicted of trafficking in cocaine and sentenced to a term of twenty-five years without parole. We reverse and remand for a new trial.
Yolanda Bethel was one of the State's chief witnesses at appellant's trial. She testified that at the request of a man named "Henry," she agreed to transport a quantity of cocaine from Miami, Florida, to Charleston, South Carolina. She was to contact appellant upon arrival in Charleston. When she arrived *171 at the Charleston International Airport, however, Bethel was apprehended by undercover agents. A large quantity of cocaine was found in her suitcase. As a result, Bethel agreed to cooperate with law enforcement by contacting appellant and accompanying the agents to deliver the suitcase to him.
According to her testimony, appellant was the person she spoke with on the telephone to arrange a rendezvous. Appellant arrived in a car at the designated meeting place where he was arrested.
On direct examination, the Solicitor elicited testimony from Bethel regarding her plea agreement with the State. In return for her testimony, she was allowed to plead guilty to one conspiracy charge for which she could receive a maximum sentence of seven and one-half years. On cross-examination, Bethel testified she was originally charged with trafficking in cocaine but the charge was "dropped" as part of the agreement. Counsel attempted to elicit from Bethel the punishment for trafficking in cocaine. The trial judge sustained the Solicitor's objection to this line of questioning. Appellant claims the trial judge abused his discretion in limiting cross-examination. We agree.
The Confrontation Clause guarantees a defendant the opportunity to cross-examine a witness concerning bias. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed. (2d) 347 (1974). Considerable latitude is allowed in the cross-examination of an adverse witness for the purpose of testing bias. State v. McFarlane, 279 S.C. 327, 306 S.E. (2d) 611 (1983); State v. Collins, 235 S.C. 65, 110 S.E. (2d) 270 (1959). The limitation of cross-examination is reversible error if the defendant establishes he was unfairly prejudiced. Cf. State v. Hess, 279 S.C. 14, 301 S.E. (2d) 547 (1983).
We find appellant was unfairly prejudiced in this case. The sentence for trafficking in cocaine in the amount in question here is a mandatory one of at least twenty-five years without parole. S.C. Code Ann. § 44-53-370(e) (Supp. 1989). The fact Bethel was permitted to avoid a mandatory prison term of more than three times the duration she would face on her plea to conspiracy is critical evidence of potential bias that appellant should have been permitted to present to the jury. Moreover, Bethel's testimony was a crucial *172 part of the State's case since she provided the only evidence of appellant's knowing involvement in the drug transaction.
We reject the State's argument that inquiry into punishment was properly excluded because it would have allowed the jury to learn of appellant's own potential sentence if convicted. We conclude appellant's right to meaningful cross-examination outweighs the State's interest here. Accord State v. Morales, 120 Ariz. 517, 587 P. (2d) 236 (1978); see also Davis v. Alaska, supra.
Appellant also challenges the constitutionality of his sentence under S.C. Code Ann. § 44-53-370(e) (Supp. 1989) as a violation of the prohibition against cruel and unusual punishment. We disposed of this argument in State v. De La Cruz, ___ S.C. ___, 393 S.E. (2d) 184 (1990).
We need not address appellant's remaining exceptions. The judgment of the circuit court is reversed and the case is remanded for a new trial.
Reversed and remanded.
HARWELL, FINNEY and TOAL, JJ., and LITTLEJOHN, Acting Associate Justice, concur.
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991 F.2d 793
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Bernard V. WASSEL, Dr., Plaintiff-Appellant,v.ISLAND PLANNING CORPORATION OF AMERICA; Ronald Samuel,Salesman; Murray Silver, President; Arnie Widman,Sales Manager; DM Associates; DanielP. Barbiero, General Partner,Defendants-Appellees,andMintz, Rosenfeld and Company, Auditors; U.S. NoteCorporation; Manfacturers Hanover Trust Company,Defendants.
No. 92-1280.
United States Court of Appeals,Fourth Circuit.
Submitted: January 12, 1993Decided: April 20, 1993
Appeal from the United States District Court for the District of Maryland, at Baltimore. Joseph C. Howard, District Judge. (CA-90-635-JH)
Bernard V. Wassel, Appellant Pro Se.
Gary Howard Simpson, SIMPSON & EHRLICH, P.A., Lawrence Stephen Greenwald, GORDON, FEINBLATT, ROTHMAN, HOFFBERGER & HOLLANDER, Mitchell Barry Rosenfeld, MCNEILLY & ROSENFELD, for Appellees.
D.Md.
AFFIRMED.
Before HALL, WILKINSON, and LUTTIG, Circuit Judges.
PER CURIAM:
OPINION
1
Bernard V. Wassel appeals the district court's order granting Defendants summary judgment in his civil action claiming fraud and violations of federal and state securities laws and dismissing without prejudice one state law claim. Our review of the record and the district court's opinion accepting the recommendation of the magistrate judge discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court.* Wassel v. Island Planning Corp., No. CA-90-635-JH (D. Md. February 24, 1992). 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
*
Wassel also filed a letter with the clerk which could be construed as a motion to expedite his appeal. This Court considered the matter as quickly as possible considering the Court's current heavy workload. To that extent the motion is granted
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5 P.3d 38 (2000)
101 Wash.App. 634
John W. HILDAHL and Julie Hildahl, individually and as husband and wife, Appellants,
v.
Gregg BRINGOLF and Judy Bringolf, individually and as husband and wife, and the marital community composed thereof, Respondents.
No. 24317-2-II.
Court of Appeals of Washington, Division 2.
July 28, 2000.
*39 Stephen Thomas Carmick, Chehalis, for Appellants.
Donald George Daniel, Law, Lyman, Daniel, et al., Olympia, for Respondents.
HUNT, A.C.J.
John Hildahl (Hildahl) appeals the summary judgment dismissal of his personal injury lawsuit against Gregory Bringolf (Bringolf) for injuries sustained while repairing the roof on Bringolf's house. Bringolf had hired his renter, Daniel Hildahl (Daniel), as an independent contractor to repair the roof. Daniel hired Hildahl to help, but failed to pay the state-mandated industrial insurance premium to cover Hildahl's work. Fourteen months after Hildahl was injured and compensated from the state industrial insurance fund, the Department of Labor and Industries (L & I) required Bringolf to pay the overdue premium.
Hildahl argues: (1) The trial court erred in ruling that, as payor of the industrial insurance premium for Hildahl's work, Bringolf is immune from liability; and (2) Bringolf owed a duty to warn Hildahl of a deteriorated chimney and to comply with the roofing safety requirements under Washington's Industrial Safety and Health Act (WISHA), RCW ch. 49.17. We hold that because Bringolf was not Hildahl's employer, Bringolf is not immune under the Industrial Insurance Act (Act), RCW Title 51. We reverse and remand.
FACTS[1]
I. HILDAHL'S INDUSTRIAL INSURANCE CLAIM
Daniel rented a house from Bringolf. The roof leaked, and Daniel told Bringolf that the house needed a new roof. Daniel also said that he had experience and expertise in roof repair. Bringolf hired Daniel to do the work; Daniel hired his uncle, Hildahl, to assist him. Daniel failed to erect WISHA-required roof safety restraints. While working on the roof in October 1990, Hildahl slipped or tripped, grabbed the chimney, fell off the roof when the chimney crumbled, and was injured.
Earlier, Bringolf and Daniel had climbed up on the roof. In his affidavit, Daniel asserts that if Bringolf had inspected the old chimney, he would have realized "what terrible condition it was in." Bringolf asserts in his declaration that: (1) before Hildahl's accident, he was unaware of any defects on the roof or in the chimney, which appeared to be in good condition; and (2) he hired Daniel for his roofing expertise and experience, which Bringolf lacked.
Hildahl filed an industrial insurance claim with L & I, which awarded him benefits in June 1991 to compensate for his injuries. Daniel had not paid the required industrial insurance premium for Hildahl; L & I deemed Bringolf the "employer" and, in January *40 1992, required him to pay the premium under RCW 51.12.070.[2] Hildahl and Bringolf both appealed to the Board of Industrial Insurance Appeals (Board).
On appeal, both parties asserted that Bringolf was not Hildahl's employer, and the Board agreed. It determined that Daniel, not Bringolf, was Hildahl's employer "within the meaning of RCW 51.08.070."[3] Nonetheless, the Board required Bringolf to pay the outstanding $1,168 L & I premium, plus a $35,590 penalty, under RCW 51.12.070. Bringolf appealed these assessments to the Lewis County Superior Court.
Bringolf, Hildahl, and L & I resolved the appeal by stipulated order as follows: (1) The Board correctly determined that Bringolf was not Hildahl's employer; (2) Bringolf was liable for the unpaid L & I premium; and (3) the Board erred in assessing the unpaid-premium penalty against Bringolf.
II. HILDAHL'S LAWSUIT AGAINST BRINGOLF
Before entering into this stipulation, Hildahl sued Bringolf for damages, alleging that his fall was caused by Bringolf's negligence. Bringolf moved for summary judgment. Hildahl moved to amend the complaint. The trial court denied Hildahl's motion to amend and entered summary judgment for Bringolf. Hildahl appealed.
We affirmed summary judgment for Bringolf, holding:
To prove negligence, Hildahl had to demonstrate that Bringolf owed him a duty. Bringolf's only duty as a landowner was to "keep the premises under his control reasonably safe and to warn of dangers which are not obvious ... but are known to or discoverable by the owner in the exercise of reasonable care." This duty does not make a landowner responsible for the negligent acts of an independent contractor. As Daniel was acting as an independent contractor, Bringolf owed no duty to Hildahl.
Bringolf would owe a duty of care to an employee if he retained the right to control the independent contractor's work....
Bringolf provided evidence indicating that he did not control the roofing project....
Hildahl failed to provide any contrary evidence.... Consequently, there were no issues of material fact regarding the allegations in Hildahl's original complaint. Thus, the trial court did not err in dismissing those claims on summary judgment.
Hildahl v. Bringolf, No. 19113-0-II, slip op. at 13-15, 85 Wash.App. 1051, 1997 WL 156615 (Wash.Ct.App.Div.II, Apr. 4, 1997) (citations omitted; first omission in original; emphasis added). We also reversed the trial court's order denying leave to amend the *41 complaint, and remanded for further proceedings.
On remand, Hildahl filed an amended complaint, alleging that Bringolf had failed to (1) warn Hildahl "of defects and condition [sic] in the building"; (2) provide Hildahl "with a safe place to work in violation of RCW 49.17.060(1)";[4] and (3) "comply with the rules, regulations and orders promulgated pursuant to RCW 49.17.060(2)."[5] Bringolf again moved for summary judgment, asserting immunity from suit because he had paid the $1,168 premium that L & I assessed under RCW 51.12.070. The trial court granted summary judgment for Bringolf, ruling that Epperly v. City of Seattle, 65 Wash.2d 777, 399 P.2d 591 (1965), and Manor v. Nestle Food Co., 131 Wash.2d 439, 932 P.2d 628, as amended, 945 P.2d 1119 (1997), cert. denied, 523 U.S. 1102, 118 S.Ct. 1574, 140 L.Ed.2d 807 (1998), supported Bringolf's argument
that if the landowner[s] ... wind up having to pay that premium, they get the benefit of the immunity and step into the shoes of the employer that would otherwise have that benefit.
Hildahl now appeals the trial court's summary judgment dismissal of his amended complaint. The issue before us is whether Bringolf, who was not Hildahl's employer, is entitled to statutory immunity from suit by virtue of having paid the industrial insurance premium after Hildahl was injured and subsequently compensated from the state fund. We hold that, because Bringolf was not Hildahl's employer at the time of Hildahl's workplace injury, Bringolf has no immunity under the Act.
ANALYSIS
I. INDUSTRIAL INSURANCE ACT
In order to provide swift compensation for injured workers, the Washington Legislature replaced the common law fault-based system with the Industrial Insurance Act (Act), RCW Title 51. The Act established "a system of compulsory state industrial insurance," under which "all awards are paid from the accident fund." Greenleaf v. Puget Sound Bridge & Dredging Co., 58 Wash.2d 647, 658, 364 P.2d 796 (1961). This statutory industrial insurance system differs in both concept and operation from other states' workers' compensation schemes.[6]
Yet, like other workers' compensation acts, it embodies a compromise:
Under the quid pro quo compromise reflected in the Industrial Insurance Act, the employer pays some claims for which there would be no liability under common law, and the employee gives up common law actions and remedies in exchange for sure and certain relief.
Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wash.2d 46, 57, 821 P.2d 18 (1991). The Act "provides the exclusive remedy for workers injured during the course of their employment; *42 all remedies outside of the act were abolished except as provided for in RCW Title 51." Washington Ins. Guar. Ass'n v. Department of Labor & Indus., 122 Wash.2d 527, 530, 859 P.2d 592 (1993). Under this scheme,
when an employer ... pays its industrial insurance premiums pursuant to the Act the employer may no longer be looked to for recourse. The fund, created to provide for losses expected to occur, is the sole source of recovery.
Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wash.2d 230, 241, 588 P.2d 1308 (1978).
II. IMMUNITY
A. EMPLOYER
Under Washington's industrial insurance scheme, an employer is immune from civil lawsuits by its employees for non-intentional workplace injuries. Flanigan v. Department of Labor & Indus., 123 Wash.2d 418, 422, 869 P.2d 14 (1994); Newby v. Gerry, 38 Wash.App. 812, 815-16, 690 P.2d 603 (1984); RCW 51.04.010.[7] For purposes of industrial insurance,
an employment relationship exists only when: (1) the employer has the right to control the servant's physical conduct in the performance of his duties, and (2) there is consent by the employee to this relationship.
Novenson v. Spokane Culvert & Fabricating Co., 91 Wash.2d 550, 553, 588 P.2d 1174 (1979). We concur with the parties and the Board that Bringolf was not Hildahl's "employer" under the Act. Bringolf did not control Hildahl's work, nor did Hildahl consent to any working relationship with Bringolf.
B. NON-EMPLOYER THIRD PARTIES
Only employers[8] are immune under the Act from suit for workplace injuries; third persons are not:
Although an injured worker may not sue his or her employer for a workplace injury, RCW 51.24.030(1) authorizes suit against a third person at fault for the worker's injury, provided the third person is not in the worker's same employ.[[9]]
Manor v. Nestle Food Co., 131 Wash.2d at 444, 932 P.2d 628; see also Frost v. Department of Labor & Indus., 90 Wash.App. 627, 631, 954 P.2d 1340 (1998), review denied, 137 Wash.2d 1001, 972 P.2d 464 (1999). We next consider whether Bringolf, who was not Hildahl's "employer," is a potentially liable "third person" under the Act.
1. THIRD PERSONS
The Act provides:
If a third person, not in a worker's same employ, is or may become liable to pay damages on account of a worker's injury... the injured worker ... may elect to seek damages from the third person.
RCW 51.24.030(1).[10] Stated another way,
"When compensable injury is the result of a third person's tortious conduct, all statutes preserve a right of action against the *43 tortfeasor, since the compensation system was not designed to extend immunity to strangers."
Manor, 131 Wash.2d at 450, 932 P.2d 628 (quoting 2A ARTHUR LARSON, WORKMEN'S COMPENSATION LAW § 71.00, at 14-1 (1993) (emphasis added)).
In Manor, the Supreme Court held that a self-insured parent company, Nestle, was immune from suit by its injured subsidiary's worker, Manor. 131 Wash.2d at 456, 932 P.2d 628. Nestle was not a "third person," whom Manor could sue for additional damages after Nestle had already paid $455,000 from its own funds to compensate for his workplace injuries caused by another subsidiary's employee. 131 Wash.2d at 450, 932 P.2d 628. Central to the court's holding was an administrative regulation that conferred "employer" status on the self-insured parent company. 131 Wash.2d at 453, 932 P.2d 628.[11] Here, there is no corresponding regulation covering Bringolf's non-employer, premium-payment after-the-fact status; and Bringolf was not self-insured.
Neither Manor nor any case or statute mandates that immunity automatically flows from payment of an industrial insurance premium. And Manor focuses on the consequences of self-insurance as compared to insuring with the state through the industrial insurance fund.[12]
2. "WORKER'S SAME EMPLOY"
Also significant in Manor was that the forklift operator who ran over Manor's foot was in Manor's "same employ." 131 Wash.2d at 445, 932 P.2d 628. Here, Bringolf was not in Hildahl's "same employ." Bringolf hired independent contractor Daniel to repair the roof. Daniel was entitled to hire whomever he wanted to help, and he hired Hildahl. Bringolf did no work on the roof and he did not work with Hildahl. Bringolf and Hildahl were not workers in the "same employ."
III. PREMIUM PAYMENT
RCW 51.14.010 requires every "employer" to "secure the payment of compensation" under the Act by either insuring with the state fund or self-insuring. Here, Daniel, Hildahl's employer, failed to meet this requirement.
An employer's premium default is remedied by RCW 51.12.070, which provides that "the person ... who lets a contract for such work shall be responsible primarily and directly for all premiums upon the work." (Emphasis added.)[13] If a non-employer owner who "lets a contract" pays the premium, the owner is "entitled to collect from the contractor the full amount payable in premiums." RCW 51.12.070. Thus, as was the case under RCW 51.12.070's predecessor statute, the owner of property affected *44 by the contract functions as a surety for the industrial insurance premiums.
A. NON-EMPLOYER'S POST-INJURY PREMIUM PAYMENT DOES NOT CREATE IMMUNITY
Here, Bringolf was the owner of the property and the person "who let[] a contract," whom the Board held responsible for the unpaid premium under RCW 51.12.070. Bringolf's remedy under the statute, however, was to seek, not judicially imposed statutory immunity, but rather, reimbursement from the independent contractor, Daniel, who should have paid the premium before Hildahl began the work. See RCW 51.12.070 (prohibiting the issuance of a building permit "to any person who has not submitted to [L & I] an estimate of payroll and paid premium thereon ... or proof that such person has qualified as a self-insurer").
We extrapolate from Hammack v. Monroe St. Lumber Co., 54 Wash.2d 224, 232, 339 P.2d 684 (1959), in which the Supreme Court observed that a new statute, which dropped industrial insurance immunity for third parties, could not be constitutionally construed to impose liability retrospectively upon a third party. Conversely, under the Act, even if non-employer immunity were to flow from payment of the insurance premium, such escape from liability should not obtain after a worker is injured, thereby extinguishing the injured worker's preexisting cause of action in tort. It would defeat the purpose of the Act to allow a non-employer to minimize financial exposure by paying an industrial insurance premium after a worker is injured on the job and after the state fund has compensated a worker for his or her injury. Thus, Bringolf cannot extinguish Hildahl's existing common law cause of action that arose when Hildahl fell off Bringolf's roof simply by paying the industrial insurance premium many months later.
In Greenleaf, the Supreme Court rejected an argument analogous to Bringolf's argument: Puget Sound Bridge & Dredging Company (P.S. Bridge), the general contractor, argued that, because it would have been obliged to pay its subcontractor's industrial insurance premium if the subcontractor defaulted, P.S. Bridge was, in effect, the "employer" and was thereby immune from suit by its subcontractor's employee, Greenleaf. 58 Wash.2d at 657, 364 P.2d 796. The Court reasoned:
(1) There was no default; (2) [P.S. Bridge] was not [Greenleaf's] employer; and (3) the default contingency, which is negatived by the uncontroverted facts, does not change the situation. [P.S. Bridge] is a third party, not [Greenleaf's] employer who alone is immune.[[14]]
There are decisions in other states having systems of workmen's compensation which contrast with our compulsory state monopoly scheme of industrial insurance in which the prime contractor has been held to be the statutory employer of his subcontractor's workmen when the subcontractor failed to purchase a policy of workmen's compensation insurance. The reason is that such statutes impose a primary obligation upon the prime contractor to pay the compensation schedule provided by statute directly to the injured workman, or, in the event of death, to his statutory beneficiaries. Under such circumstances, the prime contractor has been compelled to pay the workmen's compensation directly to the subcontractor's injured workmen.[[15]]
. . . .
*45 But Washington does not have a workmen's compensation act. It has a system of compulsory state industrial insurance and all awards are paid from the accident fund.
Greenleaf, 58 Wash.2d at 657-58, 364 P.2d 796 (citations and footnote omitted; emphasis added).
Bringolf argues that statutory immunity from suit should extend to a non-employer who pays the premium. There are no cases so holding. In Epperly v. City of Seattle, which we discuss in further detail below, the Supreme Court declined to "adopt []or reject the reasoning" under which a property owner becomes a statutory employer when it is "primarily liable for the payment of the premium." 65 Wash.2d at 779 n. 1, 399 P.2d 591 (stating in dicta that "grave constitutional questions" plague the scenario "under which the owner of the premises who either directly or indirectly pays the insurance premium based on the hazards of his undertaking gets no protection from the employees of the contractor who may be injured in the course of the work for which the premiums are paid").
Manor, likewise, does not support Bringolf's requested extension of immunity. When a co-worker for a Nestle subsidiary ran over Manor's foot with a forklift, self-insured Nestle compensated Manor directly from its own funds; Manor neither sought nor received payments from the state industrial insurance fund. 131 Wash.2d at 443, 932 P.2d 628. Where a self-insurer has already compensated an injured worker, the law prevents the worker's double-recovery from the same parent company. As the Supreme Court explained:
By fulfilling its obligations to Manor under Title 51, Nestle should, a fortiori, be entitled to its side of the quid pro quo central to the entire workers' compensation statutory design: it should be immune from suit by Manor. In the words of the late Professor Larson, "immunity follows compensation responsibility." 2A ARTHUR LARSON, WORKMEN'S COMPENSATION LAW § 72.33, at 14-290.3 (1993).
Manor, 131 Wash.2d at 450, 932 P.2d 628 (emphasis added). Manor emphasizes that immunity flows from "compensation responsibility," not from premium responsibility. Here, Bringolf did not compensate Hildahl; he paid only the premium into the state industrial insurance fund, which had already compensated Hildahl for his injuries.[16]
Bringolf has advanced no viable theory under which he would have been immune from liability to Hildahl at the time that Hildahl fell off the roof and was injured. Bringolf was not Hildahl's employer at that time; and without an employer-employee relationship, Bringolf could not be immune.[17] Again, we look to the insurance model that the Legislature adopted for compensating injured workers in our state. Generally, employers pay premiums into the state fund, from which their injured workers are compensated. Some employers may pay premiums for years with no employees being injured or drawing from the fund. The premiums that other employers pay, however, may turn out to be relatively nominal compared to the larger awards paid to their injured employees from the fund. It would be contrary to the Legislature's intent to construe the Act as allowing non-employer tortfeasors to obtain immunity simply by waiting to assess potential liability to already-injured workers and then to pay their contractor's overdue premium after the fact. Such a scheme could jeopardize viability of the state industrial insurance fund, thereby undermining the Legislature's intent to create a sound source of compensation for injured workers.
B. EQUAL PROTECTION; DUE PROCESS
Citing Manor, 131 Wash.2d at 449 n. 4, 932 P.2d 628, and Epperly, 65 Wash.2d at 779 n. 1, 399 P.2d 591, Bringolf asserts that it is a denial of his rights to due process and equal protection of the law for L & I to collect the *46 industrial insurance premium from him without providing immunity from suit corresponding to that which premium-paying employers enjoy under the Act. We disagree.
First, as we noted above, Bringolf already has a statutory remedy recovery of the premium from Daniel. RCW 51.12.070. Second, Bringolf failed to challenge directly L & I's assessment of the premium; nor did he claim to L & I or the Board that, as a "person ... who let[] a contract," he was entitled to immunity under the Act. In any event, such a claim would have been inconsistent with the limitation of immunity to "employers" as defined under the Act.
We return to the legal evolution of Washington's Industrial Insurance Act. Originally, injured workers had common law remedies in tort against tortfeasor employers. From this large body of law, the Legislature carved out a narrow compromise between employers and employees for compensating workplace injuries. We find no indication of a legislative intent to extend this immunity to non-employer tortfeasors. Nor will we undertake such expansion judicially.
Manor is inapposite. There, the Court noted that it would violate equal protection[18] to deny immunity to companies that self-insure and pay the actual compensation to the injured workers from their own coffers. 131 Wash.2d at 449, 932 P.2d 628. Manor did not address payment of a premium into the state fund. Nor does the Epperly dicta provide guidance, though noting "grave constitutional questions" where an owner receives no industrial insurance protection in return for payment of a required premium:
The trial court's decision [rejecting the worker's lawsuit against the city] was based on the ground that the city was a statutory employer as defined by the Industrial Insurance Act because it was primarily liable for the payment of the premium under RCW 51.12.050. We neither adopt nor reject the reasoning of the trial court, but prefer to rest our decision on another ground.
We are impressed, as was the trial court, with the incongruous result necessarily flowing from the plaintiff's theory under which the owner of the premises who either directly or indirectly pays the insurance premium based on the hazards of his undertaking gets no protection from the employees of the contractor who may be injured in the course of the work for which the premiums are paid.[[19]] The construction of the statute to permit such a result presents grave constitutional questions which have not been adequately argued.
Epperly, 65 Wash.2d at 779 n. 1, 399 P.2d 591 (emphasis added).
Yet, despite the judicial concerns expressed in Epperly in 1965, six years later the Legislature again amended RCW 51.12.070, broadening its premium responsibility to encompass all "person[s] ... who let[] a contract," in addition to those who let extra-hazardous contracts. Laws of 1971, ch. 289, § 81. Moreover, in the 35 years since Epperly, the Supreme Court has not directly addressed these constitutional questions. Epperly's dicta is neither binding nor persuasive, especially under the facts here, where Bringolf had not paid the premium before Hildahl's accident.
Thus, we conclude that it is not unconstitutionally arbitrary to provide RCW 51.08.070 employers with immunity from civil suit, while denying immunity to RCW 51.12.070 "person[s] ... who let[] a contract" for work and who are "responsible primarily and directly for all [industrial insurance] premiums upon the work." The latter group's surety-like premium responsibility imposes only a temporary burden, reimbursement for which can be collected from the direct employer under RCW 51.12.070.
IV. OTHER THEORIES OF LIABILITY
In ruling that Bringolf was immune from suit and in granting summary judgment on *47 remand, the trial court did not rule on the duty-to-warn or WISHA theories that Hildahl presented in his amended complaint. Consequently, we have not considered these other theories. Thus, we reverse summary judgment based on Bringolf's claimed immunity and remand to the trial court to determine whether Hildahl's other claims against Bringolf are factually or legally viable.
Reversed and remanded.
SEINFELD, J., and HOUGHTON, J., concur.
NOTES
[1] We take much of the factual recitation from our unpublished opinion in Hildahl's earlier appeal, Hildahl v. Bringolf, No. 19113-0-II, slip op. at 2-3, 85 Wash.App. 1051, 1997 WL 156615 (Wash.Ct.App.Div.II, Apr. 4, 1997).
[2] RCW 51.12.070 provides:
The provisions of [the Industrial Insurance Act] shall apply to all work done by contract; the person ... who lets a contract for such work shall be responsible primarily and directly for all premiums upon the work. The contractor and any subcontractor shall be subject to the provisions of [the Industrial Insurance Act] and the person ... letting the contract shall be entitled to collect from the contractor the full amount payable in premiums and that contractor in turn shall be entitled to collect from the subcontractor his proportionate amount of the payment.
(Emphasis added.) Under this statute, Bringolf was the "person ... who let[] a contract for ... work," and Daniel was the contractor, who hired Hildahl to help do the work.
[3] RCW 51.08.070 defines "employer" as
any person, body of persons, corporate or otherwise, and the legal representatives of a deceased employer, all while engaged in this state in any work covered by the provisions of this title, by way of trade or business, or who contracts with one or more workers, the essence of which is the personal labor of such worker or workers. Or as a separate alternative, persons or entities are not employers when they contract or agree to remunerate the services performed by an individual who meets the tests set forth in subsections (1) through (6) of RCW 51.08.195.
The Board concluded that Daniel was Hildahl's RCW 51.08.070 employer, finding:
It was agreed by Gregg Bringolf and Daniel F. Hildahl that Daniel Hildahl could hire employees of his choice to assist him in the re-roofing of the Bringolf property. Daniel Hildahl was to receive $10.00 per hour for his work and any assistants were to receive $8.00 per hour for their work.
... John W. Hildahl entered into an employment contract with Daniel F. Hildahl to assist in roofing Mr. Bringolf's property. John W. Hildahl agreed to be paid $8.00 per hour for his work in roofing the Bringolf property.
[4] Subsection (1) of RCW 49.17.060 requires that an employer "furnish to each of his employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to his employees...." RCW 49.17.060(1).
[5] Subsection (2) of RCW 49.17.060 mandates that employers "comply with the rules, regulations, and orders promulgated under [RCW ch. 49.17]." RCW 49.17.060(2). WISHA requires that a fall restraint, fall arrest, or positioning device system be in place to protect workers when they "are exposed to a hazard of falling from a location 10 feet or more in height." WAC 296-155-24510.
[6] The Washington Supreme Court explained long ago:
[O]urs is not an employer's liability act. It is not even an ordinary [workers'] compensation act. It is an industrial insurance statute. Its administrative body is entitled the industrial insurance commission. All the features of an insurance act are present. Not only are all remedies between master and servant abolished, and, in the words of the statute, all phases of them withdrawn from private controversy, but the employee is no longer to look to the master even for the scheduled and mandatory compensation. He must look only to a fund fed by various employers. When the employer, for his part, pays his share into this fund, all obligation on his part to anybody is ended. Let a claim be rejected by the commission, the latter and not the employer is to be sued.
Stertz v. Industrial Ins. Comm'n, 91 Wash. 588, 594, 158 P. 256 (1916). Precedent for the Act came from Germany. Stertz, 91 Wash. at 595, 158 P. 256.
[7] Employers who intentionally cause workers' injuries are not immune. RCW 51.24.020.
[8] As we recently recognized, "an employee may have two employers for purposes of [the Act].... [I]n order for a dual employment relationship to exist, both employers must have the right to control the worker's physical conduct and the worker must consent to the employer/employee relationship." Sonners, Inc. v. Department of Labor & Indus., ___ Wash.App. ___, ___, 3 P.3d 756 (2000) (citations omitted). But Bringolf does not meet this test for a dual "employer."
[9] The phrase, "third person, not in a worker's same employ," RCW 51.24.030(1), excludes "fellow servant[s] of the same employer." Marsland v. Bullitt Co., 71 Wash.2d 343, 346, 428 P.2d 586 (1967).
[10] Further,
[t]he right to sue a third party was conferred as an added remedy to the industrial insurance award. Under the prior law, if there were a recovery against a third party of less than the industrial insurance award, the accident fund contributed only the difference. Under the present scheme, however, the injured workman who recovers from a third party receives and retains the maximum industrial insurance award plus his third party recovery, in which event, however, the accident fund is given a lien on the third party recovery for all payments from both the accident and medical aid funds.
Greenleaf, 58 Wash.2d at 657, 364 P.2d 796 (footnote omitted).
[11] The Supreme Court rejected Division III's holding that WAC 296-15-023(2) abridged workers' rights to bring third-party lawsuits. 131 Wash.2d at 445, 448-49, 932 P.2d 628.
[12] Employers who self-insure can sue a third party who causes a worker's injury if the worker does not sue. RCW 51.24.050(1).
[13] In 1915, the predecessor to RCW 51.12.070 applied only to "extra hazardous" work done by contract. Furthermore, in the private sector, "the contractor [was] responsible, primarily and directly, to the accident fund [for payments into the accident fund] ... and the owner of the property affected by the contract [served as] surety for such payments." Laws of 1915, ch. 188, § 6 (emphasis added). But in 1921, the predecessor statute was amended to read:
the employer who lets a contract for ... extra-hazardous work shall be responsible primarily and directly to the accident fund for the proper percentage of the total payroll of the work ... and the employer shall be entitled to collect from the contractor the full amount payable to the accident fund.
Laws of 1921, ch. 182, § 8 (emphasis added).
In 1923, the term "employer" was replaced with "person," as in the current statute. Laws of 1923, ch. 136, § 5. In 1955, RCW 51.12.070 was enacted, reading:
The provisions of this title shall apply to all extrahazardous work done by contract; the person ... who lets a contract for such extra-hazardous work shall be responsible primarily and directly for all payments due to the accident fund and medical aid fund upon the work.... [T]he person ... letting the contract shall be entitled to collect from the contractor the full amount payable to the accident fund and medical aid fund....
Laws of 1955, ch. 74, § 7. In 1971, "extrahazardous" was deleted from the statute. Laws of 1971, ch. 289, § 81.
[14] We acknowledge that in both Greenleaf and Marsland v. Bullitt Co., the property-owner defendants did not pay the industrial insurance premiums, Marsland, 71 Wash.2d at 345, 428 P.2d 586; Greenleaf, 58 Wash.2d at 657, 364 P.2d 796, and therefore, had no standing to argue:
there is no reasonable basis for rendering the defendant [property owner], who is primarily and directly responsible for making all payments into the referred fund, liable to defend a third party action, while, at the same time, immunizing the plaintiffs' common-law employer, who is only secondarily liable for payment into the fund, from such liability.
Marsland, 71 Wash.2d at 348, 428 P.2d 586. This argument, employed here by Bringolf, the statutory "surety;" is unpersuasive given the mechanism in RCW 51.12.070 for recoupment of premium payments from the "employer," Daniel.
[15] The above distinction is similar to the self-insurer distinction drawn in Manor v. Nestle, 131 Wash.2d at 450, 932 P.2d 628.
[16] Further, as we pointed out earlier, Bringolf's contention that immunity flows from premium payment fails because, at the time of Hildahl's accident, he had not paid the premium into the state industrial insurance fund.
[17] Nor was Bringolf a qualified self-insurer.
[18] U.S. CONST. amend. XIV, § 1; WASH. CONST. art. I, § 12.
[19] This language, in essence, outlines another constitutional violation, namely the government's taking of property without due process and just compensation. U.S. CONST. amend. V; WASH. CONST. art. I, § 16.
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949 So.2d 764 (2006)
Robert Lee PERRY, Appellant
v.
STATE of Mississippi, Appellee.
No. 2005-KA-00541-COA.
Court of Appeals of Mississippi.
May 30, 2006.
Rehearing Denied November 14, 2006.
*765 David L. Walker, attorney for appellant.
Office of the Attorney General, by Scott Stuart, attorney for appellee.
Before LEE, P.J., IRVING and ISHEE, JJ.
ISHEE, J., for the Court.
¶ 1. Robert Lee Perry was convicted of sale of a controlled substance, cocaine, in the Circuit Court of Panola County and sentenced to serve twelve years in the custody of the Mississippi Department of Corrections ("MDOC"). Aggrieved by his conviction and sentence, Perry appeals. Finding no error, we affirm.
FACTS
¶ 2. After selling crack cocaine to a confidential informant on April 28, 2004, Perry was arrested and charged with possession of a controlled substance. During the jury selection process, Perry exercised all of his peremptory strikes on white males. The *766 assistant district attorney objected, asserting that Perry was intentionally discriminating on the basis of race and gender. When asked to state his race/gender neutral reasons for exercising the peremptory strikes on these jurors, Perry presented the following: (1) juror McGregor was a security guard, thus pro-law enforcement, had been a crime victim, had a family member that had been a victim of narcotics, and had given a statement to law enforcement; (2) juror Chapman knew all of the narcotics agents involved in the case, had been a crime victim, and was a park ranger and emergency medical technician; (3) juror Davis was a crime victim; (4) juror Waller had been on a jury before and found the defendant guilty, had been a crime victim, and watches Law and Order; (5) juror Phillips was a military veteran and maintenance supervisor; and (6) juror Keeton was a military veteran, in addition to the fact that Perry "was reluctant to accept any prospective juror that the assistant district attorney liked."
¶ 3. The trial court found all of the asserted reasons to be non-discriminatory except for those pertaining to jurors Davis, Phillips, and Keeton. The trial judge reasoned that the fact that juror Davis had been a crime victim did not alone constitute a sufficient reason to strike him, especially considering that another prospective female juror had been a crime victim, but was not struck. Because the trial judge determined that the proffered race/gender neutral reason given was insufficient, he reinstated juror Davis to the petit jury. As to juror Phillips, the trial judge stated that it was impermissible to bar a former veteran from serving on a juror simply because of his veteran status; thus, juror Phillips was reinstated to the petit jury. The trial judge used the same rationale in reinstating juror Keeton to the petit jury. Perry then objected and asked that the court make a record of the composition of the petit jury, which it did.[1]
¶ 4. After his trial, Perry was convicted of possession of a controlled substance, cocaine, and sentenced to twelve years in the custody of the MDOC, with ten to serve and two suspended pending Perry's future good behavior. Perry further raised the issue of the trial court's reinstatement of the aforesaid jurors to the jury in his motion for a new trial, or in the alternative, for a judgment notwithstanding the verdict. Such motions were denied, and Perry appeals, asserting that the trial court erred by reinstating the jurors.
STANDARD OF REVIEW
¶ 5. This Court will only reverse a trial judge's factual findings if such findings were "clearly erroneous or against the overwhelming weight of the evidence." Tyler v. State, 911 So.2d 550, 553(¶ 10) (Miss.Ct.App.2005) (citing Tanner v. State, 764 So.2d 385, 393(¶ 14) (Miss.2000)). This Court will accord a trial judge's Batson determinations great deference, as such determinations are based largely on credibility. Tyler, 911 So.2d at 553(¶ 10) (citation omitted). "Great deference" has been defined in the Batson context as "insulation from appellate reversal of any trial findings which are not clearly erroneous." Id. (citing Lockett v. State, 517 So.2d 1346, 1349-50 (Miss.1987)).
ISSUES AND ANALYSIS
¶ 6. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 *767 (1986), the United States Supreme Court held that parties could not exercise peremptory strikes based solely on a potential juror's race. Batson, 476 U.S. at 89, 106 S.Ct. 1712; see Forrest v. State, 876 So.2d 400, 403(¶ 4) (Miss.Ct.App.2003) ("The Batson decision provides procedural directives for the trial court to follow in detecting and disallowing the practice of using peremptory challenges to remove members of an identified racial group from jury service based upon nothing more than their racial identification"). The Batson analysis has three prongs. Lynch v. State, 877 So.2d 1254, 1270-71(¶ 48) (Miss.2004). First, the party objecting to the opposing party's exercise of a peremptory strike "must make a prima facie showing that race [or gender] was the criteria for the exercise of a peremptory strike." Id. (quoting McFarland v. State, 707 So.2d 166, 171(¶ 14) (Miss.1997); see also Randall v. State, 716 So.2d 584, 588(¶ 16) (Miss.1998) (discussing application of Batson to gender discrimination)). To establish a prima facie case of discrimination, the party must demonstrate: (1) that he or she is a member of a cognizable racial [or gender] group; (2) that the opposing party has exercised peremptory challenges against members of a particular race; and (3) that the facts and circumstances raise an inference that the party exercising the peremptory strikes does so for the purpose of striking a particular race [or gender]. See Snow v. State, 800 So.2d 472, 478(¶ 10) (Miss 2001). "However, where the trial court does not explicitly rule on whether the defendant established a prima facie case under Batson but nevertheless requires the [opposing party] to provide [gender/]race-neutral reasons for its challenges and the [opposing party] provides reasons for its challenges, the issue of whether the [challenging party] established a prima facie case is moot." Lynch, 877 So.2d at 1271(¶ 48) (citing Snow, 800 So.2d at 478-79(¶ 11)).
¶ 7. Once a prima facie case is established, burden shifts to the party exercising the challenge to provide a [gender/]race-neutral reason for doing so. McFarland, 707 So.2d at 171(¶ 14). "`[A]ny reason which is not facially violative of equal protection will suffice.'" Lynch, 877 So.2d at 1271(¶ 49) (citations omitted). Such explanation does not have to be persuasive, or even plausible. Id. (quoting Randall, 716 So.2d at 588(¶ 16)). Unless discriminatory intent is inherent in the proffered race/gender-neutral explanation, the reason offered will be deemed a gender/race-neutral explanation. Id. In the absence of rebuttal by the challenging party, the trial judge is limited to the reasons proffered by the party exercising the peremptory strike. Lynch, 877 So.2d at 1271(¶ 49) (citations omitted). Failure by the challenging party to offer rebuttal to the proffered reasons constitutes waiver. Id. (citing Manning v. State, 735 So.2d 323, 339(¶ 30) (Miss.1999); Mack v. State, 650 So.2d 1289, 1297 (Miss.1994)). In reviewing the trial judge's decision on the gender/race-neutral reasons offered by the party exercising the peremptory strike, this Court will give the decision great deference. Lynch, 877 So.2d at 1271(¶ 50) (citing Walker v. State, 815 So.2d 1209, 1215(¶ 12) (Miss.2002)). We give such deference to the trial court's findings because the trial judge is in the best position to evaluate the demeanor and credibility of the attorney offering the gender/race-neutral explanation. Id. Our supreme court has set out a non-exhaustive list of valid race-neutral reasons for the exercise of peremptory challenges, which includes "living in a `high crime' area, body language, demeanor, [distrust of a juror by the party exercising the strike], inconsistency between oral responses and juror's *768 card, criminal history of juror or relative, social work and other types of employment, and religious beliefs." Walker, 815 So.2d at 1215(¶ 12) (citing Lockett v. State, 517 So.2d 1346, 1356-57 (Miss.1987)).
¶ 8. The third prong of Batson requires the trial court to "determine whether the objecting party has met its burden to prove that there has been purposeful discrimination in the exercise of the peremptory [challenge]." McFarland, 707 So.2d at 171(¶ 14). The trial court must determine whether the proffered gender/race-neutral reasons were pretexts for intentional gender/race discrimination. Berry v. State, 802 So.2d 1033, 1038(¶ 14) (Miss.2001). Our supreme court has identified five indicia which may indicate pretext for Batson purposes in a party's exercise of a peremptory strike: (1) "disparate treatment, that is, the presence of unchallenged jurors of the opposite race [or gender] who share the characteristic given as the basis for the challenge"; (2) "the failure to voir dire as to the characteristic cited"; (3) "the characteristic cited is unrelated to the facts of the case"; (4) "lack of record support for the stated reason"; and (5) "group based traits." Id. (citing Manning, 765 So.2d at 519(¶ 9); Mack, 650 So.2d at 1298; Whitsey v. State, 796 S.W.2d 707, 707 (Tex.Crim.App.1989)).
¶ 9. In the case sub judice, the gender/race-neutral reason offered for Perry's peremptory strike of juror Phillips was that he was a military veteran and maintenance supervisor. Perry reasoned that military veterans and supervisors, in general, are more likely to be pro-prosecution according to JOE EDWARD MORRIS, SYSTEMATIC JURY SELECTION IN MISSISSIPPI: A PRACTICAL APPROACH (1997). Perry further stated that because Phillips was a supervisor, he was likely to project an image of authority and consequently be selected as the jury foreperson. The trial judge stated that it would be impermissible to strike a juror simply because he was a military veteran. The trial judge found the strike against juror Phillips to be pretextual, and thus reinstated him.
¶ 10. Perry's proffered reason for exercising a peremptory challenge against juror Davis was that he was a crime victim. The trial judge stated as to jurors Davis and Phillips, "I think there is just not sufficient evidence for the lawyers and this Court to say that they would be a biased juror." The trial judge thus reinstated Davis.
¶ 11. As to juror Keeton, Perry's proffered reasons for exercising the peremptory strike on him were that he was a military veteran and that Perry was "reluctant to accept anyone that [the prosecutor] likes as a juror. Obviously, that raises a red flag." The judge found the reasons insufficient, however, and reinstated Keeton.
¶ 12. We find no clear error in the trial judge's Batson determinations. The trial judge is given great deference in Batson matters, and his decisions in the case sub judice fit well within the Batson framework. Accordingly, we affirm the decision of the lower court.
¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS TO SERVE AND TWO YEARS SUSPENDED PENDING GOOD BEHAVIOR, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.
LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS AND BARNES, *769 JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY KING, C.J., SOUTHWICK AND ROBERTS, JJ.
IRVING, J., Dissenting:
¶ 14. The majority finds no clear error with the trial judge's Batson's determinations and affirms the trial judge's refusal to allow the peremptory strikes of two jurors by Perry, as race-neutral strikes. Because I think the proferred reasons were race-neutral, I respectfully dissent.
¶ 15. After Perry's counsel had used peremptory strikes on five white males, the prosecutor objected that Perry's counsel was impermissibly striking white males in violation of Georgia v. McCollum and demanded that Perry's counsel be required to give race-neutral reasons for the strikes. Thereafter, the record reflects the following colloquy:
MR. WALKER [PERRY'S COUNSEL]: No. 7, Your Honor, is Jerry W. Davis. He is a crime victim. So far, Your Honor, I've been consistent, every crime victim I have exercised a peremptory challenge, that is, Mr. McGregor, Mr. Chapman, and Mr. Davis I used a strike against each of those.
. . . .
MR. WALKER: D-5, No. 36, James A Phillips, is a military veteran. Of course, Dr. Morris' book on jury selection indicates military veterans are pro-prosecution. He is a maintenance supervisor. Dr. Morris' book on jury selection also indicates supervisors, in general, are pro-prosecution. Supervisors, in my mind, project the image of authority and the defense runs the risk that he would be selected foreperson of the jury and, in general, military personnel are very conservative and very pro-state according to the literature. Those are the reasons for striking No. 36.
. . . .
THE COURT: All right, gentlemen. I have got to call the play the way I see it. I think Juror Davis should be re-established. There is nothing there other than a crime victim to indicate that to this base challenge and to take this person's right to serve on a jury away from him and the same with Mr. Phillips, Juror No. 36
You know, if going into the military is going to exclude you from jury service in the criminal justice systemthe people that write these books on how to pick juries, they don't have to comply with Constitutional standards as I do and the three that Mr. Walker gave with other reasons, I think are non-discriminatory, but I cannot say that as to Juror Davis, No. 7 and No. 36, Mr. Phillips. I don't think anybody can ever say that veterans are going to be unfair jurors or pro-prosecution jurors. They go and do what they got to do and come back home and try to put their life together. I just think it is discriminatory as to No. 36 and No. 7. The other three, I think, will
MR. WALKER: Judge, I guess I am going to lodge a general objection to that. I'm not sure I am required to, but as a matter of caution, I am going to generally object to that. I think we have rebutted the State, but any way, I respect your opinion.
THE COURT: There is, I think, Constitutionally challenged. The other two, I do not think so. I think there is just not sufficient evidence there or sufficient information for the lawyers and this Court to say that they would be a biased juror.
(emphasis added)
¶ 16. As can be discerned from the trial court's ruling, the trial judge did not find that the reasons offered by Perry's counsel were pretextural. Rather, the judge was *770 concerned that there was no proof or evidence to suggest that Juror Phillips would be biased simply because he was a military veteran, or that Juror Davis would be unfair because he was a crime victim. Whether the jurors could or would be fair and unbiased is not the proper area of inquiry for the trial court in making Batson determinations. The focus is not on the juror's bias, or lack thereof, but on the reason, intent, or purpose of the proponent in exercising the peremptory strike. If the reason for the strike is race-based, the strike is improper. Otherwise, the strike is permissible.
¶ 17. The majority at correctly states the law that "[u]nless discriminatory intent is inherent in the proffered race/gender-neutral explanation, the reason offered will be deemed a gender/race-neutral explanation." Majority opinion at (¶ 7), quoting Lynch v. State, 877 So.2d 1254, 1271(¶ 49) (Miss.2004). However, after reciting the applicable law, the majority fails to apply the law when it finds that the trial judge did not abuse his discretion in not accepting as race-neutral Perry's explanation for striking the Jurors Davis and Phillips. In my judgment, Perry's counsel offered a race-neutral reason for striking the two jurors. The State failed to rebut the race-neutral reason offered by Perry's counsel; therefore, the trial court should have accepted the explanation and allowed the strikes.
¶ 18. For the reasons discussed, I respectfully dissent. I would reverse and remand this case for a new trial, as Perry was denied his statutory right to challenge two jurors for purely non-racial reasons.
KING, C.J., SOUTHWICK AND ROBERTS, JJ., JOIN THIS OPINION.
NOTES
[1] Juror Davis was a white male; juror Druette was a white female; juror Sullivan was a white female; juror McCord was a white female; juror McDowell was a black female; juror Todd was a white female; juror Phillips was a white male; juror Keeton was a white male; juror Oliver was a black female; juror Crofford was a white female.
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98 Cal.Rptr.2d 100 (2000)
82 Cal.App.4th 231
UTILITY COST MANAGEMENT, Plaintiff and Appellant,
v.
INDIAN WELLS VALLEY WATER DISTRICT, Defendant and Respondent.
No. F030932.
Court of Appeal, Fifth District.
July 18, 2000.
Review Granted October 18, 2000.
*101 Paul G. Kerkorian, San Francisco, for Plaintiff and Appellant.
Education Legal Alliance and John L. Bukey, Corona, and Richard L. Hamilton, Sacramento, as Amicus Curiae on behalf of Plaintiff and Appellant.
McMurtrey & Hartsock and Robert W. Hartsock, Bakersfield, McCormick, Barstow, Sheppard, Wayte & Carruth, James P. Wagoner, Frseno, and Christopher Lazano, for Defendant and Respondent.
Association of California Water Agencies and Logerlof, Senecal, Bradley, Gosney & Kruse and Thomas S. Bunn III, Pasadena, East Bay Municipal Utility District and Robert C. Helwick, Craig S. Spencer and Benjamin T. Reyes II, Oakland, and Fox & Sohagi and Margaret Moore Sohagi, Los Angeles, and Philip A. Seymour, Santa Barbara, as Amici Curiae on behalf of Defendant and Respondent.
Certified for Partial Publication.[*]
OPINION
MORAN, J.[**]
INTRODUCTION
Utility Cost Management (hereafter UCM or appellant) appeals from a judgment of dismissal following a demurrer that was sustained without leave to amend. The basis for the demurrer was that the statute of limitations set forth in Government Code[1] section 66022 applied to a cause of action pursuant to section 54999.4 for a refund of excessive capital facilities fee charges imposed pursuant to section 54999.3.
STATEMENT OF THE CASE
On February 10, 1997, UCM as the assignee of Kern Community College District (hereafter College) filed a complaint against Indian Wells Valley Water District (hereafter Indian Wells) in the Kern County Superior Court. On or about April 3, 1997, Indian Wells demurred to each cause of action. The trial court sustained the demurrer with leave to amend.
UCM filed its First Amended Complaint on or about June 5, 1997. Indian Wells again filed a demurrer and on August 13, 1997, the demurrer was sustained with leave to amend. Thereafter, UCM filed a motion for reconsideration of the trial court's August 13, 1997, order. The motion for reconsideration was granted.
A Second Amended Complaint was filed by UCM on or about October 17, 1997. Indian Wells demurred on or about November 21, 1997. The trial court sustained this demurrer with leave to amend by order dated December 15,1997.
The Third Amended Complaint was filed on or about December 29, 1997. Indian Wells demurred on January 30, 1998. By order dated March 2, 1998, the trial court sustained the demurrer without leave to amend. The March 2, 1998, minute order stated in relevant part:
"Sustain demurrer without leave to amend, [¶] The pivotal issue in this case is the application of the 120 day statute of limitations provided for in Government Code section 66022. If it applies to the facts as plea [sic], plaintiff concedes that he would be unable to amend to allege new or different facts to avoid its application. [¶] The Court is compelled to find Government Code section 66022 applies based on the holding in San Marcos II (190 CA 3d [Cal. App.3d] 1083 [235 Cal.Rptr. 827]). It is still good law in spite of Plaintiffs protestations to the contrary and applies to claims under Government Code sections 54999.3 and 54999.4."
*102 A judgment of dismissal was entered on April 2, 1998. Notice of entry of judgment was served on UCM on April 15, 1998. UCM filed a timely notice of appeal from the Judgment of Dismissal on May 14, 1998.
STATEMENT OF FACTS
Because it is the Third Amended Complaint (hereafter complaint) which is the subject of this appeal, we focus on the contents of that document.
From and after January 1985, Indian Wells provided water service to College and imposed charges for that service. The complaint alleged that some or all of the charges qualified as capital facilities fees. The capital facilities fees were initially imposed prior to July 21, 1986, and continued to be imposed against College after that date. The amount of fees charged were increased periodically.
UCM alleged that the amount of the capital facilities fees charged, and the periodic increases, exceeded the maximum amounts authorized by section 54999.3.[2] The complaint asserted causes of action for a refund pursuant to section 54999.4, for money had and received, restitution to avoid unjust enrichment, for imposition of a constructive trust, and to enforce an implied-in-law contract.[3]
The March 2, 1998, order granting the demurrer without leave to amend found that section 66022 was the applicable statute of limitations under the holding of San Marcos Water District v. San Marcos Unified School District (1987) 190 Cal. App.3d 1083, 235 Cal.Rptr. 827 (hereafter Saw Marcos II).
The sole issue to be determined is whether the statute of limitations set forth in section 66022 applies to actions filed pursuant to sections 54999.3 and 54999.4. Appellant UCM asserts that it does not and, therefore, the trial court's order sustaining the demurrer must be reversed. Respondent Indian Wells contends that section 66022 applies, UCM's action is time-barred, and the trial court properly sustained the demurrer. We will hold that section 66022 does not apply to actions for refunds pursuant to section 54999.4.
DISCUSSION
The parties to this appeal adopt opposite positions as to whether section 66022 applies to an action pursuant to section 54999.4 for a refund of excessive fees charged pursuant to section 54999.3. Both parties contend that the resolution of this question is dispositive, as an application of section 66022 to UCM's complaint would mean that the complaint is time barred. Although the parties and amici have filed extensive briefs addressing the application of section 66022, many of the contentions raised by Indian Wells were addressed and rejected in our N.T. Hill, Inc. v. City of Fresno (1999) 72 Cal.App.4th 977, 85 Cal. Rptr.2d 562 (hereafter N.T. Hill) decision.
We will conclude section 66022 does not apply to actions pursuant to sections 54999.3 or 54999.4.
1. The San Marcos Legislation:
Before addressing whether section 66022 is the applicable statute of limitations, it is helpful to first examine the body of legislation that was adopted which permitted a public entity to impose capital facilities fees upon another public entity.
Sections 54999 through 54999.6 are part of a statutory scheme enacted in 1988 in response to the Saw Marcos Water District *103 v. San Marcos Unified School District (1986) 42 Cal.3d 154, 228 Cal.Rptr. 47, 720 P.2d 935 (hereafter San Marcos) decision. (§ 54999.) That decision held that a fee aimed at assisting a utility district to defray costs of capital improvements is deemed a special assessment from which other public entities are exempt, absent specific legislative authorization for the imposition of such fees. (San Marcos, supra, 42 Cal.3d at p. 165, 228 Cal.Rptr. 47, 720 P.2d 935.) In response to the holding of the San Marcos case and in order to allow one public entity to impose a charge on another public entity, sections 54999 through 54999.6 were enacted and became effective on March 24, 1988. (Stats.1988, ch. 53, § 1.)
The California Supreme Court's ruling in San Marcos had the potential to undermine the fiscal stability of public utilities which had collected, and expended, funds which might have to be refunded under the holding of San Marcos. Therefore, section 54999.4 provided that any capital facilities fees paid prior to the effective date of the San Marcos Legislation, and not protested pursuant to the law then in effect, were not subject to refund. Section 54999.2 provided that public utilities could impose a new capital facilities fee, or increase an existing capital facilities fee imposed against a public agency, as provided for in section 54999.3; any fees imposed in excess of the amounts allowable under section 54999.3 were subject to refund pursuant to section 54999.4.
In its entirety, section 54999.3 provides:
"However, the imposition of a capital facilities fee on any school district, county office of education, community college district, the California State University, the University of California, or state agency shall be subject to the following:
"(a) Where necessary to defray the actual construction costs of that portion of a public utility facility actually serving a public agency, any public agency providing public utility service on or after July 21, 1986, may continue to charge any capital facilities fee which was imposed prior to that date on the public agency using the public utility service and was not protested or challenged pursuant to law prior to January 1, 1987, or increase that capital facility fee in an amount not to exceed the percentage increase in the Implicit Price Deflator for State and Local Government Purchases, as determined by the Department of Finance and any public agency shall pay any capital facilities fees authorized by this subdivision.
"(b) On or after July 21, 1986, any public agency proposing to initially impose a capital facilities fee or to increase an existing capital facilities fee in excess of the amount set forth in subdivision (a), may do so after agreement has been reached between the two agencies through negotiations entered into by both parties.
"(c) Upon request of the affected public agency or upon increase pursuant to subdivision (a), the public agency imposing or increasing the fee shall identify the amount of the capital facilities fee. The public agency imposing or increasing the capital facilities fee has the burden of producing evidence to establish that the capital facilities fee is nondiscriminatory and that the amount of the capital facilities fee does not exceed the amount necessary to provide capital facilities for which the fee is charged."
Section 54999.4 provides:
"Any capital facilities fees paid prior to the effective date of this chapter and not protested or challenged pursuant to law on or before January 1, 1987, shall not be subject to refund, except for capital facilities fees paid after July 21,1986, by a public agency subject to Section 54999.3 which are in excess of the maximum amount authorized by Section 54999.3. Agreements entered into prior to or after the effective date of this chapter for the payment of capital facilities fees or capacity charges shall be effective."
*104 In the instant case, UCM, as College's assignee, seeks a refund pursuant to section 54999.4 of charges imposed which exceed the maximum allowable under section 54999.3. The allegedly excessive charges are the result of increases imposed after July 21, 1986, which increases were not the result of an agreement between College and Indian Wells.
2. Applicability of Section 66022 to Claim for Refund of Excessive Charges:
Indian Wells and the amici supporting its position assert that this court's N.T. Hill case and a decision from the First Appellate District, Utility Cost Management v. East Bay Municipal Utility District (2000) 79 Cal.App.4th 1242, 94 Cal. Rptr.2d 777 (hereafter East Bay MUD), are dispositive. Indian Wells contends that both cases stand for the proposition that a cause of action for a refund of fees pursuant to section 54999.4 is governed by section 66022. As set forth below, we differ with the result reached in the East Bay MUD case. As for our decision in N.T. Hill, that case does not support respondent's position.
Section 66022 provides:
"(a) Any judicial action or proceeding to attack, review, set aside, void, or annul an ordinance, resolution, or motion adopting a new fee or service charge, or modifying or amending an existing fee or service charge, adopted by a local agency, as defined in Section 66000, shall be commenced within 120 days of the effective date of the ordinance, resolution, or motion.
"If an ordinance, resolution, or motion provides for an automatic adjustment in a fee or service charge, and the automatic adjustment results in an increase in the amount of a fee or service charge, any action or proceeding to attack, review, set aside, void, or annul the increase shall be commenced within 120 days of the effective date of the increase.
"(b) Any action by a local agency or interested person under this section shall be brought pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure.
"(c) This section shall apply only to fees, capacity charges, and service charges described in and subject to Sections 66013 and 66014."
This court addressed the application of section 66022 in a slightly different factual context in N.T. Hill. In N.T. Hill we addressed section 66022 as applied to capacity charges imposed on a private developer by a public entity. (N.T. Hill, supra, 72 Cal.App.4th at p. 983, 85 Cal.Rptr.2d 562.) We concluded that section 66022 "applies when the plaintiffs goal is a judicial finding that the legislative decision adopting the charge cannot be enforced in any circumstance against any existing or future development because of some procedural or substantive illegality in the decision." (Id. at pp. 986-987, 85 Cal.Rptr.2d 562.) When the fundamental legislative decision enacting the charge is not in issue, and instead there is a "challenge to an agency's adjudicative decision to impose upon a particular development project a fee adopted by a generally applicable legislative decision," section 66022 was not the applicable statute of limitations. (Id. at p. 990, 85 Cal.Rptr.2d 562.)
Although Indian Wells claims UCM's complaint in essence is a challenge to their legislative decision, we do not agree. We do not view UCM's complaint as challenging the legislative decision to impose a charge on College, rather it challenges the adjudicative decision of the particular amount to charge College. The complaint repeatedly refers to the "excessive" amount of the fees and the "overcharges" by Indian Wells. The complaint clearly challenges the periodic increases that have been levied. Nowhere in the complaint does UCM assert that Indian Wells did not have the right legally to impose any fees on College pursuant to section 54999.3. *105 As we noted in N.T. Hill, when a developer was challenging the amount of fees imposed on a particular real property development, section 66022 was not the applicable statute of limitations. (N.T. Hill, supra, 72 Cal.App.4th at p. 992, 85 Cal. Rptr.2d 562.)
In East Bay MUD, the appellate court concluded that an action for a refund of excessive fees pursuant to section 54999.4 was subject to section 66022. We disagree with the analysis and conclusions set forth in East Bay MUD. Initially, we note that East Bay MUD failed to properly distinguish between legislative and adjudicatory acts. (East Bay MUD, supra, 79 Cal. App.4th at pp. 1250-1251, 94 Cal.Rptr.2d 777.) Our decision in N.T. Hill went to great lengths to distinguish and explain the differences between legislative and adjudicatory acts. (N.T. Hill, supra, 72 Cal. App.4th at p. 987, 85 Cal.Rptr.2d 562.) We see no reason to depart from our analysis and holding in N. T. Hill. For this reason alone we would necessarily differ with the result reached in East Bay MUD, and do not find that case to be either controlling or persuasive.
Because UCM is challenging adjudicatory acts, not legislative acts, of Indian Wells, section 66022 is not applicable.
3. Applicability of Mitigation Fee Act to Section 54999.3 Charges:
We turn now to Indian Wells's other assertions in support of the proposition that section 66022 is the applicable statute of limitations period for actions pursuant to section 54999.4. We conclude there are numerous bases upon which to hold that section 66022 is inapplicable to section 54999.4.
Although the N.T. Hill case addressed water capacity charges imposed by a city on a residential development, its analysis did not address section 54999.3 or 54999.4. The East Bay MUD case, when it concluded that section 66022 applied to section 54999.4 actions, failed to consider the legislative history and language of the statutes comprising the Mitigation Fee Act.
Section 66022 is part of the Mitigation Fee Act. The Mitigation Fee Act is comprised of Chapters 5 (commencing with section 66000), 6 (commencing with section 66010), 7 (commencing with section 66012), 8 (commencing with section 66016), and 9 (commencing with section 66020) of Title 7 of the Government Code. (§ 66000.5, N.T. Hill, supra, 72 Cal.App.4th at p. 986, 85 Cal.Rptr.2d 562.)
Section 66022 by its very language applies only to "fees, capacity charges, and service charges described in and subject to Sections 66013 and 66014." (§ 66022, subd. (c).) Section 66013 applies to certain water supply charges; section 66014 applies to certain zoning and permit fees. (N.T. Hill, supra, 72 Cal.App.4th at p. 999, 85 Cal.Rptr.2d 562.) Neither party asserts that zoning and permit fees are at issue in the instant case, therefore, we will address the parameters of section 66013.[4] At the time the complaint was filed on January 5, 1998, section 66013[5] provided:
"(a) Notwithstanding any other provision of law, when a local agency imposes fees for water connections or sewer connections, or imposes capacity charges, those fees or charges shall not exceed the estimated reasonable cost of providing the service for which the fee or charge is imposed, unless a question regarding the amount of the fee or charge imposed in excess of the estimated reasonable cost of providing the services or *106 materials is submitted to, and approved by, a popular vote of two-thirds of those electors voting on the issue.
"(b) As used in this section:
"(1) `Sewer connection' means the connection of a building to a public sewer system.
"(2) `Water connection' means the connection of a building to a public water system, as defined in subdivision (f) of Section 116275 of the Health and Safety Code.
"(3) `Capacity charges' means charges for facilities in existence at the time the charge is imposed or charges for new facilities to be constructed in the future that are of benefit to the person or property being charged.
"(4) `Local agency' means a local agency as defined in Section 66000.
"(c) Any judicial action or proceeding to attack, review, set aside, void, or annul the ordinance, resolution, or motion imposing a fee or capacity charge subject to this section shall be brought pursuant to Section 66022."
The language of section 66013, subdivision (a), states that the section applies to fees for water or sewer connections, and capacity charges. Section 66022, subdivision (a), states that it applies to fees and charges and references the definitions set forth in section 66000. Section 66000 defines "fee" as a "monetary exaction other than a tax or special assessment ... that is charged by a local agency to the applicant in connection with approval of a development project." (§ 66000, subd. (b).) Section 66010, subdivision (b) also defines "fee" as excluding special assessments. The charges imposed against College by Indian Wells neither qualify as a fee under either definition, nor are they imposed in connection with an application for a development project.
In San Marcos, the California Supreme Court held that any fees or charges assessed by a utility district against another public entity, such as College, were special assessments. (San Marcos, supra, 42 Cal.3d at p. 165, 228 Cal.Rptr. 47, 720 P.2d 935.) As special assessments, the capital facilities fees imposed against College pursuant to section 54999.3 do not fall within the definition of fees set forth in section 66000, subdivision (a), and therefore, could not fall within the parameters of sections 66013 or 66022 on this basis. (§ 66013, subd. (a); § 66022, subd. (a).) We also note that nothing in the language of section 66013 authorizes the imposition of any fees by one public agency against another public agency. The sole authority for Indian Wells to impose a charge against College derives from section 54999.3 and the statutes comprising the San Marcos Legislation.
Section 66000, subdivision (a), also states that the fee or charge must be imposed "by a local agency to the applicant in connection with approval of a development project." Development project is defined in section 66000, subdivision (a), as including projects "involving the issuance of a permit for construction or reconstruction." Section 60005 also limits the imposition of fees under the Mitigation Fee Act to fees imposed "as a condition of approval of a proposed development or ... development project." (See Capistrano Beach Water District v. Taj Development Corp. (1999) 72 Cal.App.4th 524, 527, 85 Cal.Rptr.2d 382 (hereafter Capistrano).) Section 60006 requires local agencies to keep an accounting of fees paid "in connection with the approval of a development project."
Nowhere in UCM's complaint does it assert that the charges were imposed in connection with any application for a development project. On the contrary, UCM's complaint asserts that the excessive charges were imposed to pay "the capital cost of [Indian Wells'] public utility facilities." Indian Wells refers to the charges as part of a "bi-monthly water bill." We find no indication in the record that Indian Wells ever imposed the disputed charges in connection with a development project by College, or ever asserted *107 that the charges were imposed in connection with such a project. Further, in N. T. Hill, we held that the applicable statute of limitations to challenge the imposition of adjudicatory decisions of a public entity on a private development project was section 66020, not section 66022.[6] (N.T. Hill, supra, 72 Cal.App.4th at pp. 988-989, 85 Cal.Rptr.2d 562.)
Section 66013, subdivision (b)(3) defines "capacity charges" to be charges for "facilities in existence at the time the charge is imposed or charges for new facilities to be constructed in the future that are of benefit to the person or property being charged." In section 54999.1, subdivision (b), "capacity charge" is defined as "any nondiscriminatory charge to pay the capital cost of a public utility facility." Section 54999.3, subdivision (a) expands on that definition to provide that only "that portion of a public utility facility actually serving a public agency" may be assessed against a public agency.
In addition, section 66013 provides that the charges imposed under section 66013 may not exceed "the estimated reasonable cost of providing the service." (§ 66013, subd. (a).) However, whether or not the capital facilities fees imposed by Indian Wells on College does or does not exceed the "reasonable cost of providing the service" is irrelevant. Section 54999.3 establishes a different standard for the imposition of fees. (§ 54999.3, subd. (a).) Under section 54999.3, subdivision (a), the only determination is whether or not a fee sought to be initially imposed is necessary to defray a pro-rata share of actual construction costs, or whether any increase in a fee previously imposed exceeds the percentage increase in the Implicit Price Deflator for State and Local Government Purchases.
We decline to conclude that charges imposed under section 54999.3 are "described in and subject to" section 66013 when section 66013 provides no statutory authority for the imposition of fees against a public agency; the definition of capacity charges differs somewhat in section 54999.3 and section 66013; the method of calculating the capacity charges is distinctly different in these two code sections; and fees and charges imposed by a public utility on another public entity are special assessments which are specifically excluded from the provisions of the Mitigation Fee Act. When the East Bay MUD case concluded that charges imposed pursuant to section 54999.3 fell within section 66013, that case failed to address or consider the statutory definitions of terms as used in the Mitigation Fee Act. (East Bay MUD, supra, 79 Cal.App.4th at p. 1250, 94 Cal.Rptr.2d 777.)
Lending further support to our conclusion that section 66022 does not govern actions for refunds under section 54999.4 is that the Mitigation Fee Act does not provide for a refund of capacity charges under any circumstances. The complaint seeks a refund, pursuant to section 54999.4, of excess fees charged. Yet, sections 66013 and 66022 do not provide a cause of action for refunds of any capacity charges. Neither the version of section 66013 in effect at the time of the filing of the complaint, nor the amendments enacted and effective January 1, 1999, provide for a refund of any connection fees or capacity charges. (Capistrano, supra, 72 Cal.App.4th at p. 529, 85 Cal.Rptr.2d 382; Assem. Local Gov. Com. Rep. on Sen. Bill No. 1760 (1997-1998 Reg. Sess.) p. 3.) When the Mitigation Fee Act contains no provision for a refund of capacity charges, we see no basis upon which to conclude that section 66022, which is part *108 of the Mitigation Fee Act, governs causes of action for refunds of capacity charges.
The court in East Bay MUD assumed, we believe incorrectly, that because section 54999.3, subdivision (c), provides that the public utility must identify the amount of a capital facilities fee upon request by the affected public agency, the affected agency would have sufficient time under section 66022 in which to challenge the fee. However, section 54999.3, subdivision (c), establishes no time frame by which the public utility must comply with such a request. Further, under section 54999.1, subdivision (h), the capital facilities fee is not imposed until the statement is mailed; the statement may well be mailed more than 120 days after the legislative decision to impose or increase the fee. UCM asserts that even if College were given prompt notice of a fee, considerably more than 120 days would be required to perform the audit and engineering calculations necessary to evaluate the legality of the fee. Indian Wells would have us adopt an interpretation of the statutes that could foreclose a challenge to these increases before they were ever imposed.
The first rule of statutory construction is that the plain and commonsense meaning of the statutory language controls. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476, 66 Cal.Rptr.2d 319, 940 P.2d 906.) In order to interpret sections 66013 and 66022 as including charges imposed pursuant to section 54999.3, we would have to ignore the language and plain meaning of section 66000, subdivision (a), as well as the holding of the California Supreme Court in San Marcos that such charges were not fees, but special assessments. (San Marcos, supra, 42 Cal.3d at p. 165, 228 Cal.Rptr. 47, 720 P.2d 935.) We also would have to ignore the case law interpreting the Mitigation Fee Act and the legislative history of that Act which clearly establish that no cause of action for a refund of a capacity charge is encompassed in the Mitigation Fee Act. (Capistrano 72 Cal.App.4th at p. 529, 85 Cal. Rptr.2d 382.) Finally, we would be compelled to conclude that any remedy provided for in section 54999.4 would, in many instances, be foreclosed long before the first statement of charges was ever issued. We decline to reach such a contrived result.
Instead, we prefer to follow the plain and commonsense language of the statutes and conclude that section 54999.4 and section 66022 apply to different categories of actions. (See N.T. Hill, supra, 72 Cal. App.4th at p. 988, 85 Cal.Rptr.2d 562.) Both section 54999.4 and section 66022 appear to be specialized statutes.[7] (See N.T. Hill, supra, 72 Cal.App.4th at p. 999, 85 Cal.Rptr.2d 562.) The focus of section 66022 is on the legislative act of a local agency adopting an ordinance, resolution, or motion, and a private entity's challenge to that act. (N.T. Hill, supra, 72 Cal. App.4th at p. 989, 85 Cal.Rptr.2d 562.) Section 54999.4 instead focuses on the adjudicatory act of the amount of capacity charges imposed on one public entity by another public entity. This interpretation of these statutes provides a rational basis for harmonizing the two statutes in issue by giving them mutually exclusive, independent applications. (Garcia v. McCutchen, supra, 16 Cal.4th at p. 477, 66 Cal.Rptr.2d 319, 940 P.2d 906.)
In construing statutes, we presume the Legislature has knowledge of all prior laws and enacts and amends statutes in light of those laws. (In re Marriage of Cutler (2000) 79 Cal.App.4th 460, 475, 94 Cal.Rptr.2d 156.) Had the Legislature intended for section 66013 to encompass charges imposed under section 54999.3, it could have so provided at the time of enactment or later amendment. It did not do so. Further, although section 66013, subdivision (a), includes the phrase "[n]otwithstanding any other provision of law," *109 which is language that generally signals a broad application, this principle does not apply with respect to this code section because of the limiting language in that section and related provisions of the Mitigation Fee Act. (In re Marriage of Cutler, supra, 79 Cal.App.4th at p. 475, 94 Cal. Rptr.2d 156.) Both section 66013 and other code sections comprising the Mitigation Fee Act contain statutory definitions that limit the application of these code sections.[8]
4. Former Section 54995 and San Marcos II:
Indian Wells also asserts that because section 66022 is derived from former section 54995,[9] capital utilities fees imposed under section 54999.3 are therefore subject to the limitations period set forth in section 66022. We disagree.
The trial court found, and Indian Wells contends, that San Marcos II is still good law and controlling. The San Marcos II case held former section 54995 to be the applicable statute of limitations for a school district's challenge to a water district's capacity charge. (San Marcos II, supra, 190 Cal.App.3d at p. 1088, 235 Cal. Rptr. 827.) However, at the time the San Marcos II case was decided in May 1987, neither the San Marcos Legislation, nor the Mitigation Fee Act, had been adopted. (Stats.1988, ch. 53, § 1, eff. March 24, 1988; Stats.1990, ch. 1572, § 19.)
We note that the San Marcos II case held that capacity charges were in fact special assessments. (San Marcos II, supra, 190 Cal.App.3d at p. 1086, 235 Cal. Rptr. 827.) The San Marcos II case was also addressing capacity charges that had been imposed and paid prior to July 21, 1986. (Id. at p. 1085, 235 Cal.Rptr. 827.) Under section 54999.4, such charges are not subject to a claim of refund unless they previously had been challenged under the law in effect at the time of imposition. While the result in San Marcos II would be the same if the San Marcos Legislation were applied, the rationale would differ.
At the time the special assessments at issue in San Marcos II had been imposed and paid, the applicable statute of limitations was former section 54995. Although section 66022 is derived from former section 54995, they are not identical. Former section 54995 did not contain the restrictive language set forth in section 66022, subdivision (c). That subdivision limits the application of the 120 day limitations period in section 66022 to charges imposed pursuant to sections 66013 and 66014, and section 66022 is therefore not designed to be an all-encompassing statute. (See N.T. Hill at p. 999, 85 Cal.Rptr.2d 562.) As we noted ante, capacity charges imposed against a public entity are special assessments, and special assessments are specifically excluded from the Mitigation Fee Act.
Under former section 54995, a 120-day statute of limitations existed. However, when the Legislature repealed and reenacted former section 54995 as section *110 66022, it specifically provided for a limited application of section 66022 in subdivision (c), which limitations did not appear in former section 54995. The San Marcos Legislation simply isn't provided for in the Mitigation Fee Act, and we presume the Legislature acted with full knowledge of existing laws when it excluded that body of legislation from the Mitigation Fee Act. (See In re Marriage of Cutler, supra, 79 Cal.App.4th at p. 475, 94 Cal.Rptr.2d 156.)
We also note that subsequent to the decision in San Marcos II and prior to the enactment of section 66022, the decision of Balch v. New Haven Unified School District (1990) 219 Cal.App.3d 783, 268 Cal. Rptr. 543 (hereafter Balch) was rendered. Balch held that former section 54995 applied only to fees and charges arising under former Chapter 13 of part 1 of division 2 of Title 5 of the Government Code, which encompassed former sections 54990 through 54994. (Balch, supra, 219 Cal. App.3d at p. 790, 268 Cal.Rptr. 543.) At the time Balch was issued, the San Marcos Legislation had been adopted, but was and is contained in Chapter 13.7 of part 1 of division 2 of Title 5 of the Government Code, and thus, under Balch former section 54995 was not applicable to actions pursuant to sections 54999.3 or 54999.4.
Our conclusion in this regard does not detract from our suggestion in N.T. Hill that San Marcos II supported the conclusions we reached in N.T. Hill. (N.T. Hill, supra, 72 Cal.App.4th at p. 997, 85 Cal. Rptr.2d 562.) N.T. Hill did not address special assessments imposed by one public entity against another and we noted in that opinion that some other limitations period might be applicable to special assessments. (Ibid.)
At the time sections 66013 and 66022 were enacted, sections 54999.3 and 54999.4 were in existence. Sections 54999.3 and 54999.4 became effective on March 24, 1988. (Stats.1988, ch. 53, § 1.) Sections 66013 and 66022 were enacted in 1990. (Stats.1990, ch. 1572, §§ 19 & 22.) Section 66013 was later amended effective September 29, 1996, and again effective January 1, 1999. (Stats.1996, ch. 1023, § 103; Stats. 1998, ch. 644, § 1.) Despite the fact that section 66013 was initially adopted, and also amended, after the enactment of the San Marcos Legislation, it does not once refer to that body of legislation.
Former section 54995 was adopted in 1982 (Stats.1982, ch. 289, § 5) and amended in 1988. (Stats.1988, ch. 926, § 2.) Former section 54995 set forth the time frame for commencing judicial actions or proceedings regarding ordinances, resolutions, or motions for fees or service charges. Section 66022 and related provisions were enacted in 1990 as Chapter 9 of Title 7 of the Government Code. (Stats.1990, ch. 1572, § 22.) That section 66022 is not designed to be an all-encompassing code section is evidenced not only by the restrictive language of subdivision (c) of that code section, but also by the legislative history. The statement of intent adopted by the Legislature at the time it enacted section 66022 and companion statutes states in relevant part:
"... This bill would consolidate certain ... provisions of existing law without substantive change and would make technical, clarifying, and corrective changes. [¶] ... [¶]
"This bill would state the intent of the Legislature not to alter specified provisions of law regarding liability of public entities for public utility capital facilities fees." (Legis.Counsel's Dig., Assem. Bill No. 3228, 5 Stats. 1990 (1989-1990 Reg. Sess.) Summary Dig., pp. 642-643.)
The bill enacting section 66022 then provided that numerous code sections were repealed, however, although sections appearing sequentially before and after section 54999.3 were affected, Chapter 13.7 of Title 5 of the Government Code, pertaining to the liability of public entities for public utilities capital facilities fees was specifically not affected. (Stats.1990, ch. 1572, § 29.)
We acknowledge that the express purpose behind section 66022 is to ensure that a local agency will be able to make concrete fiscal plans based upon prompt judicial review. (N.T. Hill, supra, 72 Cal. App.4th at p. 994, 85 Cal.Rptr.2d 562.) *111 However, there is no indication that the Legislature intended to prefer the public agency imposing the special assessment over the public agency responsible for payment of the special assessment. To the contrary, the language of section 54999.3 indicates that if any preference is expressed, it is in favor of the agency responsible for payment. Section 54999.3, subdivision (c), provides that the agency imposing or increasing the capital facilities fee has the burden of producing evidence to establish that the capital facilities fee is nondiscriminatory and does not exceed the formula established in that code section.
CONCLUSION
The San Marcos Legislation provides school districts with unique procedural rights not afforded in the Mitigation Fee Act. (See East Bay MUD, supra, 79 Cal. App.4th at p. 1252, 94 Cal.Rptr.2d 777.) Charges in excess of the maximum allowable under section 54999.3 may only be imposed in the context of an agreement between the public utility and the school district. (§ 54999.3, subd. (b).) Public entities, such as College, should be able to make fiscal decisions confident in the knowledge that the limits set forth in section 54999.3 will be complied with, or else the public funds improperly paid will be refunded under section 54999.4. An action for a refund of excess fees is not a validation action under section 66022. (See N.T. Hill, supra, 72 Cal.App.4th at p. 986, 85 Cal.Rptr.2d 562.)
We believe our interpretation of the Mitigation Fee Act and the San Marcos Legislation comply with the relevant principles of statutory construction, which is that we "must avoid if possible repeals by implication, give effect and significance to every word and phrase of a statute, and construe every statute in the context of the `entire scheme of law of which it is a part so that the whole may be harmonized and retain effectiveness.' [Citation.]" (N.T. Hill, supra, 72 Cal.App.4th at p. 990, 85 Cal. Rptr.2d 562.) Had the Legislature intended for actions under section 54999.4 to be subject to section 66022, or for fees imposed under section 54999.3 to fall within section 66013, that body had the ability and opportunity to so provide. Yet, in the enactment and subsequent amendments of the relevant statutes, it chose not to so provide. Under the plain language of the statutes and the principles of statutory construction, section 66022 does not apply to causes of action pursuant to section 54999.4.
DISPOSITION
The judgment is reversed and the case is remanded to the Superior Court of Kern County for further proceedings consistent with this opinion. Costs on appeal are awarded to appellant, Utility Cost Management.
WISEMAN, Acting P.J., and LEVY, J., concur.
EXHIBIT A[***]
NOTES
[*] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of Exhibit A.
[**] Judge of the Tulare Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California constitution.
[1] References to code sections are to the Government Code unless otherwise specified.
[2] UCM filed the complaint as the assignee of College. As the assignee, title to College's causes of action against Indian Wells passes to UCM. UCM is therefore the real party in interest and has the right to sue in its own name. (1 Witkin, Summary of California Law (9th ed. 1987) Contracts, § 945, p. 842.)
[3] The pertinent, specific allegations of the complaint are included in the unpublished appendix to this opinion.
[4] Although UCM at one point asserts that to be subject to section 66022 the charges must fall under both section 66013 and section 66014, we implicitly rejected this interpretation in N.T Hill. (N.T. Hill, supra, 72 Cal. App.4th at p. 984 & fn. 4, 85 Cal.Rptr.2d 562.)
[5] Section 66013 was amended again in 1998, effective January 1, 1999. (Stats.1998, c. 644, § 1.)
[6] In the case of East Bay MUD, supra, 79 Cal.App.4th at page 1249, 94 Cal.Rptr.2d 777, that appellate court rejected the argument that fees and charges subject to section 66022 must have been imposed in connection with a development project. This conclusion, however, appears to be contrary to the statutory language found in the Mitigation Fee Act, as well as the holdings of Capistrano, supra, 72 Cal.App.4th 524, 85 Cal.Rptr.2d 382 and N.T. Hill, supra, 72 Cal.App.4th 977, 85 Cal. Rptr.2d 562.
[7] Were it necessary to decide the issue, we would deem the San Marcos Legislation to be the more specific of the two statutory schemes.
[8] We acknowledge that Indian Wells relies on and cites several cases which addressed the application of section 66022 to challenges to fees and charges imposed against private developers. Because the instant case addresses the imposition of a special assessment under the San Marcos Legislation, rather than the imposition of a fee under the Mitigation Fee Act, we do not find those cases either controlling or persuasive.
[9] Former section 54995 (Stats.1988. ch. 926, § 2, p. 2952) provided:
"Any judicial action or proceeding to attack, review, set aside, void, or annul an ordinance, resolution, or motion levying a new fee or service charge, or modifying or amending an existing fee or service charge, duly enacted by a local agency, as defined in Section 54994, shall be commenced within 120 days of the effective date of the ordinance, resolution, or motion.
"If an ordinance, resolution, or motion provides for an automatic adjustment in a fee or service charge, and the automatic adjustment results in an increase in the amount of a fee or service charge, any action or proceeding to attack, review, set aside, void, or annul the increase shall be commenced within 120 days of the effective date of the increase."
[***] See footnote *, ante.
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FILED
United States Court of Appeals
Tenth Circuit
February 13, 2013
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JEFFREY A. BRUSHWOOD,
Petitioner–Appellant,
v. No. 12-6266
(D.C. No. 5:12-CV-00193-R)
ERIC FRANKLIN, (W.D. Okla.)
Respondent–Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
Petitioner Jeffrey Brushwood, a state prisoner proceeding pro se, seeks a certificate
of appealability to appeal the district court’s denial of his § 2254 habeas petition.
In May 2009, Petitioner was convicted by an Oklahoma jury of attempted rape.
He was sentenced to thirty years’ imprisonment. After receiving his sentence, Petitioner
filed a direct appeal to the Oklahoma Court of Criminal Appeals arguing that (1) Okla.
Stat. tit. 12, § 2413(A) is unconstitutional; (2) the trial court erred in admitting unfairly
*
This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
prejudicial propensity evidence; (3) the trial court violated his confrontation rights by
allowing the State to introduce the preliminary hearing testimony of the victim, who did
not testify during trial; and (4) his speedy trial rights were violated. The OCCA rejected
each of Petitioner’s arguments and affirmed his conviction. Petitioner then filed the
instant federal habeas petition reasserting the four arguments raised on direct appeal. The
district court denied his petition in its entirety. Petitioner now seeks a COA to appeal the
district court’s denial of his petition. He challenges only the district court’s conclusion on
his confrontation clause argument. (See Petitioner’s Br. at 4-5.)
An independent review of Petitioner’s federal habeas petition, the state appellate
briefs, and the record shows that reasonable jurists would not debate the district court’s
assessment of his confrontation clause claim. See Slack v. McDaniel, 529 U.S. 473, 484
(2000). “Supreme Court precedent has established that [admission of a witness’s
preliminary hearing testimony] does not violate the confrontation clause if the witness
was unavailable and the defendant had a prior opportunity to cross-examine the witness.”
Payne v. Lemaster, 351 F. App’x 302, 304 (10th Cir. 2009). Accordingly, and for
substantially the same reasons given by the magistrate judge and the district court,
Petitioner is not entitled to a COA.
In addition to seeking a COA, Petitioner appeals the district court’s refusal to
appoint counsel and, on appeal, appears to make a motion for appointment of counsel.
(Petitioner’s Br. at 3 (“I ask for the court to appoint me an attorney . . . .”).) He argues
that counsel should have been appointed because his confrontation clause claim “is a
-2-
complex issue for a pro se prisoner petitioner.” (Id.) However, we have held “that there
is no constitutional right to counsel beyond the appeal of a criminal conviction, and that
generally appointment of counsel in a § 2254 proceeding is left to the court’s discretion.”
Swazo v. Wyo. Dep’t of Corr. State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir.
1994). The district court refused to appoint counsel, noting “Petitioner never filed a
motion for appointment of counsel” and the court “failed to find any request for counsel
included in any of Petitioner’s pleadings or letters.” (R. at 224-25.) The district court
further concluded that “[e]ven if Petitioner had requested appointment of counsel . . . it
would not have been warranted.” (Id. at 225.) We conclude the district court acted
within its discretion in refusing to appoint counsel.
For the foregoing reasons, we DENY Petitioner’s request for a COA and
DISMISS the appeal. We DENY AS MOOT Petitioner’s motion for appointment of
counsel on appeal. Petitioner’s motion to proceed in forma pauperis is GRANTED.
Entered for the Court
Monroe G. McKay
Circuit Judge
-3-
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285 F.2d 836
Stanislaw Andreej GRZYMALA-SIEDLECKI, Appellant,v.UNITED STATES of America, Appellee.
No. 18318.
United States Court of Appeals Fifth Circuit.
Jan. 20, 1961.
Jack M. Thornton, Columbus, Ga., for appellant.
Kenneth C. Shelver, Washington, D.C., Truett Smith, Asst. U.S. Atty., Macon, Ga., Malcolm Richard Wilkey, Asst. Atty. Gen., Dept. of Justice, Washington, D.C., for appellee.
Before JONES, Circuit Judge, and JOHNSON and HOOPER, District Judges.
HOOPER, District Judge.
The sole question here presented is whether or not under the undisputed testimony of the appellant (herein referred to as the applicant) he is entitled to naturalization.
His petition for naturalization was rejected by the Immigration and Naturalization Service and was opposed before the trial judge who denied the same. Subsequently however, the Central Office of the Immigration and Naturalization Service after a study of the record, requested the trial judge to vacate his order and grant the application, but the judge declined to do so. The office of the Attorney General communicated with this court a desire to confess error on appeal, but was advised that this court desired to hear the appeal on its merits, which was done.
The question is whether or not under the undisputed facts in the record applicant comes within the exclusionary clause of 313 of the Immigration and Naturalization Act of 1952 (8 U.S.C.A. 1424) pertaining to persons who establish that membership in or affiliation with a Communist organization 'was for purposes of obtaining employment, food rations, or other essentials of living,' and was 'necessary for such purpose.' See 8 U.S.C.A. 1424(6)(d). As applicant was admittedly qualified in all other respects (among other things having had five years service in the United States Army with an honorable discharge) a determination of his rights depends upon a proper interpretation of the aforesaid statute.
The Evidence Adduced Before The Trial Court.
As stated above, the only evidence upon the question of the applicant's previous membership in a Communist dominated organization was given by himself, first before the Naturalization Examiner and subsequently to the court. There is nothing in the record to indicate any contradictions in his various statements, nor any reluctance by him to give all of the facts and circumstances surrounding his life and the details of his association with the Communist dominated government of Poland.
Applicant's father, an officer in the Polish Army, separated from his wife when applicant was a small boy, moving to Australia. Applicant's mother subsequently remarried, but her second husband had ill health with small earning capacity, and the burden of supporting a family (including applicant and two younger children) fell largely upon the mother. When applicant graduated from high school he found no opportunities for earning a livelihood absent a college education, but all schools of higher learning in Poland were then Communist dominated, and admission to any of them rendered the student automatically a member of a Communist controlled youth organization. Enrollment in said Naval Academy however, automatically carried with it membership in a Polish youth organization entitled Youth Zeiazek Mlodziesy Polakiej, also known as ZMP. He signed no applicaiton for membership, received no membership card and was never sworn in. His only participation in its activities was compulsory attendance at bi-monthly meetings while a student. At a few of the meetings he was required to make a brief talk to stimulate discussion, and then he chose economics as his subject.
In 1951 while a student at the Academy he returned to his home near the Polish-Czechoslovakian border and with two friends attempted to escape across the border by foot, but they were caught and questioned and applicant was allowed to return to school, the Communist authorities accepting his contention that he was not seeking to escape, but that should he desire to do so he would have better opportunities by virtue of his travels at the Naval Academy.
Completing his studies at the Naval Academy in May, 1952 he was sent on a pleasure cruise. While the ship was anchored at Genoa, Italy, he deserted the Polish ship and reported to the American Consulate, which in turn sent him to the Italian police. When questioned by the Italian Counter-Intelligence he furnished information concerning conditions in Poland and the armed strength of the Russians there. On being released applicant then participated in broadcasts to Poland for Radio Free Europe.
Upon learning of the Lodge Act, 64 Stat. 316 (under which he could enlist in the United States Army for a period of five years and after securing an honorable discharge seek United States citizenship) applicant went from Rome to West Germany and there in December, 1953 enlisted in the United States Army. He was brought to the United States on January 10, 1954, married an American citizen in July, 1958, and received his honorable discharge on December 2, 1958.
A careful reading of the entire record in this case convinces us that the trial judge, who wrote no opinion rejected this application upon the basis of the facts as contained in the testimony of the applicant, and there is nothing to indicate that he rejected any part of the applicant's testimony as being untrue.1
Had the trial judge with his opportunity to observe the manner and demeanor of the applicant as he testified accepted so much of his testimony as disclosed the applicant's membership in the organization in question, but on the other hand denied applicant's explanation and reasons therefor, a different result might be reached in this case. See Lum Jung Hop v. Herter, Secretary of State, 2 Cir., 282 F.2d 923, in which the trial judge considered applicant's testimony to be unsatisfactory, evasive and contradictory. See also Mitsugi Nishikawa v. Dulles, Secretary of State, 9 Cir., 235 F.2d 135(4). While applicant's testimony concerning his early life and conditions in Poland might not have been easily susceptible of verification or contradiction by the Government, the same cannot be said of his career since he landed in Genoa, Italy, and in no particular has any doubt been thrown upon the truthfulness of his story from that point. Other facts in the record will be discussed in the Opinion below:
(1) The Immigration and Naturalization Act of June 27, 1952 in 313 provides that no person shall thereafter be naturalized as a citizen of the United States who is, or within a period of ten years immediately preceding the filing of the petition for naturalization was, a member of or affiliated with the Communist or other totalitarian party of any foreign state. Such a person however, may be naturalized 'if such person establishes that such membership or affiliation if or was involuntary, * * * or was for purposes of obtaining employment, food rations, or other essentials of living and where necessary for such purposes.' See 8 U.S.C.A. 1424(6)(d).
We are not called upon to decide whether applicant's membership in this case was 'involuntary,' but his insistence is that his membership in the Communist youth organization in question 'was for purposes of obtaining employment, food rations, or other essentials of living,' and was 'necessary for such purposes.'
We are not even called upon to decide the narrow question as to whether an education beyond the high school level is included in the phrase 'other essentials of living,' for under the facts in this record he could not earn his livelihood in Poland without the additional education he sought.
The language of the statute in question was derived without change from the Act of March 28, 1951 (65 Stat. 28). When that Act was before Congress an amendment was offered by Senator Ferguson to make the ameliatory provision applicable to prior members of Communist organizations, and Senator Ferguson stated:
'The amendment would include all those who were Communists by conviction, what we might call mentally Communists. But it would not include those who really, in effect, never have been what I call mentally Communist-- those whose Communist affiliation was nominal or involuntary.' 97 Cong.Rec., 2368.
In Galvan v. Press, 347 U.S. 522, at page 527, 74 S.Ct. 737, at page 741, 98 L.Ed. 911 Mr. Justice Frankfurter, referring to the exceptions herein under discussion, expressed this thought:
1
'Congress did not provide that the three types of situations it enumerated in the 1951 corrective statute should be the only instances where membership is so nominal as to keep an alien out of the deportable class.'
2
And, 347 U.S. on page 529, 74 S.Ct. on page 741:
3
'And even if petitioner was unaware of the Party's advocacy of violence, as he attempted to prove, the record does not show a relationship to the Party so nominal as not to make him a 'member' within the terms of the Act.'
4
Counsel for the applicant cites and relies entirely upon decision of the United States Supreme Court in Rowoldt v. Perfetto, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140, involving provisions in the Act of 1951 identical with the statute now under consideration.
5
In that case an alien was ordered deported for past membership in the Communist Party, the trial judge on a habeas corpus hearing denied him relief, and on appeal this judgment was affirmed. On review, however, the Supreme Court ruled that the evidence, consisting entirely of petitioner's own testimony, was 'too insubstantial to establish that petitioner's membership was the kind of meaningful association required by 22 as amended by the Act of March 28, 1951, to support an order of deportation.' In that case the alien testified that his membership in the Communist organization was obtained in order to get food, but he admitted that he had operated for a year in behalf of the Communists a book store which was 'an official outlet for Communist literature.' The Supreme Court reversed the judgment of the District Court, using this language:
6
'We cannot say that the unchallenged account given by petitioner of his relations to the Communist Party establishes the kind of meaningful association required by the alleviating Amendment of 1951 as expounded by its sponsor, Senator McCarran, and his legislative collaborator, Senator Ferguson * * * From his own testimony in 1947, which is all there is, the dominating impulse of his 'affiliation' with the Communist Party may well have been wholly devoid of any 'political' implications.'
7
We therefore give to the statute in question a liberal interpretation and rule that the intent and purpose of Congress in the enactment of the aforesaid statute demands a ruling by this court to the effect that applicant's membership in the Communist dominated youth organization, within ten years of his application for naturalization, under the circumstances then existing brings the applicant within the exclusions provided in said statute, and that his application must be granted.
8
Our ruling is based upon what we consider a proper construction of the exceptions contained in the statute, towit, that applicant's affiliation was for the purpose of obtaining the necessities of life, and we do not find it necessary to decide whether Congress intended the exclusions to cover any purposes other than those enumerated. On the other hand it should be noted that Congress, with many of the circumstances enumerated being within their knowledge, made their exceptions rather specific. Membership in the Communist Party was not restricted to 'meaningful membership' nor was 'nominal membership' excepted.
9
The case is therefore remanded to the District Court for such further action as is consistent herewith, judgment reversed.
10
JONES, Circuit Judge (dissenting).
11
It seems to me that it has been established that the appellant knowingly joined the Communist Party and in doing so he knew it was a distinct and active political organization; and his membership was more than nominal. Commendable as is the desire for a college education, the hope of procuring thereby a higher standard of living does not meet the test of getting the necessaries of life. I think that the case is controlled by Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911, rather than by Rowoldt v. Perfetto, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140. Therefore I dissent.
1
The trial judge must have felt some regret in making this rejection as he stated: 'Now, let me say to the petitioner that I find myself admiring him very much.'
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813 F.2d 198
Williams C. HALL and Jean G. Hall, Plaintiffs-Appellants.v.CITY OF SANTA BARBARA, Defendant-Appellee.
No. 85-5838.
United States Court of Appeals, Ninth Circuit.
Argued March 5, 1986.Submitted April 11, 1986.Decided Aug. 22, 1986.As Amended March 9, 1987.Opinion on Denial of Rehearing and Rehearing En Banc March 9, 1987.
Robert J. Jagiello, Santa Monica, Cal., for plaintiffs-appellants.
David B. Koff, Latham & Watkins, Los Angeles, Cal., for amicus curiae plaintiffs-appellants.
Steven A. Amerikaner, City Atty., Santa Barbara, Cal., for defendant-appellee.
Michael Jenkins, City Atty. of the City of Westlake Village, Richards, Watson, Dreyfuss & Gershan, Los Angeles, Cal., for amicus curiae defendant-appellee.
Appeal from the United States District Court For the Central District of California.
Before SNEED and KOZINSKI, Circuit Judges; and SOLOMON,* District Judge.
AMENDED OPINION
KOZINSKI, Circuit Judge.
1
We review the district court's dismissal of plaintiffs' lawsuit seeking compensation for an alleged taking of property resulting from the operation of Santa Barbara's mobile home rent control ordinance.
Facts
2
Williams and Jean Hall own and operate the Los Amigos Mobile Home Estates, a mobile home park within the City of Santa Barbara. They provide tenants a plot of land and access to certain amenities such as water and electricity. Tenants install mobile homes, paying rent for use of the land and facilities.
3
Mobile homes are mobile only in the sense that they are not permanently anchored to a foundation. However, many mobile homes have no wheels and bear no other close resemblance to a motor vehicle. Nevertheless, in California they must display motor vehicle license plates, Cal.Veh.Code § 5352 (West 1971 & Supp.1986), and are considered personal property (exempt from real property tax). Cal.Rev. & Tax.Code § 5810 (West Supp.1986).
4
While tenants are free to remove their mobile homes when they move, in practice they rarely do so. California law normally prohibits mobile park operators from forcing tenants to remove mobile homes. Cal.Civ.Code § 798.73 (West 1982 & Supp.1986). Tenants typically sell their homes to buyers who then succeed them as tenants of the mobile home park.
5
In August 1984 the City of Santa Barbara enacted a rent control ordinance applicable to mobile home parks. Santa Barbara, Cal., City Council Ordinance No. 4285, ch. 26.08 (Aug. 14, 1984) (hereinafter S.B.Ord.) The ordinance requires mobile park operators to offer their tenants leases of unlimited duration. These leases must provide certain key terms: They must be terminable by the tenants at will,1 but by the mobile home operator only for cause, narrowly defined by the ordinance;2 rent increases are strictly limited;3 and disputes about rent or lease terms are made subject to binding arbitration. S.B.Ord. § 26.08.040.
6
The Halls brought this action under 42 U.S.C. § 1983,4 claiming that the ordinance effected a taking of their property and that such taking was neither for a public purpose nor justly compensated. Plaintiffs' claim was a novel one: they argued that by giving tenants the right to a perpetual lease at a below-market rental rate, the ordinance transfers to each of them a possessory interest in the land on which their mobile home is located. According to the Halls, this interest has a market value and a market: the market for mobile homes located in mobile home parks. According to the Halls, the price of mobile homes in their park shot up dramatically after enactment of the ordinance, with many selling far above their blue book value.5 They claim that the substantial premium paid for mobile homes in parks subject to the Santa Barbara Ordinance reflects the transfer of a valuable property right to occupy mobile home parks at below-market rates.
7
The City of Santa Barbara filed a motion to dismiss and the Halls filed an opposition.6 At a hearing held on April 15, 1985, the district court granted the motion.7 The Halls appealed.
Discussion8
8
It is axiomatic that "[t]he motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted." 5 C. Wright & A. Miller, Federal Practice & Procedure, Civil § 1357, at 598 (1969).9 This admonition is perhaps nowhere so apt as in cases involving claims of inverse condemnation where the Supreme Court itself has admitted its inability "to develop any 'set formula' " for determining when compensation should be paid, Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978), resorting instead to "essentially ad hoc, factual inquiries" to resolve this difficult question. MacDonald, Sommer & Frates v. Yolo County, --- U.S. ----, ----, 106 S.Ct. 2561, 2566-67, 91 L.Ed.2d 285 (1986); Kaiser Aetna v. United States, 444 U.S. 164, 175, 100 S.Ct. 383, 390, 62 L.Ed.2d 332 (1979). While dismissal of a complaint for inverse condemnation is not always inappropriate, such a dismissal must be reviewed with particular skepticism to assure that plaintiffs are not denied a full and fair opportunity to present their claims. See Whitney Benefits, Inc. v. United States, 752 F.2d 1554, 1558-60 (Fed.Cir.1985); Yuba Goldfields, Inc. v. United States, 723 F.2d 884, 887 (Fed.Cir.1983).
9
In adjudicating a claim such as that presented by the Halls the court must resolve three questions: (1) Did the governmental action amount to a taking of property? See, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1000, 104 S.Ct. 2862, 2872, 81 L.Ed.2d 815 (1984). (2) Did it advance a legitimate governmental interest? See, e.g., Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980). (3) Was there just compensation? See, e.g., Kaiser Aetna, 444 U.S. at 179-80, 100 S.Ct. at 392-93. If the first question is answered in the affirmative and either of the remaining two in the negative, plaintiffs prevail; otherwise they lose. In determining whether plaintiffs' case was properly dismissed, we examine each of these issues in turn, assuming, of course, that plaintiffs' allegations are all true.
10
1. Was There a Taking of Property?
11
Supreme Court cases addressing this question can be divided into two lines of authority:10 the so-called regulatory taking cases11 and the physical occupation cases.12 Regulatory taking cases are those where the value or usefulness of private property is diminished by regulatory action not involving a physical occupation of the property. A typical case of this sort is Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), where New York City prohibited Penn Central from building a 55-story office tower over its Grand Central Terminal. Despite the drastic diminution in the value and usefulness of Penn Central's property, the Court held that the city's action did not amount to a taking.
12
Physical occupation cases are those where the government physically intrudes upon private property either directly or by authorizing others to do so. A typical case is Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), where New York City authorized Teleprompter to string 36 feet of one-half inch coaxial cable and place two switchboxes, all amounting to about one and one half cubic feet, on a private building. Despite the minimal burden placed on the property owner, the Court in Loretto held that a taking had occurred.
13
As Penn Central and Loretto demonstrate, the Court reaches dramatically different results depending on whether it concludes that a particular governmental action amounts to a physical occupation of property or merely a regulation. See R. Epstein, Takings 49-50, 94 (1985) (hereinafter Epstein).13 As the Court explained in Loretto, the distinction lies in the fact that "a physical invasion [of property] is a government intrusion of an unusually serious character" for purposes of the taking clause. 458 U.S. at 433, 102 S.Ct. at 3175 (footnote omitted). Indeed, "a permanent physical occupation is a government action of such a unique character that it is a taking without regard to other factors that a court might ordinarily examine," id. at 432, 102 S.Ct. at 3174 (footnote omitted), and "without regard to the public interests that it may serve." Id. at 426, 102 S.Ct. at 3171. Elsewhere the Court noted that "when the 'character of the governmental action,' Penn Central, 438 U.S., at 124, 98 S.Ct., at 2659, is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner." Loretto, 458 U.S. at 434-35, 102 S.Ct. at 3175-76. See also Kaiser Aetna, 444 U.S. at 179-80, 100 S.Ct. at 392-93 ("the 'right to exclude,' so universally held to be a fundamental element of the property right, falls within this category of interests that the Government cannot take without compensation").
14
When viewed in the light most favorable to the Halls, the allegations of the complaint seem to present a claim for taking by physical occupation, as in Loretto, Kaiser-Aetna and their precursors. Reduced to its essentials, appellants' claim is that the Santa Barbara ordinance has transferred a possessory interest in their land to each of their 71 tenants; that this interest consists of the right to occupy the property in perpetuity while paying only a fraction of what it is worth in rent; and that this interest is transferable, has an established market and a market value. If proven, appellants' claims would amount to the type of interference with the property owner's rights the Court described so eloquently in Loretto. See Fresh Pond Shopping Center, Inc. v. Callahan, 464 U.S. 875, 104 S.Ct. 218, 78 L.Ed.2d 215 (1983) (Rehnquist, J., dissenting from dismissal for want of substantial federal question).14
15
The right to occupy property in perpetuity is surely the type of interest that is protected by the taking clause.15 See United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 359, 89 L.Ed. 311 (1945). Moreover, certain features of the Santa Barbara ordinance, and the way it is alleged to operate, make it peculiarly susceptible to the claim presented by the Halls. Thus, the ordinance directs the landlord to give tenants a lease, a recognized estate in land, lasting indefinitely.16 Moreover, the landlord's residual rights in the property are largely at the mercy of his tenants; he loses practically all right to decide who occupies the property, and on what terms. If a tenant moves, the tenant alone decides who will be his successor by selecting the buyer for his rental unit; the landlord has no meaningful say as to who will live on the property, now or in the future.
16
Moreover, because of the way the ordinance is alleged to operate, the tenant is able to derive an economic benefit from the statutory leasehold by capturing a rent control premium when he sells his mobile home. In effect, the tenant is given an economic interest in the land that he can use, sell or give away at his pleasure; this interest (or its monetary equivalent) is the tenant's to keep or use, whether or not he continues to be a tenant. If the Halls' allegations are proven true, it would be difficult to say that the ordinance does not transfer an interest in their land to others. See also pp. 205-06 infra.
17
Loretto's explanation as to why a physical invasion of property is such a serious interference with the property owner's rights strongly supports the Halls' claim that they suffered a taking:
18
Property rights in a physical thing have been described as the rights "to possess, use and dispose of it." United States v. General Motors Corp., 323 U.S. 373, 378 [65 S.Ct. 357, 359, 89 L.Ed. 311] (1945). To the extent that the government permanently occupies physical property, it effectively destroys each of these rights. First, the owner has no right to possess the occupied space himself, and also has no power to exclude the occupier from possession and use of the space. The power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights. See Kaiser Aetna, 444 U.S., at 179-180 [100 S.Ct., at 392-93]; see also Restatement of Property § 7 (1936). Second, the permanent physical occupation of property forever denies the owner any power to control the use of the property; he not only cannot exclude others, but can make no nonpossessory use of the property. Although deprivation of the right to use and obtain a profit from property is not, in every case, independently sufficient to establish a taking, see Andrus v. Allard, [444 U.S. 51] at 66 [100 S.Ct. 318 at 327, 62 L.Ed.2d 210], it is clearly relevant. Finally, even though the owner may retain the bare legal right to dispose of the occupied space by transfer or sale, the permanent occupation of that space by a stranger will ordinarily empty the right of any value, since the purchaser will also be unable to make any use of the property.
19
Loretto, 458 U.S. at 435-36, 102 S.Ct. at 3176 (emphasis original; footnote omitted).
20
Appellee's arguments supporting the district court's dismissal are not persuasive. Thus, it does not matter that the tenants' right to occupy space in the Los Amigos Home Estates is not truly perpetual because the ordinance might someday be repealed. A governmental taking can always be undone if the government so chooses. That has never defeated a taking claim. See, e.g., cases cited nn. 201-02 supra. See also San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 656-57, 101 S.Ct. 1287, 1306-07, 67 L.Ed.2d 551 (1981) (Brennan, J., dissenting).17 Nor does the fact that tenants may be removed for cause, see p. 200 & n. 2 supra, defeat the Halls' claim. The ability to remove tenants for cause may lessen somewhat the economic impact of the Santa Barbara ordinance; it does not change the fact that tenants are given an indefeasible right to possession so long as they pay the controlled rent and behave themselves.
21
Nor does it matter that the physical occupation here is by tenants and not by the City of Santa Barbara itself. The Court addressed this point in Loretto, holding that "[a] permanent physical occupation authorized by state law is a taking without regard to whether the State, or instead a party authorized by the State, is the occupant." 458 U.S. at 433 n. 9, 102 S.Ct. at 3174 n. 9; see Epstein at 187. Also put to rest by Loretto is the notion that the physical occupation is not permanent where the landlord could evict the tenants by going out of business.18 The Court gave short shrift to this argument, noting that "a landlord's ability to rent his property may not be conditioned on his forfeiting the right to compensation for a physical occupation." Loretto, 458 U.S. at 439 n. 17, 102 S.Ct. at 3178 n. 17.
22
The city's argument that appellants are adequately compensated by the rents they receive is irrelevant to the determination of whether a taking has occurred. See Troy Ltd. v. Renna, 727 F.2d 287, 300 (3d Cir.1984). Whether a compensation is adequate is an inquiry separate from whether there has been a taking. In Loretto, for example, state law provided for compensation. The Court nevertheless determined that there was a taking through physical occupation. It left it to the state courts to determine whether the compensation provided was adequate. 458 U.S. at 441, 102 S.Ct. at 3179. We address this question below. See p. 208 infra.
23
Finally, the city cites various cases,19 some of them decided since Loretto,20 where rent control statutes or ordinances have been upheld. Essentially, the city suggests that, whatever the applicability of taking law to other governmental actions, rent control is conclusively constitutional. We cannot agree. In light of the Supreme Court's own unwillingness to provide any hard and fast rules in this sensitive area, we cannot indulge the notion that a city may eviscerate a property owner's rights and shield its action from constitutional scrutiny by calling it rent control.21
24
We have examined the cases cited by the city and find them distinguishable in a way we think the Supreme Court would find material. In none of the cited cases has the landlord claimed that the tenant's right to possess the property at reduced rental rates was transferable to others, that it had a market value, that it was in fact traded on the open market and that tenants were reaping a monetary windfall by selling this right to others.
25
This is not a minor difference; it is crucial. The fact that the tenant can sell his interest to third parties drastically affects the economic realities of the landlord/tenant relationship. The typical rent control statute modifies the landlord/tenant relationship somewhat to protect tenants from perceived evils of the free-enterprise system. But see n. 26 infra. By contrast, the Santa Barbara Ordinance, as it is alleged to operate, changes the fundamental relationship between the parties, giving landlord and tenant complementary estates in the same land. On the one hand, the landlord loses forever a fundamental aspect of fee simple ownership: the right to control who will occupy his property and on what terms. On the other hand, the tenant gets an interest that he can liquidate and take with him when he leaves the property, or even the City of Santa Barbara.
26
That tenants normally cannot sell their rights in rent controlled property provides important safeguards for landlords. Tenants, like the rest of us, are not immortal; nor are they immune to the normal familial and economic pressures that occasion vacancies even in rent controlled housing.22 If they are denied the right to cash out, tenants can enjoy the benefits of rent control only so long as they remain tenants, not beyond. When the premises become vacant, the landlord is able to reassert a measure of control over the property. He may chose to occupy it himself; or to allow a friend or relative to stay there; or to keep it vacant; or make improvements in the hope of raising the rent to the extent allowed by law; or to rent it to a new tenant, presumably making the selection on the basis of factors that will maximize his total return from the property.23 Between tenants, the landlord can thus assert important prerogatives as property owner and make significant decisions as to the property's use. The tenant, for his part, must make difficult choices: if he wants the benefits of the rent control ordinance, he must stay put. If he wants to leave, he must give up a good thing.24
27
In short, under a rent control scheme where the tenant is not allowed to monetize his rights, benefits and burdens are shifted somewhat between landlord and tenant, but neither gets the full bundle of sticks. By contrast, as the Santa Barbara ordinance is alleged to operate, landlords are left with the right to collect reduced rents while tenants have practically all other rights in the property they occupy. As we read the Supreme Court's pronouncements, score; we merely hold that the issue must be considered and addressed by the district court on the basis of a complete record.26 this oversteps the boundaries of mere regulation and shades into permanent occupation of the property for which compensation is due.
28
2. Did the Ordinance Substantially Advance a Legitimate
29
State Interest?
30
We first note a potentially significant difference in the standard by which governmental action must be adjudged depending on whether it is a deliberate exercise of the eminent domain power or regulatory action that results in an incidental taking. In Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984), the Court explored the meaning of the "public use" requirement in the fifth amendment's eminent domain clause. The Court held that "[t]he 'public use' requirement is ... coterminous with the scope of a sovereign's police powers." 467 U.S. at 240, 104 S.Ct. at 2329. The Court also held that it would not "substitute its judgment for a legislature's judgment as to what constitutes a public use 'unless the use be palpably without reasonable foundation.' " 467 U.S. at 241, 104 S.Ct. at 2329 (quoting United States v. Gettysburg Electric R.R., 160 U.S. 668, 680, 16 S.Ct. 427, 429, 40 L.Ed. 576 (1896)).
31
The Court in Midkiff did not address the somewhat different articulation of the standard applicable in cases where there was no deliberate exercise of the eminent domain power. For example, it did not mention Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), where it had noted that "[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests...." Id. at 260, 100 S.Ct. at 2141 (citing Nectow v. City of Cambridge, 277 U.S. 183, 188, 48 S.Ct. 447, 448, 72 L.Ed. 842 (1928)); see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 459, 88 L.Ed.2d 419 (1985) (citing Agins ); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 2182, 68 L.Ed.2d 671 (1981) (same). The Midkiff Court left open the possibility that less deference would be afforded where government does not intend to effect a taking than where it does. See Midkiff, 467 U.S. at 241, 104 S.Ct. at 2329-30 (distinguishing Missouri Pacific R.R. v. Nebraska, 164 U.S. 403, 416, 17 S.Ct. 130, 135, 41 L.Ed. 489 (1896), on the ground that "the 'order in question was not, and was not claimed to be [emphasis original], ... a taking of private property for a public use under the right of eminent domain' ").25
32
Even under the deferential Midkiff standard, public use is not established as a matter of law whenever the legislature acts. While the scope of judicial scrutiny is narrow, "[t]here is, of course, a role for courts to play in reviewing a legislature's judgment of what constitutes a public use, even when the eminent domain power is equated with the police power." Midkiff, 467 U.S. at 240, 104 S.Ct. at 2329. The test appears to be whether the legislature chose an objective that is within its authority under the police power, and whether it "rationally could have believed that the [Act] would promote its objective." 467 U.S. at 242, 104 S.Ct. at 2330 (emphasis original) (quoting Western & Southern Life Insurance Co. v. State Board of Equalization, 451 U.S. 648, 671-72, 101 S.Ct. 2070, 2084-85, 68 L.Ed.2d 514 (1981)). The test in inverse condemnation cases may well be more stringent.
33
Here, the Santa Barbara City Council enacted the ordinance to alleviate what it perceived as "a critical shortage of low and moderate income housing." S.B.Ord. § 26.08.020A. If appellants' allegations are substantiated, there would be significant doubt whether these purposes are achieved, or could rationally be thought achievable, by means of the ordinance.
34
If appellants are able to prove their allegations, it would seem that the Santa Barbara ordinance will do little more than give a windfall to current mobile park tenants at the expense of current mobile park owners. If, as appellants allege, the ordinance has resulted in a substantial increase in the market price of mobile homes subject to the ordinance, this may well hinder rather than assist lower-income families seeking access to rental units in mobile park homes. We express no view on this score; we merely hold that the issue must be considered and addressed by the district court on the basis of a complete record.26
35
3. Was Adequate Compensation Paid?
36
The adequacy of compensation, if any, paid to appellants is yet another inquiry fraught with factual uncertainty. The city would short-circuit this process by arguing that appellants are adequately compensated because they are entitled to rent that assures them a fair return on their investment. That, however, is not the test in cases involving a claim of taking by physical invasion, as opposed to mere regulation. For example, Mrs. Loretto's claim was not defeated because she continued to collect rents on the apartment building upon which the cable was strung. See Loretto, 458 U.S. at 442, 102 S.Ct. at 3179-80.27
37
Here, the rental payments compensate the Halls for use of the land during the rental period, plus whatever amenities they provide tenants. However, if their claim is substantiated, the Halls are entitled to additional compensation for the taking of their property: the possessory interest in the land allegedly transferred to each of their tenants. It may well be that the rental payments (together with such increases as are permitted under the ordinance) adequately compensate the Halls for the taking of their property. However, this cannot be assumed; it must be proven. To make this determination, the court must ascertain the value of the interest allegedly transferred to each tenant and the value of what the Halls received, if anything, in addition to normal rental payments. All these are matters that must be considered by the district court on remand.28
Conclusion
38
Because there has been no trial, we cannot and do not express any view as to whether the Santa Barbara ordinance constitutes a taking. We hold only that, on the facts alleged, it may, and that at this stage we are unable to resolve this fact-bound issue. In such circumstances, the motion to dismiss was improvidently granted and we remand the case to the district court for further proceedings consistent with this opinion.
39
Before SNEED and KOZINSKI, Circuit Judges, and SOLOMON,* District Judge.
ORDER
40
The panel, as constituted above, has unanimously voted to deny the petition for rehearing and to reject the suggestion for a rehearing en banc.
41
The full court has been advised of the suggestion for en banc rehearing and upon the vote of the eligible judges in active service, a majority failed to vote for en banc rehearing.
42
The petition for rehearing is DENIED, and the suggestion for a rehearing en banc is REJECTED.
43
SCHROEDER, Circuit Judge, with whom NELSON and NORRIS, Circuit Judges join, dissenting from the denial of en banc hearing:
44
I respectfully dissent from the order denying en banc reconsideration of this case. The panel opinion holds that a city regulation controlling mobile home park rents may be a physical taking compensable under the fifth and fourteenth amendments. Hall v. City of Santa Barbara, 797 F.2d 1493 (9th Cir.1986). The ordinance at issue, however, is in all material respects identical to three rent regulation challenges that the Supreme Court dismissed in recent years as lacking a substantial federal question. Fisher v. City of Berkeley, 471 U.S. 1124, 105 S.Ct. 2653, 86 L.Ed.2d 270 (1985); Nash v. City of Santa Monica, 470 U.S. 1046, 105 S.Ct. 1740, 84 L.Ed.2d 807 (1985); Fresh Pond Shopping Center, Inc. v. Callahan, 464 U.S. 875, 104 S.Ct. 218, 78 L.Ed.2d 215 (1983). The panel decision is thus contrary to controlling authority. The decision also conflicts with another circuit's opinion rejecting a similar taking challenge in light of the Supreme Court's dismissal of Fresh Pond. Troy Ltd. v. Renna, 727 F.2d 287, 303 (3d Cir.1984) (upholding tenancy act protecting senior citizens and disabled persons).
45
The panel opinion attempts to distinguish this case because, under a state statute unrelated to rent control, the tenant has the right to sell the mobile home without removing it from the park. Hall, 797 F.2d at 1501-02 (discussing effects of Cal.Civ.Code § 798.73 (West 1982 & Supp.1986)). Rent control makes these on-site sales attractive to buyer and seller. Santa Barbara's ordinance, however, has the same effect on the landlord as the rent ordinances in Fisher, Nash, Fresh Pond, and Troy. The landlord must allow tenants to live in mobile home parks under controlled rent so long as they do not give any cause for eviction. S.B.Ord. § 26.08.040.
46
The reason that the Supreme Court has had little difficulty with rent control cases is that economic regulation of landowners' profit does not constitute a taking so long as the owner is allowed a reasonable return on investment. See, e.g., Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 106 S.Ct. 1018, 1026-27, 89 L.Ed.2d 166 (1986); United States v. Riverside Bayview Homes, Inc., --- U.S. ----, 106 S.Ct. 455, 460 n. 6, 88 L.Ed.2d 419 (1985); Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 3119, 87 L.Ed.2d 126 (1985); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005, 104 S.Ct. 2862, 2875, 81 L.Ed.2d 815 (1984); Pruneyard Shopping Center v. Robins, 447 U.S. 74, 83, 100 S.Ct. 2035, 2042, 64 L.Ed.2d 741 (1980); Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124-25, 98 S.Ct. 2646, 2659-60, 57 L.Ed.2d 631 (1978). See also Troy, 727 F.2d at 300; Kargman v. Sullivan, 582 F.2d 131, 134 (1st Cir.1978). The Santa Barbara ordinance does not deprive landlords of a reasonable return on their investment. In fact, the ordinance mandates that park owners receive a fair investment return. S.B.Ord. § 26.08.020(D).
47
The panel therefore attempts to distinguish this case from all other cases involving economic regulation of property by asserting that the claimed interference here is tantamount to a "physical invasion" of the property. Hall, 797 F.2d at 1498. This is, of course, the same argument the Supreme Court refused to consider in Fresh Pond; the Hall analysis is borrowed from Justice Rehnquist's lone dissent from that dismissal. 464 U.S. at 875, 104 S.Ct. at 218 (Rehnquist, J., dissenting).
48
The panel acknowledges that the economic regulation cases withstand even "drastic diminution in the value and usefulness" of property. Hall, 797 F.2d at 1497 (citing Penn Central ). Because the Supreme Court held in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), that the extent of interference with the actual use of the property becomes irrelevant when the deprivation is physical, the panel is forced to characterize this ordinance as authorizing a "physical occupation." Its decision relies almost exclusively upon Justice Marshall's opinion in Loretto. That opinion therefore deserves close attention.
49
Loretto makes a sharp distinction between permanent, physical occupations, on the one hand, and regulations impairing use, or even causing temporary injury to property, on the other. The hallmark of the physical invasion described in Loretto is actual appropriation of the land itself through physical contact, as, for example, through flooding or direct occupancy. Loretto concerned the installation of cable, a "direct physical attachment of plates, boxes, wires, bolts, and screws to the building, completely occupying space immediately above and upon the roof and along the building's exterior wall." Id. at 438, 102 S.Ct. at 3177. Under the Loretto analysis, "placement of a fixed structure on land or real property is an obvious fact that will rarely be subject to dispute." Id. at 437, 102 S.Ct. at 3177. Once the fact of occupation is shown, compensation is required regardless of the extent of the physical occupation. Id. at 436-37, 102 S.Ct. 3176-77. Thus Loretto holds that physical invasion requires compensation for a relatively minor and almost insignificant interference with the use of property. Moreover, a taking can be found under this theory without consideration of the important public benefits achieved by the action. Id. at 434-35, 102 S.Ct. at 3175.
50
The panel's appellation of rent control as a "physical invasion," is built upon the notion that economic regulation can "shade" into physical invasion. Hall, 797 F.2d at 1502. This is antithetical to the reasoning of Loretto. In the final pages of Loretto, the Court expressly characterized its holding as a "very narrow" one, 419 U.S. at 441, 102 S.Ct. 3179, and distinguished the physical occupation from cases involving the government's power to regulate land--specifically, landlord-tenant relationships.
51
Finally, we do not agree with appellees that application of the physical occupation rule will have dire consequences for the government's power to adjust landlord-tenant relationships. This Court has consistently affirmed that States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails. See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (discrimination in places of public accommodation); Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 66 S.Ct. 850, 90 L.Ed. 1096 (1946) (fire regulation); Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892 (1944) (rent control); Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934) (mortgage moratorium); Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242, 42 S.Ct. 289, 66 L.Ed. 595 (1922) (emergency housing law); Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865 (1921) (rent control).
52
Id. at 440, 102 S.Ct. 3178. We now in this circuit face, as a result of the Hall opinion, the very "dire consequences" that the Court intended to avoid in Loretto.
53
In addition to all of these infirmities, the Hall opinion in Part II adopts a view, heretofore spurned by the Supreme Court as a tool of constitutional analysis, which may well create even broader turmoil in other fields of economic regulation. 797 F.2d at 1502-03. It endorses the proposition that the constitutionality of a regulation depends not upon a court's assessment of its legal consequences, but upon economists' assessment of its practical effectiveness. The panel suggests in a footnote, for example, that we may have to reassess the rationality of "rent control vel non " in light of the growing literature on the subject. Id. at 1503 n. 26.
54
The opinion acknowledges that the Santa Barbara City Council enacted the ordinance "to alleviate what it perceived as [a] 'critical shortage of low and moderate income housing.' " Id. at 1503. Then it assails the ordinance for failing to live up to that purpose. Id. "Significant doubt" as to whether a legislative body's goals are in fact achieved is not sufficient to warrant striking down an ordinance, however. Legislation passes muster if the legislature reasonably could have concluded that its action would promote a legitimate state interest. Williams v. Vermont, 472 U.S. 14, 105 S.Ct. 2465, 2472, 86 L.Ed.2d 11 (1985). The judiciary does not have the power to sit as a "superlegislature" second-guessing the wholly economic regulations of state and local governments. City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516-17, 49 L.Ed.2d 511 (1976) (per curiam).
55
This case is important. Although it is not a decision on the merits invalidating any ordinance, it is an authorization for broad, wholesale attacks upon rent control regulation. It casts a shadow upon all economic regulation. Our court must now sit idly by and watch taxpayers' money and court time being expended in litigation over the effects of this decision. I regret that we did not take this case en banc and put our circuit back in line with the Supreme Court and the rest of the country.
*
The Honorable Gus J. Solomon, Senior United States District Judge for the District of Oregon, sitting by designation
1
While this is not explicitly stated in the ordinance, it appears implicit in the regulatory scheme and has been so treated by the parties. See S.B.Ord. § 26.080.040A. As with much else on this record, we have to surmise what remedies the ordinance may give the landlord in case of a tenant's untimely termination of the lease
2
A lease may be terminated only for one of the following reasons: (1) failure to comply with a local or state mobile home regulation; (2) conduct that constitutes substantial annoyance to other residents; (3) failure to comply with lease provisions or reasonable park rules; (4) non-payment of rent, utility charges or reasonable service charges; (5) condemnation of the park; (6) change in use of the park in accordance with California Civil Code Section 798.56(f); (7) cessation of occupancy by the tenant. S.B.Ord. § 26.08.040A
3
A park owner may unilaterally increase the rent once a year by three percent or by three-quarters of the increase in the Consumer Price Index, whichever is greater. S.B.Ord. § 26.080.040C. If the owner seeks a larger increase, he must submit his request to arbitration. Id. § 26.080.040C, D. In addition, whenever the space becomes vacant, the landlord may raise the rent by up to 10%
4
The City of Santa Barbara is a "person" amenable to suit under 42 U.S.C. § 1983. Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673 (1980)
5
The blue book is the Kelley Blue Book for Manufactured Housing (Mobile Homes), published by the Kelley Blue Book Company of Costa Mesa, California. Like the similar blue book for automobiles, it is the standard reference for prices of mobile homes
6
Although the Halls' complaint was somewhat elliptical, the opposition to the motion to dismiss fairly advised defendant and the district court as to the nature of plaintiffs' claim. Under such circumstances, leave to amend the complaint, rather than dismissal, is the appropriate course of action. See Forman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Scott v. Eversole Mortuary, 522 F.2d 1110 (9th Cir.1975). We believe the district court abused its discretion by dismissing rather than giving plaintiffs an opportunity to amend the complaint
7
Because the district court did not prepare a written opinion, we would have found it useful to review a transcript of the hearing on the motion to dismiss, and particularly the district judge's bench ruling. Unfortunately, neither party made a transcript available
8
A dismissal for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) is a ruling on a question of law and as such is reviewable de novo. Guillory v. County of Orange, 731 F.2d 1379, 1381 (9th Cir.1984)
9
"[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). All allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Sanders v. Kennedy, 794 F.2d 478, 481 (9th Cir.1986); North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 580 (9th Cir.1983)
10
The Court noted the existence of these two lines of authority in Loretto v. Teleprompter Manhattan CATV Corp.:
Since these early cases, this Court has consistently distinguished between flooding cases involving a permanent physical occupation, on the one hand, and cases involving a more temporary invasion, or government action outside the owner's property that causes consequential damages within, on the other. A taking has always been found only in the former situation.
458 U.S. 419, 428, 102 S.Ct. 3164, 3172, 73 L.Ed.2d 868 (1982).
11
E.g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985); Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981); Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980); Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922)
12
E.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982); Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979); United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946); Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct. 654, 58 L.Ed. 1088 (1914)
13
Commentators have criticized this physical invasion/regulation distinction. See Epstein at 49-50; Blume & Rubinfeld, Compensation for Takings: An Economic Analysis, 70 Cal.L.Rev. 569, 574-75 (1984). Nevertheless, we are bound to respect the distinction as drawn by the Supreme Court
14
As appellee points out, Justice Rehnquist's lone dissent in Fresh Pond suggests that the other Justices did not share his ultimate conclusion that the rent control scheme there constituted a taking. However, as discussed below, see pp. 205-06 infra, Fresh Pond is distinguishable from this case in material ways that we presume were the basis for the majority's decision. We do not interpret the Fresh Pond dismissal as repudiating everything said by Justice Rehnquist in his dissent
15
Professor Michelman notes as follows in his seminal article on this subject:
[t]he one incontestable case for compensation (short of formal expropriation) seems to occur when the government deliberately brings it about that its agents, or the public at large, "regularly" use, or "permanently" occupy, space or a thing which theretofore was understood to be under private ownership.
Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165, 1184 (1967), quoted with approval in Loretto, 458 U.S. at 427 n. 5, 102 S.Ct. at 3171 n. 5.
16
S.B.Ord. § 26.080.050A. We find entirely unpersuasive the city's argument that the ordinance does not give tenants any rights in the landlord's property because the parties are free to change the terms of the lease by mutual consent. That tenants may waive the rights provided for them by the ordinance does not render those rights any less real or valuable. Presumably tenants forego a statutory lease only if the landlord offers them something better. A right is no less a right because it can be traded for something else. Indeed, the contrary is true
17
Two commentators have addressed a closely related problem in the following terms:
The Supreme Court ... holds that it is the rights of the property owner, not the rights of the property, that have significance.
To account for those rights, one must abandon abstract calculations which obfuscate the problem by attempting to relate use prohibitions for periods of years to the perpetual life of the realty. Instead, one must examine the hardship placed on individuals by such actions. Sometimes delay in ability to use property leads to foreclosure. Sometimes the owner dies. Given the reality of inflation, the cost of developing the property may increase. Real estate taxes continue to be demanded, often by the entity which is preventing the property from being used.
Berger & Kanner, Thoughts on The White River Junction Manifesto: A Reply to the "Gang of Five's" Views on Just Compensation for Regulatory Taking of Property, 19 Loyola L.A.L.Rev. 685, 744-45 (1986) (emphasis original; footnotes citing examples omitted).
18
In any case, we note some skepticism as to whether this is an option realistically available to the Halls. State and local laws seem to pose considerable obstacles to going out of the mobile park business. State law allows the mobile park owner to evict tenants in order to put the park to a different use only upon giving six months' notice; such notice may only be given after all necessary local permits have been obtained. Cal.Civil Code § 798.56(f). Santa Barbara in turn requires that a mobile home park owner obtain a permit to convert a park to another use. Santa Barbara, Cal., Municipal Code ch. 28.78.010 (1984). An applicant for such a permit must file a plan outlining the use to which the property is to be put, describing the impact of the removal on displaced residents, and disclosing the relocation assistance to be provided. Id. ch. 28.78.040. Any such plan must be approved by the city's Community Development Department. Id. ch. 28.78.050
19
See, e.g., Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865 (1921) (upholding District of Columbia rent control ordinance as a temporary measure); Woods v. Cloyd W. Miller Co., 333 U.S. 138, 68 S.Ct. 421, 92 L.Ed. 596 (1948) (upholding rent limits on certain accommodations in "defense-rental areas" as a valid exercise of the war power)
20
See, e.g., Fisher v. City of Berkeley, 471 U.S. 1124, 105 S.Ct. 2653, 86 L.Ed.2d 270 (1985) (dismissing appeal of ruling that rent control statute need not provide landlord a reasonable return on his investment); Fresh Pond Shopping Center, Inc. v. Callahan, 464 U.S. 875, 104 S.Ct. 218, 78 L.Ed.2d 215 (1983) (dismissing appeal of ruling upholding rent control statute limiting right to remove a tenant for personal use of rental unit); Troy Ltd. v. Renna, 727 F.2d 287 (3d Cir.1984) (upholding New Jersey law prohibiting eviction of certain older tenants from apartments converted to condominiums)
21
Troy Ltd. v. Renna, 727 F.2d 287 (3d Cir.1984), does contain language suggesting that a rent control ordinance can never constitute a taking because occupancy of the property by tenants is a private rather than a public use for purposes of the taking clause. Id. at 301-03. This attempt to distinguish Loretto was effectively overruled by Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984), which squarely held that transferring property "in the first instance to private beneficiaries does not condemn that taking as having only a private purpose." 467 U.S. at 243-44, 104 S.Ct. at 2330-31
In any case, Troy must be read in light of its facts, which are materially distinguishable from ours. See, e.g., n. 22 infra. Despite the broad language used in the opinion, we doubt that the Troy court would conclude that government may take private property from one person and give it to another without implicating the taking clause.
22
This was a key point supporting the court's conclusion that no taking had occurred in Troy, a case on which the city relies heavily. Troy noted that "[m]ost tenants with a protected status will be 70 years of age (or, if surviving spouses, 58 years of age) before the Tenancy Act comes into play. It is fanciful to imagine that these tenants will occupy their units 'permanently.' Moreover, the tenancies may terminate by virtue of changing income levels or principal residences, and tenants may be evicted on any of thirteen grounds." 727 F.2d at 301
23
Even if the property owner may not increase his monetary income by raising the rent, his choice of tenants may increase his economic return in some other fashion. Thus, he may choose tenants with smaller families over those with larger ones, on the theory that fewer people place less of a strain on the mobile park's resources. For similar reasons, he may prefer families without pets and those where the breadwinner travels a lot. On the theory that frequent vacancies increase his control over the property, or allows for faster rent increases (see S.B.Ord. § 26.080.060), he may well prefer older tenants to younger ones
In addition to selecting on the basis of factors that enhance his economic return, the landlord may also select on the basis of noneconomic factors that nevertheless increase the total benefit he derives from the property. See A. Alchian & W. Allen, University Economics 146 (3d ed. 1972) (hereinafter Alchian & Allen). Thus, landlords may select attractive pleasant applicants over slovenly belligerent ones, and nonsmoking teetotalers over smokers who drink.
The landlord's ability to exercise these choices with respect to the property is an important attribute of ownership and allows him to retrieve, in some measure, the monetary loss he suffers as a result of rent control. To the extent these choices are narrowed or eliminated altogether, the burden on the landlord is increased and his essential attributes of ownership are eroded until they become illusory.
24
The inability of tenants to transfer rights in rent controlled property no doubt creates market inefficiencies. See Alchian & Allen at 154; P. Samuelson & W. Nordhaus, Economics 393-94 (12th ed. 1985); Muth, Redistribution of Income Through Regulation in Housing, 32 Emory L.J. 691, 694-95 (1983). However, "[n]othing in economic analysis warrants a judgment about which allocative procedures are good or bad. That judgment must be based on criteria derived from other sources." Alchian & Allen at 154. Here, the very fact of the inefficiency--that the tenant is not given too great a stake in the property--saves most rent control schemes from potential unconstitutionality. After all, efficiency would be maximized by giving the tenant a fee simple interest in the property
25
It makes considerable sense to give greater deference to the legislature where it deliberately resorts to its eminent domain power than where it may have stumbled into exercising it through actions that incidentally result in a taking. In the former case, the court is validating the will of the legislature; in the latter, it may be thwarting the legislative will by ordering compensation where the legislature had no intention of engaging in a compensable transaction
26
We also note what appears to be a growing consensus that "rent control causes a reduction in the quality of the existing rental housing stock and discourages investment in new rental property," actually exacerbating the problems it is intended to ameliorate. The Report of the President's Commission on Housing 91 (1982). See, e.g., P. Samuelson & W. Nordhaus, Economics 393-94 (12th ed. 1985); W. Baumol & A. Blinder, Economics: Principles and Policy 62-64 (3d ed. 1985); Muth, supra note 24, at 693-98; cf. Frey, Pommerehne, Schneider & Gilbert, Consensus and Dissension Among Economists: An Empirical Inquiry, 74 Amer.Econ.Rev. 986, 988, 991 (1984) (fewer than 2 percent of United States economists surveyed at random generally disagreed with the proposition that "[a] ceiling on rents reduces the quantity and quality of housing available"); see also Rent Control's Big Dilemma, San Francisco Chron., Feb. 28, 1986, at 76, col. 1. The rationality of rent control vel non may have to be reassessed in light of this growing body of thought on the subject. Cf. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, ----, 106 S.Ct. 1348, 1357-59, 89 L.Ed.2d 538 (1986) (reexamining inference to be drawn in predatory pricing cases in light of recent law and economics commentary on the subject)
27
The cases appellee cites, e.g., Agins, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106, and Penn Central, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631, stand for the proposition that the existence of residual economic value in the property defeats a taking claim where a regulatory taking is alleged. This rationale simply does not apply to cases involving a taking by physical occupation
28
The city also argues that the Halls' claim is premature, citing Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). It is not clear what the city would have the Halls do to perfect their claim. Unlike Williamson and the more recent case of MacDonald, Sommer & Frates v. Yolo County, --- U.S. ----, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986), the Halls have no further administrative recourse available; there is nothing they may do under the Santa Barbara ordinance that would exempt them from its reach or cut off the rights they claim tenants now have in their land
Williamson and MacDonald were regulatory taking cases, not physical invasion cases. By their nature, regulatory taking cases are not ripe for constitutional adjudication until the governmental authority has had its final say, thereby defining precisely what (if anything) was taken. As the Court said in MacDonald, "[u]ntil a property owner has 'obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property,' 'it is impossible to tell whether the land retain[s] any reasonable beneficial use or whether [existing] expectation interest ha[ve] been destroyed.' " --- U.S. at ----, 106 S.Ct. at 2566-67 (quoting Williamson, 105 S.Ct. at 3118 n. 11). This, of course, is the test in regulatory taking cases, not physical invasion cases.
The inapplicability of the Williamson/MacDonald line of cases underscores the difference between this case and the regulatory taking cases on which the city relies so heavily. Where there has been a physical invasion, the taking occurs at once, and nothing the city can do or say after that point will change that fact.
*
Judge Solomon voted on the petition for rehearing but died before this order was filed
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903 N.E.2d 1065 (2009)
ALTES
v.
STATE.
No. 49A02-0808-PC-726.
Court of Appeals of Indiana.
March 9, 2009.
FRIEDLANDER, J.
Disposition of case by unpublished memorandum decision. Affirmed.
NAJAM, J. Concurs.
MAY, J. Concurs.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2407
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Arturo Caballero, also known *
as El Charro, *
*
Appellant. *
___________
Submitted: June 20, 2005
Filed: August 25, 2005
___________
Before MURPHY, BYE, and SMITH Circuit Judges.
___________
SMITH, Circuit Judge.
Arturo Caballero was convicted by a jury of one count of conspiracy to
distribute a mixture or substance containing a detectable amount of methamphetamine
in an amount of 500 grams or more in violation of 21 U.S.C. §§ 841(a)(1)(A) and
846. The district court1 adopted the recommendations in the Presentence Investigation
Report (PSR) which calculated his total offense level at 42. Caballero was sentenced
to 360 months' imprisonment. For reversal, Caballero argues that the district court
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
erred in admitting evidence of the firearms discovered in his home and at his office.
He also contends that the district court erred at sentencing. We affirm.
I. Background
Caballero was indicted by a federal grand jury of one count of conspiracy to
distribute a mixture or substance containing a detectable amount of methamphetamine
in an amount of 500 grams or more in violation of 21 U.S.C. §§ 841(a)(1) and 846
(class A felony). Later, a federal grand jury returned a superseding indictment
additionally charging Caballero with five counts of distribution of methamphetamine
also in violation of 21 U.S.C. § 841(a)(1).
Agents of the government executed warrants at Caballero's home and T's Auto
Sales (T's), Caballero's place of business. Special Agent J.J. Brandau seized a .32
caliber handgun from a purse at Caballero's residence and a .22 caliber Smith and
Wesson rifle from an office at T's. At trial, Special Agent Brandau testified that he
seized the firearms from Caballero's residence and business. Caballero objected but
the district court admitted the evidence.
Caballero was an organizer and leader of a methamphetamine sales and
distribution organization. At trial, several government witnesses provided proof of
Caballero's narcotics sales and the quantities involved. Jane Land testified that she
purchased methamphetamine from Daniel Salinas and Caballero. Land and Salinas
initially went to T's to purchase methamphetamine but had no success. Later, the two
met Caballero at a house on 14th Street in Kansas City, Kansas, where he sold them
approximately two and one-half pounds of methamphetamine. Land positively
identified Caballero from a photo array and identified him at trial. Salinas purchased
approximately twenty pounds of methamphetamine from Caballero on four occasions.
Salinas positively identified Caballero from a photo array and identified him at trial.
-2-
Joe Andrews testified that he purchased methamphetamine from Caballero in
increments of no less than two pounds at a time. Andrews testified that he purchased
approximately forty pounds of methamphetamine from Caballero. Andrews also
positively identified Caballero in court. Grant Cushman testified that he purchased
three ounces to several pounds of methamphetamine at a time from Caballero. He
indicated that he also purchased methamphetamine from Gabrielle Valle (a/k/a
Julian), who had a narcotics trafficking relationship with Caballero. In fact, Caballero
took Cushman to purchase methamphetamine from Valle. Cushman positively
identified Caballero in court. David F. Bunton, Jr., purchased methamphetamine from
Tino Salazar. Bunton met with Caballero and discussed the sale of methamphetamine
at T's. Caballero was upset with Salazar for stealing a customer and said he was going
to steal Bunton's business from Salazar. Caballero offered to beat Salazar's
methamphetamine price by $500 per pound. Bunton did not purchase
methamphetamine from Caballero, but told Salazar about his conversation with
Caballero.
The jury returned a guilty verdict on count one of the superseding indictment.
The PSR attributed 31.75 kilograms of methamphetamine to Caballero and calculated
his base offense level at 38 pursuant to U.S.S.G. § 2D1.1. The PSR also
recommended enhancements for Caballero's role as a leader or organizer, pursuant
to U.S.S.G. § 3B1.1(a), and for his possession of a firearm in connection with a drug
conspiracy, pursuant to U.S.S.G. § 2D1.1(b)(1). Caballero objected to the base level
in the PSR as not being founded upon reliable evidence. At sentencing, Caballero
renewed his objection and also objected to the role and firearm enhancements.
II. Discussion
A. Firearms Evidence
We review a district court's admission of evidence for abuse of discretion.
United States v. Jordan, 260 F.3d 930, 934 (8th Cir. 2001). The district court
permitted testimony that two firearms were recovered from Caballero's residence and
-3-
place of business and permitted the firearms to be admitted as exhibits. Caballero
objected on the grounds that: (1) the presence of the firearms was irrelevant to the
charge against him, but instead bolstered the government's argument that Caballero
was a dangerous drug dealer; and (2) even if relevant, its probative value was
outweighed by its prejudicial impact. Caballero contends that the district court abused
its discretion. We disagree.
Evidence of firearms possession is admissible and relevant as "tools in the drug
trade" in circumstantially proving involvement in drug trafficking. United States v.
Dierling, 131 F.3d 722, 732 (8th Cir. 1997). "The presence of firearms, generally
considered a tool of the trade for drug dealers, is also evidence of intent to distribute."
United States v. Schubel, 912 F.2d 952, 956 (8th Cir. 1990). During trial, Caballero
cross-examined Special Agent Michael R. Oyler, asking him whether any weapons
were seized. Caballero's questions "opened the door" to the firearms issue. The
government subsequently "walked in" and introduced evidence of Caballero's
weapons as "tools of the trade" over Caballero's objection, which the district court
properly overruled. Significantly, the firearms were seized at the same time and place
as was evidence demonstrating Caballero's participation in methamphetamine
distribution. The introduction of the weapons was relevant under case law, Dierling,
131 F.3d at 732; Schubel, 912 F.2d at 956, and was not unfairly prejudicial. The
district court did not abuse its discretion.
B. Sentence Enhancement
Caballero's second argument on appeal is that the district court improperly
enhanced his sentence in violation of his Sixth Amendment right to trial by jury
relying upon Blakely v. Washington, 542 U.S. 296 (2004). Specifically, he contends
the drug quantity contained in the PSR and used by the district court for sentencing
exceeds the 500 grams alleged in the charge and found by the jury. Caballero makes
this argument for the first time on appeal and we therefore review for plain error.
United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005). However, we first review
-4-
the district court's application of the Sentencing Guidelines de novo, United States
v. Mashek, 406 F.3d 1012, 1016 (8th Cir. 2005), and we find no error.
During sentencing, Ms. Barr, Caballero's attorney, stated "Judge, there is a
minor correction. What we are challenging is any quantities beyond the 500 grams
that were alleged in the charge and found by the verdict. We don't know which 500
grams, but they believe that at least that much." Caballero argues that there is a large
discrepancy between the jury verdict and the PSR regarding the assessed amount of
methamphetamine. Caballero contends that the jury verdict reflects a much smaller
assessment than does the PSR, but that the district court adopted the recommendation
in the PSR.
Our review of the record reveals that the evidence before the jury supported the
quantity findings of the district court. The jury found Caballero guilty of conspiracy
to distribute methamphetamine in an amount of 500 grams or more. To prove
Caballero's drug quantity, the government was required to establish the amounts by
a preponderance of the evidence. United States v. Padilla-Pena, 129 F.3d 457, 468
(8th Cir. 1997). The government established that Caballero was responsible for more
than 500 grams of methamphetamine.
U.S.S.G. § 2D1.1 provided the applicable sentencing provision for Caballero's
offense. Section 2D1.1 cross references § 1B1.3(a), which requires that "all
reasonably foreseeable acts and omissions [of others] taken in furtherance of the
conspiracy" must be considered when determining Caballero's drug quantity
attribution. United States v. Smith, 240 F.3d 732, 737 (8th Cir. 2001).
Land, Salinas, Andrews, and Cushman all testified to large purchases of
methamphetamine from Caballero. The PSR was more specific as to amounts sold,
adding transactions with Carlos Bernal and Gabriel Valle. According to the PSR,
methamphetamine transactions between Caballero, Land, and Salinas resulted in the
-5-
sale of 7.26 kilograms; transactions between Caballero and Bernal resulted in the sale
of .91 kilograms; transactions between Caballero and Cushman' resulted in the sale
of 2.72 kilograms; transactions between Caballero and Valle resulted in the sale of
2.72 kilograms; and transactions between Caballero and Andrews' resulted in the sale
of 18.14 kilograms. The record supports the district court's attribution of 31.75
kilograms of methamphetamine to Caballero based upon the evidence before the jury.
The district court therefore did not make factual findings in violation of Caballero's
Sixth Amendment rights.
Lastly, Caballero argues that the district court erroneously adopted the PSR
recommendation that characterized him as a leader or organizer. The district court
sentenced Caballero as a leader or organizer of criminal activity involving five or
more participants. U.S.S.G. § 3B1.1(a). Caballero made no Sixth Amendment
argument below as to the role enhancement. We therefore review for plain error. To
establish plain error, Caballero must show (1) error, (2) that is plain, and (3) that
affects substantial rights. Pirani, 406 F.3d at 550. If all three conditions are met, then
"an appellate court may then exercise its discretion to notice a forfeited error, but only
if (4) the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings." Id.
Caballero can show that there was error and that it was plain under United
States v. Booker, 125 S. Ct. 738, 756–57 (2005) because the district court applied the
Guidelines as mandatory. Pirani at 550. However, given the factual record of this
case and the enhancements imposed, Caballero cannot show that the error affected his
substantial rights by demonstrating that there is a reasonable probability that he
would receive a more favorable sentence. Pirani, at 551. In our review of the record
there is nothing that indicates a more favorable sentence is reasonably probable at
resentencing. We therefore affirm the decision of the district court.
-6-
BYE, Circuit Judge, concurring in part, dissenting in part.
I concur the district court did not abuse its discretion by allowing the
government to introduce the firearms into evidence. However, because the record
indicates, at sentencing, the district court expressed its view of a mandatory
application of the guidelines would result in a disproportionate sentence for the
defendant, I believe a reasonable probability does exist Arturo Caballero would
receive a more favorable sentence under an advisory guideline regime. See United
States v. Rodriguez-Ceballos, 407 F.3d 937, 941 (8th Cir. 2005). I therefore would
vacate and remand for resentencing.
______________________________
-7-
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