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64 Ill. App.2d 368 (1965)
212 N.E.2d 368
People of the State of Illinois, Appellee,
v.
Sam DeStefano, Appellant.
Gen. Nos. 50,163, 50,164, 50,165.
Illinois Appellate Court First District, First Division.
November 8, 1965.
Rehearing denied November 26, 1965.
*369 *370 *371 Julius Lucius Echeles, of Chicago, for appellant.
Daniel P. Ward, State's Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick A. Tuite, Assistant State's Attorneys, of counsel), for appellee.
MR. JUSTICE MURPHY delivered the opinion of the court.
In three separate orders, defendant, Sam DeStefano, was found guilty of contempt of court for his conduct during a trial, wherein he was charged with and found guilty by verdict and judgment of "illegally offering to vote," the subject of a separate appeal in this court, No. 50162.
Although defendant had counsel of his own choice, he also acted pro se during the 11-day trial, from November 16, 1964, to November 27, 1964. After the conclusion of the trial, three separate orders were entered on December 9, 1964, finding him guilty of direct contempt on November 20, 24, and 27, 1964. For each contempt, defendant was sentenced to the County Jail for a term of one year, *372 and the sentences were ordered to run concurrently. The third order also imposed a fine of $2,000.
On defendant's motion, the three separate appeals from the contempt orders, Nos. 50163, 50164, and 50165, were consolidated and are considered as one appeal. Also, on defendant's motion, the Record and Abstract filed in appeal No. 50162 were allowed to stand as the Additional Record and Additional Abstract in the instant three appeals.
The three contempt orders are as follows:
Appeal No. 50163 contempt of November 20, 1964:
"Now, in the name and by the authority of the People of the State of Illinois, the defendant, Sam DeStefano, being present in his own proper person, the matter against said defendant of alleged direct contempt is considered by this court.
And, thereupon, the Court finds as follows:
1. That on November 20, 1964, being one of the days of the November term A.D. 1964 of the Circuit Court of Cook County, Criminal Division, the case of People of the State of Illinois vs. Sam DeStefano, Indictment No. 64-1435, Illegal Voting, come on to be heard in the regular course before the court.
2. That a petit jury had been duly impaneled and sworn to try the issues before them in said case.
3. That during the course of said case the defendant, Sam DeStefano, acted as his own counsel.
4. That throughout said trial which commenced on November 16, 1964, the court repeatedly asked said defendant, Sam DeStefano, to obey the court's rulings and instructions.
5. That on November 20, 1964, during the direct examination of witness, Mary Austin, the following took place:
Mr. Tuite, Assistant State's Attorney: ... Q. Mrs. Austin what, if anything, happened after that, *373 after the defendant, DeStefano, signed his name on that document?
A. Then he goes to the two girls that have the
Mr. McDonnell: Objection. Objection. It's obvious what this witness is doing. The witness is saying what
The Court: Keep your voice down.
Mr. McDonnell: I beg your pardon.
The Court: You don't have to holler at me.
Mr. McDonnell: I am not hollering at your Honor.
Mr. DeStefano: Excuse me.
Mr. McDonnell: This witness is reciting what is ordinarily done.
The Court: Sit down and be quiet.
Mr. DeStefano: May I address the Court?
The Court: No.
Mr. DeStefano: Exception. The Court won't let me address the Court.
The Court: Sit down and be quiet.
Mr. DeStefano: You were hollering at my co-counsel.
The Court: Step in the chambers.
(Whereupon, the following proceedings were had in chambers, outside the presence and hearing of the jury.)
The Court: I am citing Mr. DeStefano for contempt. On the record. Your remarks have been contemptuous. You totally disregard the Court's order and instructions. You have been warned many times. At the end of this trial, we will take action on it.
Mr. DeStefano: May I address the Court?
The Court: You may.
Mr. DeStefano: May I make a statement for the record? I didn't mean to, Your Honor. I didn't want *374 to. But you were shouting at Mr. McDonnell much more than he was raising his voice.
The Court: That's contempt, also.
6. That the conduct of the defendant, Sam De Stefano, which conduct of said defendant took place while this court was in open session, tended to impede and interrupt the proceedings and lessen the dignity of this Court.
The Court further finds that the defendant, who is now and here present in open Court, is by reason of said conduct of said defendant, guilty of direct contempt of this court in open court.
It is, therefore, Ordered, Considered And Adjudged, that the said defendant Sam DeStefano, because of said contempt as aforesaid be and he is hereby sentenced to confinement in the County Jail of Cook County, Illinois, for a term of one year from December 9, 1964, and after delivery of the body, of said defendant to Warden of the County Jail of Cook County, or until he is otherwise discharged by due process of law and the Sheriff of Cook County is hereby committed to take the body of said defendant from the bar of this Court and confine the same in the Cook County Jail in safe and secure custody for and during said term as aforesaid."
Appeal No. 50164 contempt of November 24, 1964:
"Now, in the name and by the authority of the People of the State of Illinois, the defendant Sam DeStefano being present in his own proper person, the matter against said defendant of alleged direct contempt of this court is considered by the Court.
And thereupon the Court finds as follows:
1. That on November 24, 1964, being one of the days of the November A.D. 1964 Term of the Circuit Court of Cook County, Criminal Division, the case of People of the State of Illinois versus Sam De *375 Stefano, Indictment No. 64-1435, Illegal Voting, came on to be heard in the regular course before the Court.
2. That during the course of said case, the defendant, Sam DeStefano, acted as his own counsel.
3. That on November 24, 1964 said defendant Sam DeStefano presented a motion for a mistrial.
4. That during the hearing on the motion the following took place between the Court and defendant, Sam DeStefano.
The Court: Proceed, proceed.
Mr. DeStefano: Mr. Martin is also suborning perjury
The Court: Stop screaming at the Court. There is no need to yell at the top of your voice in this courtroom.
Mr. DeStefano: Are you speaking only to the defendant, pro se, sir?
The Court: Yes, I am speaking to you because you are shouting and they are not shouting.
Mr. DeStefano: They were not shouting, sir? Let the record show that both not both, Mr. Tuite was shouting when he interrupted me and continued shouting afterwards. That the defendant, pro se, does not shout. He does have strong lungs even though the rest of his body isn't as well as his lungs.
The Court: I cite you for contempt on that because Mr. Tuite did not shout at you.
Mr. DeStefano: He was shouting.
The Court: You are stating a falsehood when you say that he did shout because he did not raise his voice and shout.
5. That the conduct of the defendant, Sam De Stefano, which conduct of said defendant took place while this Court was in open session, tended to impede and interrupt the proceedings and lessen the dignity of this Court.
*376 The Court further finds that the defendant, who is now and here present in open Court, is by reason of said conduct of said defendant, guilty of direct contempt of this court in open Court.
It is, therefore, Ordered, Considered And Adjudged, that the defendant, Sam DeStefano, because of said contempt as aforesaid be and he is hereby sentenced to confinement in the County Jail of Cook County, Illinois for a term of one year from after December 9, 1964, delivery of the body of said defendant to Warden of the County Jail of Cook County, or until he is otherwise discharged by due process of law and the Sheriff of Cook County is hereby committed to take the body of said defendant from the bar of this Court and confine the same in the Cook County Jail in safe and secure custody for and during said term as aforesaid."
Appeal No. 50165 contempt of November 27, 1964:
"Now, in the name and by the authority of the People of the State of Illinois, the defendant Sam DeStefano being present in his own proper person, the matter against said defendant of alleged direct contempt of this court is considered by the Court.
And thereupon the Court finds as follows:
1. That on November 27, 1964, being one of the days of the November A.D. 1964 Term of the Circuit Court of Cook County, the case of People of the State of Illinois vs. Sam DeStefano, Indictment No. 64-1435, Illegal Voting, came to be heard in the regular course before the Court.
2. That a jury was duly impaneled and sworn to try the issues before them.
3. That the defendant Sam DeStefano during the course of the trial acted as his own counsel.
*377 4. That on November 27, 1964, the defendant delivered a closing argument to the jury selected in the above mentioned case.
5. That the defendant, Sam DeStefano made, among other things in this closing argument to the jury the following statements:
I want to also thank his honor for showing me and you people that I, the defendant Sam DeStefano, cannot get a fair trial. I think the Cardinal Mindzenty of Hungary received a fairer trial from the Russian communists than we received from this court and the State.
6. That in the same closing argument to the jury the defendant Sam DeStefano also made the following statements:
What I can't understand, here is a man on our bench, approximately 56 years old, who has always been known as a mild mannered man, a soft-spoken man. This man, Judge Herbert R. Friedlund, until this trial has been known as a fair, impartial, merciful judge. He was known as a good lawyer before he came upon the bench. He has a reputation throughout our county and state as a mild, fair gentleman at all times with an unblemished record.
What I can't understand is where this viciousness, where this man who was so mild all of a sudden became vicious, angry and treated this defendant and the spectators and the defendant's co-counsel as he has done in the past ten or twelve days. That, I can't understand. I know the man for what he has been. I don't know this man that has treated the defendant Sam DeStefano as he has done and made him belabor out here with the threat of contempt over and over again.
7. That in the same closing argument to the jury the defendant Sam DeStefano also made the following statements:
*378 Lord Coke of England in 1620, and Pope Innocent, III, at around 1200 A.D. their bones must be turning over in their graves knowing what your Honor has done to this defendant, knowing the rulings, two great lawmakers such as them. That is the language that your Honor understands. Certainly, you must have learned and read of Lord Coke, one of our greatest lawmakers.
The Court: Talk to the jury.
Mr. DeStefano: I am talking to them, sir, when I am addressing you. Or Pope Innocent, III, the greatest lawmaker that ever sat on the papal chair. I'll bet you his bones are turning over this day.
Some day, Judge, you will sit in silence with your own conscience and say this is the dirtiest day's work you have ever done. You, sir, a man who was always so kind before, but this is the dirtiest day's work you have ever done.
How? Why? I would like to know the answer. I would give anything to know that answer, how a man like you could turn like this. For 56 years unblemished, and then so cruelly and inhumanly browbeat a defendant and his co-counsel like this.
All of you people heard Mr. McDonnell. He is not only my co-counsel but a very dear friend of mine. We associate together, and I am proud, and that's where I learned a little bit of my law. We have been together for a long time. He spends a great deal of time in my home and I spend a great deal of time in his home.
Now, if you recall, when Attorney McDonnell made that objection he really didn't shout loud. It was the judge who angrily tried to browbeat him. And I jumped up to object because he was prejudicing my case. He took me in for contempt of court. And he was the one that committed the crime. But it is a *379 weak judge, a weak judge who holds the whip of contempt of court over a citizen.
8. That the conduct of the defendant, Sam De Stefano, which conduct of said defendant took place while this Court was in open session and before a jury tended to lessen the authority and dignity of this Court.
It is, therefore, Ordered, Considered and Adjudged, that the said defendant, Sam DeStefano, because of said contempt as aforesaid be and he is hereby sentenced to confinement in the County Jail of Cook County, Illinois for a term of one year from December 9, 1964, and after delivery of the body of said defendant to Warden of the County Jail of Cook County, or until he is otherwise discharged by due process of law and the Sheriff of Cook County is hereby committed to take the body of said defendant from the bar of this Court and confine the same in the Cook County Jail in safe and secure custody for and during said term as aforesaid. And I further fine the Defendant, Sam DeStefano, the sum of Two thousand dollars for his contempt."
Defendant's contentions here are: (1) the recitals in the orders are not complete; (2) the conduct of defendant was not per se contemptuous under the circumstances; (3) the court failed to take into consideration defendant's ill health and his lack of legal training; and (4) the sentences were excessive and unnecessarily punitive.
[1, 2] We consider first defendant's contention that the recitals in the orders are not complete. He argues the orders do not include necessary language, and for that reason they are defective and should be reversed. We agree that it is necessary for the trial court to enter a written order setting forth fully and clearly the facts out of which the contempt arose. (People v. Rongetti, *380 344 Ill. 107, 176 NE 292 (1931).) All the essential facts must be fully set forth, and no part thereof can be supplied by presumptions or inferences. However, an order may be so drawn as to include matters by reference, and on review such matters so incorporated may be considered as part of the order. People v. Tavernier, 384 Ill. 388, 51 NE2d 528 (1943).
As to the order covering the contempt of November 20, 1964, defendant argues that "there nowhere appears in the order any of the court's rulings or instructions which the order states the court repeatedly asked defendant to obey. Nor does the recital in the order state that the defendant failed to obey such court's rulings and instructions." As to the order for the contempt of November 24, 1964, defendant states, "The recital order sets out only a part of the proceedings which took place. For if, as is apparent from the recital order the only reason the court held the defendant in contempt was that he stated that Mr. Tuite, the prosecutor was shouting also, it would be unfair not to permit the twenty-one persons in the audience to give sworn testimony to the fact that Mr. Tuite also shouted." As to the order for the contempt of November 27, 1964, defendant notes that "the recital order ... stated that during the closing argument to the jury the defendant `made, among other things in this closing argument to the jury the following statements....' Thereafter, the court excerpted certain of the statements which it deemed to be contemptuous."
[3] An examination of the orders to ascertain the merits of this contention shows that the order for the November 20 contempt states defendant was told twice to "sit down and be quiet," and his remarks included, "You were hollering at my co-counsel." This was in the presence of the jury. In chambers, and in citing defendant for contempt, the court said, "Your remarks have been contemptuous. You totally disregard the Court's order and instructions. You have been warned many times. At *381 the end of this trial, we will take action on it," and defendant's remarks in reply included, "But you were shouting at Mr. McDonnell much more than he was raising his voice." This colloquy in open court and in chambers demonstrates contemptuous conduct per se.
[4] The order for the contempt of November 24 shows a colloquy between the court and defendant, and that after defendant was directed to "stop screaming at the Court. There is no need to yell at the top of your voice in this courtroom," he made disrespectful remarks to the court. At defendant's suggestion, we have examined the Abstract filed in appeal No. 50162 and note that the recital order does not include all of the proceedings which then took place, including the following:
"The Court: I don't know what you think you are accomplishing by screaming at me.
"Mr. DeStefano: Well, your Honor, I am not screaming at you. You stand here and let him call me an ex-convict. If you have any personal animosity against me you know what to do. You know where I live, I don't know where you live. Why don't you send me an invitation?"
[5] The foregoing excerpt from the colloquy of November 24 does not militate against a finding that the recital part of the order is sufficient to demonstrate contemptuous conduct per se. Likewise, the order covering the contempt of November 27 amply manifests contemptuous conduct per se. We hold that the recitals in each of these three contempt orders are sufficient to sustain a finding of contempt in each instance.
We consider next defendant's contention that his conduct "was not per se contemptuous under the circumstances." Defendant argues that he was not a lawyer, and that he was on trial from November 16, 1964, to November 27, 1964, charged with a crime never before prosecuted in this state; "he was, as he put it, fighting *382 for his life.... The stress and strain on a defendant while standing criminal trial is considerable. How much more when that defendant chooses (foolishly perhaps) to represent himself and engages in colloquy and argument with court and prosecutor?" He further states, "We believe that every judge who has had the experience of presiding over criminal trials has had to caution counsel at one time or another to keep his voice down both counsel for the State and for defendant. If every time a voice was raised above normal speech level, there was an order of contempt, the bar of criminal practitioners would be decimated for such periods of time as the courts imposed sentences."
Defendant further states that in his address to the jury, "the thrust of defendant's argument was that he received an unfair trial at the hands of the court," and his remarks related to "the court's conduct of the trial." He asserts because no objections or attempts were made to stop the defendant from proceeding with the kind of argument he was presenting to the jury, "defendant was led to believe that his remarks to the jury were not improper; for otherwise, there would have been objections. At the outset of his remarks, the defendant apologized to the jurors for all the time that was wasted, but stated that it was not the fault of the defense, but that it was the fault of either the State or the court. Both prosecutors objected; and the court struck the remarks of the defendant." He argues, "The court's failure to interject during the closing argument, and the failure of the prosecutor to make any protest, militates against the finding that defendant's remarks to the jury `tended to lessen the authority and dignity of this court.'"
In reply, the State argues that the contempt order for defendant's conduct of November 20 shows that the defendant, "in the presence of the jury reprimanded the Court," and "this conduct tend[ed] to impede the proceedings and disrupt the orderly process of a trial," and *383 "four days later the Court held the defendant in contempt once more." The State asserts, "[at that time] the defendant questioned the Court's veracity and blatantly accused the Court of stating a falsehood when the Court said the prosecutor was not shouting. This conduct surely brought the administration of justice into disrespect." As to the third contempt, the State comments that "during his closing argument (or rather, tirade) Mr. DeStefano made an attack upon the Court in what will probably go down in legal history as the most contemptuous performance ever seen or heard. It seemed as if the contemnor was delivering a speech on how to be contemptuous by really trying."
[6-12] The guidelines to be used in reviewing contempt orders are set forth in People v. Loughran, 2 Ill.2d 258, 118 NE2d 310 (1954). On page 262, the court said:
"All courts are vested with an inherent power to punish for contempt as an essential incident to the maintenance of their authority and the administration and execution of their judicial powers. A summary proceeding to punish for direct contempt, properly used within the discretion of the court, is not a violation of the constitutional guarantee of due process. In re Terry, 128 U.S. 289; People v. Siegal, 400 Ill. 208."
On page 263, the court said:
"In a direct criminal contempt proceeding, that is, for contempts committed in the presence of the judge, in court, which he observes and has personal knowledge of, no formal charge is filed and no plea, issue or trial is required. (In re Terry, 128 U.S. 289, 9 S Ct 77.) The contempt having been committed in the presence of the court, evidence is unnecessary and no record is made. (People ex rel. Owens v. Hogan, 256 Ill. 496.) However, the accused has a right of appeal, and it is, therefore, necessary for *384 the court to enter a written order setting forth fully and clearly the facts out of which the contempt arose so that the reviewing court may determine if the committing court had jurisdiction to enter the order. (People v. Rongetti, 344 Ill. 107.) All the essential facts must be fully set forth and no part thereof can be supplied by presumptions or inferences (People v. Tavernier, 384 Ill. 388,) and no facts which did not occur in the presence of the court should be taken into consideration by the court in adjudging guilt or in fixing the punishment. People v. Rongetti, 344 Ill. 107.
"The power to adjudge guilt and impose punishment without proof or examination, and without plea, trial or issue exists in no other situation or proceeding. It is an exception to our constitutional guarantees which we would regard as intolerable in any other proceeding or for any other purpose. It is readily susceptible of abuse and fraught with danger not only to personal liberties but to the respect and confidence which our courts must maintain. Although such a power is universally recognized as essential to an orderly and effective administration and execution of justice, it should be exercised with utmost caution and strictly restricted to acts and facts seen and known by the court, and no matter resting upon opinions, conclusions, presumptions or inferences should be considered."
[13-20] The following pronouncements are also pertinent here. Conduct which tends to embarrass or obstruct the court in the administration of justice, or which tends to bring the administration of the law into disrespect or disregard, constitutes a direct contempt and is punishable as such. (People v. Gard, 259 Ill. 238, 242, 102 NE 255 (1913).) Statements reflecting on the personal integrity of a judge in a suit that is pending before such judge is contempt of court. (Kneisel v. Ursus Motor Co., 234 Ill. App. 371, *385 380 (1924).) "A trial properly conducted is a dignified procedure.... Often in the heat and fervor of a sharply contested trial these standards are forgotten. Too often they are not only forgotten but completely disregarded and dragged in the mire. Objections properly made are addressed to the court and counsel is entitled to state his reasons for his objections, but an inflammatory statement accompanying each objection, apparently made solely for the purpose of prejudicing the jury, is improper. Abuse of opposing counsel and of the court has no proper place in a trial. All of these matters rest within the control of the trial court, and the trial court has the power and duty to preserve decorum. The trial court can and should institute contempt proceedings against recalcitrant counsel and impose either a fine or jail sentence." Eizerman v. Behn, 9 Ill. App.2d 263, 286, 287, 132 NE2d 788 (1956).
In contempt proceedings, no matter how fully and clearly the facts are set forth, the recital part of the order cannot convey the complete picture of the courtroom scene. It does not depict such elements of misbehavior as expression, manner of speaking, bearing and attitude of the respondent. "Reliance must be placed upon the fairness and objectivity of the presiding judge. The occurrence must be viewed as a unit in order to appraise properly the misconduct, and the relationship of the petitioner as an officer of the court must not be lost sight of." (Fisher v. Pace, 336 U.S. 155, 161 (1949).) See, also, Sacher v. United States, 343 U.S. 1 (1952), where the court said (pp 10, 11):
"In this case counsel repeatedly were warned that their conduct was regarded as contemptuous. No claim can be made that the judge awaited the close of the trial to pounce upon them for some offense unnoted at the time it occurred. If we were to hold that summary punishment can be imposed only instantly upon the event, it would be an incentive to *386 pronounce, while smarting under the irritation of the contemptuous act, what should be a well-considered judgment. We think it less likely that unfair condemnation of counsel will occur if the more deliberate course be permitted.... We hold, ... that if [the trial judge] believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power."
[21, 22] When a defendant in a criminal trial undertakes to exercise his constitutional right to conduct and manage his own case pro se, it necessarily follows that he cannot embarrass or obstruct the court during the course of the trial. He does not have the right to let his temper, his zeal or his intention lead him into disrespectful, accusative language to the court. The trial court must, of necessity, maintain order and decorum in its presence. To sanction such conduct in open court, before a jury, would be to demoralize the authority of the court before the jury and the public. See MacInnis v. United States, 191 F.2d 157, 159 (1951). Whether a contempt has been committed depends upon the act and not the alleged intention of the offending party. Kneisel v. Ursus Motor Co., 316 Ill. 336, 342, 147 NE 243 (1925).
[23] Considering the instant contempt orders in the light of the foregoing, we hold that the recitals in each of the three orders, of the facts which occurred in open court and in the presence of the court and jury during the trial, were sufficient for the entry of summary contempt orders and within the inherent power of the trial court. It was within the court's sound discretion to enter the orders after defendant's criminal trial had concluded, because the entry of the contempt orders on the occurrence dates might have endangered the due progress and termination of a difficult and extended trial.
Finally, the defendant contends that the court failed to take into consideration defendant's ill health and defendant's lack of legal training, and "under all the circumstances *387 of the case the sentence was excessive and unnecessarily punitive."
Defendant argues, "We do not contend, as a matter of law, that a defendant representing himself has any greater privilege than a lawyer trained in the art of trial. We do contend, as a practical matter, that a defendant trying his own case cannot lessen the dignity of the court in complaining to a jury that he received an unfair trial at the hands of the court. However inept and artless his remarks may have been, certainly the jury must have considered that remarks, which may not have been in good taste, came from a defendant who was not a lawyer, and against whom a felony conviction had been proved." Also, defendant argues that the sentence and fine "exceeds the punishment for conduct during a trial in any single contempt case of which we are aware, either in the federal or state courts." Instances are cited where lawyers, found guilty of contempt, have been fined or sentenced from ten days to six months.
In reply, the State argues that "during the trial the defendant made objections and moved for mistrials when he thought it was appropriate. All this clearly shows that the defendant did have more than a rudimentary understanding of the law. In fact, when he wanted to, he acted as an attorney. The plea that the contemnor was without legal training and therefore should in some way mitigate his conduct is without merit," and further, "how the defendant's claimed ill health could excuse or mitigate his scurrilous attack on the court or his other reprehensible conduct and serve as a bar or shield and refuge is beyond comprehension. Has physical illness ever been a defense to a crime?"
[24, 25] We find the instant contempt orders recite flagrant misconduct, disrespect and open defiance of the court's authority, continued in the face of repeated warnings and findings of contempt during the trial. These contempts clearly embarrassed the court, disrupted and *388 defeated the prompt and fair administration of justice. No court should permit such gross, deliberate and blatant disrespect for the court to go unpunished, whether by a lawyer or by a layman acting pro se in his own defense. Our courts could not long endure under such circumstances. Remarks made in Hallinan v. United States, 182 F.2d 880 (1950), are apropos here (pp 887-888):
"Complaint is made as to the severity of the sentence. It is severe. We are unable to say the Court abused its discretion in imposing it. Gross misconduct merits commensurate punishment. We cannot have the same appreciation of an existing situation, from a review of a cold record, as does a presiding judge who witnesses the transgressions and senses the unfavorable impact upon the orderly administration of justice. An officer of a court has a higher duty to assist in maintaining the dignity and integrity of courts than does the ordinary citizen. True, every lawyer, if he is worthy of the name, must use every legitimate effort in support of his client and in so doing will be relieved from an improper contempt judgment.... No such condition exists here. The record reflects quite the contrary."
For the reasons given, the three orders of contempt appealed from, consolidated and considered as one appeal, are affirmed, and as the County Jail sentences are to be served concurrently, we see no reason to disturb them.
Affirmed.
BURMAN, P.J. and KLUCZYNSKI, J., concur.
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Filed 6/14/13 P. v. Mungia CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B237322
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA088362)
v.
JOSE MUNGUIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Tomson T. Ong, Judge. Affirmed.
Lori-Ann C. Jones for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Eric E. Reynolds
and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
Jose Munguia (appellant) was convicted by a jury of three counts of rape (Pen.
Code, § 269, subd. (a)(1)),1 three counts of oral copulation (§ 269, subd. (a)(4)) and three
counts of sexual penetration (§ 269, subd. (a)(5)), all committed against a child under the
age of 14 and more than seven years younger than appellant. Appellant was sentenced to
135 years to life in prison. He appeals, contending the trial court abused its discretion in
refusing to allow testimony from the victim’s treating physicians, in allowing the
prosecution’s child molestation expert to testify beyond the scope of her expertise, and in
making certain evidentiary rulings. He also contend the cumulative effect of the
evidentiary rulings was prejudicial. We find each of these contentions to be without
merit and affirm the judgment.
FACTUAL & PROCEDURAL BACKGROUND
In the 1990s, appellant moved in with Raquel M. (Mother) and her two daughters,
Claudia V. (then two years old) and Julia C. (then 13 years old). Julia had her own
bedroom. On two occasions, she woke up at night after someone touched her genital
area. The second time it happened, she saw appellant crawling out of her room. When
Claudia was five years old, appellant would come into her bedroom when Mother was at
work. He would pull off her clothing and underwear and force her to kiss his penis and
penetrated her vagina with his fingers. On one occasion, he raped her from behind. The
forcible oral copulations and rapes continued almost daily through 2nd grade, while
Mother was at work.
In 2000 or 2001, when the girls went on a day trip to the lake with appellant and
Mother, Julia saw appellant putting his hand in Claudia’s bathing suit. Claudia told Julia
what appellant had been doing to her, and Julia told Mother. Appellant was kicked out of
the house.
1
All subsequent undesignated statutory references shall be to the Penal Code.
2
In 2001 or 2002, appellant moved back in when Claudia was in 4th grade.
Appellant put his fingers in her vagina, raped her, and forced her to orally copulate him.
The next day, Claudia found blood in her underwear. After Claudia had completed 4th
grade, appellant snuck into her room and attempted to molest her again. After a while he
stopped coming into her room. She did not see him until the preliminary hearing.
Mother testified she worked nights. Appellant did not have a regular work
schedule. Mother and appellant have two other children. Mother remembered Julia
telling her at the lake that appellant “touched” Claudia, but did not know what Julia
meant. When Claudia was six years old, Mother asked her what was wrong and Claudia
would cry and say “Nothing, nothing.” She remembered checking Claudia’s underwear
several years ago and finding a brownish liquid. They reported the assaults to the police
in November 2010.
Long Beach Police Officer Robert Cruz testified he took a report from Claudia in
November 2010. He did not initiate a sexual assault exam because the alleged acts had
taken place years earlier.
Long Beach Police Officer Kimberly Groves testified she did not meet with
appellant before the charges were filed and that she did not personally arrest him. She
interviewed appellant with an interpreter.
Appellant testified in his own defense. He denied any sexual contact with Julia or
Claudia. He said he was angry at Mother for being unfaithful and she was angry at him
for missing child support payments.
DISCUSSION
1. Refusal to admit testimony of medical examination
Prior to trial, defense counsel requested to call two doctors who had allegedly
examined Claudia in 2001. Due to a flood, the records from their practice were no longer
in existence and they had no independent recollection of examining Claudia. Defense
counsel wanted the doctors to explain what they would normally have done if there had
been evidence of sexual or child abuse. The prosecutor stated Mother apparently had no
recollection of telling the doctors that her daughter had been molested, and only took her
3
to see the doctor for a discharge. Officer Cruz’s interview notes stated that Mother told
him that she took Claudia to the doctor and the doctor said there was nothing wrong with
her. The court excluded the doctors’ testimony under Evidence Code section 352, stating
“The probative value is none. Unfair or undue prejudice is the inference that there was
reporting in this case. . . . The doctor cannot report something that the mother didn’t tell
him. . . . [T]ouching does not necessarily result in bruising or anything of that sort. . . .
It’s likely to create confusion in front of the jury in this particular case. The evidence is
what it is and the probative value is minimal to none. The unfair prejudice or confusion
is significant.”
When Mother was on the stand, she testified that Julia told her that appellant had
“touched” Claudia. Defense counsel then asked, “Did you understand that statement
[from Claudia that appellant had touched her] to be one—Did you understand that
statement was one of a sexual nature?” The prosecutor objected on the ground that the
question was leading, the court sustained the objection, and the court asked, “What did
you understand that statement to mean?” Mother responded, “Well, I asked because I
didn’t understand what she meant, and I don’t think my daughter knew how to explain it
well either. She just said he touched her[].” The court then responded, “Next.” When
asked if she ever saw blood in Claudia’s underwear, Mother testified that she took
Claudia to get medicines for a “brownish kind of liquid like bloody or something” in her
underwear.
Appellant contends that the court erred in not allowing him to ask Mother to
clarify whether she thought the “touching” was of a sexual nature, because if she had,
“then surely she communicated her concern to the doctors prior to the medical
examination.” Appellant also contends that questioning of the doctors should have been
allowed, and finally, that the refusal to admit evidence of the medical examination
deprived him of his constitutional rights to due process.
The trial court has the discretion to exclude evidence under section 352 if its
probative value is outweighed by the probability of undue prejudice. On appeal, we will
4
not disturb the trial court’s ruling unless it abused its discretion. (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1124.)
The trial court did not err in refusing to allow appellant to call the doctors as
witnesses. They had no recollection of examining Claudia and had no records with
which to refresh their recollection. In addition, their testimony about what they would
have done had Claudia reported molestation was purely speculative since there was no
evidence that Mother reported molestation. Mother testified only that she took Claudia to
get medicine for a discharge. Officer Cruz said she told him she took her to the doctor
because of a “touching,” but Mother explained she did not understand what Claudia
meant by a “touching.” There was simply no evidence that Mother ever communicated
to the doctors that Claudia had been sexually molested. There was no error in excluding
the testimony of the doctors or further questioning of Mother.
Appellant’s contention that he was denied due process is without merit. Appellant
was allowed to, and did, testify. He was allowed to cross-examine Mother and Officer
Cruz. Any further examination of those witnesses would not have resulted in admissible
evidence. The exclusion of this testimony did not render the trial fundamentally unfair.
(People v. Partida (2005) 37 Cal.4th 428, 651-52, citing Estelle v. McGuire (1991) 502
U.S. 62, 70.)
2. Expert Witness testimony
Appellant contends that the court erred in allowing Melissa Wheeler to testify as
an expert because she was not a doctor, psychiatrist or psychologist, nor did she have any
specialized training in those fields. He also claims her testimony was without foundation,
speculative, and beyond the scope of her expertise. He argues the testimony was
prejudicial because it indirectly bolstered the victim’s testimony and justified her failure
to report the assaults in a timely manner.
Evidence Code section 801 defines expert testimony as “(a) Related to a subject
that is sufficiently beyond common experience that the opinion of an expert would assist
the trier of fact; and (b) Based on matter (including his special knowledge, skill,
experience, training, and education) perceived by or personally known to the witness or
5
made known to him at or before the hearing . . . that is of a type that reasonably may be
relied upon by an expert in forming an opinion upon the subject to which his testimony
relates. . . .” Evidence Code section 720 provides that a person is qualified to testify as
an expert witness “if he has special knowledge, skill, experience, training or education
sufficient to qualify him as an expert on the subject to which his testimony relates.”
(Italics added).
Rulings by the trial court on the qualifications of an expert witness, including
foundational requirements, will be reversed on appeal only if there is abuse of discretion.
(People v. Ramos (1997) 15 Cal.4th 1133, 1175; Korsak v. Atlas (1992) 2 Cal.App.4th
1516, 1526.)
Wheeler testified that she had been a registered nurse for 30 years and was
currently the owner and director of a private company called Forensic Nurse Specialists.
Her company had contracts with law enforcement agencies, hospitals, municipalities, and
universities for sexual assault forensic examination. She personally supervised seven
sexual assault centers, one of which is in Long Beach. She had personally examined
victims, trained new nurses, reviewed cases for accuracy and had testified in court. She
had been trained as a forensic child interviewer and performed interviews for the court.
Over the last 18 years, she had seen over 13,000 victims.
Appellant’s counsel objected to the extent of her expertise when she testified that a
child who is traumatized may develop a psychological phenomenon called
“disassociation.” The court overruled the objection and asked Wheeler to explain
“disassociation.” She then described children closing their eyes or looking away when
they disclosed the abuse. The prosecutor then proceeded to ask Wheeler many questions
about why a child will not disclose abuse for many years. Defense counsel’s objections
to this line of questioning were overruled. Finally, the prosecutor asked a hypothetical
about a child who was abused at the age of five by a stepfather and then does not disclose
the abuse until she is 19 and if that was consistent with Wheeler’s experience. After
defense counsel’s objection was overruled, Wheeler replied that it was consistent.
6
Appellant concedes that Wheeler was qualified to testify about female anatomical
structure, but contends she was not qualified to testify about psychological effects on
victims. We disagree.
Wheeler had performed so many examinations of sexual assault victims that she
had “occupational experience” in addition to basic educational and professional training
as a nurse. (Huffman v. Lindquist (1951) 37 Cal.2d 465, 478.) It is hard to conceive of
someone who would be more qualified to testify about the emotional state of rape victims
and the psychological effect of rape. Even a psychiatrist with years of medical
experience might not have examined as many rape victims. Wheeler had personally
observed the characteristics and conduct of children who had been raped. Her
observations qualified her as an expert to testify on the demeanor of children who had
been abused and the tendency not to reveal the abuse. There was no abuse of discretion
in admitting Wheeler’s testimony.
3. Other Evidentiary rulings
Appellant contends that during several instances the court cut off inquiry into
important matters affecting bias, interest and motive for testimony.
Appellant testified in his own defense, stating that he never touched Claudia or
Julia. When he was living with Mother, he would go to work from 6:00 p.m. to 6:00 a.m.
at a restaurant. Mother would leave for work at 2:00 p.m. When she was at work, Julia
or Mother’s son, Julio, would watch the other children. On cross-examination, appellant
said Mother kicked him out of the house because they would always fight. He found out
she was cheating on him. He said he thought Julia was an honest person, but he denied
ever molesting her. The prosecutor asked appellant why he did not tell Detective Groves
that he had been working and thus could not have committed the molestations. Appellant
replied, “Never asked me.” The prosecutor then asked several questions about his alibi
but appellant’s counsel objected each time and the court sustained the objections.
Finally, the prosecutor asked appellant why he did not subpoena the owner of the
restaurant to testify, and appellant said that the man no longer owned the restaurant. The
prosecutor then questioned appellant why Julia would go to police, and after several
7
attempts to get an answer, the court interjected, and asked appellant, “You said that
Claudia’s mom cheated on you, right. . . . And you are saying she’s angry, that’s the
reason she told Julia to go to the cops, right?” Appellant agreed. On redirect, counsel
asked for clarification about why Mother was angry at him and appellant explained that it
was “because they took away her child support.”
Mother was re-called as a witness and testified that appellant’s child support
payments became inconsistent and then stopped. Appellant worked sporadically at one
job and often did not pay the rent.
The defense called Detective Groves, and she testified that she interviewed
appellant with an interpreter. When defense counsel asked if appellant denied molesting
either Julia or Claudia, the prosecutor objected and the following bench conference
occurred: “THE COURT: On the record, when the defendant makes an admission
against penal or social interest that usually comes in when he tries to exonerate himself.
That is called self-serving hearsay. There is no inconsistency between this testimony and
what you are about to offer through the detective. So any hearsay objection? [¶]
[Defense Counsel]: The rule of completeness. . . . The prosecutor has asked about my
client’s statements and opened the door. So now I get to ask about my client’s
statements. [¶] THE COURT: I respectfully disagree. I don’t think that’s how the rule
of completeness works. . . . Therefore, your exception is noted. It’s overruled. [¶]
[Defense Counsel]: I want to put something else on the record so the appellate court
knows what I was going to ask and what I believe the detective is going to say. I believe
that if I had asked the question that the court precluded . . . I believe the detective would
have my client deny sexual[ ] abuse as to Julia. [¶] THE COURT: That would be
considered self-serving hearsay.”
Appellant argues that the trial court abused its discretion by not allowing further
questioning and that he was denied due process by not being allowed to show that Mother
was biased and that appellant denied the charges when questioned by Officer Groves.
We find no abuse of discretion and no denial of due process. Appellant was
allowed to, and did testify, denying the charges. He explained he was working at nights
8
and thus could not have committed the crimes. He also explained he could not subpoena
his employer because the employer no longer owned the restaurants. He was allowed to
establish evidence about child support payments and jealousy by Mother. The jury was
allowed to consider this evidence and evaluate appellant’s credibility. Any additional
testimony by Officer Groves would not have added new evidence.
4. Cumulative Error
Since we have determined that there was no error in the court’s evidentiary
rulings, appellant’s contentions of cumulative error are without merit,.
DISPOSITION
The judgment is affirmed.
WOODS, J.
We concur:
PERLUSS, P. J.
ZELON, J.
9
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Matter of Bontzolakes v Green (2018 NY Slip Op 08868)
Matter of Bontzolakes v Green
2018 NY Slip Op 08868
Decided on December 21, 2018
Appellate Division, Fourth 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 December 21, 2018
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
1386 CAF 17-01516
[*1]IN THE MATTER OF JACQUELINE BONTZOLAKES, PETITIONER-APPELLANT,
vNORMAN E. GREEN, RESPONDENT-RESPONDENT.
WILLIAM D. BRODERICK, JR., ELMA, FOR PETITIONER-APPELLANT.
MARY ANNE CONNELL, BUFFALO, ATTORNEY FOR THE CHILD.
Appeal from an order of the Family Court, Erie County (Deanne M. Tripi, J.), entered July 31, 2017 in a proceeding pursuant to Family Court Act article 6. The order, among other things, denied the petition seeking unsupervised visitation with the subject child, and granted petitioner supervised visits with the subject child "every other week" for one hour.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by striking from the second ordering paragraph the word "other," and as modified the order is affirmed without costs.
Memorandum: Petitioner mother appeals from an order that denied her petition seeking to modify a prior visitation order. We conclude that Family Court properly denied the petition because the mother failed to establish "a change in circumstances which reflect[ed] a real need for change to ensure the best interest[s] of the child" (Matter of Vasquez v Barfield, 81 AD3d 1398, 1399 [4th Dept 2011] [internal quotation marks omitted]; see Matter of Miller v Pederson, 121 AD3d 1598, 1599 [4th Dept 2014]; Matter of Harder v Phetteplace, 93 AD3d 1199, 1200 [4th Dept 2012], lv denied 19 NY3d 808 [2012]).
In its order denying mother's petition, however, the court erred in also ordering that mother's visitation would occur "every other week," which was a modification of the prior visitation order's provision granting the mother weekly visitation. The issue of decreasing the mother's visitation was not before the court in the mother's petition, respondent father did not petition to reduce the mother's visitation time, and that issue was not the subject of the hearing. Although the mother had informally agreed with the visitation supervisor to have visits every other week with the apparent intent that it would improve her relationship with the child and, over time, result in additional visitation, the mother did not consent to an order reducing her visitation. We therefore modify the order accordingly.
Entered: December 21, 2018
Mark W. Bennett
Clerk of the Court
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885 F.2d 879
Parisiev.State Board of Pardons*
NO. 89-8130
United States Court of Appeals,Eleventh Circuit.
AUG 22, 1989
1
Appeal From: N.D.Ga.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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929 A.2d 646 (2007)
HAKKINEN
v.
KOREVAAR.
No. 269 MAL (2007).
Supreme Court of Pennsylvania.
August 2, 2007.
Disposition of petition for allowance of appeal. Denied.
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Filed 7/7/16 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2016 ND 141
Constellation Development, LLC, Plaintiff and Appellant
v.
Western Trust Company, Gary G. Hoffman,
Trustee, and Dabbert Custom Homes, LLC, Defendants and Appellees
No. 20150319
Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven L. Marquart, Judge.
AFFIRMED.
Opinion of the Court by Sandstrom, Justice.
Michael L. Gust (argued) and Joshua M. Feneis (appeared), P.O. Box 10247, Fargo, N.D. 58106-0247, for plaintiff and appellant.
Roger J. Minch, P.O. Box 6017, Fargo, N.D. 58108-6017, for defendant and appellee Gary G. Hoffman.
Brian W. Varland (argued), Mark J. Heley (on brief), 8500 Normandale Lake Boulevard, Suite 2110, Minneapolis, Minn. 55437, and Seth A. Thompson (appeared), P.O. Box 2097, Bismarck, N.D. 58502-2097, for defendant and appellee Dabbert Custom Homes, LLC.
Constellation Dev., LLC v. Western Trust Co.
No. 20150319
Sandstrom, Justice.
[¶1] Constellation Development, LLC, appeals from a judgment dismissing its claims against Western Trust Company and its trustee, Gary Hoffman (collectively “Western”), for breach of contract and equitable and promissory estoppel, and against Dabbert Custom Homes, LLC, for tortious interference with a business contract. Because we conclude the district court did not err in ruling as a matter of law Western did not breach any agreement it had with Constellation, we affirm the judgment.
I
[¶2] On September 30, 2013, Constellation agreed in writing to purchase about 24 acres of land in Cass County from Western, with the remaining balance to be paid on October 14, 2013. The agreement also provided:
This has changed to a three-year purchase option to run concurrently
FIRST RIGHT OF REFUSAL: The Seller will grant and give to the Buyer the First Right of Refusal for 5 years on the additional 62 acres as shown on Exhibit “B” attached to this Agreement should the Seller decide to sell any more land. The purchase price in reference to the additional land will be at $18,000.00 per acre if the Seller decides to sell additional land. If Seller decides to sell more land the Buyer will have 14 days to enter into a Purchase Agreement and 30 days to close the transaction or he will lose his First Right of Refusal.
The underlined sentence above the printed paragraph was handwritten and initialed by Hoffman and Constellation’s representative.
[¶3] On August 26, 2014, Constellation’s representative wrote a letter to Western stating: “Per the terms of our purchase agreement dated September 30, 2013—I wish to exercise my option to purchase the balance of real estate referenced in the agreement.” On September 5, 2014, Constellation agreed in writing to purchase the additional property consisting of approximately 64 acres from Western:
The Purchser [sic] will therefore pay the sum of $1,150,992.00 (this price is determined by $18,000.00 X 63.944 Acres) property is surveyed and the selling price will be: $1,150,992.00 for the 63.944 Acres; these are the following terms and conditions:
. . . .
(1) A $2500.00 herewith is a non-refundable payment at the execution of this Agreement with the said check to be made payable to First Bank and Trust of Brookings, South Dakota who is the Seller’s 1031 Exchanger. The remaining balance of $1,148,492.00 is to be paid on or before October 13, 2014.
(1a) Because this is a 1031 Exchange, the said closing shall be on or before October 13, 2014.
Constellation gave Western two different checks for $2,500, and each check was returned for insufficient funds. Constellation alleged that it offered Western a $2,500 cashier’s check on October 8 or 9, 2014, but Western refused it.
[¶4] On October 9, 2014, Western sent Constellation a “Notice of Termination of Purchase Agreement,” which stated:
PLEASE TAKE NOTICE that Western Trust Company, through its trustee, Gary G. Hoffman, hereby terminates that certain Purchase Agreement dated September 5, 2014, a copy of which is attached, along with the check for $2,500.00 tendered by Constellation Development, LLC at the time the Purchase Agreement was signed.
The check for $2,500.00 has been returned twice for non-
sufficient funds.
PLEASE TAKE NOTICE that unless Constellation Development, LLC pays Western Trust Company $1,150,992.00 in full, on or before Monday, October 13, 2014, the attached Purchase Agreement will be deemed terminated and null and void by Western Trust Company, and Western Trust Company will reserve all rights for breach of the Purchase Agreement against Constellation Development, LLC, and any other responsible parties, and will proceed to mitigate its damages by, among other things, beginning efforts to sell the property described in the attached Purchase Agreement to other parties or entities.
Constellation did not make the full payment of $1,150,992 to Western on or before October 13, 2014. On October 29, 2014, Western agreed in writing to sell Dabbert Custom Homes, LLC, the 64 acres of property at the price of $19,000 per acre. Western conveyed the property to Dabbert on December 8, 2014.
[¶5] Constellation sued Western, seeking damages for breach of contract and seeking to be allowed to complete the purchase of the property under theories of equitable and promissory estoppel, alleging there had been an oral extension of the September 2014 purchase agreement. Constellation also sought damages from Dabbert for tortious interference with a business contract. The district court granted summary judgment dismissing all of Constellation’s claims, concluding Western did not breach the agreement with Constellation when it refused to sell it the 64 acres, and because there was no breach, Constellation could not prevail against Dabbert on the tortious interference claim. The court did not address Constellation’s estoppel claims.
[¶6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Constellation’s appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.
II
[¶7] Constellation argues the district court erred in granting summary judgment dismissing its breach of contract claim.
[¶8] The standard of review for summary judgment is well-established:
Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.
Hamilton v. Woll
, 2012 ND 238, ¶ 9, 823 N.W.2d 754.
[¶9] The district court ruled that the agreements were unambiguous and that after Constellation exercised the purchase option in the September 2013 agreement, the resulting September 2014 purchase agreement required the nonrefundable $2,500 payment be made at the time of execution and the remainder be paid by October 13, 2014. Because the payments were not made, the court ruled the purchase option expired. The court further ruled Western “decide[d]” to sell the additional property when it entered into the September 5, 2014, purchase contract, which triggered the “First Right of Refusal” provision in the September 2013 purchase agreement. Because Constellation failed to close the transaction within 30 days after execution of the September 2014 purchase agreement, the court also held Constellation lost the first right of refusal under the September 2013 purchase agreement as well. Furthermore, because Western did not breach its agreement with Constellation when it failed to sell the 64 acres to Constellation, the court ruled Constellation was unable to prove an essential element of its tortious interference claim against Dabbert.
[¶10] Constellation argues the district court erred in ruling the September 2013 agreement was unambiguous. Constellation argues the handwritten sentence above the printed “First Right of Refusal” clause, stating, “This has changed to a three-year purchase option to run concurrently,” should be interpreted as creating a separate purchase option and a separate right of first refusal based on the language “to run concurrently.” Western and Dabbert argue the handwritten sentence, which controls over the printed part,
see
N.D.C.C. § 9-07-16, created only a purchase option because it replaced the right of first refusal provision based on use of the phrase, “[t]his has changed.” We need not decide whether an ambiguity was created because, even if the 2013 agreement created both a purchase option and a right of first refusal, Constellation could not prevail.
[¶11] In
Estate of Grengs
, 2015 ND 152, ¶ 27, 864 N.W.2d 424, we explained:
An option to purchase and a right of first refusal are different. An option to purchase creates in the option holder the power to compel the owner of the property to sell it at a stipulated price whether or not the owner is willing to sell.
Berry-Iverson Co. of N.D., Inc. v. Johnson
, 242 N.W.2d 126, 130 (N.D. 1976);
see also
77 Am. Jur.2d
Vendor and Purchaser
§ 27 (2015). A right of first refusal is often referred to as a preemptive right because “it allows the holder to preempt a sale to an interested third party, and requires the landowner to offer the property to the right holder on the same terms.”
Northern Plains Alliance, L.L.C. v. Mitzel
, 2003 ND 91, ¶ 14, 663 N.W.2d 169. We have further explained:
The holder of a right of first refusal on a piece of land only has the right to receive an offer to buy the land. Generally, it is a contractual right to preempt another because the right is conditional on the owner’s decision that an offer from a third party is acceptable. More specifically, the right is subject to an agreed condition precedent, typically the owner’s receipt of an offer from a third party and the owner’s good-faith decision to accept it. Only then can the holder of the right decide whether or not to create a contract on the same terms that the owner is willing to accept from the third party. More precisely, the occurrence of these events (owner’s receipt of an offer and the good-faith decision to accept it) satisfies the condition precedent, which “triggers” the right of first refusal that “ripens” into an option. The option then can be exercised like any other option contract.
Id.
(quoting 3 Eric Mills Holmes,
Corbin on Contracts
§ 11.3 (rev. ed. 1996));
see also
Berry-Iverson
, at 130 (explaining the difference between a pre-emption and an option).
While “[a]cceptance of an option for the sale of land within the time allowed and according to its terms converts the option into a binding executory contract of sale,”
Northern Plains Alliance, L.L.C. v. Mitzel
, 2003 ND 91, ¶ 16, 663 N.W.2d 169, “the right of first refusal is contingent on the property owner’s receipt of an acceptable bona fide offer from a third party,” and “[o]nce the owner receives an acceptable offer and notifies the right-holder, the right of first refusal is triggered.”
Dyrdal v. Golden Nuggets, Inc.
, 672 N.W.2d 578, 584 (Minn. Ct. App. 2003);
see generally
Mitzel
, at ¶¶ 17-19.
[¶12] Despite “the apparent conflict between the provisions of a fixed-price option and a right of first refusal,” it is not uncommon for real property documents to contain both provisions. W. Wakefield, Annot.,
Construction and effect of options to purchase at specified price and at price offered by third-person, included in same instrument
, 22 A.L.R. 4th 1293, 1296 (1983), and cases collected therein. Most of the caselaw interpreting the coexistent provisions involve situations in which there has been a receipt of a third-party offer before an attempted exercise of the fixed-
price option, and the authorities are split on the question whether the fixed-price option is extinguished by the preemptive right holder’s failure to respond to notice of a third-party’s offer to purchase.
Id.
at §§ 3,4. The result often turns on the specific language of the provisions.
Id.
There are far fewer cases addressing the question whether a right of first refusal provision survives after the exercise of a fixed-price option.
Id.
at § 6. For example, in
Sinclair Refining Co. v. Allbritton
, 218 S.W.2d 185, 187-189 (Tex. 1949), the court held that once a fixed-price purchase option is validly exercised and the relationship is thereby changed to that of vendor and purchaser, any rights under a purchase refusal provision in the same agreement ceases to exist.
Allbritton
supports the argument that Constellation’s exercise of the purchase option resulting in the September 2014 purchase agreement extinguished the right of first refusal provision.
[¶13] However, even if the right of first refusal provision was not extinguished, Constellation would not prevail. Constellation argues the district court erred because Western did not communicate the terms of the offer it accepted from Dabbert, which was necessary to trigger the right of first refusal provision. The problem with Constellation’s argument is that, although labeled “First Right of Refusal,” this provision in the September 2013 agreement did not give Constellation a right of first refusal.
[¶14] “It is the substance of the agreement that controls, not the titles or labels attached by the parties.”
Estate of Zubicki v. Rutherford
, 537 N.W.2d 559, 562 (N.D. 1995);
see also
BTA Oil Producers v. MDU Res. Grp., Inc.
, 2002 ND 55, ¶ 63, 642 N.W.2d 873;
Wallwork Lease and Rental Co., Inc. v. JNJ Invs., Inc.
, 303 N.W.2d 545, 547 (N.D. 1981);
Lee v. N.D. Park Serv.
, 262 N.W.2d 467, 474 n.3 (N.D. 1977). “A preemptive right to purchase real estate can take the form of either a ‘right of first refusal’ or a ‘right of first offer.’”
Kelly v. Ammex Tax and Duty Free Shops W., Inc.
, 256 P.3d 1255, 1258 (Wash. Ct. App. 2011). While a right of first refusal is triggered when the owner receives an offer from a third party and decides to sell, a right of first offer is triggered when the owner decides to offer the property for sale without first receiving an offer from a third party.
See
SKI, Ltd. v. Mountainside Props., Inc.
, 114 A.3d 1169, 1174-1175 (Vt. 2015). If the grantee of a right of first offer does not accept that offer, “the seller is then free to sell to anyone else on the terms rejected by the grantee or on terms which are better, but not worse, for the seller.” 92 C.J.S.
Vendor and Purchaser
§ 180, at 157 (2010) (footnote omitted);
see also
77 Am. Jur. 2d
Vendor and Purchaser
§ 33 (2006); M. Kahan, S. Leshem, and R. Sundaram,
First-Purchase Rights: Rights of First Refusal and Rights of First Offer
, 14 Am. L. & Econ. Rev. 331, 332 (2012).
[¶15] The terms of the September 2013 agreement did not require Western to inform Constellation of any third-party offer for the property before it could sell to the third party. Rather, the provision speaks only in terms of the seller’s “deci[sion]” to sell, and therefore closely resembles a right of first offer. The provision states, “If Seller decides to sell more land the Buyer will have 14 days to enter into a Purchase Agreement and 30 days to close the transaction or he will lose his First Right of Refusal.” Even if the district court was incorrect in ruling Western “decide[d]” to sell when it entered into the September 2014 purchase agreement, Western informed Constellation in no uncertain terms that it had “decide[d]” to sell the property in the October 9, 2014, notice of termination of the purchase agreement by stating it would “begin[] efforts to sell the property described in the attached Purchase Agreement to other parties or entities.” This notice triggered the right of first offer, but Constellation did nothing to accept the offer.
[¶16] We conclude the district court did not err in ruling as a matter of law Western did not breach any agreements it had with Constellation. Because there was no breach, Constellation’s tortious interference with a contract claim was also appropriately dismissed on summary judgment.
See
Mitzel
, 2003 ND 91, ¶ 23, 663 N.W.2d 169.
III
[¶17] Constellation argues the district court erred in dismissing its equitable and promissory estoppel claims against Western based on an alleged oral extension of the time to make its required payments under the September 2014 purchase agreement. The district court did not address this contention in its decision.
[¶18] Constellation pled equitable and promissory estoppel in its first amended complaint and alleged:
Pralle [president of Constellation] offered the cashier’s check to Hoffman as the earnest money payment and Hoffman refused the check.
Throughout this period, Hoffman and Pralle had numerous conversations and meetings in which Hoffman assured Pralle that the purchase of the 63.944 acres would be completed and Pralle did not need to worry about the earnest money payment.
Additionally, Hoffman agreed to grant Pralle an extension on the closing date. The September 5, 2014 Purchase Agreement contained no provision that modification must be in writing.
. . . .
Despite this letter from attorney Minch and the passing of the October 13, 2014 deadline, Hoffman continued to assure Pralle that they would conclude Constellation’s purchase of the 63.944 acres consistent with the terms of the purchase option from the September 30, 2013 Purchase Agreement.
Constellation also submitted an affidavit of Pralle, stating:
After Gary Hoffman refused to accept the certified funds, I received
Exhibit F
attached to the First Amended Complaint, which is a true and correct copy of the Notice of Termination of Purchase Agreement received from Roger Minch with the Serkland Law Firm. I was surprised when I received the Notice of Termination of Purchase Agreement as I had had multiple discussions with Gary Hoffman of extending the timeframe to close this deal. Attached to this Affidavit as
Exhibit A
is a summary of phone calls that I had with Mr. Hoffman from my cell phone regarding this transaction. Additionally, it is my recollection that I had multiple phone calls from my home phone to the cell phone of Gary Hoffman. . . . During October, November and December of 2014, Mr. Hoffman continually told me that the land was mine to be purchased pursuant to the terms of the September 2014 Purchase Agreement at any time I desired. Based upon these representations, I took no further action to enforce the terms of the September 2014 Purchase Agreement. Had I known that Mr. Hoffman was not going to honor his word in granting the extension, I would have taken steps to enforce the September 2014 Purchase Agreement, including commencing a lawsuit if it came to that.
[¶19] The September 5, 2014, purchase agreement was in written form in compliance with the statute of frauds under N.D.C.C. § 9-06-04(3). We have often stated that part performance of an oral contract, promissory estoppel, or equitable estoppel may bar the assertion of the statute of frauds under N.D.C.C. § 9-06-04 if, in fact, there is an oral agreement between the parties.
See, e.g.
,
Knorr v. Norberg
, 2015 ND 284, ¶ 9, 872 N.W.2d 323;
Mellon v. Norwest Bank
, 493 N.W.2d 700, 703-
04 (N.D. 1992);
Cooke v. Blood Sys., Inc.
, 320 N.W.2d 124, 127 (N.D. 1982);
Wilhelm v. Berger
, 297 N.W.2d 776, 779 (N.D. 1980);
Nelson v. TMH, Inc.
, 292 N.W.2d 580, 583-84 (N.D. 1980). We have also applied these estoppel principles in cases involving the sale of goods and N.D.C.C. § 41-02-08 (U.C.C. 2-201), the statute of frauds contained in the Uniform Commercial Code.
See, e.g.
,
Jamestown Terminal Elevator, Inc. v. Hieb
, 246 N.W.2d 736, 740-42 (N.D. 1976);
Farmers Coop. Ass’n v. Cole
, 239 N.W.2d 808, 812-14 (N.D. 1976);
Dangerfield v. Markel
, 222 N.W.2d 373, 377-78 (N.D. 1974). Here Constellation is attempting to orally modify the written purchase agreement which complied with the statute of frauds under N.D.C.C. § 9-06-04(3). Where, as here, the written purchase agreement does not specify how the parties may modify its terms, we look to N.D.C.C. § 9-09-06.
See
Valentina Williston, LLC v. Gadeco, LLC
, 2016 ND 84, ¶ 14, 878 N.W.2d 397.
[¶20] Section 9-09-06, N.D.C.C., provides:
A contract in writing may be altered by a contract in writing or by an executed oral agreement
and not otherwise
. An oral agreement is executed within the meaning of this section whenever the party performing has incurred a detriment which that party was not obligated by the original contract to incur.
(Emphasis added.) In
Nelson v. Glasoe
, 231 N.W.2d 766, 768 (N.D. 1975), this Court said estoppel could remove the bar of the statute of frauds to allow oral modification of a written contract, but that case involved the sale of goods and the “less strict standard” under the Uniform Commercial Code.
Dangerfield
, 222 N.W.2d at 378. Constellation has not cited, and we have not found, any North Dakota case allowing an unexecuted oral agreement through estoppel principles to modify a written contract involving the sale or lease of real property. Rather, this Court in cases involving real estate transactions has strictly construed N.D.C.C. § 9-
09-06 and its predecessor statutes.
See
Valentina Williston, LLC
, 2016 ND 84, ¶¶ 15-21, 878 N.W.2d 397;
Gajewski v. Bratcher
, 221 N.W.2d 614, 640-43 (N.D. 1974);
Thompson v. Baker
, 52 N.D. 336, 370, 203 N.W. 195, 196 (1925);
McCulloch v. Bauer
, 24 N.D. 109, 117, 139 N.W. 318, 320 (1912);
Cughan v. Larson
, 13 N.D. 373, 379-80, 100 N.W. 1088, 1089-90 (1904);
Foster v. Fulong
, 8 N.D. 282, 285, 78 N.W. 986, 987 (1899). As this Court explained in
Cughan
, 13 N.D. at 379-80, 100 N.W. at 1089-90:
Section 3936, Rev. Codes 1899, provides: “A contract in writing may be altered by a contract in writing or by an executed oral agreement and not otherwise.” This section has been construed by this court to prohibit an oral extension of the time of payment of a promissory note by an agreement to do so that is unexecuted by either party. Foster v. Furlong, 8 N.D. 282, 78 N.W. 986. Such being the law in respect to the contract involved in that case, no good reason can be given why that case is not controlling in this case. In fact, this case presents stronger reasons for the strict application of the section, as the contract here involved is one within the statute of frauds, and of necessity must be in writing if unperformed. . . . The respondent contends that the modification proposed relates solely to the performance of the contract, and is, therefore, not inhibited by that section. But such a construction would be reading into the section an exception not warranted by the language of the section, and one coming within the evil to be guarded against by the enactment of the section; that is, that parties should not be burdened by claims of modified contracts that were never entered into. As stated by the court in Rucker v. Harrington, 52 Mo. App. 481: “It is therefore at least equally proper to say that the principal design of the statute was to protect parties from the performance of burdensome contracts which they never made. Therefore, if you may enforce an oral agreement for a substituted performance of a written agreement, you apply the statute to the shadow and withhold it from the substance. Such application of the statute only makes it necessary that parties have a contract in writing. Then, under the guise of performance, the contract enforced is shown by parol.” The section announces a general rule in respect to contracts in writing that is generally held by courts to be the rule in case of modification of contracts required to be in writing when no statute similar to section 3936 is in force.
[¶21] Constellation does not allege there was a written contract or an executed oral agreement to extend the payment terms of the September 2014 purchase agreement. Under N.D.C.C. § 9-09-06, a written contract cannot be altered “otherwise.” The dictates of the statute cannot be avoided merely by cloaking the argument in estoppel language. Because a contract required by the statute of frauds to be in writing cannot be modified by a subsequent unexecuted oral agreement, we conclude the district court did not err in dismissing Constellation’s equitable and promissory estoppel claims as a matter of law.
IV
[¶22] It is unnecessary to address other arguments raised, because they are either unnecessary to the decision or are without merit. We affirm the judgment.
[¶23] Dale V. Sandstrom
Daniel J. Crothers
Lisa Fair McEvers
Gerald W. VandeWalle, C.J.
Donald Hager, D.J.
[¶24] The Honorable Donald Hager, D.J., sitting in place of Kapsner, J., disqualified.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-1389
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
George D. Leisure, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: February 7, 2002
Filed: February 11, 2002
___________
Before HANSEN, Chief Judge, FAGG and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
___________
PER CURIAM.
After George D. Leisure pleaded guilty to being a felon in possession of
firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), the district court
sentenced him to 20 months imprisonment and 3 years supervised release. Leisure
appeals and we affirm.
Leisure first challenges the district court’s compliance with Federal Rule of
Criminal Procedure 11(d) and (f). There was no error: the court questioned Leisure
extensively about his competency to plead guilty before determining the plea was
voluntary, and properly determined there was a factual basis for the plea. Leisure also
challenges the actual voluntariness of his guilty plea and his counsel’s effectiveness,
but these challenges are not properly before us. See United States v. Young, 927 F.2d
1060, 1061 (8th Cir.), cert. denied, 502 U.S. 943 (1991).
Leisure’s remaining claims concerning the Fourth Amendment, his speedy-trial
rights, and his innocence, are foreclosed by his guilty plea. See United States v.
Arrellano, 213 F.3d 427, 430 (8th Cir. 2000); Cox v. Lockhart, 970 F.2d 448, 453
(8th Cir. 1992); cf. United States v. Beck, 250 F.3d 1163, 1166-67 (8th Cir. 2001).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2-
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73 Ariz. 396 (1952)
242 P.2d 282
MITCHELL
v.
THORNE.
No. 5427.
Supreme Court of Arizona.
March 17, 1952.
Jennings, Strouss, Salmon & Trask and Richard G. Kleindienst, all of Phoenix, for appellant.
George D. Locke, of Phoenix, for appellee.
UDALL, Chief Justice.
Raymond O. Mitchell, plaintiff (appellant) sued Niblack Thorne, defendant (appellee) for $7,500 on an alleged oral contract to repurchase one thousand shares of the capital stock of Hadley Products, Inc., an Arizona corporation. The defendant's answer specifically denied there was such an agreement and also pleaded as an affirmative defense that if such an agreement was found to exist it was unenforceable because of the statute of frauds. The case was tried to the court, sitting without a jury, which made findings of fact and conclusions of law and then entered judgment for the defendant thereby denying plaintiff recovery upon his complaint. This appeal followed.
Our case, Rugee v. Hadley Products, Inc., 73 Ariz. 362, 241 P.2d 798, will throw additional light on the affairs of this corporate *397 entity and the plaintiff's dealings therewith.
As the basis for its judgment the court's findings were to the effect (1) that defendant on October 8, 1947, promised that if plaintiff invested in such stock and thereafter desired to sell it, he (defendant) would repurchase the stock for the amount plaintiff had paid for it; (2) "That thereafter, and on October 10, 1947, Plaintiff visited the plant and office of the corporation in Phoenix, and made an agreement to purchase one thousand (1,000) shares of its stock from Frank Hadley, the owner of such stock and the President of the corporation, for Seventy-five Hundred and no/100 Dollars ($7,500.00). On making said agreement with Mr. Hadley, Plaintiff gave him his check for One Thousand and no/100 Dollars ($1,000.00) on account of such purchase, and paid the balance of the purchase price during October, 1947." and (3) that plaintiff before filing this suit made a formal tender of his stock certificate to defendant demanding that he repurchase it, which demand was refused. From these findings the court concluded as a matter of law: "That the promise of the Defendant to purchase Plaintiff's stock was a separate and independent transaction, and no part of Plaintiff's agreement whereby he purchased his stock, and therefore is void and unenforceable under the Statute of Frauds. Section 58-101, subsection 4, A.C.A. 1939."
The first and, as we believe, vital assignment of error is in substance that the trial court erred in concluding as a matter of law that the promise of the defendant to purchase plaintiff's stock was a separate and independent transaction and no part of plaintiff's agreement whereby he purchased his stock and was therefore void and unenforceable under the statute of frauds, because such conclusion of law was not sustained by the evidence and is not supported by the authorities.
The following proposition of law was submitted in support of this assignment: "Where, in a sale of stock by a corporation to an individual, an officer of the corporation interested in the success of the corporation orally promises to repurchase the stock, such an oral contract is a part of the contract of sale of stock and the delivery of the stock to the individual and payment therefor constitutes performance and takes the oral contract out of the statute of frauds."
The defendant does not particularly challenge this as an abstract statement of law but insists that it is predicated upon a false factual premise.
The facts, however, are not in dispute and both parties agree that: "The only issue before this court is whether the trial court properly applied the law to the facts." Plaintiff does not dispute the court's findings of fact, supra, but rather urges that considering those findings with *398 other evidence that stands uncontradicted and not inconsistent with these findings, leads to a conclusion of law contrary to that found by the trial court. Defense counsel on the other hand seek to limit the court's examination of the facts to the meager ones found by the trial court and thereby exclude from our consideration other very pertinent testimony given by the defendant himself which places an entirely different light on the dealings between the parties. It is defendant's further contention that following the agreement to repurchase which he maintains was an independent transaction in which the latter was in nowise interested the plaintiff purchased the corporate stock from its owner, Frank Hadley, the president of the corporation.
We are of the opinion that to prevent justice from being administered blindly we are entitled to consider, in determining this appeal, the testimony of the defendant which supplements but does not necessarily conflict with the facts as found by the lower court. Let us therefore look to the record to ascertain the defendant's interest in this company. On direct examination he testified: "Q. Now, Mr. Thorne, directing your attention to the fall of 1947, did you at about that time make an investment in a company known as the Hadley Products Corporation? A. Yes, on the 10th of September, 1947, I invested $5,000 in the Company, which brought me a ten per cent interest. I also took an option at that time for an additional 15 per cent, or $7,500 worth of stock." (Note: He later testified that this option was exercised on Dec. 2, 1947.)
In response to a question as to whether the amount of Mitchell's (plaintiff's) investment had been determined at the time he made his promise to repurchase the stock, the defendant stated:
"A. I think it had been because there was 15 per cent of the corporate stock not outstanding at that time, and both Hadley and I felt that the greater portion of the risk had been passed, and we offered the stock to him at $7.50 a share rather than Five, which he agreed was fair, and that would leave five per cent not outstanding. That would be then ten per cent interest for $7500. Now, later on I wish to add that we held a special directors' meeting at the Arizona Club. I don't remember what month, but it was in June of the following year, and I brought up the point and we did pass and resolve that Ray Mitchell would be issued the additional five per cent . (Emphasis supplied.)
* * * * * *
"Q. Now, subsequently, did Mr. Mitchell invest in the Company? A. Yes, I think it was the following day he came out and made further investigations and we engaged in conversation and he issued a check for $1000."
And on cross-examination it was brought out:
*399 "Q. Mr. Thorne, at the time you were discussing this investment with Mr. Mitchell in October of '47 and at the time that he made the investment, you were a stock-holder and officer and a director of the Corporation, were you not? A. Yes.
"Q. At that time you were familiar with its financial condition, were you not? A. Yes.
"Q. You knew the Corporation needed money badly? A. Yes.
"Q. And you were very anxious to obtain Mr. Mitchell's or anybody's money? A. Somebody's money, yes.
"Q. You had put in $5000, and all the money you had put in was gone, used up? A. Well, almost all of it, I imagine.
"Q. And you knew if you didn't get additional money you would stand to lose your own investment, didn't you? A. That is right.
"Q. So you had a very definite positive personal interest in getting additional capital, did you not? A. I did, except my investment was still small at that time.
"Q. Now, under those circumstances you thought it entirely proper to sell Mr. Mitchell five dollar stock for $7.50, did you not? A. I didn't think one way or the other on that, Mr. Ozell.
"Q. But you did sell him stock equivalent to five dollar stock at $7.50? A. Yes, but I would like to point out Frank Hadley was head of the Corporation."
From this record the conclusion seems inescapable that the oral promise to repurchase by defendant which agreement was expressly found by the trial court was but a part of the contract to sell the corporate stock. While technically speaking the purchase was (as was found by the trial court) from Frank Hadley, there can be no doubt that this was an investment in the company and that the money paid by plaintiff went into the coffers of the corporation and that the defendant as a stockholder was directly benefitted thereby. Furthermore within two days after the last promise to repurchase was made the plaintiff purchased the stock in question and the defendant, an officer of the corporation, was present and actively participated in the sale. It should be noted that the parties at this time had been intimate friends for over 25 years. Under this state of the record we fail to see how it can be seriously contended that the plaintiff did not act in reliance upon the promise of the defendant and that in reality the sale was not for the benefit of the corporation.
We are therefore of the opinion that the learned trial court erred in concluding as a matter of law that the defendant's promise to repurchase was separate and apart from the plaintiff's agreement to buy the stock. We hold that such conclusion is not sustained by the evidence as the only reasonable inference to be drawn therefrom is that the oral promise to repurchase was part of the contract to sell the stock.
Having reached this conclusion let us next examine the authorities to determine *400 the governing principles of law. This matter has been before the courts of other jurisdictions many times and there seems to be two divergent views both supported by respectable authority. See the excellent and exhaustive annotation in 121 A.L.R. 312. The liberal rule which is supported by the weight of authority and which we deem the better rule is to the effect that where the promise to repurchase is not separate or independent from the contract of sale, the promise is not unenforceable under the statute of frauds. In other words, where an officer or substantial stockholder of a corporation promises to repurchase the stock and the purchaser, relying upon the promise purchases stock from the corporation, the repurchase agreement is a part of the original contract of sale and not within the statute of frauds. Beckroge v. South Carolina Public Service Co., 185 S.C. 210, 193 S.E. 315; Joy v. Pagel, 287 Mich. 453, 283 N.W. 646, 121 A.L.R. 306; Pierce v. Rothwell, 38 Wyo. 267, 267 P. 86. The following statement appears in 49 Am.Jur., Statute of Frauds, section 248: "In the case of sales of corporate securities, where the person effecting or inducing the sale and making the promise of repurchase or repayment is not merely an agent, but also an officer or large stockholder, of the corporation issuing or otherwise owning the securities sold, the courts are somewhat more reluctant to hold the promise void under the statute of frauds. In fact, the weight of authority in this class of cases holds the promise not to be within the statute. * * *"
These legal principles are controlling as to the factual situation shown by this record, i.e., the person making the promise of repurchase was an officer and stockholder of the corporation, the buyer of the stock relied upon the promise, the corporation actually received the consideration and benefits of the sale, the defendant as an officer and stockholder was thereby benefitted, and plaintiff's part of the contract was fully executed.
Inasmuch as the disposition of the first assignment determines the appeal, there is no occasion for us to treat the other assignments which raise (a) the question of whether this is a contract of indemnity and therefore not within the statute of frauds, or (b) that in any event the defendant was estopped by his conduct from relying upon the statute of frauds.
The judgment of the lower court is reversed with directions to enter judgment for the plaintiff.
STANFORD, PHELPS and LA PRADE, JJ., concurring.
DE CONCINI, Justice.
I dissent.
The appellant in his brief makes this statement: "The findings of fact by the trial judge are not disputed. The only issue *401 before this court is whether the trial court properly applied the law to the facts."
With no facts in dispute, the majority has quoted evidence to supplement the findings of fact which, it says, negatives the trial court's conclusion. I do not agree with the majority on that point.
The lower court found, and it is not disputed, that the stock sold was the stock of Hadley and not Thorne's nor the corporation's. The majority have inferred from the evidence quoted that the money went into the coffers of the corporation and thereby benefitted Thorne. There is no evidence to sustain that except by inference, and even if it were true, it might have been a loan to the corporation which, to my view, would be different than a sale of the corporation's stock. Regardless of what it was there is no evidence to sustain these words by the majority opinion: "* * * there can be no doubt that this was an investment in the company and that the money paid by plaintiff went into the coffers of the corporation * * *."
It is too well known to need citations that this court is not a fact-finding body. In this case no assignment of error was directed to the incorrectness of the trial court's findings of fact. In such a case the findings are deemed conclusive. With no finding that the money went into the corporation's coffers, and no evidence to sustain such a finding except by inference, which the trial court is not bound to so infer, this court should not disturb the decision on the basis of its previous rulings. See Valley Nat. Bank of Phoenix v. Carrow, 71 Ariz. 87, 223 P.2d 912.
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No 15-2862
UNITED STATES OF AMERICA
v.
MAXIMO MATEO-MEDINA
a/k/a David Contreras
a/k/a Luis Nieves
a/k/a/ Joseph Robles,
Maximo Mateo-Medina,
Appellant
(E.D. Pa. No. 2-15-cr-00055-001)
ORDER
At the direction of the Court, the opinion and judgment entered on December 30,
2016 are hereby VACATED.
For the Court,
Marcia M. Waldron, Clerk
Date: January 3, 2017
tyw/cc: Brett G. Sweitzer, Esq.
Bernadette A. McKeon, Esq.
Clare P. Pozos, Esq.
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614 P.2d 1144 (1980)
289 Or. 399
STATE of Oregon ex rel. Julia Rodriguez and West Side Sanitary District, a Quasi-Municipal Corporation in Klamath County, Oregon; and
Julia Rodriguez and West Side Sanitary District, a Quasi-Municipal Corporation in Klamath County, Oregon, in Their Own Rights, Petitioners,
v.
Kristine M. GEBBIE, Assistant Director for Health of the Department of Human Resources of the State of Oregon; Also the Health Division of the Department of Human Resources of the State of Oregon, Respondents.
CA 14230; SC 26607.
Supreme Court of Oregon.
Argued and Submitted March 3, 1980.
Decided July 23, 1980.
E.R. Bashaw, Medford, and Steven P. Couch, Klamath Falls, argued the cause and filed briefs for petitioners.
Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for respondents. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
B.J. Matzen, City Atty., Klamath Falls, also argued the cause for respondents.
Before DENECKE, C.J., and TONGUE, HOWELL, LENT and PETERSON, JJ.
HOWELL, Justice.
This is the second of four related cases decided this date presenting questions concerning the compulsory annexation by the City of Klamath Falls (City) of a certain area adjacent to the City because a danger to public health exists due to sewage conditions. In this case, plaintiffs sought a writ *1145 of mandamus to compel defendants[1] to stay further compulsory annexation proceedings and to initiate review of plaintiffs' alternative plan of annexation.[2] The Court of Appeals affirmed a judgment by the circuit court dismissing plaintiffs' alternative writ of mandamus. 42 Or. App. 618, 602 P.2d 282 (1979). We granted review.
In December, 1977, the Klamath County Board of Health, believing that a danger to public health existed within the subject territory, adopted a resolution, and forwarded a copy to the Health Division, proposing that the territory be annexed to the City pursuant to ORS 222.850 to 222.915. Those statutes provide for city annexation of a territory,
"* * * without any vote in such territory or any consent by the owners of land therein if it is found, as provided in ORS 222.850 to 229.915 [sic], that a danger to public health exists because of conditions within the territory and that such conditions can be removed or alleviated by sanitary, water or other facilities ordinarily provided by incorporated cities." ORS 222.855.
The Health Division, after holding public hearings in the subject territory pursuant to ORS 222.870, issued an order finding that a danger to public health exists in the territory because of conditions
"which are conducive to the propagation of communicable or contagious disease producing organisms * * *, conditions caused by inadequate installations for the disposal and treatment of sewage in the territory."
On November 1, 1978, pursuant to ORS 222.885, plaintiffs filed with the Health Division a petition allegedly signed by not less than 51 percent of the registered voters in the territory proposed to be annexed. The petition contained a proposal for an alternative plan of annexation to a sanitary district instead of to the City. According to ORS 222.885(2):
"Upon receipt of such petition, the division shall:
"(a) Immediately forward copies of the petition to the city, and, except where the condition causing the danger to public health is impure or inadequate domestic water, to the [Environmental Quality Commission.]
"(b) Order further proceedings on the findings filed under ORS 222.880 stayed pending the review permitted under ORS 222.890 and this section."
On January 25, 1979, after plaintiffs realized that the defendants had failed to act upon their petition, plaintiffs filed a petition for alternative writ of mandamus seeking to compel defendants to perform their duties under ORS 222.885(2). The circuit court allowed the alternative writ of mandamus.
Defendants filed an answer stating that they did not proceed under ORS 222.885(2) because the petition filed on November 1, 1978, was not signed by more than 51 percent of the registered voters within the territory proposed to be annexed, as required by ORS 222.885(1). Defendants explained that the determination of the insufficiency of the petition was based upon certification of the Clerk of Klamath County. That certification stated:
"OFFICE OF
"CLERK OF KLAMATH COUNTY
"Courthouse
"Klamath Falls, Oregon 97601
"I HEREBY CERTIFY THAT ONE HUNDRED SIXTY ONE (161) SIGNATURES *1146 ON THE ENCLOSED PETITIONS ARE REGISTERED VOTERS IN KLAMATH COUNTY WESTSIDE SANITARY DISTRICT, WITHIN THE BOUNDARIES OF THE HEALTH HAZARD AREA, TO THE BEST OF MY KNOWLEDGE. THREE HUNDRED EIGHTY (380) PERSONS ARE REGISTERED VOTERS WITHIN SAID AREA ACCORDING TO CURRENT POLL BOOK INFORMATION. OF THE SIGNATURES WHICH APPEAR ON THE PETITIONS, SEVENTEEN (17) ARE NOT REGISTERED, TWO (2) ARE REGISTERED IN OTHER PRECINCTS, AND ONE (1) APPEARS TWICE, BUT WAS COUNTED ONLY ONCE.
" [Illegible] SIGNATURES REPRESENT 42.37 PERCENT OF THE 380 REGISTERED VOTERS IN THE AREA.
"WM. D. MILNE, COUNTY CLERK
"By /s/ Phyllis Rutledge
DEPUTY"
Plaintiffs filed a reply which alleged that:
"Of the three hundred eighty (380) persons whose names appeared in the County Clerk's voter register to have residence addresses within the subject area, one hundred (100) were, and are, not voters in the area for the reason that they had died or otherwise departed and lived elsewhere than within the area as of November 1, 1978, and not more than two hundred eighty (280) persons (who) thus appeared on the voter's register with addresses in the subject area were registered voters therein. Of the said two hundred eighty (280), not less than one hundred sixty-one (161) signed the petition alleged in the writ, and thus constituted not less than fifty-one percent (51%) of the registered voters in the subject area."
Defendants moved for judgment on the pleadings and filed a memorandum in which they argued that ORS 222.885(1) "does not require a showing as to the propriety of the registrations but rather requires only a percentage showing of the registrants. The voter register is the basis for determining that."
The circuit court granted the defendants' motion for judgment on the pleadings, explaining that "ORS 222.885(1) is a simple administerial test and does not allow going behind the registration record of the County Clerk."
The Court of Appeals affirmed, citing its decision in West Side Sanitary Dist. v. Health Div., 42 Or. App. 755, 601 P.2d 858 (1979). In that decision the court had held that the term "registered voters," as used in ORS 222.885, does not refer to those persons who are both currently registered and qualified to vote in the area, but refers only to the names appearing on the county's registration list. The court agreed with defendants that they were entitled to rely on the presumption that the county clerk maintains a current voter registration list.
ORS 222.885(1) provides:
"At any time within 30 days after the assistant director under ORS 222.880 finds that conditions dangerous to public health exist, a petition, signed by not less than 51 percent of the registered voters in the territory proposed to be annexed, may be filed with the division. Such petition shall suggest an alternative plan to annexation to the city for removal or alleviation of the conditions dangerous to public health. The petition shall state the intent of the residents to seek annexation to an existing sanitary authority, county service district or other special district authorized by law to provide facilities necessary to remove or alleviate the dangerous conditions. * * *" (Emphasis added.)
Under the general annexation statutes, ORS 222.111 to 222.750, annexation of territory to a city typically requires, among other things, either approval from a majority of "the registered voters" of the territory proposed for annexation (ORS 222.111(3)) or consent from more than half of the owners of land in the territory, who also own more than half of the land in the territory and of real property therein representing more than half of the assessed value of all real *1147 property in the territory (ORS 222.120(2); 222.170).[3]
The requirement that registered voters in the territory vote on a question of general annexation reflects a legislative concern that these persons have some control over the decisions that will affect their property and their political organization. This concern is also reflected in compulsory annexations in ORS 222.885. Even though, under the compulsory city annexation statutes, a city is not required to submit the question of annexation to the registered voters of the territory, ORS 222.885 provides these registered voters with a method of avoiding city annexation by submitting to the Health Division a petition stating "the intent of the residents to seek annexation" to a different authority that will provide the facilities necessary to remove the danger to public health.
We believe that the legislature, by using both the terms "registered voters" and "residents" in ORS 222.885(1), intended that only those voters registered to vote and resident in the territory be considered in determining whether the petition meets the 51 percent requirement. ORS 222.885(1) specifically requires the petition to represent the intent of the residents. If the defendants are correct that the term "registered voters" refers only to persons on the registration list and doesn't require those persons to currently reside in the territory then the requirement that the petition state the intentions of residents may be ignored. According to the legal analysis of the defendants, the following illogical case would be perfectly legal: If, for example, the registration list showed 380 persons and 200 of them no longer resided in the territory, a petition signed by every one of the remaining 180 residents would not satisfy ORS 222.885(1). Indeed, in such a case, no petition could satisfy ORS 222.885(1). The terms "registered voters in the territory" and "intent of the residents" in ORS 222.885(1) must therefore refer to registered voters who are residents of the territory at the time the petition is filed with the Health Division.
The trial court entered a judgment on the pleadings in favor of defendants because they presented evidence as to the percentage of registered voters in the territory who signed the petition. Defendants did not consider, however, evidence as to the total number of registered and resident voters in the territory at the time of the filing of the petition and evidence of the percentage *1148 of registered and resident voters who signed the petition. Therefore defendants failed to show cause why the petition for an alternative plan failed to qualify under ORS 222.885(1). Judgment on the pleadings was improperly granted and the alternative writ of mandamus was improperly dismissed.
We remand this case to the trial court with the following directions. Because ORS 222.885(1) contemplates that defendants will make a finding as to whether petitions filed under that statute satisfy the 51 percent requirement, the trial court should issue a peremptory writ of mandamus directing defendants to examine evidence and make a formal agency determination as to whether the petition in the instant case satisfied the 51 percent requirement. The defendants are not required to poll all persons in the territory to determine the total number of registered voters who are current residents. Any certification by the county clerk is not conclusive, and defendants must permit petitioners the opportunity to present their own evidence as to the number of registered and resident voters in the territory, including evidence challenging the county clerk's certification. After a hearing, defendants should issue an order determining whether the petition satisfies ORS 222.885(1).
The opinion of the Court of Appeals is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.
Reversed and remanded.
NOTES
[1] Defendants in this case are both the assistant director of the Health Division and the Health Division.
[2] In the first case, West Side Sanitary Dist. v. LCDC, 289 Or. 393, 614 P.2d 1141 (1980), plaintiffs sought review by the Land Conservation and Development Commission (LCDC) of the Health Division order issued pursuant to ORS 222.880, finding that a health hazard exists. In the third case, West Side Sanitary Dist. v. LCDC, 289 Or. 409, 614 P.2d 1148 (1980), plaintiffs sought LCDC review of the Environmental Quality Commission (EQC) order issued pursuant to ORS 222.898, approving city plans to remove or alleviate the health hazard. In the fourth case, West Side Sanitary Dist. v. Health Div., 289 Or. 417, 614 P.2d 1151 (1980), plaintiffs sought judicial review in the Court of Appeals of the EQC order issued pursuant to ORS 222.898.
[3] The statutes regarding the creation of an incorporated city from adjoining or nonadjoining incorporated cities require the approval of the "legal voters" of each incorporated city. ORS 222.250. And the statutes regarding merger of cities and municipal corporations require authorization from a majority of the "electors" of the two cities or municipal corporations affected. ORS 222.610. Consent of those in the territory to be annexed is not required if the territory is not an incorporated city but is surrounded by the annexing city. ORS 222.750. Consent is also not required under ORS 222.850 to 222.915.
The state legislature's methods for city annexation of new territory date back to Or. Laws 1893, pp. 120-21, which provided, among other requirements, that the city submit the question of annexation "to the electors residing in the territory proposed * * * to be annexed * * *." Cf. Thurber v. McMinnville, 63 Or. 410, 416-17, 128 P. 43, 45 (1912).
In Landess v. City of Cottage Grove, 64 Or. 155, 157, 129 P. 537, 538 (1913), we explained that a city must obtain "the approval of the legal voters residing within the territory to be annexed." (Emphasis added.) See also Couch v. Marvin, 67 Or. 341, 343, 136 P. 6 (1913). The term "legal voters" used in these decisions must be compared to the term "registered voters." In Roesch v. Henry, 54 Or. 230, 235, 103 P. 439 (1909), in construing a local option law regarding intoxicating liquors, we held that by the use of the terms "legal voters" and "registered voters," the statute permitted only qualified or legal voters whose signatures also appear on the registration books to petition for a local option election.
The annexation statute was amended in 1949 to require a city to submit the question of annexation "to the registered voters residing in the territory proposed to be annexed * * *." Or. Laws 1949, ch. 210, § 1 (amending OCLA § 95-901). The term "registered voters" has appeared in the general annexation statutes (ORS 222.111 to 222.750) ever since, and was used in ORS 222.885 when the compulsory city annexation statutes (ORS 222.850 to 222.915) were adopted in 1967. See Or. Laws 1967, ch. 624, § 8a.
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790 F.2d 431
UNITED STATES of America, Plaintiff-Appellee,v.Gerald Glenn GAMMAGE, Defendant-Appellant.
No. 85-1612
Summary Calendar.
United States Court of Appeals,Fifth Circuit.
May 23, 1986.
Melvyn Carson Bruder, Dallas, Tex., for defendant-appellant.
Marvin Collins, U.S. Atty., William F. Alexander, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before RUBIN, REAVLEY, and HILL, Circuit Judges.
ROBERT MADDEN HILL, Circuit Judge:
1
In his role as co-guarantor of two loans, Gerald Glenn Gammage claimed as an asset an interest in his wife's separate property. He was convicted of making materially false statements to two federally insured institutions. We conclude that the district court properly instructed the jury concerning the essential elements of the offenses and Gammage's defense of good faith mistake. We also conclude that the evidence of Gammage's mens rea was sufficient to uphold the convictions. We therefore affirm.
I.
2
Until his death in June 1975, James A. Lindsay owned two stock certificates which reflected his complete ownership of Gulf States Title Company [Gulf States], a Louisiana corporation. Under the terms of Lindsay's will, as ultimately adjudicated by a Louisiana probate court in May 1983, all of his property, including his stock in Gulf States, passed in undivided equal portions to his three children, one of whom was April Lindsay Gammage. The stock certificates were not cancelled and reissued, but were held jointly by the three children. April had married Gammage in July 1977, and they remained married until their divorce in May 1985.
3
In the course of his real estate and business dealings, Gammage acted as co-guarantor for corporate borrowers on the two occasions relevant here. In connection with a loan guaranty for $736,381.80 dated March 28, 1983, Gammage signed a loan application and financial statement which listed as an asset a $900,000 interest in Gulf States stock. These documents were received by the lender, First Savings and Loan Association of Burkburnett, Texas, an institution insured by the Federal Savings and Loan Insurance Corporation [FSLIC]. In connection with another loan guaranty for $1,203,265 dated October 4, 1983, Gammage signed a loan application and financial statement and submitted it to the lender, Lancaster First Federal Savings and Loan Association of Lancaster, Texas, also a FSLIC insured institution. This financial statement listed as an asset Gulf States stock, which it valued at $950,000.
4
The financial statement submitted to the Burkburnett savings and loan claimed that the Gulf States stock was "registered in the name of M/M G. Gammage." The financial statement submitted to the Lancaster savings and loan did not mention the registration of the stock, listing it once simply as "Gulf States Title, Inc., private" and at another point "Gulf States Title Family Held." Gammage's wife April did not sign any of these financial statements or supporting documents. When these loans were later closed, Gammage received several thousand dollars from the corporate borrower. In an indictment filed on March 27, 1985, Gammage was charged with two counts of making materially false statements in loan applications to federally insured lending institutions, each in violation of 18 U.S.C. Sec. 1014.
5
At trial, the government introduced the documents signed by Gammage and submitted to the Burkburnett and Lancaster savings and loans which stated his claim of ownership of the Gulf States stock. James A. Lindsay II, April's brother, testified that April owned an undivided one-third interest in their father's Gulf States stock as a result of the judgment of the Louisiana probate court, but that no stock was ever issued to Gammage. This probate judgment was also introduced in evidence. Gammage testified that he "had been quoted by an attorney and friend" that under Texas law "all assets to the two parties of a marriage during the marriage are considered to be community unless otherwise proven ... in court...." Gammage claimed that when submitting the loan document he believed that April and he "had a community interest" in the Gulf States stock. Three character witnesses also testified for Gammage.
6
At the charge conference, counsel for Gammage objected to the omission of his proposed jury instruction which stated that all property owned by either spouse during the marriage is presumed to be community property. The district court rejected this instruction, but agreed to a minor rewording of another instruction. No other objections to the instructions were raised. The district court then charged the jury, including instructions on the elements of the offenses and on a good faith defense. The jury found Gammage guilty on both counts. The district court entered judgment on this verdict, imposing a sentence of two concurrent two-year terms of imprisonment and a $5000 fine, but suspending all except 179 days of the two-year period. After Gammage served three months, the district court ordered him released from custody, reducing the 179 days to time served. Gammage appeals.
II.
7
Gammage first argues that the district court failed to instruct the jury with respect to the identity of the entities to whom the statements of his ownership of Gulf States stock were made. Gammage testified that, with respect to the Burkburnett loan, he did not submit the supporting documents directly to the savings and loan. One element of a violation of 18 U.S.C. Sec. 1014 is that the statement be made "for the purpose of influencing in any way the action" of a covered entity; a FSLIC insured institution is one such covered entity.1 See U.S. v. Lentz, 524 F.2d 69, 70-71 (5th Cir.1975). "[I]t is sufficient to establish that the false statement was made for the purpose of influencing the action of a covered institution, if the proof shows that the defendant received notice sufficient to create a reasonable expectation that the statement would reach an institution of the type included in the statute. The proof need not show that it was presented directly to a covered institution." Id. at 71.
8
We conclude that the court's instruction on this issue was more than adequate. Initially, we note that Gammage did not object to the court's charge on this ground before the jury retired, as required by the Rules. See Fed.R.Crim.P. 30. Where an objection to a jury instruction is raised for the first time on appeal, even an inaccurate instruction will be upheld absent "plain error." See United States v. Birdsell, 775 F.2d 645, 654 (5th Cir.1985). Here, the district court clearly instructed the jury of the identify of the covered institution (emphasis added):
9
There are two essential elements which must be proved beyond a reasonable doubt in order to establish the offense proscribed by this law
10
First: That the Defendant knowingly made a false statement or report concerning a material fact to a Federal Savings and Loan Association or insured institution; and
11
Second: That the Defendant made the false statement or report willfully and with intent to influence the action of the Federal Savings and Loan Association or insured institution upon an application, advance, commitment or loan, or any change or extension thereof.
12
An "insured institution" means any savings and loan association the accounts of which are insured by the Federal Savings and Loan Insurance Corporation.
13
Gammage does not indicate how this instruction is faulty in any way. It suffices to say that we perceive no plain error.2
14
Next, Gammage challenges the refusal of the district judge to give his proposed instruction regarding Texas community property law. The requested instruction stated the following:
15
In a Community Property state such as Texas all property owned by either spouse during the time of marriage up until the parties are divorced or one of them dies is presumed to be Community Property jointly owned by the spouses. This is a rebuttable presumption. To rebut this presumption it must be shown that the property of one of the spouses was owned prior to marriage or was obtained after marriage by gift or inheritance.
16
This proposed instruction was drawn in part from Texas statutory authority.3 Gammage argues that the omission of this instruction eviscerated his defense. The primary thrust of Gammage's strategy was to show his good faith belief that he had a community interest in the Gulf States stock.
17
A defendant is ordinarily entitled to an instruction on his "theory of the case." United States v. Robinson, 700 F.2d 205, 211 (5th Cir.1983) (citation omitted), cert. denied, 465 U.S. 1008, 104 S.Ct. 1003, 79 L.Ed.2d 235 (1984). However, the district court "may decline a suggested charge which incorrectly states the law, is without foundation in the evidence, or is stated elsewhere in the instructions." Id. A defendant is not entitled to "a judicially narrated account of 'his' facts and legal arguments." Id. The instructions, taken as a whole, need only "substantially cover" the issue. See Hodges v. United States, 363 F.2d 439, 440 (5th Cir.1966). Here the district court gave instructions which bore on Gammage's defense of good faith:
18
You are further instructed that one who acts with honest intention is not chargeable with the specific intent necessary to establish a violation of the statute. One who expresses an opinion honestly held by him, or a belief honestly entertained by him, is not chargeable with a violation of the statute even though such opinion is erroneous and such belief is a mistaken belief.
19
* * *
20
* * *
21
The word "knowingly" as that term has been used from time to time in these instructions, means that the act was done voluntarily and intentionally and not because of mistake or accident. The purpose of adding the word "knowingly" is to insure that no one will be convicted for an act done because of mistake, or accident, or other innocent reason.
22
These instructions permitted the jury to consider Gammage's claim of mistaken belief.
23
Moreover, Gammage's proposed instruction, as applied to these facts, would have misstated Texas law. The district court instructed the jury regarding community property law:
24
You are instructed that, under Texas law, all property, both real and personal, of a spouse owned or claimed before marriage, and that acquired during marriage by a gift, devise, or descent, is the separate property of that spouse. During the marriage the income derived from separate property belongs to the community, that is, to both husband and wife, but that fact does not alter the character or ownership of the separate property. Further, if separate property is improved with community funds or labor during the marriage, such improvement does not alter the character or ownership of the separate property, although it may [create] a right of reimbursement in favor of the community, that is, both the husband and the wife.
25
At the charge conference Gammage's counsel agreed that this instruction correctly summarized Texas law, and he did not object to its use. However, Gammage still insists that the omission of the "community presumption" instruction was reversible error. We disagree.
26
Notwithstanding the presumption of community, Texas law states that "a spouse's separate property consists of: ... (2) the property acquired by the spouse during marriage by gift, devise, or descent...." Tex.Fam.Code Ann. Sec. 5.01 (Vernon 1975). April acquired her interest in the Gulf States stock by devise, pursuant to her father's will. The Louisiana probate judgment, as well as her brother's testimony, established April's acquisition of this interest. Gammage, far from challenging this fact, relies upon April's acquisition by devise in order to have any claim of ownership, however chimeric his claim may be. The Texas presumption of community interest is overcome when the property is clearly traced to its separate ownership. See, e.g., Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex.1975) (Johnson, J.). Gammage does not dispute the established facts which constitute the conclusive rebuttal of the community presumption. The district court did not err in refusing to misapply Texas law and thereby confuse the jury as badly as Gammage claims he was confused himself.
27
Finally, Gammage claims that the evidence of his knowledge of the falsity of his statements was insufficient to uphold the conviction.4 We note as a procedural matter that Gammage moved for an "instructed verdict"5 at the close of the government's case, which was denied, then called his own witnesses, but did not renew his motion at the conclusion of all the evidence. Such a procedural setting substantially alters6 our standard of review:
28
It is well recognized that where a defendant presents evidence after moving for a judgment of acquittal, he waives objection to the denial of that motion unless he renews his motion at the conclusion of all the evidence. If the motion for acquittal is not renewed at the close of the evidence, the issue of sufficiency of the evidence is reviewable on appeal only to determine whether there was a manifest miscarriage of justice.
29
United States v. Merritt, 639 F.2d 254, 256 (5th Cir.1981) (citations omitted).
30
The evidence was, at the least, sufficient on the issue of Gammage's knowledge of the falsity to avoid a manifest miscarriage of justice. Gammage's statement in the Burkburnett financial statement that the Gulf States stock was "registered in name of M/M G. Gammage" was patently false because no reissuance or reregistration was ever done after the death of April's father. Gammage admitted on cross-examination that he had never seen the stock certificates and had not yet received the probate judgment when the Burkburnett deal went through. Gammage also claimed ownership in the stock, this time without expressly stating his wife's interest at all, in connection with the Lancaster loan. In each instance the Gulf States stock constituted a major portion of what Gammage claimed as his assets in order to act as co-guarantor.7 In each instance Gammage pocketed several thousand dollars as a result of his involvement in the deals. The jury was entitled to reject as not credible his vague assertion that an unnamed "attorney and friend" had advised him that his wife's stock had somehow become community property. Gammage was an experienced and well educated real estate and mineral developer, not a person likely to remain confused about the status of almost one million dollars worth of property.8 From this evidence the jury could have properly inferred mens rea, and we are not willing to upset that finding.
31
Accordingly, the judgment of the district court is AFFIRMED.
1
Whoever knowingly makes any false statement or report, or willfully overvalues any land, property or security, for the purpose of influencing in any way the action of ... any institution the accounts of which are insured by the Federal Savings and Loan Insurance Corporation ... upon any application, advance, discount, purchase, purchase agreement, repurchase agreement, commitment, or loan, or any change or extension of any of the same, by renewal, deferment of action or otherwise, or the acceptance, release, or substitution of security therefor, shall be fined not more than $5,000 or imprisoned not more than two years, or both
18 U.S.C. Sec. 1014.
2
Although Gammage does not explicitly challenge the sufficiency of the evidence on this element, we note that the evidence was sufficient to infer Gammage's reasonable expectation that the loan application and financial statement would reach a covered institution. The loan guaranty signed by Gammage, which named the Burkburnett savings and loan as the lender, provided that "the financial statements and information regarding the Guarantors [Gammage and one other individual] heretofore delivered to the Lender are true and correct in all material respects...." The loan application, just above Gammage's signature, warned that false statements were punishable by 18 U.S.C. Sec. 1014
3
"Property possessed by either spouse during or on dissolution of marriage is presumed to be community property." Tex.Fam.Code Ann. Sec. 5.02 (Vernon 1975)
4
Gammage also claims that "the alleged misrepresentations were not false as a matter of law" and thus the evidence was insufficient. We disagree, since this argument depends on the community presumption that we have already explained is inapposite on these facts
5
Such a motion is known as a motion for judgment of acquittal. See Fed.R.Crim.P. 29(a)
6
Ordinarily, we review the evidence in the light most favorable to the government in order to determine "whether the jury could conclude that the evidence presented at trial is inconsistent with the hypothesis of the accused's innocence." Lentz, 524 F.2d at 71
7
In the Burkburnett financial statement, Gammage's claimed interest in the Gulf States stock was $900,000 of an asserted $1,117,875 in total assets. In the Lancaster loan application, the stock was claimed as $950,000 of an asserted $2,824,150 in total assets
8
Gammage introduced documents to show that he had claimed an interest in the Gulf States stock in other transactions. While this might lend a factfinder to believe that Gammage had no knowledge of the falsity, it could also indicate that Gammage was an inveterate prevaricator. We are not prepared to conclude that only the former inference is a permissible one
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470 F.2d 361
152 U.S.App.D.C. 213
UNITED STATES of Americav.James HILL, Appellant.
No. 71-1092.
United States Court of Appeals,District of Columbia Circuit.
Argued Jan. 24, 1972.Decided Aug. 2, 1972.
Mr. Roger Peed, Washington, D. C. (appointed by this court), with whom Mr. Joel C. Wise, Washington, D. C., was on the brief, for appellant.
Mr. Roger M. Adelman, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and John D. Aldock, Asst. U. S. Attys. at the time the brief was filed, were on the brief, for appellee.
Before WRIGHT, LEVENTHAL and MacKINNON, Circuit Judges.
MacKINNON, Circuit Judge:
1
Following a jury trial appellant was convicted on four counts charging assault with intent to kill while armed,1 and on four counts charging assault with a dangerous weapon.2 He was sentenced to terms of imprisonment of two to nine years on each count of assault with intent to kill while armed, and two to seven years on each count of assault with a dangerous weapon-all terms of imprisonment to run concurrently. On this appeal appellant attacks the instruction to the jury calling attention to his interest in the outcome of the case, the sufficiency of the evidence to sustain the convictions, and the legality of his convictions for armed assault with intent to kill and assault with a dangerous weapon. We affirm the judgment on the four counts charging assault with intent to kill while armed and vacate the convictions on the four counts charging assault with a dangerous weapon. I dissent as to the vacation of the latter convictions.
2
* At trial, Mrs. Catherine Hill, appellant's wife,3 testified that at approximately 2:15 P.M. on January 22, 1970 appellant entered their house. Inside with Mrs. Hill were three of her children, Kenneth, age 14, Louis, age 6, and Jerome, age 3. She testified that after she and appellant had a slight disagreement concerning Jerome, appellant shot her from behind, with a pistol, while she was entering the kitchen. She suffered a wound behind her ear. Thereafter, while Kenneth was attempting to help his mother to the stairs, Miss Louise Robinson, a family friend, entered the Hill home. Mrs. Hill said that she informed Miss Robinson of what had occurred, but she indicated that Miss Robinson fled after appellant threatened her by placing the gun to her head.4
3
Mrs. Hill further testified that subsequent to the incident involving Miss Robinson, while she, Kenneth, Jerome, and Louis were making their way up the stairs, appellant went to the foot of the stairs and announced: "I am going to kill all of you." He then proceeded to fire two shots at the four of them, which missed their apparent mark and struck the wall behind them. After Mrs. Hill and the three children reached an upstairs bedroom, appellant, according to Mrs. Hill's testimony, stood in front of the bedroom door and again announced that he was going to kill all of them. Thereafter, Kenneth managed to drive off appellant, who retreated downstairs, where he reloaded his pistol. Kenneth Hill's testimony supported his mother's statements concerning appellant's shooting of her, his threatening of Miss Robinson, and his threatening and shooting at Mrs. Hill and the three children.
4
Officer Clark, who responded to Miss Robinson's call for help, testified that he arrested appellant in the first-floor bedroom, where he seized the pistol from appellant's coat, after appellant had informed him where it was located. He also testified that two bullet holes were found in the wall along the stairway.
5
Appellant took the stand in his own behalf. He testified that the shooting of his wife occurred accidentally, after she had complained to him about several things, while she was struggling to take the pistol away from him while he was engaged in the process of transferring it from one jacket to another. He said that he subsequently fired the two shots into the wall along the stairway merely to scare his wife away, so that he could ascertain if he had been injured by the bullet which had been discharged during their struggle. Appellant also testified that when he shot into the wall, the two young children-Louis and Jerome-were upstairs, and Kenneth was behind him.
6
The four counts of assault with intent to kill while armed, of which appellant was convicted, referred to the same assaults that were charged in the four counts alleging assault with a dangerous weapon. This is not a case where the assaults on each of the persons were committed at different times-at broken intervals. The assaults were more or less a continuing pattern of activity.
II
The trial judge instructed the jury:
7
A defendant is permitted to become a witness in his own behalf.
8
His testimony should not be disbelieved merely because he is the defendant.
9
In weighing his testimony, however, you may consider the fact that the defendant has a vital interest in the outcome of this trial.
10
You should give his testimony such weight as in your judgment it is fairly entitled to receive. (Emphasis added.)
11
Appellant contends that it was error to instruct the jury that it "may consider the fact that the defendant has a vital interest in the outcome of this trial" in evaluating the weight to be accorded to his testimony. We disagree. "Without suggesting that the use of this instruction is a practice to be preferred, we note that it is a standard one, and its propriety has been upheld on several occasions in this jurisdiction." United States v. Gaither, 142 U.S.App.D.C. 234, 236, 440 F.2d 262, 264 (1971), and see cases cited therein. See Fisher v. United States, 80 U.S.App. D.C. 96, 98, 149 F.2d 28, 30 (1945), aff'd, 328 U.S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946). See also Shettel v. United States, 72 App.D.C. 250, 252-253, 113 F.2d 34, 36-37 (1940). In Taylor v. United States, 390 F.2d 278, 285 (8th Cir.), cert. denied, 393 U.S. 869, 89 S. Ct. 155, 21 L.Ed.2d 137 (1968), Judge (now Justice) Blackmun stated that he would prefer the court's general instruction as to all witnesses to include "a general reference, such as 'including the defendant."' This is an acceptable alternative, one among many.
12
Similar instructions, and even more pointed ones, have been upheld by the Supreme Court and by other federal courts. Reagan v. United States, 157 U.S. 301, 15 S.Ct. 610, 39 L.Ed. 709 (1895); United States v. Haney, 429 F. 2d 1282, 1284 (5th Cir. 1970); Nelson v. United States, 415 F.2d 483, 487 (5th Cir. 1969), cert. denied, 396 U.S. 1060, 90 S.Ct. 751, 24 L.Ed.2d 754 (1970); United States v. Mahler, 363 F.2d 673, 678 (2d Cir. 1966); Stapleton v. United States, 17 Alaska 713, 260 F.2d 415, 420 (9th Cir. 1958); Marino v. United States, 91 F.2d 691, 699 (9th Cir. 1937). The recommended instruction on credibility of witnesses in 1 Devitt & Blackmar, Federal Jury Practice and Instructions Sec. 12.11, p. 264 (1970) contains no specific reference to the interest of the defendant, but the note which accompanies it points out that such reference is not improper.5
13
The decision of the Supreme Court on this point in Reagan v. United States, supra, which is so frequently relied upon, leads us to cite the remarks of Justice Brewer, the author of the decision:
14
It is within the province of the court to call the attention of the jury to any matters which legitimately affect his testimony and his credibility. This does not imply that the court may arbitrarily single out his testimony, and denounce it as false. The fact that he is a defendant does not condemn him as unworthy of belief, but at the same time it creates an interest greater than that of any other witness, and to that extent affects the question of credibility. It is therefore a matter properly to be suggested by the court to the jury. But the limits of suggestion are the same in respect to him as to others. It is a familiar rule that the relations of a witness to the matter to be decided are legitimate subjects of consideration in respect to the weight to be given to his testimony. The old law was that interest debarred one from testifying, for fear that such interest might tend to a perversion of the truth. A more enlightened spirit has thrown down this barrier, and now mere interest does not exclude one from the witness stand, but the interest is to be considered as affecting his credibility. This rule is equally potent in criminal as in civil cases, and in neither is it error for the trial court to direct the attention of the jury to the interest which any witness may have in the result of the trial as a circumstance to be considered in weighing his testimony and determining the credence that shall be given to his story.
15
157 U.S. at 305-306, 15 S.Ct. at 611. The instruction there upheld addressed itself very strongly to the defendant's personal interest in the outcome of his trial.6 Some of the objections that have been raised to singling out the defendant's special interest are: (1) that it is unnecessary, (2) that it violates his statutory right to be a witness in his own behalf, and (3) that it trespasses upon the presumption of innocence. We do not find the instruction to be objectionable on any of these grounds.
16
The reference in the instruction to the interest of the defendant in the outcome of the case merely states an obvious fact. It is customary in the court's general charge to point out that, "In considering the weight and value of the testimony of any witness you may take into consideration . . . the interest of the witness in the outcome of the case, if any . . . ."7 Also in the charge on credibility of witnesses: "Consider also any relation each witness may bear to either side of the case . . . ."8 and: "The interest or lack of interest of any witness in the outcome of this case . ."9
17
If any witness has a special interest in the case it is within the sound discretion of the trial judge to call that interest to the specific attention of the jury.10 While Congress by statute11 has prescribed that a criminal defendant is a competent witness in his own case, that does not exempt his testimony from the same scrutiny as the testimony of other witnesses with a special interest. His interest is a very special one and we adhere to that long line of cases which hold that it may be the subject of a specific instruction. We wholly fail to see how the instruction trespasses upon the statutory authorization or the presumption of innocence since it merely treats his evidence the same as that of any other witness with a very special interest. The trial judge has considerable latitude in fashioning instructions to fit the case. We find the instruction as here given to be proper.
III
18
Appellant also contends that there was insufficient evidence to support his convictions on all counts. We find this contention to be similarly without merit. With respect to the four counts of assault with intent to kill while armed, Judges Wright and Leventhal consider that the contention that the crime of assault with a dangerous weapon (D.C.Code Sec. 22-502) merged into the crime of assault with intent to kill while armed with a dangerous weapon (D.C.Code Secs. 22-501, 22-3202) raises a serious and difficult question that, under the ruling in United States v. Hooper, 139 U.S.App.D.C. 171, 432 F.2d 604 (1970), they need not reach here because of the concurrent sentences, the mildness of the punishment adjudged, the judge's recommendation for psychiatric treatment and the necessity for conserving judicial resources. Accordingly, they vote to vacate the convictions on the four counts charging assault with a dangerous weapon. To the extent that the following views support the convictions of assault with a dangerous weapon they represent only my individual views.
19
The extremely damaging testimony of Mrs. Hill and Kenneth Hill clearly supported the jury's finding of assault with intent to kill while armed and of assault with a dangerous weapon with respect to each of the four victims.12 The testimony of Miss Robinson further supported the prosecution's case. Although some of Mrs. Hill's testimony was slightly contradictory in regard to Kenneth's position at the time the two shots were fired into the stairway wall, Kenneth's own testimony on this point was unequivocal. The fact that appellant's testimony supported his claim of innocence merely created an issue of fact for the jury to resolve. See Crawford v. United States, 126 U.S.App.D.C. 156, 158, 375 F.2d 332, 334 (1967); United States v. Parker, 143 U.S.App. D.C. 57, 58-59, 442 F.2d 779, 780-781 (1971); Curley v. United States, 81 U. S.App.D.C. 389, 392-397, 160 F.2d 229, 232-237, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947).
IV
20
Finally appellant attacks his convictions for assault with intent to kill while armed with a dangerous weapon (D.C.Code Secs. 22-501 and 22-3202) and assault with a dangerous weapon (D.C. Code Sec. 22-502), on the ground that the convictions resulted from "the same act or transaction" and that "the proof of each count . . . was identical." He asserts that the assault with a dangerous weapon counts should have merged into the assault with intent to kill while armed counts, as lesser included offenses.13 For the reasons set forth below, my individual views, which differ from the majority of the panel, are to the contrary.
21
To my mind there is no difficulty in recognizing that under the mechanical test outlined in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932),14 the offenses of assault with intent to kill under D.C.Code Sec. 22-501 and assault with a dangerous weapon (D.C.Code Sec. 22-502) charge separate offenses. However, the two classes of offenses may not both be punished by consecutive sentences.15 This case presents somewhat of a factual problem, however, since appellant was convicted of assault with intent to kill while armed with a dangerous weapon16 and of assault with a dangerous weapon.17 Thus the offense proscribed by section 22-501 is charged in the aggravated form as authorized by section 22-3202. This requires a determination whether the additional allegation that appellant was armed with a dangerous weapon when he assaulted the victims with intent to kill charges an offense which includes the charge under section 22-502 that he assaulted the same victims with a dangerous weapon. It is my conclusion that the charge of assault with a dangerous weapon is not included in the charge of assault with intent to kill while armed with a dangerous weapon.
22
Even if we assume that the allegation that appellant assaulted the victims with a dangerous weapon impliedly alleges that he was armed with a dangerous weapon, we still are left with each count requiring proof of one element that is not required by the other. The main elements of proof of each offense can be summarized as follows:
Count One
Armed Assault
23
(D.C.Code Secs. 22-501, 3202)
1. Assault of Catherine Hill
24
2. While armed with a dangerous weapon, a pistol
3. With intent to kill Catherine Hill
25
4. Criminal intent [see 3]
Count Three
Assault with dangerous weapon
26
(D.C.Code Sec. 22-502)
1. Assault of Catherine Hill
27
2. [While armed with a dangerous weapon, a pistol] (Implicitly required)
28
3. Assault with a dangerous weapon, a pistol
4. Criminal intent
29
From this analysis it is plain to me that the charge of armed assault (Secs. 22-501, 3202) requires proof that appellant (1) intended to kill, and that the Sec. 22-502 charge requires proof that appellant (2) committed the assault with a dangerous weapon; and that strictly speaking, either such fact is required to be proved as a component part of the other offense, even though evidence of the assault with a dangerous weapon may be probative on the issue of intent to kill.18 Under such circumstances, and in view of our prior holdings which support separate convictions under sections 22-501 and 502,19 I would affirm the judgment of conviction for assault with a dangerous weapon which imposes, not consecutive, but concurrent sentences. I would not decline to pass on the merger issue because of my views set forth above and because it has long been the practice in this jurisdiction to charge lesser (not included) offenses.20
30
The judgment of conviction on the four counts charged under D.C.Code Secs. 22-501 and 22-3202 is affirmed and that on the four counts charged under D.C.Code Sec. 22-502 is vacated.
31
Judgment accordingly.
1
D.C.Code Sec. 22-501 (Supp. IV, 1971), which is applicable with respect to appellant's case, provides:
Every person convicted of any assault with intent to kill . . . shall be sentenced to imprisonment for not less than two years or more than fifteen years. (31 Stat. 1321; 81 Stat. 736.)
D.C.Code Sec. 22-3202 (Supp. II, 1970), which was applicable at all times relevant to this case, provided:
If any person shall commit a crime of violence in the District of Columbia when armed with or having readily available any pistol or other firearm, or other dangerous or deadly weapon, including but not limited to, sawed-off shotgun, shotgun, machinegun, rifle, dirk, bowie knife, butcher knife, switchblade knife, razor, blackjack, billy, metallic or other false knuckles, he may in addition to the punishment provided for the crime be punished by imprisonment for an indeterminate number of years up to life as determined by the court. If a person is convicted more than once of having committed a crime of violence in the District of Columbia when armed with or having readily available any pistol or other firearm, or other dangerous or deadly weapon, including but not limited to, sawed-off shotgun, shotgun, machinegun, rifle, dirk, bowie knife, butcher knife, switchblade knife, razor, blackjack, billy, metallic or other false knuckles, then, notwithstanding any other provision of law, the court shall not suspend his sentence or give him a probationary sentence. (July 8, 1932, 47 Stat. 650, ch. 465, Sec. 2; Dec. 27, 1967, Pub.L. 90-226, Sec. 605, Title VI, 81 Stat. 737.)
2
D.C.Code Sec. 22-502 (1967) provides:
Every person convicted . . . of an assault with a dangerous weapon, shall be sentenced to imprisonment for not more than ten years.
3
Mrs. Hill waived her privilege not to testify against her husband
4
Miss Robinson testified that she immediately left the Hill premises after she looked over her shoulder into the barrel of the pistol held by appellant. She subsequently summoned the police. The indictment in question did not charge appellant in respect to this incident
5
"An instruction may properly point out the defendant's special interest in a case." United States v. Sullivan, 329 F.2d 755, 757 (2d Cir. 1964), cert. denied 377 U.S. 1005, 84 S.Ct. 1943, 12 L.Ed.2d 1054. See Caldwell v. United States, 338 F.2d 385, 392 (8th Cir. 1964), cert. denied 380 U.S. 984, 85 S.Ct. 1354, 14 L.Ed.2d 277 (1965). But, see Taylor v. United States, 390 F.2d 278, at 284-285 (8th Cir. 1968), cert. denied 393 U.S. 869, 89 S.Ct. 155, 21 L.Ed.2d 137
In Taylor v. United States, supra, 390 F.2d at 285 (8th Cir. 1968), the court did not reverse because of an instruction pointing out the defendant's interest in the case, when the defendant took the stand, but held that an instruction on the form given above is much superior and free of risk.
Nelson v. United States, 415 F.2d 483, 487 (5th Cir. 1969) found no error in the court's advising the jury of the defendant's "very keen personal interest" in the result of the verdict.
Cf. Crim. Jury Instr. D.C. No. 23. See Rivera-Vargas v. United States, 307 F.Supp. 1075, 1078 (D.C.Puerto Rico 1969.)
1
Devitt & Blackmar, supra, at 264-65. Recent cases cited to the same effect include: United States v. Haney, supra, and United States v. Morris, 308 F.Supp. 1348, 1351 (E.D.Pa.1970)
6
The instruction stated:
"You should especially look to the interest which the respective witnesses have in the suit, or in its result. Where the witness has a direct personal interest in the result of the suit, the temptation is strong to color, pervert, or withhold the facts. The law permits the defendant, at his own request, to testify in his own behalf. The defendant here has availed himself of this privilege. His testimony is before you, and you must determine how far it is credible. The deep personal interest which he may have in the result of the suit should be considered by the jury in weighing his evidence, and in determining how far, or to what extent, if at all, it is worthy of credit."
157 U.S. at 304, 15 S.Ct. at 611.
7
1 Devitt & Blackmar, supra, Sec. 10.01, p. 186 (1970)
8
Id. Sec. 12.01, p. 253
9
2 Id. Sec. 80.09, p. 218
10
The special interest of informers may be singled out and brought to the attention of the jury. See 1 Devitt & Blackmar, supra, Sec. 12.03 for an appropriate instruction. See also, accomplice instruction, id., Sec. 12.04. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), ordered a new trial because the prosecutor failed to bring out that a key witness against the defendant had been promised immunity from prosecution. The Chief Justice pointed out that because the Government's case depended almost entirely on the witness' testimony his credibility was "an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it." When evidence assumes this much importance such fact may be called to the specific attention of the jury, though that issue was not discussed in Giglio. The interest of a defendant in a case is usually even more important than the interest of an informer
11
18 U.S.C. Sec. 3481 provides:
In trial of all persons charged with the commission of offenses against the United States and in all proceedings in courts martial and courts of inquiry in any State, District, Possession or Territory, the person charged shall, at his own request, be a competent witness. His failure to make such request shall not create any presumption against him. (62 Stat. 833)
The incompetency of defendants to testify as witnesses in federal criminal trials was removed by the Act of March 16, 1878, ch. 37, 20 Stat. 30.
12
See Part IV of this opinion, infra, regarding the discussion of the assault with a dangerous weapon convictions as not being included in the assault with intent to kill while armed convictions
13
Appellant did not raise this issue in the court below. I would consider it here, however, because of its importance. See Fed.R.Crim.P. 52(b)
14
This test, which was reaffirmed by the Supreme Court in Gore v. United States, 357 U.S. 386, 388-390, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), has generally been applied by this court to criminal merger questions arising in the District of Columbia. See United States v. Spears, 145 U.S.App.D.C. 284, 287-288, 449 F.2d 946, 949-950 (1971); Ingram v. United States, 122 U.S.App.D.C. 334, 335, 353 F.2d 872, 873 (1965); Young v. United States, 109 U.S.App.D.C. 414, 416, 288 F.2d 398, 400 (1961), cert. denied, 372 U.S. 919, 83 S.Ct. 734, 9 L.Ed.2d 725 (1963). See generally Wharton's Criminal Law and Procedure (Anderson ed. 1957) Secs. 32 and 33, vol. 1, pp. 67-72; id., Sec. 1888, vol. 4, pp. 752-754
15
Smith v. United States, 135 U.S.App. D.C. 284, 418 F.2d 1120, cert. denied, 396 U.S. 936, 90 S.Ct. 280, 24 L.Ed.2d 235 (1969); Ingram v. United States, supra note 14. Cf. Irby v. United States, 129 U.S.App.D.C. 17, 390 F.2d 432 (en banc, 1967), involving housebreaking and robbery; and Davenport v. United States, 122 U.S.App.D.C. 344, 353 F.2d 882 (1965) involving aggravated assault and manslaughter
16
Count One, which is typical of the four counts under Secs. 22-501 and 3202, charges:
On or about January 22, 1970, within the District of Columbia, James Hill, while armed with a dangerous weapon, that is, a pistol, assaulted Catherine Hill, with intent to kill the said Catherine Hill.
See note 1, supra, for the applicable statutes.
17
Count Three, which is typical of the four counts under Sec. 22-502, charges:
On or about January 22, 1970, within the District of Columbia, James Hill assaulted Catherine Hill with a dangerous weapon, that is, a pistol.
See note 2, supra, for the applicable statute.
18
To my view the vacation of these convictions on such grounds is unjudicial
19
See note 15, supra
20
In some instances this may favor the defendant by allowing the jury to consider a lesser verdict than would be warranted by the full charge
| {
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE June 17, 1999
Cecil Crowson, Jr.
JANUARY 1999 SESSION Appellate C ourt
Clerk
MICHAEL LEE MCCORMICK, )
)
Appellee, ) C.C.A. No. 03C01-9802-CR-00052
)
vs. ) Hamilton County
)
STATE OF TENNESSEE, ) Honorable John K. Byers,
) Sitting by Designation
Appellant. )
) (Post-Conviction - First Degree
) Murder - Death Penalty)
)
FOR THE APPELLEE: FOR THE APPELLANT:
T. MAXFIELD BAHNER JOHN KNOX WALKUP
1000 Tallan Building Attorney General & Reporter
Two Union Square
Chattanooga, TN 37402 MICHAEL E. MOORE
Solicitor General
MICHAEL E. RICHARDSON
202 Market Court DON UNGURAIT (at hearing)
Chattanooga, TN 37402 Deputy Attorney General
450 James Robertson Parkway
Nashville, TN 37243
KENNETH W. RUCKER (on
appeal)
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
WILLIAM H. COX, III
District Attorney General
JOSEPH A. REHYANSKI
Asst. District Attorney General
600 Market Street - Court Bldg.
Chattanooga, TN 37402
OPINION FILED: _____________
AFFIRMED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The State of Tennessee appeals the Hamilton County Criminal Court’s
grant of post-conviction relief to the petitioner, Michael Lee McCormick. In 1987,
a Hamilton County jury convicted the petitioner of the 1985 first degree murder of
Donna Jean Nichols. The jury imposed the death penalty based upon its finding
that the murder was committed for the purpose of avoiding, interfering with or
preventing a lawful arrest or prosecution of the defendant. See Tenn. Code Ann.
§39-2-203(I)(6) (1982) (repealed 1989). The conviction and sentence were affirmed
by the Tennessee Supreme Court in State v. McCormick, 778 S.W.2d 48 (Tenn.
1989). On May 20, 1990, the petitioner filed the petition for post-conviction relief
presently under review. After an evidentiary hearing, the post-conviction court
ordered a new trial based upon its findings that the petitioner had received
ineffective assistance of counsel in both the guilt and penalty phases of the trial.
On appeal, the state raises the following issues:
1. Whether the lower court erred in finding that trial
counsel inadequately investigated potential witnesses and that
any such inadequacy prejudiced the defendant.
2. Whether the lower court erred in finding that the
defendant received ineffective assistance of counsel at the
sentencing phase of the trial and that any such ineffective
assistance prejudiced the petitioner.
3. Whether some of the claims of the petitioner have
been waived.
After oral argument of the issues, review of the parties’ briefs and the law, and
review of the record, we affirm the action of the post-conviction court.
I. Facts of the Murder Case.
The facts of the murder case are set forth in the following excerpt from
the Supreme Court’s direct-appeal opinion:
At about 2:00 a.m. Thursday, February 14, 1985, the body of the
victim was discovered in a parking area along Brainerd Road in Chattanooga.
2
...
Two head wounds were apparent, as well as one on the hand.
...
An autopsy later that morning showed that Jeanie Nichols had been
shot at very close range.
...
At 4:46 a.m. the [victim’s] car was found in an auto service parking lot
that was frequently used by customers of the adjacent Beach Club, a singles’
night spot.
...
Faint smudges of blood stained the covers of the front seats, and a
thick film of blood covered the frame and exterior panel below the passenger
door.
...
The victim was at home until approximately 9:30 on the night of the
13th. At 9:45 she met a man she dated frequently, [Dewayne Hines,] and
they had drinks at Merv’s restaurant. When they separated at 11:30, Jeanie
Nichols was driving the car later found near the Beach Club. She announced
she was going to “hit” Brainerd Road, by which her companion understood
she planned to visit various night spots in the area.
...
Defendant was a friend of Nichols’ younger brother Hap, with whom
she shared an apartment in their grandmother’s home.
...
The two men regularly consumed drugs together and had committed
a burglary at [a Georgia] college and stolen electronic equipment. When the
victim completed her pharmacy degree and moved to Chattanooga in 1984,
she discovered these activities and McCormick’s identity. She insisted that
the stolen equipment be moved from the house and that her brother end his
association with Defendant. Hap Nichols related all this to Defendant at the
time, as McCormick later admitted, and he removed the equipment.
According to family members, Jeanie was very proud of her career, had
worked her way through school, and had undertaken to straighten out her
brother’s life.
...
It was also learned that Defendant had visited at the home of a former
girlfriend, near his parents’ home, from 9:30 to 11:10 p.m. on February 13.
He was driving his employer’s red truck, and he left saying it was too early
to go home. This witness reported that Defendant was intoxicated and
behaved in a bizarre fashion and he spent some time removing something
he had hidden under her house. At this point McCormick was questioned by
Detective Dudley of the Chattanooga Police Department.
...
He said he had met a childhood friend at Bennigan’s on the evening
of February 13. They had a few drinks and left in separate vehicles for the
Brainerd Beach Club. He had left the Beach Club at 11:00 or 11:30 p.m. and
gone straight to his parents’ home, where he lived.
...
Defendant consented to the gathering of samples of hair, saliva, etc.
and to a search of his house and vehicles. With one exception, nothing of
interest was found. A hair collected from the interior of the victim’s car was
determined to have features similar to his, and could have come from the
Defendant.
...
Shortly after this interview and search, Defendant left town and spent
some time in Arizona. He returned, was convicted of the college burglary,
and served a sentence followed by parole.
...
McCormick and the victim had been seen together. An employee of
the Revco Drug Store, where Jeanie Nichols worked at the time of her death,
3
[Donna Lawson,] testified she and the victim had gone out together during
this time. She reported three disturbing encounters she witnessed between
Nichols and McCormick during the three weeks before the murder. Twice he
had come to the pharmacy counter with another man and engaged the victim
in conversation. On February 7 he and another man had approached her at
a bar, and they talked privately for a long time. Each of these conversations
left the normally talkative and cheerful victim in a depressed mood.
Almost two years after the murder, January 21, 1987, Chattanooga
Police arranged for Defendant to meet Eddie Cooper in a Georgia parole
office. Cooper was an undercover officer posing as a parolee. The two
moved into a motel apartment together and over the next four weeks Cooper
gained Defendant’s confidence and included him in several purported
transfers of stolen cars.
Early on, Defendant asked if they needed to go armed in these
transactions and said he had a .45 calibre handgun. He conversed about
murderers he had met in prison and professed to know about contract
murder, but he made no mention of the Nichols killing. Cooper then hinted
he had been offered twenty thousand dollars to perform a murder in
Knoxville.
On February 9, Detective Dudley staged the arrest of a customer in
a bar in the presence of the Defendant and Cooper, and he spoke to
Defendant. Defendant was visibly shaken. Cooper demanded to know
whether Defendant was under suspicion, in light of their mutual illegal
activities. Defendant explained about the burglary conviction and the murder
investigation. Over the next few days Cooper pursued the subject, ostensibly
concerned about their safety and Defendant’s trustworthiness. When asked
why anyone would kill a woman, Defendant replied, “For instance, a woman
knew more about you than you wanted them to know, possibly enough that
would put you in the penitentiary. . . There’s some things you just don’t tell
on yourself.” He claimed he had refused one thousand dollars to kill Jeanie
Nichols, but he knew the murderer. According to him the motive related to
the drug inventory at her place of employment and she “was going to spill her
guts.” Defendant also said Nichols had been shot three times with a 9 mm
or .45 calibre weapon, once in the temple, once behind the ear, and once in
the hand. He stated the gun “wasn’t two inches from her head.” Later he
said he did not know why she had been killed.
...
On February 17, 1987, the Defendant unexpectedly began to confess
to Nichols’ murder. Cooper managed to record the conversation, which was
played for the jury along with several previous conversations. Defendant
said that he had killed Nichols but not for $1,000.00. Supposedly, she was
“holding out” some drugs. He claimed that he had killed her “over some
money” and said he had been paid $3,500.00 but did not name who had paid
him. He and Nichols had met at the Beach Club and left together. He had
then killed her, dumped her body in Eastgate, parked her car at an automatic
transmission business near the Beach Club, and driven away in his van.
...
Defendant’s parents testified that . . . he had come home that evening
between 11:00 and 11:30 p.m. Shortly thereafter he went out again for a few
minutes but did not take a vehicle. He returned around 12:10 a.m. and
remained with his mother in the living room from 1:00 to 2:00 a.m., and he
retired at 3:00 a.m.
At the sentencing phase the State presented no further proof. In
mitigation, Defendant’s father described his son’s serious drinking problem,
which had begun at age 14 or 15. It became worse, and was complicated
by marijuana use, after his discharge from the Air Force in 1974. He had
twice entered treatment programs, but in 1984 when he returned home after
his divorce, the drinking had become constant. Defendant’s alcoholism was
corroborated by the trial testimony of various acquaintances. In addition,
counsel argued Defendant had no significant criminal history. T.C.A. 39-2-
4
203(j)(1), (8).
McCormick, 778 S.W.2d at 49-52.
On this evidence, McCormick was convicted of first degree murder
and sentenced to death.
II. Facts of the Post-Conviction Hearing.
a.
At the post-conviction hearing, Rodney Strong, one of the petitioner’s
trial attorneys, testified that he had practiced law since 1978 and had participated
in several murder trials and four or five capital cases by the time of the petitioner’s
trial. Strong and his co-counsel, Paul Bergmann, investigated the case themselves
by obtaining personal history from the defendant and by interviewing a number of
witnesses. They did not petition the court for state funds to compensate an
investigator or for expert services. Counsel determined that there was no need for
expert psychological testimony after becoming acquainted with the petitioner and
discussing the petitioner’s case with Ken Stallings, a mental health counselor who
had counseled the defendant for a substance abuse problem.
Counsel’s bill for compensation reflected that Strong spent 22.8 hours
investigating the case. Counsel filed a motion to suppress the defendant’s pre-trial
statements. Once the trial court overruled the motion to suppress the undercover
tapes made by Cooper, the defense strategy was to show that the defendant’s
statements to Cooper that he had killed the victim were manifestations of his
propensity to lie about his deeds and experiences. The defense relied upon the
lack of physical evidence that tied the defendant to the murder and upon the
defendant’s mother’s testimony that the defendant was home at the time the crime
was committed.
5
At trial, the defense tried to show that the petitioner had a reputation
for lying and was known to claim falsely that he had fought in the war in Vietnam.
The defense also relied upon the petitioner’s history of being dependent on alcohol
to support the claim that the inculpative statements given to the undercover agent
were made merely to curry favor with the agent, who was providing a temporary
residence for the petitioner.
One of the state’s witnesses at the trial of the case, Donna Lawson,
testified that prior to the night the victim was killed, she had seen the victim and the
petitioner conversing three times. Twice Lawson saw the two talking in the Revco
store where Lawson and the victim worked, and the week before the shooting, she
saw them talking in a night club. In his post-conviction hearing testimony, Strong
acknowledged that Lawson had been a former client of his and that, based upon
this representation, he knew she had previously pleaded guilty to felony bad check
charges. At trial, counsel declined to use the prior admission or convictions to
impeach Lawson’s testimony.
Strong testified that he tried to develop proof at trial to suggest that a
boyfriend of the victim, David Shore, was a jealous individual and that at the time
of her death, the victim was dating another man, Dewayne Hines. The victim and
Hines had been seen together at an establishment called Merv’s on the night of
February 13, 1985.
Counsel did not investigate the whereabouts of Dewayne Hines after
he left Merv’s on February 13, nor did they investigate the whereabouts of David
Shore that night. Counsel did not talk to any of the employees of the Brainerd
Beach Club nor check charge slips to ascertain identities of customers that were
served at the Brainerd Beach Club on the night of February 13 or early morning
hours of February 14.
6
The only physical evidence which the prosecution used in the trial was
a hair found in the victim’s automobile which contained properties similar to a strand
of the petitioner’s hair. The defense did not attempt to obtain independent analysis
of the hair, nor did it attempt to obtain independent analysis of the clothes worn by
the petitioner on the night of February 13-14. The defense did not attempt to obtain
the victim’s fingernail scrapings once the prosecutor informed counsel that the tests
on the scrapings were “negative.” Through the pre-trial statement of the petitioner’s
that was taken by Officer Dudley prior to the undercover operation, the trial
evidence showed that the defendant admitted to drug and alcohol use and to
various criminal convictions, including indecent exposure. Defense counsel did not
object to these portions of the statement being admitted into evidence because they
wished to demonstrate the petitioner’s problem with alcohol and that he had
persisted in denying his involvement in the victim’s murder despite the withering
interrogative tactics of Dudley.
Defense counsel was aware prior to trial that Jeff Bowen, a security
guard at the Brainerd Beach Club, saw a “girl who looked like Nichols and was
dressed like Nichols leave with an unidentified male.” Counsel elected not to
pursue this information and did not call Bowen to testify at trial. Counsel had no
recollection of a composite drawing of the man who Bowen saw leave the club with
the victim on the night of February 13-14, although Bowen’s statement and a copy
of the drawing apparently were given to defense counsel during discovery. Strong
opined, upon seeing the composite drawing for the first time at the post-conviction
hearing, that had the figure in the drawing been given a beard, it would have
resembled the petitioner’s likeness. Strong recounted his belief that had the jury
concluded the man meeting Bowen’s description was the petitioner, then Bowen’s
testimony would be the only trial testimony to put the petitioner in the victim’s
presence on the night of her death.
The guilt phase of the trial concluded with a verdict of guilty of first
7
degree murder at approximately 5:00 p.m. on Saturday afternoon, and the trial court
proceeded with the sentencing phase of the trial on Saturday evening. The defense
relied upon the trial testimony of Ralph Lindsay, which supported the fact that the
petitioner had an alcohol problem, and upon the testimony of the petitioner’s father.
The petitioner did not testify in either phase of the trial. No expert witnesses were
used in either phase of the trial.
Paul Bergmann, Strong’s co-counsel, did not recall much of counsel’s
trial preparation activities. He testified that counsel either talked or attempted to talk
to all of the witnesses whose names had been given them by the defendant and his
family and all of the witnesses named on the state’s witness lists. Bergmann spent
a total of 42.1 hours investigating the case and interviewing witnesses. He did not
recall that either himself or Strong had interviewed Jeff Bowen. Specifically, he did
not recall interviewing Jeff Bowen, reading Bowen’s statement given to the police,
or previously seeing the composite drawing made from Bowen’s description of the
man who allegedly accompanied the victim as she left the Brainerd Beach Club.
Bergmann acknowledged that the petitioner had a full beard at the time of the
homicide, whereas the figure in the Bowen drawing was clean-shaven except for a
mustache.
Bergmann acknowledged that the “pathology” of lying might be an
issue that required specialized knowledge within Tennessee Rules of Evidence 702
and 703.
b.
Jeff Bowen testified at the post-conviction hearing that the police
asked him to view the victim’s body at the hospital for purposes of identification.
Based upon her distinctive clothing, he identified her as the woman he saw leaving
the Brainerd Beach Club several hours earlier in the company of a man who was
immaculately dressed in coat and tie. Bowen described the man as being neatly
groomed, clean-shaven except for possibly a mustache, “one of those guys that
8
looks like his shirt was starched and the whole shot, so I mean he was sharp.”
Bowen did not specify the time when the couple departed. He had no recollection
of being contacted by defense counsel. He further testified that the man he saw
with the victim did not resemble the photograph of the petitioner which was taken
a few days after the homicide.
c.
At the post-conviction hearing, the petitioner called William L. Curtis,
a private investigator who had formerly served as an FBI special agent. Curtis
conducted an investigation of the homicide as part of the petitioner’s preparation for
his post-conviction hearing, and in the course of the investigation, Curtis interviewed
a number of persons. With the assent of the court and the state,1 Curtis was
allowed to testify what various persons had said in their interviews with him. Many
of these persons were subpoenaed and available to testify, and the testimony of
Curtis was apparently used by stipulation as a device for abbreviating the hearing.
In this vein, Curtis summarized several interviews, chief among which are the
following:
1. Clarence Parton was manager of the Revco in
Chattanooga where the victim worked as a pharmacist in 1985.
Lawson was also an employee of this store, and Parton said
that Lawson’s credibility was suspect and that she was
ultimately fired for taking merchandise from the store.
2. Barbara Tallent worked at the Revco and indicated
that she had never seen the petitioner in the store talking to
the victim, as Lawson had testified, but she had seen Dewayne
Hines in the store talking with the victim. Tallent did not
believe that Lawson was a credible individual.
1
Upon the petitioner requesting that Curtis be allowed to summarize
his interviews, the state announced, “My agreement with Mr. Richardson . . . is I
have no objection to Mr. Curtis, subject to [the court’s] approval, summarizing
and presenting what is obviously blatant hearsay in order to expedite matters.”
9
3. Dick Dangler was the Revco security manager who
said that the victim’s keys to the store were never recovered.
4. Susie Wilson was a bartender at the Brainerd Beach
Club who recognized the photograph of Dewayne Hines and
said that he was a regular at the club in February of 1985. She
did not recognize the photograph of the defendant.
5. Jane McDonald was a customer at the Brainerd
Beach Club on the night of February 13, 1985 and saw the
victim coming into the club accompanied by two men. She did
not recognize the two men and did not connect either of them
to the photograph of the petitioner.
6. Dana Sokohl, an acquaintance of the victim’s,
examined a composite picture that had been drawn to the
specifications of a woman named Joyce Mahn. The composite
picture was allegedly meant to depict a man that Mahn saw in
the Brainerd Beach Club parking lot on the night of February
13. Sokohl told Curtis that the man in the picture looked like
David Shore, the former fiancé of the victim.
None of the potential witnesses identified above had been interviewed
by defense counsel prior to the trial.
d.
Doctor Gillian Blair, a clinical psychologist, testified at the post-
conviction hearing that the petitioner had psychiatric hospitalizations prior to the
victim’s murder and in the past had been diagnosed with psychosis. He had a long
history of chronic dependence on alcohol which probably contributed to the previous
finding of psychosis. The petitioner had a chronic need to bolster his self image by
telling fantastic lies about himself and persisting in these lies even in the face of
hard evidence to the contrary. Doctor Blair opined that a previous diagnosis of post-
10
traumatic stress disorder was incorrect and without foundation. After administering
a battery of tests to the petitioner, she determined that his full scale IQ was in the
high average range. He had no organic damage and was neither psychotic nor
sociopathic. He had no manic depressive disorder, was not delusional nor
paranoid, but he may have suffered from a bipolar disorder or cyclothymia. She
found that he was hypomanic and that he exhibited extreme anxiety and agitation,
pressured speech, distractibility, and flight of ideas. The petitioner had a negative
view of himself and pursued an extremely strong need for acceptance and approval
from others. She opined that his propensity to lie stemmed from this need but that
the trait itself did not indicate a disorder and did not require specialized expertise to
understand. Blair opined that the defendant could be vulnerable to coercion or
manipulation in making false statements.
e.
Debra Boggs, the petitioner’s ex-wife, testified that he was a great
husband and father when he was not drinking. When he was in periods of sobriety,
he was always helping other people, serving on the volunteer fire department, and
volunteering for the Boy Scouts. He had rescued a drowning girl from a swimming
pool and revived a heart attack victim by administering cardio- pulmonary
resuscitation. She admitted that the petitioner was a different individual when he
was drinking and that he had once threatened her life and had assaulted her on a
few occasions.
f.
John Kilborn, a forensic scientist with a specialty in the analysis of hair
samples, testified that the FBI specialist testified inaccurately at the trial when he
said that properties of the petitioner’s hair sample were similar to “unique” properties
of a hair found in the victim’s car. Kilborn testified that hair could not serve as the
basis of positive identification as in the case of DNA evidence or fingerprints and
that the hair segment found in the victim’s vehicle, although it had properties similar
to the petitioner’s hair sample, could not serve as a reliable basis for comparison
11
because it was not a full hair strand.
g.
Several witnesses appeared at the post-conviction hearing to testify
that the petitioner had an alcohol problem and that he was never known to be
violent.
h.
The petitioner testified at the hearing that he had submitted a long list
of names of possible witnesses to counsel, but only his parents and Ralph Lindsay
testified for the defense at trial. He complained that prior to trial he had difficulty
contacting his attorneys from the jail. He did not know that he could have petitioned
for state funds for expert and investigator assistance until he began his post-
conviction proceeding. He only met with Ken Stallings one time. He was not aware
of Jeff Bowen prior to trial. He acknowledged that he elected not to testify at the
trial. He maintained that he did not know the trial would consist of two phases, nor
that he had a right to testify at the penalty phase even if he had not testified during
the guilt phase.
I.
Charles Fels, a Knoxville lawyer, testified as an expert on the range
of competence for counsel under the Sixth Amendment. Generally, he opined that
counsel in a capital case is obliged to interview all of the state’s witnesses, to
investigate the defendant’s background, education, and medical, psychological and
military history, and to examine scientific reports and independently investigate the
accuracy of expert findings. He found the total hours reported for interviewing
witnesses to be very minimal. He highlighted the failure of counsel to use the
composite picture that was based upon Bowen’s description and the failure to
uncover Jane McDonald’s knowledge that the victim entered the Brainard Beach
12
Club in the presence of two men, neither of whom were the petitioner. Fels opined
that the hair analysis should have been attacked along the same lines as John
Kilborn’s post-conviction testimony. Further, he opined that trial counsel was remiss
in not seeking independent forensic analysis of the victim’s fingernail scrapings and
the defendant’s clothing. Fels opined that the number of pre-trial motions were
minimal and that the issues raised in the motion for new trial were limited and too
general. He was particularly critical of counsel’s failure to file motions in limine in
order to redact from petitioner’s various pre-trial statements a number of damaging
revelations that were not probative of the issues on trial. He cited counsel’s failure
to object to various other components of evidence and to comments made by the
prosecutor during the closing arguments. Finally, he opined that trial counsel’s
performance during the penalty phase was deficient because psychological
evidence had not been adequately explored.
j.
At the post-conviction hearing, the state called Dr. John Spencer, a
clinical and forensic psychologist, who testified that although the petitioner was
antisocial, he was not psychotic, had no organic brain damage, and is intelligent.
Doctor Spencer opined there was no basis for referring the case to an expert in the
field of false confessions and that a lay witness’ anecdotal information about the
petitioner’s lying was more significant evidence than could be offered by an expert
witness. “Pathological liar” is not a diagnostic category but merely a description of
people who are often antisocial and who lie frequently.
III. Post-conviction Court’s Findings.
Based upon the evidence, much of which is summarized above, the
post-conviction court sustained the petition in the following particulars:
1. Counsel’s representation was prejudicially deficient
in failing to develop and use the information supplied by Jeff
Bowen, including the composite drawing. The post-conviction
court found that the Bowen evidence “would have been highly
13
beneficial to the defense theory,” especially “where the case
contained little to no physical evidence against the defendant.”
2. Counsel’s investigation was prejudicially deficient in
the failure to interview other employees from the Brainard
Beach Club and other witnesses “who may have seen the
victim on the night of the murder with someone other than the
defendant.”
3. Counsel was deficient in failing to develop mitigation
evidence from lay witnesses for use at the sentencing hearing.
4. Although standing alone, the failure to use
psychological evidence to explain the defendant’s propensity
to lie in the guilt phase would have been innocuous, the post-
conviction court found that “in combination with all the other
deficiencies in this case such an error has much greater
weight” and that “the absence of a psychological expert at the
sentencing phase is a more obvious deficiency because a
psychological expert could have helped to more fully explain
the defendant’s tendencies to lie and his propensity to be
influenced by alcohol and/or drugs.”
5. Counsel was deficient in failing to impeach the
testimony of Donna Lawson, the only trial witness to place the
petitioner in the victim’s company at any time.
6. Counsel failed to “focus the jury’s attention on
several inconsistencies between the defendant’s statements
and the facts of the state’s case.” Particularly glaring was the
failure to emphasize the amount of time that passed between
the victim’s discovery of the petitioner’s act of burglary and her
murder, because this factor served as the sole basis for
imposing the death penalty.
7. Counsel was deficient in failing to object to improper
14
comments by the prosecution during the trial and during
argument, which failures “contribute to the overall finding that
the defendant did not receive the effective assistance of
counsel and that this case was prejudiced by counsel’s
performance.”2
IV. Standards for Establishing and Reviewing Ineffective Assistance of
Counsel.
All of the post-conviction court’s bases for granting post-conviction
relief were instances of ineffective assistance of counsel.
When a defendant seeks relief on the basis of ineffective assistance
of counsel, he must first establish that the services rendered or the advice given
was below “the range of competence demanded of attorneys in criminal cases.”
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the
deficiencies “actually had an adverse effect on the defense.” Strickland v.
Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067 (1984). There must be a
reasonable probability that, but for counsel’s error, the result of the proceeding
would have been different. Id. at 694, 104 S. Ct. at 2068; see Best v. State, 708
2
In this appeal by the state, our review is limited to the propriety of the
post-conviction court’s findings sustaining some of the petitioner’s claims. Prior
to the evidentiary hearing, the court dismissed other claims as being waived or
previously determined, and after the hearing, the court denied the following
ineffective assistance claims in its “Findings of Fact and Conclusions of Law”: (1)
choice of defense strategy; (2) failure to request adequate independent analysis
of the hair samples, the fingernail scrapings, a fingerprint found on a check in the
victim’s pocket, bloody tire tracks at the crime scene, and the defendant’s
clothes; (3) failure to use a jury selection expert; (4) the lack of pretrial
accessibility of counsel to the petitioner; (5) failure to file more pretrial motions;
(6) failure to seek redaction of the petitioner’s pretrial statements; (7) inadequate
advice of counsel concerning the petitioner’s right to testify at trial; (8) improper
or inadequate voir dire of prospective jurors; (9) failure to object to improper
prosecutorial commentary; (10) failure to object to improper jury instructions; (11)
general inadequacy in objecting to trial court errors or evidence presented at trial;
(12) failure to make an opening statement; and (13) inadequate appellate
preparation and briefing. The post-conviction court also denied, after the
hearing, a claim of prosecutorial misconduct that the state had failed to disclose
exculpatory evidence and had “failed to reveal all promises, deals, agreements. .
. made by the state with any witness or potential witness.”
15
S.W.2d 421, 422 (Tenn. Crim. App. 1985). Should the defendant fail to establish
either factor, he is not entitled to relief.
The scrutiny of counsel’s performance must be “highly deferential,”
and the reviewing court must refrain from concluding “that a particular act or
omission of counsel was unreasonable” merely because the strategy employed was
unsuccessful. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. “A fair assessment,”
the United States Supreme Court has said, entails making every effort to “eliminate
the distorting effects of hindsight” and evaluating the “conduct from counsel’s
perspective at the time.” Id., 104 S. Ct. at 2065. The court promulgated a “strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance. . . .” Id., 104 S. Ct. at 2065. The court added:
[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable;
and strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. In other words,
counsel has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigation
unnecessary.
In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.
Id. at 690-691, 104 S. Ct. at 2066. The court acknowledged that “inquiry into
counsel’s conversations with the defendant may be critical to a proper assessment
of counsel’s investigation decisions . . . .” Id. at 691, 104 S. Ct. at 2066.
With respect to the prejudice prong of ineffective assistance of
counsel, a showing that “errors had some conceivable effect on the outcome of the
proceeding” is insufficient. Id. at 693, 104 S. Ct. at 2067. Rather, the defendant
must show there is a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
at 694, 104 S. Ct. at 2068. In assessing the claim of prejudice, the “court should
presume, absent challenge to the judgment on grounds of evidentiary insufficiency,
16
that the judge or jury acted according to law.” Id., 104 S. Ct. at 2068. The
reviewing court must consider the “totality of the evidence before the judge or jury”
and should take into account the relative strength or weakness of the evidence
supporting the verdict or conclusion. Id. at 695, 104 S. Ct. at 2069.
In death penalty cases, the sentencer may not be precluded from
considering any aspect of a defendant’s character or record as a basis for a
sentence less than death. Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954,
2964-65 (1978) (plurality opinion); see also Johnson v. Texas, 509 U.S. 350, 361,
113 S. Ct. 2658, 2666 (1993). The United States Supreme Court has held that
mitigating evidence is relevant to sentencing hearings and should be heard. See
California v. Brown, 479 U.S. 538, 541, 107 S. Ct. 837, 839 (1987); Eddings v.
Oklahoma, 455 U.S. 104, 113-15, 102 S. Ct. 869, 876-77 (1982).
There is no legal requirement and no established practice that the
accused must offer evidence at the penalty phase of a capital trial. State v. Melson,
772 S.W.2d 417, 421 (Tenn. 1989). In fact, in many death penalty cases, counsel
has properly seen fit not to offer any evidence at the penalty phase. Melson, 772
S.W.2d at 421.
“A strategy of silence may be adopted only after a reasonable
investigation for mitigation evidence or a reasonable decision that an investigation
would be fruitless.” Tafero v. Wainwright, 796 F.2d 1314, 1320 (11th Cir. 1986).
Courts have held counsel’s representation beneath professionally competent
standards when counsel did not conduct enough investigation to formulate an
“accurate life profile” of a defendant. Jackson v. Herring, 42 F.3d 1350, 1367 (11th
Cir.), cert. dismissed sub nom Jackson v. Jones,---U.S.---, 116 S. Ct. 38 (1995). It
is impossible that “a ‘strategic’ decision can be reasonable when the attorney has
failed to investigate his options and make a reasonable choice between them.” Id.
(quoting Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991)).
17
The extent of investigation required depends critically upon
information supplied by the defendant. Burger v. Kemp, 483 U.S. 776, 795, 107 S.
Ct. 3114, 3126 (1987); see also Whitmore v. Lockhart, 8 F.3d 614, 621 (8th Cir.
1993). “[W]hen the facts that support a certain potential line of defense are
generally known to counsel because of what the defendant has said, the need for
further investigation may be considerably diminished or eliminated altogether. And
when a defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel’s failure to pursue those
investigations may not later be challenged as unreasonable.” Strickland, 466 U.S.
at 691, 104 S. Ct. at 2066.
The petitioner’s burden of proof in all post-conviction cases filed
before May 10, 1995, is by a preponderance of the evidence. Clenny v. State, 576
S.W.2d 12 (Tenn. Crim. App. 1978). A trial court’s findings of fact following a post-
conviction hearing have the weight of a jury verdict. Bratton v. State, 477 S.W.2d
754, 756 (Tenn. Crim. App. 1971). On appeal, those findings are conclusive unless
the evidence preponderates against the judgment. Butler v. State, 789 S.W.2d 898,
900 (Tenn. 1990).
V. Appellant’s Issues.
Now, we apply the above legal principles to the issues the state has
presented.
a. Ineffective Assistance - Guilt Phase
The state asserts that the lower court erred in finding ineffective
assistance of counsel through inadequate investigation and preparation at trial.
Within this rubric, the state argues that the post-conviction court erroneously
concluded that (1) trial counsel had failed to interview Jeff Bowen, (2) the petitioner
had shown prejudice from counsel’s failure to interview other customers or staff of
18
the Brainerd Beach Club, and (3) trial counsel failed to fully develop its theory of
defense. The state asserts that counsel interviewed Bowen and made a tactical
decision not to call him as a witness and that the record reflects no prejudice to the
petitioner because of the failure to discover Jane McDonald’s knowledge of the
evening of February 13, 1985. The state posits that counsel effectively presented
its theory by using a number of lay witnesses to establish an alibi and to attack the
validity of the undercover statements by showing the petitioner’s dependence on
alcohol and his propensity to lie and tell grandiose tales. It argues that the
petitioner’s post-conviction expert, Dr. Blair, failed to establish any pathology or
personality problems beyond those established by lay witnesses who testified at
trial.
Although Strong assumed that Bergmann interviewed Bowen,
Bergmann did not recall speaking with Bowen. Clearly, Strong did not interview
Bowen, and Bowen himself did not recall either defense attorney contacting him.
We find that a factual basis existed to support a conclusion that neither lawyer
talked to Bowen. Regardless, the crux of the court’s concern about counsel’s
treatment of Bowen was not so much whether they had interviewed him, but
whether they had properly reacted to Bowen’s description, via the composite
drawing, of the man Bowen saw leaving the club with the victim. Strong, who
viewed the composite drawing for the first time while testifying at the post-conviction
hearing, thought the likeness resembled the petitioner, but Bowen testified that the
man he saw did not resemble the February 1985 photograph of the petitioner.
Bergmann admitted that, at the time of the murder, the petitioner had a full beard.
Both Strong and Bergmann testified that they had not seen the drawing prior to the
post-conviction hearing, but the post-conviction court found that the state had
furnished both Bowen’s statement and a copy of the composite drawing to counsel.
Based upon the testimony it heard,3 the court found counsel was remiss in not
developing “this information [that] would have been highly beneficial to the defense
3
In its oral findings of fact, the post-conviction court emphasized its
reliance upon the live testimony of Bowen.
19
theory.” Given the “fact” nature of the matter, this court must defer to the finding of
the post-conviction court, just as we would have done had the petitioner not
prevailed in the court below. In other words, the evidence does not preponderate
against the court’s findings.
On the issue of whether counsel was ineffective in not investigating
the February 13, 1985 customers and staff of the Brainerd Beach Club, the record
supports the trial court’s conclusion that counsel’s performance was deficient.
However, the record demonstrates no prejudice to the petitioner with the exception
of (1) the failure to ferret out the information of Jane McDonald that the victim came
into the club with two men, neither of whom were the petitioner, and (2) the failure
to obtain readily available information for use in impeaching the testimony of Donna
Lawson. Each of these deficiencies in representation had prejudicial impact. Part
of the defense theory was that at least two other men were interested in the victim
and at least one of them may have been jealous. Donna Lawson was a key witness
in that she provided the only testimony that the petitioner and the victim had
conversations prior to February 13.
We agree with the trial court’s finding that counsel’s decision not to
seek expert psychological proof to use during the guilt phase to bolster petitioner’s
claim that his confession was false was deficient representation under the facts of
the case. The defendant’s medical record reflected earlier findings of psychosis,
and this fact alone warranted further investigation beyond the conference with Ken
Stallings. However, we disagree that the record reflects prejudice as a result of the
failure to pursue such proof.
Even though Dr. Blair testified that the petitioner’s poor self-image and
need for approval made him vulnerable to being manipulated into making false
statements, the information would not appear to be a great revelation to a jury who
had already been shown that the petitioner was capable of fantastic lies in order to
20
get attention and to enhance his stature with his audience. Indeed, Dr. Blair
acknowledged that no psychological expertise was needed in order to recognize or
understand the petitioner’s lying phenomenon. Consequently, the lay proof
presented on this issue in the guilt phase of the trial substantially duplicated the
proffer of Dr. Blair. Moreover, we note in passing, although it was not addressed
at the post-conviction hearing, that Dr. Blair’s testimony might not have been
admissible at trial. Her failure to affirm that expert testimony was needed to
articulate the petitioner’s lying problem supports a finding that “scientific, technical,
or other specialized knowledge” would not “substantially assist the trier of fact to
understand the evidence or to determine a fact in issue” and that, accordingly,
expert testimony is not required. Tenn. R. Evid. 702. In any event, the post-
conviction court itself found that the failure to pursue expert evidence in the guilt
phase was not, ipso facto, prejudicial. We agree, but we disagree that it contributed
anything to the finding of aggregate prejudice.
To summarize our treatment of the state’s first issue, we hold that the
state has failed to demonstrate that the evidence preponderates against the trial
court’s findings that trial counsel deficiently represented the petitioner, to the point
of prejudice, in failing to use the Bowen evidence, in failing to discover the potential
testimony of Jane McDonald, and in failing to impeach the testimony of Donna
Lawson. Thus, the record supports the conclusion that the petitioner received
ineffective assistance of counsel during the guilt phase of his trial.
In evaluating the prejudicial impact of counsel’s deficient performance,
we have considered the weight of the case against the petitioner, see Strickland,
466 U.S. at 695, 104 S. Ct. at 2069, and we are aware that, usually, prosecution
evidence which includes a confession of the accused amounts to a strong case.
However, the confession utilized here was not of the usual variety. It was not
solemnized by a formal, official interrogation process. There was no waiver of
constitutional rights and no overt recording of the confession. In the casual,
21
perhaps manipulative, setting in which the confession was elicited, the petitioner’s
mendacious propensities only sharpen the realization that this confession was
vulnerable to attack. It did not pose an insurmountable barrier to finding prejudice
from deficient performance of counsel, especially when the deficiency hampered the
effort to impugn the confession. In this vein, evidence that would have bolstered the
petitioner’s claim of alibi was found by the post-conviction court to be significant to
the theory of the defense. Accordingly, there was no error in ordering a new trial.
b. Ineffective Assistance - Penalty Phase
In its next issue, the state asserts the post-conviction court erred when
it found ineffective assistance of counsel during the sentencing phase of the trial.
Within this rubric, the state maintains that (1) counsel reasonably relied upon the
information supplied by the petitioner’s one-time mental health counselor, Ken
Stallings, not to present his testimony nor to seek further psychological evidence,
(2) the petitioner failed to establish any prejudice in the absence of expert
psychological proof, and (3) counsel was excused from developing further mitigation
proof because much of its mitigation proof had been introduced during the guilt
phase.
Our supreme court recently addressed the duty of counsel to
investigate and present mitigating evidence in Goad v. State, 938 S.W.2d 363
(Tenn. 1996). In Goad, the court found trial counsel ineffective for failing to
investigate and explore mitigating evidence relative to the Veteran Administration’s
evaluation of Goad and his symptoms of post-traumatic stress disorder. Id. at 372-
73. In determining whether Goad was prejudiced by counsel’s deficient
representation, the court set forth several factors to consider:
Where the alleged prejudice under Strickland involves counsel’s
failure to present mitigating evidence in the penalty phase of a capital
trial, several factors are significant. First, courts have analyzed the
nature and extent of the mitigating evidence that was available but not
presented. Deutscher v. Whitley, 946 F.3d 1443 (9th Cir. 1991);
Stephens v. Kemp, 846 F.2d 642 (11th Cir. 1988); Cooper v. State,
847 S.W.2d 521, 532 (Tenn. Crim. App. 1992); Atkins v. State, 911
S.W.2d 334 (Tenn. Crim. App. 1995). Second, courts have
22
considered whether substantially similar mitigating evidence was
presented to the jury in either the guilt or penalty phase of the
proceeding. Atkins v. Singletary, 965 F.2d 952 (11th Cir. 1992);
Clozza v. Murray, 913 F.2d 1092 (4th Cir. 1990); State v. Melson, 772
S.W.2d 417, 421 (Tenn. 1989). Finally, the courts have considered
whether there was such strong evidence of aggravating factors that
the mitigating evidence would not have affected the jury’s
determination. Fitzgerald v. Thompson, 943 F.2d 463, 470 (4th Cir.
1991); Elledge v. Dugger, 823 F.2d 1439 (11th Cir. 1987).
Id. at 371.
“[E]vidence about the defendant’s background and character is
relevant because of the belief . . . that defendants who commit criminal acts that are
attributable to a disadvantaged background, or to emotional and mental problems
may be less culpable than defendants who have no such excuse.” California v.
Brown, 479 U.S. 538, 544, 107 S. Ct. 837, 841 (1987).
However, attorneys representing defendants in capital cases are not
obligated to parade a multitude of experts and witnesses before the jury at every
sentencing hearing in order to provide effective assistance of counsel. See Harris
v. State, 947 S.W.2d 156, 163 (Tenn. Crim. App. 1996) (defendant not entitled to
perfect representation, only constitutionally adequate representation). Indeed,
defense counsel could reasonably determine after adequate investigation and
preparation that some types of traditional “mitigating” proof might be looked upon
unfavorably by a jury. See Id. at 168.
This court has previously recognized that such proof may have
doubtful effect in “lessening [a defendant’s] culpability in the eyes of the jury.”
Harries v. State, 958 S.W.2d 799, 807 (Tenn. Crim. App. 1997), perm. app. denied
(Tenn. 1997); see also Rickman v. Bell, 131 F.3d 1150, 1157 (6th Cir. 1997) (finding
counsel’s performance deficient where he “succeeded in creating a loathsome
image for Rickman -- one that would make a juror feel compelled to rid the world
of him”).
23
Any deficiencies of counsel in presenting mitigation proof center
around the absence of (1) expert psychological proof that would have amplified the
petitioner’s alcohol problems and (2) lay witnesses’ testimony that would have
highlighted relevant background or personality information including redeeming
traits and good deeds.
In this appeal, the state has failed to demonstrate that the evidence
preponderates against the lower court’s finding of deficient representation because
expert psychological proof was not sought for the sentencing phase. The
petitioner’s medical history reflected a previous finding of psychosis, and Dr. Blair
opined that the earlier diagnosis was likely related to the petitioner’s alcohol
dependency. The prior hospitalizations and diagnosis should have alerted counsel
to fully explore the potential for expert assistance. Strong’s single conference with
Ken Stallings was not adequate investigation of the issue. Stallings’ credentials as
a psychologist were in doubt, he expressed antipathy toward the petitioner, and the
petitioner only met with him one time. Under the circumstances of this case, where
the petitioner’s record reflected, accurately or not, that he had been psychotic, it
was incumbent upon counsel to fully explore and develop the potential for expert
evidence.
In considering the prejudicial effect of this deficiency of performance,
we use the Goad analysis. In the first two factors, we look at the nature and extent
of the mitigating evidence that was available and not presented and the extent to
which similar mitigating evidence was nevertheless presented to the jury in either
phase of the trial. See Goad, 938 S.W.2d at 371. Clearly, the extent of the
petitioner’s alcohol problem was presented to the jury. The nature of the problem
might have been amplified by testimony such as Dr. Blair’s, but she did not
appreciably add to the evidence of the defendant’s alcohol problem that was
presented at trial. At trial, proof of the petitioner’s dependence on alcohol was
ample and cogent. On the other hand, the third Goad factor -- whether there was
24
such strong evidence of aggravating factors that the mitigating evidence would not
have affected the jury’s verdict -- weighs heavily in the petitioner’s favor. See id.
The proof that the petitioner killed the victim in order to avert arrest or conviction --
the solitary basis for imposing the death penalty -- was not strong. 4 As an aside, we
note that Dr. Blair’s proffer does not contain the sort of invidious information that
has condemned proposed mitigating proof in other cases. See Grosclose v. State,
130 F.3d 1161 (6th Cir. 1997), cert. denied, ---U.S.---, 118 S. Ct. 1826 (1998); State
v. Pat Bondurant, No. 01C01-9606-CC-00236, slip op. at 99-101 (Tenn. Crim. App.,
Nashville, Mar. 18, 1998 ), Tenn. Code Ann. § 39-13-206(a)(1) app. docketed
(Tenn. 1998). We believe that the failure to seek expert psychological evidence
was not prejudicial, in and of itself, on the issue of sentencing. We must, however,
examine the other mitigation claim before drawing a conclusion.
Counsel failed to utilize biographical facts which would have
personalized the non-testifying petitioner before the sentencer and may have
revealed redeeming traits and deeds. To be sure, the petitioner’s post-conviction
proffer, in showing that the petitioner had been a helpful, caring father, spouse, and
neighbor, duplicated proof that was introduced at trial. 5 However, the trial jury did
not hear that the petitioner was credited with saving the lives of two people. Such
evidence should have had some impact upon a jury that was considering a death
penalty. We have considered the fact that the petitioner’s decision not to testify at
the sentencing hearing surprised counsel and precluded them from using some
facts to which the petitioner could have testified. The petitioner’s unexpected
4
The post-conviction court found as ineffective assistance of counsel the
failure to develop inconsistencies between the facts of the murder and the
petitioner’s pretrial statements. The court was especially concerned with
counsel’s failure to stress the lapse of time between the victim’s discovery of the
petitioner’s involvement in burglary and the murder. The court opined that the
failure to develop this line of proof prejudiced the petitioner in countering the sole
aggravating circumstance in the penalty phase that he killed the victim in order to
avoid detection and prosecution for the burglary. The record does not
preponderate against these findings. Accordingly, these findings contribute to
the cumulative ineffective assistance of counsel during the penalty phase.
5
Some of the proffered evidence came with barbs. Debra Boggs admitted
that, when the petitioner was drinking, he had threatened her life and had
physically abused her.
25
refusal to testify would have hampered counsel in trying to personalize him before
the jury; yet, no motion for continuance was made. Accordingly, the post-conviction
evidence showed that mitigation should have included available proof that was not
otherwise imparted to the sentencer, and as we have already seen, proof of the
single aggravating sentencing factor was not great. We conclude that the failure to
present biographical evidence in mitigation of the sentence was more prejudicial
than the absence of expert proof. Moreover, these combined deficiencies were
prejudicial to the point of supporting the post-conviction court’s findings of
ineffective assistance of counsel in the sentencing phase.6
c. Waiver
In the state’s final issue, it argues that the issues of prosecutorial
misconduct and certain trial court errors were waived when they were not objected
to nor raised on direct appeal and that waiver may not be avoided through the
mechanism of ineffective assistance of counsel. Presumably, the state refers to the
issues generally treated by the trial court in its findings and conclusions as follows:
Petitioner also claims that counsel failed to object to improper
comments, etc., by the prosecution and to other improper actions
by the prosecution and counsel failed to file a motion for a mistrial
due to improper arguments by the prosecution. . . . Counsel did
not object to any of these comments. Admittedly, some of the
prosecutor’s comments were speculative. Some may have even
been improper. Standing alone many of these comments may not
have amounted to sufficient prejudicial error; when viewed in
light of the other errors made by counsel, however, they do
contribute to the overall finding that the defendant did not receive
the effective assistance of counsel and that his case was prejudiced
by counsel’s performance.
The state relies upon State v. Overton, 874 S.W.2d 6 (Tenn. 1994),
a post-conviction case, in which our supreme court reviewed claims of ineffective
assistance of counsel. In one of those claims, trial counsel had failed to object
when the trial court had used inappropriate jury instructions on the issue of force in
the commission of aggravated rape. Id. at 11. The supreme court found that the
6
See n. 2, supra.
26
error “could have” been prejudicial to the petitioner and “may well have been
reversible error” had it been objected to and raised on appeal. Id. Nevertheless,
the supreme court held that the claim “is not a cognizable ground for relief in a post-
conviction petition” because it does not implicate a constitutional issue as is
necessary in a post-conviction case. Id. at 12. “Moreover,” the high court said, “to
allow every error committed in the trial court to be recast in a post-conviction petition
as an ineffective assistance of counsel allegation would be to subvert the limited
purposes of the post-conviction procedure.” Id.
We decline to apply Overton to hold that the petitioner has waived the
ineffective assistance of counsel claim based upon the failure to object to the
alleged prosecutorial misconduct. The underlying trial court error in Overton was
deemed not cognizable in a post-conviction proceeding, presumably, because it did
not present a constitutional issue. See Tenn. Code Ann. § 40-30-105
(1991)(repealed 1995). However, this court has said, “Prosecutorial misconduct
qualifies as a constitutional basis for relief.” Coker v. State, 911 S.W.2d 357, 366
(Tenn. Crim. App. 1995). Furthermore, Overton does not account for ineffective
assistance of counsel itself as a constitutional issue. See Strickland, 466 U.S. at
686, 104 S. Ct. at 2061-62. The constitutional quality of effective assistance of
counsel is not always dependent upon the underlying act or omission being
constitutionally flavored. For instance, the Supreme Court made it clear that, in
certain circumstances, the failure to investigate a case may result in ineffective
assistance of counsel, Strickland, 466 U.S. at 691, 104 S. Ct. at 2066; yet, the state
and federal constitutions contain no right to investigation apart from the right-to-
counsel provisions. See generally U.S. Const. Amend. V; Tenn. Const. Art. I, § 9.
It may be true that, in the present case had counsel raised the misconduct issues
on direct appeal, the appellate courts may have reviewed the merits of the claim
even in the absence of contemporaneous objections or motions for mistrial. See,
e.g., State v. Sparks, 563 S.W.2d 564, 567 (Tenn. 1978) (when prosecutor’s
remarks unnecessarily raised racial issues, the defense made no objection, and the
27
trial court should have intervened sua sponte, appellate court reviewed the
prosecutorial misconduct issue on the merits). Nevertheless, we are reluctant to
apply the Overton language to preclude review via waiver.
Even though the state makes no claim on the prosecutorial
misconduct-ineffective assistance of counsel issue other than waiver, we feel
constrained to review the issue in light of the entanglement of this issue in the post-
conviction court’s overall findings of ineffective assistance of counsel. The review
first entails a determination of whether prosecutorial misconduct occurred. State
v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996), perm. app. denied (Tenn.
1997). That determination initially requires a decision about whether the challenged
conduct is improper. Id. Although trial courts have discretionary authority to control
the argument of counsel and counsel has wide latitude to argue the facts and
reasonable inferences therefrom, “[c]losing arguments must be temperate, must be
based upon evidence introduced at trial, and must be relevant to the issues at trial.”
Coker, 911 S.W.2d at 368. Most of the restrictions fall upon the prosecutor, who
is the representative of the state and whose duty it is not only to seek convictions
but also to achieve justice through proceeding fairly. Id.; Manning v. State, 195
Tenn. 94, 257 S.W.2d 6 (Tenn. 1953). The prosecutor’s argument should not be
calculated to inflame the jury. Coker, 911 S.W.2d at 368.
Once prosecutorial conduct is deemed improper, the appellate court’s
task is to determine “whether the impropriety affected the verdict.” Pulliam, 950
S.W.2d at 367. Prejudice is assessed through analyzing the misconduct in light of
the factors set forth in Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App.
1976): (1) the misconduct viewed in context and the facts and circumstances of the
case; (2) any curative measures taken by the court or the prosecutor; (3) the intent
of the prosecutor; (4) the cumulative effect of the misconduct in view of the
consequence of any other errors in the trial; and (5) the “relative strength or
weakness of the case.” Judge, 539 S.W.2d at 344.
28
If misconduct is found but no objection was made, the next layer of
review in the post-conviction context is to determine whether the failure to raise or
preserve the substantive issue amounts to ineffective assistance of counsel. Coker,
911 S.W.2d at 371. As we have shown above, ineffective assistance requires the
presence of both the elements of deficient performance and prejudice. Strickland,
466 U.S. at 693, 104 S. Ct. at 2067.
At the outset, we cannot review the post-conviction court’s actions
on these issues with the deference customary in post-conviction appeals because
the lower court has not specified which of the prosecutor’s actions were
“speculative” or which, if any, were “improper.” Moreover, the post-conviction judge
did not preside over the trial, and his review of alleged misconduct was undertaken
in the same way as is ours--through review of the trial transcript. Nevertheless, the
lower court apparently found that some of the objectionless misconduct resulted in
prejudicial ineffective assistance of counsel, and we review the cited actions in order
to determine if any of them provide a basis in the record to support the lower court’s
general finding of ineffective assistance.
The trial court referenced various paragraphs of the amended post-
conviction petition which contained allegations of such misconduct; however, among
these allegations only the ones following actually specified prosecutorial actions:
1. In closing argument during the guilt phase, the prosecutor made
references to:
a. the victim’s good character;
b. the petitioner’s decision not to testify;
c. the petitioner’s alleged possession of a firearm or “dope”
when confronted by investigating officers after the murder;
d. the petitioner having stolen the weapon that was used to kill
the victim;
e. the dedication of the investigating police officers as a factor
29
justifying a guilty verdict; and
f. the duty of the jury to convict the defendant, in keeping with
the duties carried out by the police.
2. In closing argument during the penalty phase, the p r o s e c u t o r
made references to:
a. the responsibility for the penalty decision rested elsewhere
than with the jury;
b. the trial being necessitated by the breakdown of plea
negotiations;
c. a life sentence requiring that mitigating factors outweighed
aggravating factors; and
d. the jury placing weight on the good character of the victim
and the grief and loss experienced by her family.
Defense counsel objected to none of these comments by the prosecutor.
Looking first to the prosecutor’s guilt-phase final argument, we find
that, with two exceptions, all of the cited comments were sufficiently grounded in
relevance to some material issue or were within the prosecutor’s prerogative of fair
comment and were not improper. The exceptions are (1) the comment that the
petitioner “steals his guns” and (2) the spate of comments that affirmed the merits
and lifestyle of the victim. We judge the first comment, although improper, to be so
banal under the first Judge factor as to be utterly lacking in impact.
The guilt-phase comments concerning the worth of the victim’s life are
more troublesome. See State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App.
1995) (prosecutorial commentary “regarding the personal characteristics of the
victim in a murder case is generally irrelevant and designed to evoke juror
sympathy”). The comments were illustrative of information the jury had received and
were generally based in the evidence. Moreover, the comments praising the victim
were logical responses to the petitioner’s final argument which stressed the victim’s
30
“darker side.” There were no curative measures specifically addressed to the
prosecutor’s comments about the victim, but the trial court instructed the jury as to
the nature of argument, the difference between argument and evidence, and that
the jury must decide the case based “solely and alone upon the evidence . . . and
not from any other source nor upon speculation or conjecture . . .and the law as
given you by the court.” The trial court instructed the jury on the burden of proof
carried by the state and cautioned them to undertake their deliberations with “no
sympathy and no prejudice.” The prosecutor was blameworthy in that his likely
intent was to portray a “good and evil” contrast between the victim and the
petitioner. In light of the other errors and the relative strength or weakness of the
state’s case, the misconduct may have had some effect; however, upon
assessment of all the factors, we fail to see that any prejudice rose to the level of
denying the petitioner a fair trial. See Zirkle, 910 S.W.2d at 888.
Having reached that determination, we conclude that trial counsel
deficiently represented the petitioner when they failed to object to these comments
that we have deemed improper. However, because there was no substantive
prejudice resulting from the prosecutor’s comments, the prejudice element of
ineffective assistance of counsel is not shown.
Next, we look at the comments the prosecutor made during his
penalty-phase final argument. We find that, in context, none of these comments
were improper.
We elaborate only on one of the issues. The prosecutor argued that
the jury should not “let anybody come up here and tell you you are an executioner”
and that, based upon the status of our capital crime law, “[i]f the jury unanimously
determines that at least one. . . or several statutory aggravating circumstances have
been proved by the State beyond a reasonable doubt, and [they] are not
outweighed by any mitigating circumstances, the sentence shall be death. Take
31
nothing upon you other than that.” The petitioner claimed below that this argument
violated the principles established by the Supreme Court in Caldwell v. Mississippi,
472 U.S. 320, 105 S. Ct. 2633 (1985). In Caldwell, the prosecutor argued that the
jury’s decision to impose the death penalty “is not the final decision. . . . Your job
is reviewable. . . . The decision you render is automatically reviewable by the
Supreme Court.” Caldwell, 472 U.S. at 325-26, 105 S. Ct. at 2637-38. The High
Court held that “it is constitutionally impermissible to rest a death sentence on a
determination made by a sentencer who has been led to believe that the
responsibility for determining the appropriateness of the defendant’s death rests
elsewhere.” Id. at 328-29, 105 S. Ct. at 2639. We do not believe that Caldwell
applies to the comments in the present case. Here, the prosecutor communicated
to the jury that they functioned under the law of the state in discharging their
prescribed duties and that a responsible decision to impose the death penalty did
not cast them in the role of executioner. These remarks do not suggest to the jury
that their decision to impose the death penalty would be temporary, tentative, or
conditional, depending upon the review of higher courts. See State v. Smith, 893
S.W.2d 908, 923 (Tenn. 1994). But see State v. Sparks, 563 S.W.2d 564, 568-89
(Tenn. 1978).
To summarize, we conclude that trial counsel’s failure to object to the
listed allegations of prosecutorial misconduct did not result in ineffective assistance
of counsel which prejudiced the petitioner in either phase of his trial.
Conclusion.
The evidence does not preponderate against the post-conviction
court’s findings that prejudicial ineffective assistance of counsel occurred (1) when
counsel failed to explore or utilize the information held by Jane McDonald and Jeff
Bowen and (2) when they did not use readily available sources of impeachment to
impeach the testimony of Donna Lawson. Accordingly, based upon these grounds,
the record supports the grant of a new trial. Also, the evidence does not
32
preponderate against the post-conviction court’s findings that prejudicial ineffective
assistance of counsel occurred in the sentencing phase of the trial when counsel
failed to investigate or present both expert and additional lay mitigation evidence.
Thus, apart from the new trial which has now been granted, the record supports the
lower court’s grant of what otherwise would have been a new sentencing hearing.
The judgment of the trial court is affirmed.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
______________________________
GARY R. WADE, PRESIDING JUDGE
______________________________
NORMA McGEE OGLE, JUDGE
33
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IN RE: INITIATIVE PETITION No. 426 STATE QUESTION No. 810
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IN RE: INITIATIVE PETITION No. 426 STATE QUESTION No. 8102020 OK 44Case Number: 118686Decided: 05/27/2020THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2020 OK 44, __ P.3d __
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
IN RE: INITIATIVE PETITION No. 426, STATE QUESTION No. 810 ELDON MERKLIN and CLAIRE ROBINSON DAVEY, Protestants/Petitioners,v.JANET ANN LARGENT, ANDREW MOORE and LYNDA JOHNSON, Respondents/Proponents.
ORIGINAL PROCEEDING TO DETERMINE THE SUFFICIENCY OF THE GIST OF INITIATIVE PETITION NO. 426, STATE QUESTION NO. 810
¶0 This is an original proceeding to determine the legal sufficiency of the gist of Initiative Petition No. 426, State Question No. 810. The petition seeks to create a new article to the Oklahoma Constitution, Article V-A, for the purpose of establishing the Citizens' Independent Redistricting Commission. The Petitioners filed this protest alleging the gist of the petition is insufficient. Upon review, we hold the gist of the petition is legally sufficient.
THE GIST OF INITIATIVE PETITION NO. 426, STATE QUESTION NO. 810 IS LEGALLY SUFFICIENT
Robert G. McCampbell and Travis V. Jett, GableGotwals, Oklahoma City, Oklahoma, for Petitioners.
D. Kent Meyers, and Melanie Wilson Rughani, Crowe & Dunlevy, Oklahoma City, OK, for Respondents.
COMBS, J.:
I. FACTS AND PROCEDURAL HISTORY
¶1 On October 28, 2019, the Respondents/Proponents, Andrew Moore, Janet Ann Largent, and Lynda Johnson (Respondents), filed Initiative Petition No. 420, State Question No. 804 (IP 420), with the Secretary of State of Oklahoma. The initiative measure proposed for submission to the voters the creation of a new constitutional article, Article V-A, which would create the Citizens' Independent Redistricting Commission (Commission). IP 420 would vest the power to redistrict the State's House of Representatives and Senatorial districts, as well as Federal Congressional Districts, in this newly created Commission. IP 420 was challenged in two separate cases. In In re Initiative Petition No. 420, State Question No. 804, 2020 OK 10, 458 P.3d 1080, certain protestants challenged the gist of the proposition found at the top of the signature sheet. On February 4, 2020, this Court held the gist was insufficient and declared IP 420 invalid because it did not describe the true nature of the initiative petition which was to curtail partisan gerrymandering. Id., ¶¶6-7, 11.
¶2 Two days later, February 6, 2020, the proponents of IP 420 filed a new initiative petition (Initiative Petition No. 426, State Question 810). The Secretary of State published the required notice of the initiative petition on February 13, 2020. Initiative Petition No. 426 (IP 426) is nearly identical to IP 420. It creates a new constitutional article, Article V-A, which would create the Citizens' Independent Redistricting Commission (Commission). Like IP 420, it would vest the power to redistrict the State's House of Representatives and Senatorial districts, as well as Federal Congressional Districts, in this newly created Commission. It provides how a Panel will be selected which will then review applications to be a commissioner and a process for how those commissioners are chosen (§4(A)(7) and §4(B)(4)(b), (f) & (g) of IP 426); it provides a process for approving a redistricting plan (§4(E)(1) of IP 426) and a "Fallback Mechanism" if the Commission does not approve a plan (§4(F) of IP 426); it also provides certain criteria the Commission shall seek to maximize compliance when creating a redistricting plan (§4(D)(1)(c) of IP 426).
¶3 On February 28, 2020, the Protestants/Petitioners, Eldon Merklin and Claire Robinson Davey filed their challenge to the gist of IP 426 pursuant to 34 O.S. § 8 (B).1 Mr. Merklin was also a petitioner in In re Initiative Petition No. 420, State Question No. 804, 2020 OK 10, ¶11, 458 P.3d 1080. The Petitioners claim the gist of IP 426 is affirmatively inaccurate, omits significant details concerning the voting requirements on a redistricting plan as well as details on one of the several criteria used in creating a redistricting plan. They ask this Court to hold the gist of IP 426 is insufficient based upon these claims.
II. STANDARD OF REVIEW
¶4 "The first power reserved by the people is the initiative...." Okla. Const. art. 5, § 2; In re Initiative Petition No. 409, State Question No. 785, 2016 OK 51, ¶2, 376 P.3d 250; In re Initiative Petition No. 403, State Question No. 779, 2016 OK 1, ¶3, 367 P.3d 472. With that reservation comes "the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature." Okla. Cost. art. 5, § 1; In re Initiative Petition No. 409, 2016 OK 51, ¶2; In re Initiative Petition No. 403, 2016 OK 1, ¶3. "The right of the initiative is precious, and it is one which this Court is zealous to preserve to the fullest measure of the spirit and the letter of the law." In re Initiative Petition No. 382, State Question No. 729, 2006 OK 45, ¶3, 142 P.3d 400. See In re Initiative Petition No. 349, State Question No. 642, 1992 OK 122, ¶35, 838 P.2d 1. We have repeatedly emphasized both how vital the right of initiative is to the people of Oklahoma, as well as the degree to which we must protect it:
Because the right of the initiative is so precious, all doubt as to the construction of pertinent provisions is resolved in favor of the initiative. The initiative power should not be crippled, avoided, or denied by technical construction by the courts.
In re Initiative Petition No. 403, 2016 OK 1, ¶3 (quoting In re Initiative Petition No. 382, 2006 OK 45, ¶3).
¶5 However, while the fundamental and precious right of initiative petition is zealously protected by this Court, it is not absolute. Any citizen can protest the sufficiency and legality of an initiative petition. In re Initiative Petition No. 409, 2016 OK 51, ¶2; In re Initiative Petition No. 384, State Question No. 731, 2007 OK 48, ¶2, 164 P.3d 125. "Upon such protest, this Court must review the petition to ensure that it complies with the 'parameters of the rights and restrictions [as] established by the Oklahoma Constitution, legislative enactments and this Court's jurisprudence.'" In re Initiative Petition No. 384, 2007 OK 48, ¶2 (quoting In re Initiative Petition No. 379, State Question No. 726, 2006 OK 89, ¶16, 155 P.3d 32).
¶6 The gist of an initiative petition is required by 34 O.S. 2011, § 3, which provides in pertinent part: "[a] simple statement of the gist of the proposition shall be printed on the top margin of each signature sheet." The gist is required to be in "simple language" and should inform "a signer of what the measure is generally intended to do." In re Initiative Petition No. 363, State Question No. 672, 1996 OK 122, ¶20, 927 P.2d 558. Each signature sheet is attached to a copy of the initiative petition and is therefore available for review by any potential signatory. Id. The two combined form what is called the "pamphlet." Id. The gist must be short and because it will appear at the beginning of every page of the petition it can contain "no more than a shorthand explanation of a proposition's terms."2 In re Initiative Petition No. 362, State Question No. 669, 1995 OK 77, ¶10, 899 P.2d 1145. It need not contain the more extensive requirements for ballot titles contained in 34 O.S. Supp. 2018, § 9. Id. This Court described the importance of the gist and ballot title, as well as the requirements, in In re Initiative Petition No. 344, State Question No. 630, where we explained:
[T]he statement on the petition [the gist] and the ballot title must be brief, descriptive of the effect of the proposition, not deceiving but informative and revealing of the design and purpose of the petition. The limitations ... are necessary to prevent deception in the initiative process.... The voters, after reading the statement on the petition and the ballot title, should be able to cast an informed vote.
1990 OK 75, ¶14, 797 P.2d 326. In McDonald v. Thompson, we noted ballot titles have specific statutory requirements that are more stringent than a gist because a ballot title is all a voter will see in the voting booth. 2018 OK 25, ¶10, 414 P.3d 367. Whereas, a potential signatory, at this stage of the process, may review the text of the petition itself to answer any questions or provide further details not found in the gist contained on the signature sheet. Id.
¶7 This Court further explained in detail how the gist of an initiative petition should be evaluated in In re Initiative Petition No. 409, where we stated:
This Court has long held that the purpose of the gist, along with the ballot title, is to "prevent fraud, deceit, or corruption in the initiative process." The gist "'should be sufficient that the signatories are at least put on notice of the changes being made,'" and the gist must explain the proposal's effect. The explanation of the effect on existing law "does not extend to describing policy arguments for or against the proposal." The gist "need only convey the practical, not the theoretical, effect of the proposed legislation," and it is "'not required to contain every regulatory detail so long as its outline is not incorrect.'" "We will approve the text of a challenged gist if it is 'free from the taint of misleading terms or deceitful language.'"
2016 OK 51, ¶3 (footnotes omitted) (quoting primarily In re Initiative Petition No. 384, State Question No. 731, 2007 OK 48, 164 P.3d 125). Because the purpose of the gist is to prevent fraud, deceit or corruption in the initiative process, any alleged flaw created by an omission of details in the gist must be reviewed to determine whether such omission is critical to protecting the initiative process. In re Initiative Petition No. 363, 1996 OK 122, ¶¶18-20. "The sole question ... is whether the absence of a more detailed gist statement ... without more, perpetuates a fraud on the signatories." Id. ¶19.
III. ANALYSIS
¶8 IP 426 is essentially a refiling of IP 420 which happened almost immediately after this Court determined the gist statement in IP 420 was insufficient. In re Initiative Petition No. 420, State Question No. 804, 2020 OK 10, ¶11, 458 P.3d 1080. Although there are some differences between the two proposed measures they are nearly identical and were submitted by the same proponents. In In re Initiative Petition No. 420, State Question No. 804, this Court determined the gist statement, through its omissions, failed to alert potential signatories about the true nature of the proposed measure which was to curtail partisan gerrymandering. Id., ¶¶7, 11. The gist in IP 420 was as follows:
This measure adds a new Article V-A to the Oklahoma Constitution. This new Article creates the Citizens' Independent Redistricting Commission and vests the power to redistrict the State's House of Representative and Senatorial districts, as well as its Federal Congressional Districts, in the Commission (rather than the Legislature). The Article sets forth qualifications and a process for the selection of Commissioners, a Special Master and a Secretary. It also sets forth a process for the creation and approval of redistricting plans after each Federal Decennial Census. In creating the redistricting plans, the Commission must comply with certain criteria, including federal law, population equality, and contiguity, and must seek to maximize compliance with other criteria, including respect for communities of interest, racial and ethnic fairness, respect for political subdivision boundaries, political fairness, and compactness. The Article creates a fallback mechanism in the event that the Commission cannot reach consensus on a plan within a set timeframe. It also sets forth procedures for funding and judicial review, repeals existing constitutional provisions involving legislative districts, codifies the number of state House of Representative and Senatorial districts, and reserves powers to the Commission rather than the Legislature.
Id., 5. We determined this gist: 1) did not mention the selection process and composition of the Commission; 2) did not provide enough information concerning the qualifications of the commissioners; and 3) failed to make any mention of the criteria the Commission was to avoid in making a redistricting plan, such as, the omission from consideration of "[t]he political affiliation or voting history of the population of a district." Id., ¶¶7-8. We held a simple and brief statement mentioning these components was necessary to inform a potential signatory about the true nature of the measure. Id. Justice Winchester concurred specially, and also found fault with the gist because it did not mention the role of this Court in the redistricting process. Id., ¶2 (Winchester, J., concurring).
¶9 The Respondents appear to have adequately addressed these concerns when they filed IP 426. The gist statement of IP 426 is as follows:
This measure adds a new Article to the Oklahoma Constitution, intended primarily to prevent political gerrymandering. The Article creates a Citizens' Independent Redistricting Commission, and vests the power to redistrict the state's House, Senatorial, and federal Congressional districts in the Commission (rather than the Legislature). The 9-member Commission will consist of 3 members from each of 3 groups, determined by voter registration: those affiliated with the state's largest political party; those affiliated with its second-largest party; and those unaffiliated with either. Commissioners are not elected by voters but selected according to a detailed process set forth by the Article: in brief, a panel of retired judges and justices designated by the Chief Justice of the Oklahoma Supreme Court will choose pools of approximately 20 applicants from each group, then randomly select 3 Commissioners from each pool. The Article sets forth various qualifications for Commissioners, Special Master, and Secretary, intended to avoid conflicts of interest (for example, they cannot have changed party affiliation within a set period, and neither they nor their immediate family may have held or been nominated for partisan elective office or served as paid staff for a political party or as a registered lobbyist in the last five years). It also sets forth a process for the creation and approval of redistricting plans after each federal Decennial Census, including, among other things, a method for counting incarcerated persons, public notice, and open meeting requirements. In creating the plans, the Commission must comply with federal law, population equality, and contiguity requirements, and must seek to maximize respect for communities of interest, racial and ethnic fairness, political fairness, respect for political subdivision boundaries, and compactness (in order of priority), without considering the residence of any legislator or candidate or a population's political affiliation or voting history except as necessary for the above criteria. The Article creates a fallback mechanism by which the state Supreme Court, using a report from the Special Master, will select a plan if the Commission cannot reach the required level of consensus within a set timeframe. It also sets forth procedures for funding and judicial review, repeals existing constitutional provisions involving legislative districts, codifies the number of state House and Senatorial districts, and reserves powers to the Commission rather than the Legislature. Please review attached Petition for further details.
Petitioners' Appendix to Application and Petition to Assume Original Jurisdiction and Review the Gist of Initiative Petition No. 426, Ex. A. The Petitioners contend, however, this gist statement is affirmatively inaccurate, omits an explanation of the Commission's voting requirements on a redistricting plan, and omits any information on what political fairness means.
A. The gist statement is not affirmatively inaccurate.
¶10 The Petitioners assert the gist is inaccurate because it states the Chief Justice of the Oklahoma Supreme Court will designate a Panel that will be involved in choosing pools of applicants to be a commissioner. They contend, this is inaccurate because §4(B)(4)(b) of IP 426 states the Panel members will be "selected by random drawing." The gist of IP 426 provides: "in brief, a panel of retired judges and justices designated by the Chief Justice of the Oklahoma Supreme Court will choose pools of approximately 20 applicants from each group, then randomly select 3 Commissioners from each pool." Section 4(B)(4)(b) of IP 426 states:
No later than December 15 of 2020, and no later than December 1 of each subsequent year ending in zero, the Chief Justice of the Oklahoma Supreme Court shall designate a Panel to review the applications. The Panel shall consist of three Judges or Justices who have retired from the Oklahoma Supreme Court or the Oklahoma Court of Criminal Appeals or the Oklahoma Court of Civil Appeals, and who are able and willing to serve on the Panel, selected by random drawing. If fewer than three state appellate Judges or Justices who are able and willing to serve have been identified, then the Chief Justice shall appoint a retired Oklahoma Federal District Court Judge who accepts such appointment. (emphasis added).
Petitioners propose that an accurate statement in the gist would be: "[A] randomly selected panel of retired judges and justices designated by the Chief Justice of the Oklahoma Supreme Court will choose pools of approximately 20 applicants from each group, then randomly select 3 Commissioners from each pool." Petitioners Brief at 5.
¶11 The Petitioner, Eldon Merklin, raised a similar issue in In re Initiative Petition No. 420, State Question No. 804, 2020 OK 10, 458 P.3d 1080, however, it dealt with the differences between §4(A)(7) and §4(B)(4)(b) of IP 420 and not just the language in §4(B)(4)(b) i.e., "designate" and "selected by random drawing."3 In their Reply Brief, the petitioners in that case claimed the provisions of §4(A)(7) and § 4(B)(4)(b) of IP 420 were "self-contradictory." Reply Brief (118,406) at 1. Section 4(A)(7) of IP 420 explained "'Panel' shall refer to the group of retired Judges and Justices chosen by the Chief Justice of the Oklahoma Supreme Court to oversee the creation of the Commission." Id. However, §4(B)(4)(b) provides... "The Panel shall consist of three [retired] Judges or Justices . . . who are able and willing to serve on the Panel, selected by random drawing." Id. The petitioners also noted the gist in IP 420 "makes no mention of the issue at all." Id. at 2. The petitioners determined the remedy for all their challenges was "straightforward and is simply resolved by Proponents: refile with a new gist. (They may choose to resolve the conflict between IP 420, § 4(A)(7) and IP 420, § 4(B)(4)(b) as well.)." Id. at 3. In that case, the apparent conflict was with the word "chosen" in §4(A)(7) of IP 420 and the words "selected by random drawing" in §4(B)(4)(b) of IP 420. In our opinion, we addressed this concern with these two sections and agreed they created an inconsistency in the petition and should be clarified. We determined:
The petition requires a Panel to be designated by the Chief Justice consisting of retired Justices and appellate judges. Sections 4(A) (7) and 4(B)(4)(b) of IP 420. The Panel will review the applications for the Commission and select some of the commissioners. Section 4(B)(4)(b) of IP 420 also states that the Panel will be selected by random drawing. We agree with the Petitioners that this creates an inconsistency in the petition and should be clarified. (emphasis added).
In re Initiative Petition No. 420, State Question No. 804, 2020 OK 10, ¶7. Although the language used was "designated" rather than "chosen" or even chosen/designated, the opinion cites both sections of IP 420 in the context of the arguments made by the petitioners in their Reply Brief.
¶12 In drafting IP 426, the Respondents addressed the issue of the alleged conflicting terms. Section 4(A)(7) no longer uses the word "chosen" and now reads: "'Panel' shall refer to the group of retired Judges or Justices involved in the selection of Commissioners pursuant to Section 4(B)(4)." In addition, the gist now mentions the Panel selection process. The Respondents assert that neither the gist nor the petition now use the offending word "chosen" which they concede arguably might forgo any type of randomness in the Panel selection process. Respondents' Brief at 6. They contend, the term "designate" and "selected by random drawing" are not in conflict in §4(B)(4)(b) of IP 426. The Chief Justice of the Supreme Court will designate the retired Judges and Justices "who are able and willing to serve on the Panel." However, the "selected by random drawing" provision may never come into play. For instance, if only two retired Judges or Justices are able and willing to serve, then §4(B)(4)(b) requires the Chief Justice to "appoint a retired Oklahoma Federal District Court Judge who accepts such appointment." In that situation there would be no random drawing. It is clearly not inaccurate to say the Chief Justice designates these retired Judges and Justices. In fact, the language suggested by the Petitioners would be inaccurate. Their suggested language makes no mention of the Chief Justices' role in the selection process and leaves the potential signatory to believe all Panel members will be randomly selected. That is clearly not the case. In In re Initiative Petition No. 420, State Question No. 804, we held "[a]lthough the selection process need not be detailed, a simple statement concerning the selection and composition of the Commission is critical here to inform a potential signatory of the true nature of the petition." 2020 OK 10, ¶7. We find the Respondents sufficiently addressed those concerns in IP 426.
B. The information in the gist statement concerning the vote for approving a redistricting plan is sufficient.
¶13 Section 4(E)(1) of IP 426 concerns the vote count for approval of a redistricting plan. It provides:
1. Approval or Rejection of Plans. Each Commissioner has one vote. An affirmative vote of at least six (6) of the nine (9) Commissioners is required to approve a Plan, including at least one (1) Commissioner affiliated with each of the two (2) largest political parties in the state and one (1) Commissioner who is unaffiliated with either of the two largest political parties in the state.
If the Commission cannot approve a State House of Representative, Senatorial, or Federal Congressional redistricting plan within one hundred and twenty (120) days of the release of the Federal Decennial Census Data, then a "Fallback Mechanism" takes effect wherein the Oklahoma Supreme Court shall approve a plan consistent with the process and criteria set out in IP 426. §4(F) of IP 426. The Petitioners assert the gist does not reveal that "[t]he Commission can approve a redistricting plan only if (a) six of the nine commissioners approve, and (b) at least one Commissioner from each of the three Groups (Largest Party, Second Largest Party, and Unaffiliated) approves." Petitioners' Brief at 9. They speculate that the Oklahoma Supreme Court will be more involved in the redistricting process due to the vote count being more than a majority vote and voters deserve to know in the gist that the Commission cannot approve a redistricting plan with a simple majority vote, which they surmise, would ordinarily be the case.
¶14 In In re Initiative Petition No. 420, State Question No. 804, several Justices had concerns that merely stating the new Article would "create[] a fallback mechanism" in the gist, without more, was insufficient to explain the Court's role in the proposed redistricting process. 2020 OK 10, ¶3 (Winchester J., concurring). The Respondents heeded these concerns when drafting the gist of IP 426 which now states, in relevant part, "[t]he Article creates a fallback mechanism by which the state Supreme Court, using a report from the Special Master, will select a plan if the Commission cannot reach the required level of consensus within a set timeframe." (emphasis added).
¶15 In addressing challenges to omissions in a gist statement, "[t]he sole question . . . is whether the absence of a more detailed gist statement . . . without more, perpetuates a fraud on the signatories." In re Initiative Petition No. 363, State Question No. 672, 1996 OK 122, ¶19, 927 P.2d 558. "The measure's gist is not required to contain every regulatory detail so long as its outline is not incorrect." Id., ¶20. Title 34 O.S. 2011, § 3, only requires the gist to be a "simple statement" and we have held it should inform a signer of what the measure is generally intended to do. Id. The gist statement should also be "free from the taint of misleading terms or deceitful language." Id. The Petitioners assert it is critical to add to the gist statement the detailed voting requirements in order to inform the potential signatory of the true nature of the petition, i.e., the high likelihood the Supreme Court will be called upon to adopt the redistricting plan based upon these "super majority" voting requirements. Petitioners' Brief at 10. Whether or not this Court will be required to adopt a redistricting plan is mere speculation at this stage. This Court has previously declined to engage in speculation in our consideration of the validity of a gist. In re Initiative Petition No. 409, State Question No. 785, 2016 OK 51, ¶6 n.15, 376 P.3d 250; In re Initiative Petition No. 358, State Question No. 658, 1994 OK 27, ¶12, 870 P.2d 782. IP 426's gist statement clearly states this Court will select a plan if the Commission cannot reach the "required level of consensus" within a set timeframe. This statement is not misleading and informs the potential signatory in a simple statement that a certain "level of consensus" will be required by the Commission to vote on a redistricting plan, i.e., a vote that might not be composed of a mere majority of the commissioners. Therefore, as to this matter, we do not find the absence of more detail in this already very lengthy gist statement perpetuates a fraud on the potential signatories.
C. The gist statement's short mention of redistricting criteria is sufficient.
¶16 Section 4(D)(1)(c) of IP 426 provides:
c. The Commission shall also seek to maximize compliance with each of the following criteria, set forth in the following order of priority:
i. Communities of Interest. Districts shall minimize the division of communities of interest to the extent practicable. A Community of Interest is defined as an area with recognized similarities of interests, including but not limited to racial, ethnic, economic, social, cultural, geographic, tribal, linguistic, or historic identities. Communities of interest shall not include common relationships with political parties, officeholders, or political candidates.
ii. Racial and Ethnic Fairness. No redistricting Plan should be drawn to have the effect of denying or abridging the equal opportunity of racial or ethnic minority groups to participate in the political process or to diminish their ability to elect representatives of their choice, whether alone or in coalition with others.
iii. Political Fairness. No Plan should, when considered on a statewide basis, unduly favor or disfavor a political party. Undue favor to a political party shall be determined using the proposed map, data from the last ten years of statewide elections, and the best available statistical methods on identifying inequality of opportunity to elect.
iv. Districts shall respect the geographic integrity of political subdivision boundaries to the extent preceding criteria have been satisfied.
v. Compactness. A draft Plan should be compact to the extent preceding criteria have been satisfied.
The gist statement mentions all these criteria. It provides:
In creating the plans, the Commission must comply with federal law, population equality, and contiguity requirements, and must seek to maximize respect for communities of interest, racial and ethnic fairness, political fairness, respect for political subdivision boundaries, and compactness (in order of priority), without considering the residence of any legislator or candidate or a population's political affiliation or voting history except as necessary for the above criteria. (emphasis added).
¶17 The Petitioners single-out one of these criteria, "political fairness," and ask this Court to find the gist insufficient because the mere mention of political fairness in their view, without more explanation, does not inform a potential signatory of what the measure is generally intended to do. Petitioners' Brief at 14. They assert, political fairness has been found to have many meanings by the United States Supreme Court and some mention in the gist is needed to determine what type of political fairness the petition would implement. In Rucho v. Common Cause, voters in North Carolina and Maryland challenged their States' congressional districting maps as being unconstitutional partisan gerrymandering. 139 S.Ct 2484 (2019). The Court determined that "[p]artisan gerrymandering claims invariably sound in a desire for proportional representation" i.e., reapportioning district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be. Id. at 2499. However, "[f]airness may mean a greater number of competitive districts" which seek "to undo packing and cracking so that supporters of the disadvantaged party have a better shot at electing their preferred candidates." Id. at 2500. The Court noted "[d]eciding among just these different visions of fairness (you can imagine many others) poses basic questions that are political, not legal." Id. Any decision on what is fair in this context would be an "'unmoored determination' of the sort characteristic of a political question beyond the competence of the federal courts." Id. (citation omitted).
¶18 As the Supreme Court determined, there are many visions of what fairness means in an apportionment context. IP 426's definition of political fairness provides that no plan should unduly favor or disfavor a political party and this will be determined using the proposed map, data taken from the last ten years of statewide elections, and best available statistical methods on identifying inequality of opportunity to elect. Petitioners acknowledge the definition of political fairness in the petition relies upon the term "undue favor" which is defined as the "inequality of opportunity to elect." Petitioners' Brief at 12-13. However, they argue that even this language is not in the gist. Although, the Supreme Court found federal courts were not appropriate for interpreting such fairness issues, the Commission here is the appropriate body to make such interpretations. Respondents contend the definition leaves a certain amount of leeway for the Commission to interpret in order to implement its provisions.
¶19 The gist needs to inform a potential signatory in a simple statement of the measure's true nature. In re Initiative Petition No. 420, State Question No. 804, 2020 OK 10, ¶7. The gist states its purpose is to prevent political gerrymandering and, as mentioned, presents details on the subjects this Court was concerned about in In re Initiative Petition No. 420, State Question No. 804. The gist provides that in creating the redistricting plans certain criteria will be used. Political fairness is only one of the many criteria mentioned in the gist and body of the petition. The gist puts a potential signatory on notice that the Commission will seek to maximize political fairness as well as the other criteria. The details on this criterion are found in the petition. A detailed description of this one criterion is not necessary to be placed in the gist. In In re Initiative Petition No. 384, we held a gist was insufficient. 2007 OK 47, ¶3, 164 P.3d 125. In our analysis, we noted the proponents had "cut and paste[d]" into the gist the definition of "classroom instructional expenditures" in "mind-numbing detail" but did not do this for other definitions. Id., ¶12. This we found "resulted in a gist that, at once, contains too much and not enough information." Id. We noted, "[i]t may not be necessary to define either "classroom instructional expenditures" or "operational expenditures" with the same kind of detail used by the Proponents in this gist, but the inclusion of one overly detailed definition without any definition of the other term creates an imbalance at odds with the purpose of the gist." Id., ¶12 n.4.
¶20 We hold, this very lengthy gist provides sufficient information and addressed our concerns in In re Initiative Petition No. 420, State Question No. 804. Including the details of only one of the redistricting criteria without others creates the same problems this Court recognized in In re Initiative Petition No. 384. The Petitioners would require too much of the gist of this initiative petition. See In re Initiative Petition No. 362 State Question 669, 1995 OK 77, ¶10, 899 P.2d 1145.4 The time period for filing an application for rehearing is hereby shortened to five business days from the date on which this opinion is filed. See Okla.Sup.Ct.R. 1.13.
THE GIST OF INITIATIVE PETITION NO. 426, STATE QUESTION NO. 810 IS LEGALLY SUFFICIENT
¶21 Gurich, C.J., Darby, V.C.J., Kauger, Winchester, Edmondson, Combs, Kane, Rowe, JJ., and Reif, S.J., concur.
¶22 Colbert, J., recused.
FOOTNOTES
1 "Any citizen can protest the sufficiency and legality of an initiative petition." In re Initiative Petition No. 409, State Question No. 785, 2016 OK 51, ¶2, 376 P.3d 250 (quoting In re Initiative Petition 384, 2007 OK 48, ¶2, 164 P.3d 125).
2 Indeed it must be short as a practical matter because each signature sheet wherein the gist must be placed will also contain twenty numbered lines for signatures. Title 34 O.S. Supp. 2015, §2.
3 The provisions of §4(B)(4)(b) are the same in both IP 420 and IP 426.
4 Therein, we held:
Some Protestants complain that the gist of the proposition fails to adequately explain the proposition. These Protestants contend that the gist of the proposition fails to explain the extent of the changes that would actually be made. Protestants would require too much of the gist of an initiative petition. The gist of a proposition, which is required by law to appear at the top of each signature page, need only contain "a simple statement of the gist of the proposition." 34 O.S. Supp. 1992 § 3. The gist need not satisfy the more extensive requirements for ballot titles contained in 34 O.S. Supp. 1994 § 9. In re Initiative Petition No. 347, State Question No. 639, 813 P.2d 1019, 1026 (Okla. 1991); In re Initiative Petition No. 341, State Question No. 627, 796 P.2d 267, 274 (Okla. 1990). The gist of a proposition must be short. As it must appear at the beginning of every page of the petition, it can contain no more than a shorthand explanation of a proposition's terms. This Initiative's gist explained that the proposition would limit annual increases in property taxes, establish a vote of the people to increase them, and define procedures for increasing them. This was sufficient. The statement of the Initiative's gist satisfies 34 O.S. Supp. 1992 § 3.
Citationizer© Summary of Documents Citing This Document
Cite
Name
Level
None Found.
Citationizer: Table of Authority
Cite
Name
Level
Oklahoma Supreme Court Cases
CiteNameLevel
1990 OK 53, 796 P.2d 267, 61 OBJ 1641, Initiative Petition No. 341, State Question No. 627, In reCited
1990 OK 75, 797 P.2d 326, 61 OBJ 1655, Initiative Petition No. 344, State Question No. 630, In reDiscussed
1991 OK 55, 813 P.2d 1019, 62 OBJ 1880, Initiative Petition No. 347 State Question No. 639, In reCited
1992 OK 122, 838 P.2d 1, 63 OBJ 2386, Initiative Petition No. 349, State Question No. 642, In reDiscussed
1994 OK 27, 870 P.2d 782, 65 OBJ 886, In re Initiative Petition No. 358, State Question No. 658Discussed
1995 OK 77, 899 P.2d 1145, 66 OBJ 2313, In re Initiative Petition No. 362 State Question 669Discussed at Length
2006 OK 45, 142 P.3d 400, IN RE: INITIATIVE PETITION NO. 382, STATE QUESTION NO. 729Discussed at Length
2006 OK 89, 155 P.3d 32, IN RE: INITIATIVE PETITION NO. 379Discussed
2007 OK 48, 164 P.3d 125, IN RE: INITIATIVE PETITION NO. 384, STATE QUESTION NO. 731Discussed at Length
2007 OK 47, 192 P.3d 286, BURRELL v. BURRELLCited
1996 OK 122, 927 P.2d 558, 67 OBJ 3423, In re Initiative Petition No. 363, State Question No. 672Discussed at Length
2016 OK 1, 367 P.3d 472, IN RE INITIATIVE PETITION NO. 403 STATE QUESTION NO. 779Discussed at Length
2016 OK 51, 376 P.3d 250, IN RE INITIATIVE PETITION NO. 409, STATE QUESTION NO. 785Discussed at Length
2018 OK 25, 414 P.3d 367, McDONALD v. THOMPSONDiscussed
2020 OK 10, 458 P.3d 1080, IN RE: INITIATIVE PETITION No. 420 STATE QUESTION No. 804Discussed at Length
Title 34. Initiative and Referendum
CiteNameLevel
34 O.S. 2, Initiative Petition - FormCited
34 O.S. 3, Petitions and SignaturesDiscussed at Length
34 O.S. 8, Filing Copy of Proposed Petition - Publication - Protest - Hearing and Determination - Signature Gathering DeadlineCited
34 O.S. 9, Ballot Title - Filing - Review - AppealDiscussed
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Case: 10-50123 Document: 00511337560 Page: 1 Date Filed: 01/03/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 3, 2011
No. 10-50123
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE MANUEL SOTO-YANES,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No.1:09-CR-360-1
Before DeMOSS, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
Jose Manuel Soto-Yanes (Soto) appeals the 60-month sentence imposed by
the district court following his guilty plea to illegal reentry after deportation.
Soto argues that the sentence was substantively unreasonable. He does not
argue a procedural error. We generally review the substantive reasonableness
of a sentence for an abuse of discretion in light of the sentencing factors set forth
in 18 U.S.C. § 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.
2005); United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). “A
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 10-50123 Document: 00511337560 Page: 2 Date Filed: 01/03/2011
No. 10-50123
discretionary sentence imposed within a properly calculated guidelines range is
presumptively reasonable.” United States v.Campos-Maldonado, 531 F.3d 337,
338 (5th Cir. 2008). However, Soto acknowledges that he did not object to the
reasonableness of the sentence after it was imposed . Therefore, under this
circuit’s precedent, review is for plain error. See United States v. Peltier, 505
F.3d 389, 391-92 (5th Cir. 2007).
Soto’s argument that application of U.S.S.G. § 2L1.2 renders his sentence
unreasonable because it effectively results in the double counting of a
defendant’s criminal history has been rejected by this court. See United States
v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009).
Although the instant reentry offense was not necessarily a crime of violence,
Soto has a history of repetitive criminal conduct, including violent crime. Even
if we accept Soto’s assertion regarding his motive for returning to this country,
he has not shown that his sentence was unreasonable, nor has he rebutted the
presumption of reasonableness that attaches to his within-Guideline sentence.
See Campos-Maldonado, 531 F.3d at 338. Accordingly, he has not shown error,
plain or otherwise.
AFFIRMED.
2
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107 F.3d 9
U.S.v.Andre Rogers, a/k/a Flint
NO. 96-1133United States Court of Appeals,Third Circuit.
Jan 30, 1997
1
Appeal From: E.D.Pa. , No. 94-cr-00032-10 ,
Appealing after remand 72 F.3d 124
2
Affirmed.
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FILED
NOT FOR PUBLICATION
OCT 23 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
POCO, LLC, a Washington Limited No. 16-35310
Liability Company,
D.C. No. 4:14-cv-05106-SAB
Plaintiff-Appellant,
v. MEMORANDUM*
FARMERS CROP INSURANCE
ALLIANCE, INC., a corporation
registered to do business in Washington,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Stanley Allen Bastian, District Judge, Presiding
Argued and Submitted October 10, 2017
Gonzaga University, Spokane, Washington
Before: GRABER, PAEZ, and CLIFTON, Circuit Judges.
POCO, LLC appeals the district court’s order granting summary judgment to
Farmers Crop Insurance Alliance (“FCIA”) on POCO’s claims for breach of
contract, misrepresentation, and violation of the Washington Consumer Protection
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Act (“CPA”). We review de novo the district court’s order granting summary
judgment. Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d 1110,
1131–32 (9th Cir. 2003). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. The district court did not err in rejecting POCO’s breach of contract claim.
The Mutual Release provides that FCIA, “for itself and for its insurance
companies, . . . parent companies, [and] related companies” releases POCO from
liability for claims arising out of POCO’s claim for indemnity under the 2003 crop
insurance policies issued by FCIA. POCO argues that “its insurance companies”
includes the Federal Crop Insurance Company and therefore the federal
government. We disagree.
Washington follows the “objective manifestation” theory of contract
interpretation. See Hearst Commc’ns, Inc. v. Seattle Times Co., 115 P.3d 262, 267
(Wash. 2005). Courts impute an intention corresponding to the reasonable
meaning of the words used. Oliver v. Flow Int’l Corp., 155 P.3d 140, 142 (Wash.
Ct. App. 2006). The words “its insurance companies” cannot reasonably be
interpreted to bind the federal government and prevent the Department of Justice
from pursing a criminal prosecution against POCO for events related to the 2003
policies. Furthermore, the subject matter of the General Release covers only
2
“claims against each other arising out of POCO’s claim for indemnity under its
2003 federally-reinsured Multiple Peril Crop Insurance (MCPI) and Adjusted
Gross Revenue (AGR) policies, and Farmer Alliance’s handling and adjustment of
said claims.” The limited scope of the Release cannot be reasonably read to
encompass the criminal charges filed against POCO, which dealt with inflating
crop baseline prices to increase eventual payouts on numerous insurance policies.
We therefore affirm the district court’s grant of summary judgment on the breach
of contract claim.
2. POCO additionally alleges misrepresentation of a material fact. See ESCA
Corp. v. KPMG Peat Marwick, 959 P.2d 651, 654 (Wash. 1998) (quoting
Restatement (Second) of Torts § 552(1) (1977)). “A precondition for finding
liability [for misrepresentation] is knowledge of the facts alleged to have been
concealed or not disclosed.” Pope v. Univ. of Wash., 852 P.2d 1055, 1063 (Wash.
1993), as amended by 871 P.2d 590 (Wash. 1994). Here, POCO has failed to
demonstrate a genuine factual dispute whether FCIA knew that POCO was under a
criminal investigation. POCO’s evidence in support of that proposition stems from
a 2004 insurance policy, rather than the 2003 insurance policy at issue in this case.
Furthermore, to recover for misrepresentation, a plaintiff must prove reasonable
reliance on the purported misrepresentation. Hawkins v. Empress Healthcare
3
Mgmt., LLC, 371 P.3d 84, 92 (Wash. Ct. App. 2016) (fraudulent
misrepresentation); Lawyers Title Ins. Corp. v. Baik, 147 Wash. 55 P.3d 619, 623
(Wash. 2002) (negligent misrepresentation). We agree with the trial court that, as a
matter of law, POCO could not have reasonably relied on the purported
misrepresentation. See Hawkins, 371 P.3d at 92. We affirm the district court’s
grant of summary judgment on POCO’s misrepresentation claim.
3. POCO also argues that in settling their dispute over the 2003 insurance
policies, FCIA violated Washington’s CPA, Wash. Rev. Code § 19.86.020. An
essential element of such a claim is that the defendant engaged in an unfair or
deceptive act or practice. Wash. Rev. Code § 19.86.093; see also Hangman Ridge
Training Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531, 535 (Wash. 1986).
POCO’s CPA claim fails because there was no misrepresentation, deception, or
unfairness. The terms of the contract were not deceptive, and POCO did not make
a showing that there was a genuine dispute over whether FCIA knew about the
criminal investigation. Indeed, as the district court noted, “it strains credibility to
argue that POCO . . . interpreted the release to include any claims, including
criminal, the federal government may have had against POCO.” POCO’s
additional argument that FCIA violated the Insurance Commissioner’s regulations
4
relating to unfair settlement practices, which provide the basis for a CPA claim,
fails for the same reason. See Wash. Admin. Code § 284-30-330.
AFFIRMED.
5
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9 F.3d 1553
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.Brian BARNES, Defendant-Appellant.
No. 93-10166.
United States Court of Appeals, Ninth Circuit.
Submitted Oct. 20, 1993.*Decided Oct. 27, 1993.
Before: BEEZER, KOZINSKI and KLEINFELD, Circuit Judges.
1
MEMORANDUM**
2
Brian Barnes appeals his three-year probationary sentence imposed following entry of a guilty plea to conspiracy to possess and utter counterfeit securities in violation of 18 U.S.C. § 371. Barnes contends that the district court did not consider his ability to pay before imposing restitution in the amount of $37,940.00. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
3
We review for abuse of discretion an order of restitution that falls within the statutory limits of the Victim and Witness Protection Act of 1982 (VWPA). United States v. Mills, 991 F.2d 609, 611 (9th Cir.1993).
4
Under the VWPA, the district court has the authority to impose restitution but must first consider the financial resources, financial needs, and earning ability of the defendant. 18 U.S.C. § 3664(a). The court is not required to make factual findings on the defendant's financial condition before imposing restitution. United States v. Cannizzaro, 871 F.2d 809, 810 (9th Cir.), cert. denied, 493 U.S. 895 (1989). Nonetheless, the record must reflect that the district court had at its disposal information bearing on defendant's ability to pay. Id.; accord Mills, 991 F.2d at 609 ("There must also be some indication that the judge gave thought to the relevant information."). In addition, the amount of restitution must be based on "some evidence" that the defendant will be able to pay the amount when required to do so. United States v. Ramilo, 986 F.2d 333, 335 (9th Cir.1993). Although indigency does not preclude imposition of restitution, a defendant who has made a good faith effort at payment but is unable to pay the full amount by the conclusion of his sentence may petition the court for an extension of time or for a remittitur. United States v. Jackson, 982 F.2d 1279, 1284-85 (9th Cir.1992); accord United States v. Smith, 944 F.2d 618, 624 (9th Cir.1991) (not determinative that it will be very difficult for defendant to pay full amount within five years of his release), cert. denied, 112 S.Ct. 1515 (1992).
5
Here, the plea agreement specified that Barnes would be jointly and severally liable for the actual loss to the bank in the one count to which Barnes pleaded guilty and set that loss at $37,940.00. The district court read the presentence report which indicated that Barnes had a high school diploma, approximately three years' experience as a bookkeeper, and present employment as a project administrator. Although Barnes had a net worth of negative $1,165.00, his income less living expenses provided a net cash flow of $757.00 a month. Based on these figures, the probation officer concluded that Barnes possessed the ability to pay a fine. The district court also read the defendant's sentencing memorandum which challenged Barnes' ability to pay restitution. In addition, the district court stated that it had not imposed a fine because of the substantial restitution order.
6
Because the district court had information available bearing on Barnes' resources, financial needs, and earning ability and the court's comments reflect that the court gave thought to the appropriateness of restitution, we conclude that the district court discharged its obligations under the VWPA.1 See Mills, 991 F.2d at 611 (requirements met when district court had access to presentence report and defense counsel's briefs and oral argument on ability to pay); Cannizzaro, 871 F.2d at 812 (reference to information in presentence report discharged district court's statutory obligations).
7
Moreover, the record indicates that Barnes has "some ability" to pay the restitution. He was employed and had an estimated monthly net cash flow of $757.00. Aside from a four-month period of home detention, Barnes did not receive a custodial sentence. Because Barnes was employed and did not receive a custodial sentence, the district court did not abuse its discretion by imposing restitution. See Smith, 944 F.2d at 623-24 (upholding restitution order of $12.8 million within five years after ten-year sentence); United States v. Ruffen, 780 F.2d 1493 (9th Cir.), cert. denied, 479 U.S. 963 (1986) (upholding $50,000.00 restitution order imposed on defendant without steady job or assets); cf. United States v. Newman, Nos. 92-10362, 92-10412, 92-10566, slip op. at 10921 (9th Cir. Sept. 28, 1993) (no possibility defendant who worked part-time could pay $55,173.00 in restitution within three years when presentence report stated defendant did not appear to have the ability to pay a fine). Although Barnes' conviction may impact his ability to sustain employment and it may be very difficult for him to pay the full amount within three years, if Barnes makes a good faith effort at payment he may petition the district court for a remittitur at the conclusion of his probation. See Jackson, 982 F.2d at 1284-85; Smith, 944 F.2d at 624.
8
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
Barnes relies on the district court's statement that "I don't believe I have to make that kind of finding on restitution" as establishing that the district court failed to consider Barnes' ability to pay. When read in context, however, the district court's statement accurately states the rule that the sentencing court does not have to make findings of fact on the defendant's financial condition. See Cannizzaro, 871 F.2d at 811 ("There is a material difference between requiring a district court to make findings of fact and requiring it to consider certain factors.")
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368 B.R. 838 (2007)
In re Brenda Y. HUYNH, a/k/a Minh Dang, Debtor.
Habbo G. Fokkena, United States Trustee, Plaintiff,
v.
Brenda Y. Huynh, a/k/a Minh Dang, Defendant.
Bankruptcy No. 05-37944, Adversary 06-3315.
United States Bankruptcy Court, D. Minnesota.
May 18, 2007.
*839 *840 Barbara J. May, Barbara J. May, Attorney at Law, Roseville, MN, for Debtor.
ORDER DENYING SUMMARY JUDGMENT
DENNIS D. O'BRIEN, Bankruptcy Judge.
The above entitled matter came before the Court on March 12, 2007 on the United States Trustee's motion for summary judgment denying the defendant-debtor her discharge under 11 U.S.C. §§ 727(a)(2), (a)(3), (a)(4), (a)(5) and (a)(7). Appearances are noted on the record. Based upon the pleadings, files, and arguments of counsel, the Court being fully advised in the matter, now makes this ORDER pursuant to the Federal and Local Rules of Bankruptcy Procedure.
I
The debtor filed for relief under Chapter 7 shortly after incurring more than $300,000 in unsecured debt through the misuse and abuse of credit card, vendor, and bank accounts. She claims that the debt was the result of purchases and sales of personal property through the credit facilities to fund a gambling addiction episode that she suffered. The alleged gambling losses were disclosed in the debtor's schedules, but, the personal property sales transfers were not. Not all bank accounts were disclosed in the schedules either. The debtor failed to disclose all the transfers and certain bank accounts in later testimony at the § 341 meeting and in a Rule 2004 examination. And, she has not documented either the gambling losses or the transfers. The plaintiff seeks summary judgment under various sections of 11 U.S.C. § 727.
The plaintiff's premise for summary judgment is that the gambling episode did not occur, and that, with regard to non-disclosure issues, the gambling episode is irrelevant. The plaintiffs motion is based on 11 U.S.C. §§ 727: (a)(2), fraudulent transfer or concealment of property to hinder or delay creditors; (a)(3), concealment, destruction, or failure to keep, financial records; (a)(4) making a false oath in connection with the case; (a)(5), failure to adequately explain loss of assets; and, (a)(7), commission of the above acts within one year before filing of the case.
The Court denies the motion for summary judgment, finding that, on the existing record, the facts in the light most favorable to the defendant are that: she suffered an episode of compulsive gambling addiction resulting in the credit debt shortly before filing; it has not been proven that the defendant transferred or concealed property to hinder or delay creditors; that, on the existing record, it has not been shown that failure to keep financial records rises to a level that should trigger denial of discharge in this case; that, on the existing record, it has not been proven that the debtor made a false oath in connection with the case; that, on the existing record, it has not been shown that the debtor's explanation of loss of, assets is inadequate; and, therefore, it has not been proven that the commission of the above acts occurred within one year of filing of the case.
II
Debtor's Personal Profile.
The debtor, born in Vietnam, came to the United States in 1990. She attended *841 high school in California for three years, and later obtained an associates degree in business from Evergreen Valley College in San Jose, California in 1997. She moved to Minnesota in 1999 to get married, and, after some temporary accounting jobs, she was employed as a business consultant with Wells Fargo Bank for about three years. Her husband died of cancer in 2004, and in September of that year she moved back to California. While in California, she worked at Mervyn's Department Store in the accounting department. She returned to Minnesota on June 1, 2005, and has not been employed since. At filing, her income consisted of social security payments for herself and two children in the amount of $2800.00 per month.
Prepetition Debt Runup.
The facts of record most favorable to the defendant show that she obsessively and compulsively gambled during the summer of 2005, resulting in losses of more than $300,000. Prior to July of that year her bank and credit card accounts carried nominal balances. She funded the gambling largely through the misuse of credit cards, abuse of vendor credit accounts, and check kiting. The defendant used the credit cards and vendor accounts to purchase personal property and gift cards, which she then sold for cash at steep discounts. She issued checks that she knew were not backed by existing deposits, and perhaps not existing accounts, to vendor and credit card accounts in order that it appear that she was paying the accounts in full and timely, which in turn allowed her to draw the, accounts up to 100% over their credit limits. In at least one instance, she kited a check to her own bank account. The defendant also sold a leased granite cutter she had intended to use in a startup business at a discount of approximately 50%.[1] According to the facts of record most favorable to the defendant, apparently she mistakenly thought that she had purchased the cutter, not leased it.
The facts of record most favorable to the defendant show that during this period she suffered from a pathological gambling syndrome that resulted in the delusion that she needed to continue to gamble in the face of ever increasing losses in order to repay the debts that resulted from the funds used to gamble-an irrational quest for the "jackpot." She believed that she would ultimately win big and intended to pay her creditors when she hit the "jackpot."
The facts of record most favorable to the defendant indicate that she quit gambling after this two month period in the summer of 2005. By then all credit lines had been cut, her income was a modest social security payment resulting from the death of her husband, and she no longer had access to funds needed to gamble.
The Bankruptcy Filing And Postpetition Disclosures.
On October 6, 2005, the defendant filed bankruptcy under Chapter 7 of Title 11 U.S.C., the Bankruptcy Code. Her attorney took the case, although very busy with other debtor cases.[2] None of the numerous transfers of personal property made by the debtor at steep discounts for cash to fund the 2005 gambling, except the transfer of the cutting machine, were disclosed on the petition, although they occurred only a few months before the filing. The debtor did not disclose the transfers at the meeting of creditors either, but *842 testified that she had reviewed her petition and schedules and that they were accurate.
Only sometime after the creditors' meeting did the debtor, through correspondence from her attorney to an attorney for the plaintiff, disclose information of numerous transfers of personal property for less than reasonable value. She has since amended her schedules to disclose some of the transfers, but not all. The letter discloses that the debtor purchased gift cards, artwork, and karaoke machines, then sold those assets at a 50% discount, and, that she invited "strangers" into her home to buy her furniture, all to fund the gambling. Credit card and other financial documents pertaining to the debtor's accounts obtained by the plaintiff reveal that jewelry and electronic equipment were also purchased. The amended Statement of Financial Affairs, filed by the debtor on December 15, 2005, discloses only that she "[b]ought gift cards and sold them to fund gambling, and she bought art work and a karaoke machine to fund gambling, all in June and July, 2005." The defendant has not documented either the transfers or the gambling losses, although the information was requested by the plaintiff.
Disclosure of bank accounts in the debtor's schedules was not complete either. Her schedules and testimony at the Section 341 creditors' meeting disclosed that she had one checking account at TCF bank, one account at MidCountry bank, one account at Prior Lake State Bank, an inactive U.S. Bank account, and a joint account with another person at TCF Bank. Actually, she had other accounts that the plaintiff discovered, which had not been scheduled or disclosed at either the § 341 meeting or at a later Rule 2004 examination. The debtor appeared at the Rule 2004 examination without counsel, explaining that her attorney refused to appear with her unless she paid the attorney $1,500 in advance, which she said she did not have.
III
Summary judgment is appropriate where there exists no undisputed question of material fact, leaving only a question of law to resolve a dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed. R. Bankr.P. 7056, Fed.R.Civ.P. 56(c). Here, there remain disputed questions of material fact, precluding summary judgment.
11 U.S.C. 727(a)(2).
Under Section 727(a)(2), the Court may deny a debtor's discharge, if:
(2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed
(A) property of the debtor, within one year before the `date of the filing of the petition; or
(B) property of the estate, after the date of the filing of the petition.
The plaintiff's theory here is that the defendant did not experience a gambling addiction episode, but incurred more than $300,000 in debt in essentially a two month period with nothing to show for it because she concealed or transferred property purchased during the period to hinder, delay or defraud her creditors. That may be. But, facts win cases, not theories. The facts of record most favorable to the defendant is that she did experience a gambling addiction episode.
In my opinion, Ms. Huynh, based on her reporting and my assessment, presents as a pathological gambler. She meets criteria by her reporting that she has *843 had a preoccupation with gambling. Spent increased amounts of money to achieve excitement, has had unsuccessful efforts to control her gambling, and has been irritable when she has tried to stop.
The delusion of the compulsive gambler is that they're so far in debt from their gambling that they need to continue in order to pay back all the money they've used to gamble. Of course, the money would be paid back with the next big jackpot that seems inevitable to them because they spend so much time gambling. They have an inability to see each bet as separate. They begin to compromise their values and lie to conceal the extent of their gambling. Sometimes illegal acts are committed such as forgery, kiting checks. Fraud or embezzlement from their jobs all to finance their gambling. Seeing themselves as hopeless. They can't explain, even to themselves, why they persist and suicide becomes an option. Compulsive gamblers have a high rate of suicide attempts. I have worked with Ms. Huynh since October 5, 2006. I believe that her intent was not to defraud creditors but to "borrow," with the intent of paying all the money back with her next big win.
Susan Johnson. M.A., I.A.M.F.T. Gambling Treatment Specialist.
Affidavit of Susan Johnson attached to the defendant's response to the plaintiffs motion, filed February 2, 2007. In summary judgement proceedings, facts of record most favorable to the non-moving party are controlling. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).
While the defendant's gambling addiction might be insufficient to overcome a summary judgment motion in an 11 U.S.C. § 523(a)(2) and (a)(6) action (see: Universal Pontiac-Buick-GMC Truck Inc. v. Routson, (In re Routson), 160 B.R. 595 (Bankr.D.Minn.1993), the addiction, as explained by the defendant's expert, is sufficient to overcome a summary judgment motion based on 11 U.S.C. § 727(a)(2)).
11 U.S.C. § 727(a)(3).
Under § 727(a)(3), the Court may deny the discharge of a debtor, if:
(3)the debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor's financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case.
Debtors are required to keep adequate financial records to enable parties and the Court to trace the debtor's financial history, reconstruct financial transactions, and test the completeness of the disclosure requirements. In re Pulos, 168 B.R. 682, 690 (Bankr.D.Minn.1994). Ordinarily, failure to do so will result in a denial of discharge, and the failure might result in denial of discharge here.
But, summary judgment denial of discharge is an extreme remedy with serious implications that go beyond the context of the bankruptcy case. It can be used as a springboard for federal criminal indictment and prosecution. Given the present state of the record: the incredibly large amount of debt accumulated in such a short period of time by a debtor who has no prior history of credit misuse or abuse; the affidavit of the debtor's expert; and, the paper trail left by credit card and bank account statements; the failure might not be sufficient to deny the debtor her general discharge after full development of all the circumstances of the case. Denial of general discharge, under 11 U.S.C. §§ 727(a)(3) is discretionary, not mandatory. *844 Anderson v. Wiess (In re Wiess), 132 B.R. 588 (Bankr.E.D.Ark.1991).
11 U.S.C. § 727(a)(5)
Under Section 727(a)(5), the Court may deny the discharge of the debtor, if:
(5) the debtor has failed to explain satisfactorily, before determination of denial of discharge under this paragraph, any loss of assets or deficiency of assets to meet the debtor's liabilities.
The defendant explains that she used her credit card and bank accounts to purchase personal property that was sold for cash at steep discounts to fund a gambling episode over a period of essentially two months, resulting in debt to these creditors of more than $300,000. The plaintiff argues that the explanation is implausible and that, as a matter of law, it is inadequate.
But, in light of the facts most favorable to the defendant on the existing record, her explanation is not only plausible, it is highly probable. And, no other plausible explanation comes to mind. Summary judgment is not appropriate under 11 U.S.C. § 727(a)(5).
11 U.S.C. § 727(a)(4).
Under Section 727(a)(4), the Court may deny the discharge of a debtor, if:
(4) the debtor knowingly and fraudulently, in or in connection with the case
(A) made a false oath or account.
This section, when violated by a debtor, will always result in denial of the general discharge. Here, it is irrelevant whether the defendant had a gambling addiction episode in 2005. The issue is whether she made a false oath or account in her petition and schedules through omission, and whether she lied under oath at the § 341 meeting and later at the Rule 2004 examination. There is no question that the defendant's schedules omitted assets and transfers. And there is no question that omissions continued through testimony at the § 341 meeting and the Rule 2004 examination. The question is whether the omissions were knowingly and fraudulently made. It is a question of material fact that remains, given the present record of this case.
The debtor's initial attorney in the case gave an affidavit attached to the response to this motion, where she testifies, in part:
4. At the time Debtor became my client, I was extremely busy with the enormous number of Debtors who were trying to get their cases filed before BAPCPA went into effect. Although I had new client intake interviews scheduled about every half hour, I spent nearly 2 hours with Debtor in her first meeting with me.
6. From the beginning, I had a hard time communicating with Debtor.
7. Her English sounds good. Her accent is minimal.
8. However, I noticed that Debtor did not follow instructions well and often asked questions that indicated that she had not understood what we discussed. Even when I remember that I specifically asking her if she understood, it was clear to me from Debtor's actions and statements at a later time that she had no idea what I was talking about.
9. Debtor's apparent lack of understanding of the questions that I asked her as well as questions put to her at her § 341 hearing lead to her Chapter 7 Trustee filing an objection to her homestead exemption which I successfully defended.
Affidavit of Ms. Barbara May, March 5, 2007.
*845 Under circumstances of the case, as reflected by the present record, it is not clear that representation of the debtor was adequate to advise her properly regarding what disclosures were required by her bankruptcy schedules and later testimony.
For example, counsel was aware that the debtor claimed recent gambling losses of more than $300,000 when her sole income disclosed to counsel was social security payments for her and the debtor's two children in the monthly amount of $2,800. The obvious information that needed to be obtained from the debtor was where the money came from to fund the gambling. Was the question asked, and, if so, how was it answered? It must be assumed that the numerous purchases and sales of personal property, claimed by the debtor to have been made to fund the gambling episode, would have at least been generally disclosed as required transfer disclosures if counsel had known about them. Why did counsel not know about them? Was it because the question about funding the gambling was not asked, or because the debtor lied?
That is not the only aspect of legal representation of the debtor that appears problematic from the present record. At the Rule 2004 examination, the debtor testified that she was present without counsel because she could not afford the $1500 demanded by counsel in advance for counsel to appear. If this is true, counsel's failure to appear and represent her client at the hearing seriously compromises the effectiveness of any testimony from which adverse inferences might otherwise be drawn. A Rule 2004 examination is a proceeding in a main Chapter 7 bankruptcy case, and active representation by debtor's counsel is required by Local Rule 9010-3(e):
(e) Substitution; Withdrawal.
4) Effect of Failure to Comply. Until a substitution of attorneys is filed or an order is entered allowing the original attorney to withdraw, the original attorney is the client's attorney of record and the original attorney shall represent the attorney's client in bringing and defending all matters or proceedings in the bankruptcy case other than adversary proceedings in which the original attorney has not yet made an appearance. Failure to receive advance payment or guarantee of attorney's fees is not grounds for failure to comply with this subsection.
It may be that, after a complete record is made through trial, the defendant's omissions will be shown to rise to the level of denial of discharge under 11 U.S.C. § 727(a)(4). But, that drastic result would amount to an unnecessary rush to judgment on the existing incomplete record in this summary judgment proceeding.
IV
Based on the forgoing, the Court concludes that the granting of summary judgment is inappropriate in this proceeding, and the plaintiff's motion is DENIED.
NOTES
[1] Four of these creditors have nondischargeability actions pending against the defendant arising out of the use of her accounts, and sale of the granite cutter.
[2] The newly enacted Bankruptcy Abuse Prevention And Consumer Protection Act of 2005 was scheduled to become effective on October 20, 2005, and debtors scrambled to get filings in before the effective date.
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244 Miss. 813 (1962)
146 So.2d 736
LEE
v.
STATE
No. 42374.
Supreme Court of Mississippi.
November 19, 1962.
*815 Ross & Ross, Clarksdale, for appellant.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
*816 RODGERS, J.
Appellant, Robert Erron Lee, was indicted by a grand jury of Coahoma County, Mississippi, in January 1962 for the crime of false pretense, as defined by Sec. 2149, Miss. Code 1942, Rec. He was convicted and sentenced to serve a term of twelve months in the county jail. He complains, on appeal to this Court, that the trial court permitted the following reversible errors in the trial of his case: (1) The court's failure to peremptorily instruct the jury to find defendant not guilty was error because the State did not prove beyond a reasonable doubt that defendant intended to cheat or defraud the prosecuting witnesses or that he made any false representation to them in order to obtain their signatures. (2) The court erroneously permitted the State to introduce evidence to impeach the acknowledgment on the warranty deed set out as part of the charge in the indictment.
The record in this case discloses that the charge against defendant, Robert Erron Lee, grew out of the following circumstances: John and Sadie Isaac, an elderly Negro couple, apparently illiterate, own a home in Clarksdale, Mississippi. The Coahoma Bank held a trust deed on their home for $160, and John Isaac advised Robert Erron Lee that he wanted to repair the home and pay the loan to the bank, and needed to borrow five hundred dollars. Defendant told John Issac that he could arrange a loan for him with a Mr. F.E. Cocke. It appears that defendant was lending money for Mr. Cocke, and was at that time making collections of money previously loaned for Mr. Cocke, and could let the Isaacs have the loan out of the money collected for Mr. Cocke. Defendant prepared a trust deed making a *817 lien upon the home of the Isaacs, and John Isaac signed the trust deed and it was then taken to the home of Sadie Isaac. She was sick in bed, but with the aid of defendant she signed the trust deed, and defendant turned over to the old couple a sum of money. The evidence is in conflict as to the amount first delivered. Defendant went to the home of the Isaacs at a later date and carried an additional sum of money. The last time defendant went to the home of the Isaacs, he had them to sign a warranty deed to their home, deeding their property to defendant, Robert Erron Lee. It is admitted that the Isaacs did not appear before the notary public to acknowledge the trust deed, nor the warranty deed, but these papers were taken to the notary public by defendant. At the time the warranty deed was signed, defendant lacked $100 paying the Isaacs the $500 he had promised to lend them. For some time after the last transaction, the balance of this loan was not forthcoming, and John Isaac became disturbed and anxious about his loan. He sought advice from Hon. Thomas Pearson, an attorney. The attorney made an examination of the land records of Coahoma County and discovered that the Isaacs had made a deed to defendant. He then called upon defendant to ascertain his position in the matter and was advised by defendant that he would make a deed to the Isaacs and that he did not claim any interest in their home; also defendant said: "Mr. Pearson, I just picked up the wrong paper, I'm willing to straighten this matter out. I will do whatever you say about it." The attorney let the Issacs have sufficient money to pay off the loan due Mr. Cocke, and the defendant made a deed reconveying to the Isaacs the property involved. Defendant claimed that John Isaac wanted to sell his home and gave him the warranty deed so that he could sell the property for him. There is no testimony in the record that Robert Erron Lee made any verbal representations to the Issacs before *818 or at the time they signed the warranty deed, in order to obtain their signatures to the warranty deed.
Attorneys for defendant argue that the State had the burden to prove beyond a reasonable doubt in the court below that defendant made some false pretense, in order to meet the requirement of Sec. 2149, Miss. Code 1942, Rec., and in order to show false pretense, it was necessary for the State to show a felonious intent on the part of defendant to cheat and defraud the Isaacs out of their property. They cite Pittman v. State, 101 Miss. 553, 58 So. 532; Dunbar v. State, 130 Miss. 317, 94 So. 224; Lee v. State, 138 Miss. 705, 103 So. 366; King v. State, 124 Miss. 477, 86 So. 874; 22 Am. Jur., False Pretenses, Sec. 23, p. 456, Sec. 37, p. 465. (Hn 1) The Attorney General in his brief admits, and we agree, that the foregoing argument is sound and is the rule expressed in the authorities cited.
In order to meet the requirement of the statute to show criminal intent, it is, however, not necessary to show that false pretense was made by words alone. Sec. 2149, supra. (Hn 2) The general rule is that, acts or conduct may constitute a false pretense within the meaning of the statutes. Hence, under some circumstances, a prosecution for false pretense may be based upon concealment. 22 Am. Jur., False Pretenses, Sec. 18, p. 455.
In the case of Fuller v. State, 221 Miss. 247, 72 So.2d 454, this Court quoted from 35 C.J.S., False Pretenses, Sec. 17, p. 825, as follows: "A false pretense may consist in any act, word, symbol, or token calculated and intended to deceive. It may be made either expressly or by implication." See also Hinman v. State, 179 Miss. 503, 176 So. 264; Heard v. State, 177 Miss. 661, 171 So. 775; 35 C.J.S., False Pretenses, Secs. 18-20, pp. 826-7.
(Hn 3) Under the common law, proof of criminal intent is a necessary element in the prosecution of every criminal case, (except those offenses which are merely *819 malum prohibitum.) 14 Am. Jur., Criminal Law, Sec. 23, p. 782, Sec. 24, p. 784; City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785.
(Hn 4) However, criminal intent of a defendant, dwelling in his mind, invisible to the outward sight, can never be proven by direct testimony of a third person, (except when verbally expressed or admitted), and it need not be, because a person is presumed to intend that which he does, or which is the natural and necessary consequence of his act. Jeff v. The State, 39 Miss. 593; Barcus v. The State, 49 Miss. 17. (Hn 5) Moreover, the court and the jury are not bound by the evidence of the accused as to what his intention was in the doing of a particular act. 23 C.J.S., Criminal Law, Sec. 919, p. 641; Matthews v. State, 243 Miss. 568, 139 So.2d 386; Woodward v. State, 180 Miss. 571, 177 So. 531, 178 So. 469.
(Hn 6) We are of the opinion that the question as to whether or not the acts of defendant, established beyond a reasonable doubt, the "criminal intent" of defendant to obtain the home of the Isaacs by false pretense was a factual one for the jury and that it was properly submitted to them for their determination. We also believe that there is sufficient evidence in the record on which the jury could have reasonably based a verdict of guilty. 22 Am. Jur., False Pretenses, Sec. 19, p. 455.
Defendant next complains that the court erred in admitting evidence of a conspiracy on his part to obtain a forged acknowledgment. This objection grows out of the fact that the court permitted the Isaacs to testify that they did not appear before a notary public to acknowledge their signatures on the deed of trust and warranty deed. Viola Johnson, a secretary for John Melchor, the notary public, was permitted to testify for the State that the Isaacs did not acknowledge signing the instruments in her presence, and that she signed *820 the notary public's name and affixed his seal on the instruments at the request of defendant.
The argument of defendant's attorneys is to the effect that the indictment copied therein shows the acknowledgment to the warranty deed, and charges false pretenses; that it does not charge forgery, fraud, or misconduct in obtaining the acknowledgment, and the trial court committed reversible error in permitting proof of "collateral issues * * * not raised in the pleadings." In short, it is contended that evidence of the commission of another crime is not admissible in this case. This rule has been expressed in the following language: "It is a well established common law rule that in a criminal prosecution proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times, even though they are of the same nature as the one charged in the indictment, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged, unless the other offenses are connected with the offense for which he is on trial." (Emphasis supplied.) Hawkins v. State, 224 Miss. 309, 80 So.2d 1, quoting from 20 Am. Jur., Evidence, par. 309, p. 287. See also 22A C.J.S., Criminal Law, Sec. 682, p. 729; Floyd v. State, 166 Miss. 15, 148 So. 226; Willoughby v. State, 154 Miss. 653, 122 So. 757; McLin v. State, 150 Miss. 159, 116 So. 533; Baygents v. State, 144 Miss. 442, 110 So. 114; English v. State, 206 Miss. 170, 39 So.2d 876; Gunter v. State, 180 Miss. 769, 178 So. 472.
There are well defined exceptions to the foregoing rule and they are said to be founded on as much wisdom and justice as the rule itself, and to be as much recognized as the rule. In fact, it is contended that exceptions to the rule are not really such but are part of the rule itself. 22A C.J.S., Criminal Law, Sec. 683, p. 741. (Hn 7) Evidence of other crimes is admissible to prove identity of defendant; to prove scienter, or guilty or *821 criminal knowledge, with respect to the crime charged. Evidence of other crimes is also admissible to show criminal intent or purpose with respect to the offense charged, prove motive, to show a plan or system of criminal action where a continuing offense is charged, or where other crimes form a part of the res gestae. 22A C.J.S., Criminal Law, Secs. 683 through 689, pp. 741-791; 22A C.J.S., Criminal Law, Secs. 663-665, pp. 674-680; Clanton v. State, 137 So.2d 180; Whittington v. State, 160 Miss. 705, 135 So. 190; Wilson v. State, 243 Miss. 859, 140 So.2d 275.
(Hn 8) It appears to us that the evidence introduced falls under the exception to the general rule and was admissible to show intent and criminal knowledge.
We are therefore of the opinion that the facts in this case presented a question for the jury as to whether or not defendant intended to obtain the home of the Isaacs by false pretense. We believe that the evidence with reference to the acknowledgment of the deeds was properly admitted, and for that reason judgment and sentence of the trial court is affirmed.
Affirmed.
McGehee, C.J., Lee, P.J., and Gillespie and Jones, JJ., concur.
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-3619
___________________________
Kimberly A. Benson
lllllllllllllllllllllPlaintiff - Appellant
v.
Andrew Saul,1 Commissioner of Social Security Administration
lllllllllllllllllllllDefendant - Appellee
____________
Appeal from United States District Court
for the Western District of Arkansas - El Dorado
____________
Submitted: September 20, 2019
Filed: September 25, 2019
[Unpublished]
____________
Before GRUENDER, STRAS, and KOBES, Circuit Judges.
____________
PER CURIAM.
1
Andrew Saul has been appointed to serve as Commissioner of Social Security,
and is substituted as appellee pursuant to Federal Rule of Appellate Procedure 43(c).
Kimberly Benson appeals the district court’s2 order affirming the denial of
disability insurance benefits and supplemental security income. After careful
consideration of Benson’s arguments for reversal, we agree with the court that
substantial evidence in the record as a whole supports the adverse decision. See Nash
v. Comm’r, Soc. Sec. Admin., 907 F.3d 1086, 1089 (8th Cir. 2018) (de novo review
of district court’s judgment; affirmance is warranted if Commissioner’s decision is
supported by substantial evidence in record as whole). Specifically, substantial
evidence supported the administrative law judge’s (ALJ’s) findings that Benson’s
impairments did not meet any listings, see Blackburn v. Colvin, 761 F.3d 853, 859
(8th Cir. 2014) (upholding ALJ’s finding that listing 12.04 was not met where there
was no evidence that claimant had episodes of decompensation of requisite length and
frequency); the ALJ’s credibility determination, see Nash, 907 F.3d at 1090 (this
court defers to ALJ’s credibility determination as long as it is supported by good
reasons and substantial evidence); and the ALJ’s evaluation of the medical opinions,
see Lawson v. Colvin, 807 F.3d 962, 966 (8th Cir. 2015) (ALJ did not err in giving
less weight to physician’s low Global Assessment of Functioning score, which was
inconsistent with overall evidence and not supported by claimant’s functioning). We
also find that the post-hearing evidence Benson submitted does not undermine the
ALJ’s decision. See Stephens v. Shalala, 50 F.3d 538, 541 (8th Cir. 1995) (treating
physician’s opinion submitted to Appeals Council that did not cite any objective
evidence to support its conclusions and contradicted examination finding did not
detract from substantial evidence supporting ALJ findings).
The judgment is affirmed. See 8th Cir. R. 47B.
______________________________
2
The Honorable Barry A. Bryant, United States Magistrate Judge for the
Western District of Arkansas, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
-2-
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206 N.J. Super. 336 (1985)
502 A.2d 1147
EDWARD LIPTAK, PLAINTIFF-APPELLANT,
v.
HELMUT FRANK AND ELFRIEDE FRANK, HIS WIFE, DEFENDANTS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Argued December 3, 1985.
Decided December 16, 1985.
*337 Before Judges PRESSLER, DREIER and GRUCCIO.
Donald L. Garber argued the cause for appellant (Donald L. Garber, attorney; Michael I. Lubin, on the brief).
Anthony M. Carlino argued the cause for respondents (Harwood, Lloyd, Ryan, Coyle & McBride, attorneys; Anthony M. Carlino, on brief).
The opinion of the court was delivered by PRESSLER, P.J.A.D.
Plaintiff Edward Liptak sustained physical injuries when he fell on an icy sidewalk abutting residential property owned by defendants Helmut and Elfriede Frank. He brought this personal injury action alleging that defendants owed him a duty, imposed by common law, ordinance or both, to maintain the sidewalk and had negligently failed to do so. Summary judgment *338 was granted dismissing these claims and plaintiff appeals.[1] We are constrained to affirm.
The issue of a property owner's responsibility to maintain abutting sidewalks in reasonably good condition is one which has regularly engaged the attention of the Supreme Court over the last three decades. Despite the vigorous expression of dissenting views, the blanket non-liability rule enunciated in Moskowitz v. Herman, 16 N.J. 223, 228-231 (1954) (Chief Justice Vanderbilt and Justice Jacobs, dissenting), was adhered to until Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981). See Yanhko v. Fane, 70 N.J. 528, 537 (1976) (Justices Pashman and Schreiber, dissenting); Muzio v. Krauzer, 62 N.J. 243 (1973) (Justices Jacobs and Mountain, dissenting); Barkley v. Foster Estates, Inc., 61 N.J. 576 (1972) (affirming the Appellate Division application of the non-liability rule by an equally divided vote); Murray v. Michalak, 58 N.J. 220 (1971) (Justices Jacobs and Proctor, dissenting). In Stewart the Court carved out an exception to the non-liability rule by imposing liability on abutting commercial landowners. The Stewart rule was extended by Mirza v. Filmore Corp., 92 N.J. 390, 395-396 (1983), to impose the duty upon abutting commercial landowners to remove or reduce the hazard of ice and snow on public sidewalks.
As we read Stewart, however, the Court expressly declined, despite the persuasive concurring opinion of Justice Schreiber, 87 N.J. at 160, then to overrule the non-liability rule in respect of abutting residential owners. It may well be that on its next consideration of the issue the Court will extend the Stewart liability rule to residential property owners. Nevertheless, we, as an intermediate appellate court, are not free to deviate from what we regard as the Supreme Court's presently *339 articulated view, and as of this point that view does not encompass the liability of abutting residential property owners.
We are further satisfied that as an intermediate appellate court we are precluded by the express contrary holding of Yanhko v. Fane, supra, 70 N.J. at 536-537, from concluding that a municipal ordinance requiring a residential landowner to remove ice and snow from his abutting sidewalk creates a tort duty owed to pedestrians. We are nevertheless persuaded that developments in the tort law since Yanhko might well be regarded by the Supreme Court as requiring its reconsideration of this issue.
Following the decision in Yanhko, the American Law Institute issued Tentative Draft No. 23 of the Restatement, Torts 2d (1977), Chapter 43 of which included this draft formulation of proposed § 874A:
When a legislative provision proscribes or requires certain conduct for the benefit of a class of persons but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.
We relied on that draft formulation in Bortz v. Rammel, 151 N.J. Super. 312, 321-322 (App.Div. 1977), certif. den., 75 N.J. 539 (1977), in concluding that the Construction Safety Code, adopted by the Commissioner of Labor and Industry pursuant to the Construction Safety Act, N.J.S.A. 34:5-166, et seq., created not only a builder's standard of conduct but also imposed tort liability to persons injured as a result of noncompliance with the Code's requirements. We again relied on proposed § 874A in Lally v. Copygraphics, 173 N.J. Super. 162, 172-173 (App.Div. 1980), aff'd, 85 N.J. 668 (1981), in holding that, where a statutory provision made it unlawful for an employer to retaliate against an employee who seeks workers' compensation benefits, an employee who is the victim of such retaliation may pursue a judicially cognizable cause of action for compensatory and punitive damages. See N.J.S.A. 34:15-39.1, .2 and .3.
*340 Tentative draft § 874A has since been adopted, virtually verbatim, as § 874A of 4 Restatement, Torts 2d (1977). We do not believe that the finally adopted and promulgated version of § 874A would have less effect upon our courts than did the proposed version, which we have already accepted. We are also satisfied that the Restatement requisites for according a private right of action based on a legislatively prescribed standard of conduct are present here. First, there is no question of the applicability of § 874A to a municipal ordinance. See Comment (a), id. at 301. Furthermore, as we noted in Bortz v. Rammel, supra, 151 N.J. Super. at 321, Comment (h), in defining the factors affecting the determination of whether the court should provide a tort remedy, notes that
[t]he primary test for determining whether the courts should provide a tort remedy for violation of the legislative provision is whether this remedy is consistent with the legislative provision, appropriate for promoting its policy and needed to assure its effectiveness. [4 Restatement, Torts 2d at 308]
The Comment goes on to suggest such subsidiary considerations as the specificity with which the prescribed conduct is defined, the inadequacy of existing remedies, the extent to which a tort action would interfere with existing remedies, the significance of the legislative purpose, the extent of the change in tort law, and the burden which the new cause of action will place on the judicial machinery. Id. at 308-310.
A consideration of these factors might well persuade the Supreme Court of the appropriateness of applying § 874A so as to impose a tort duty upon a residential owner required by local ordinance to maintain the abutting sidewalk in good repair and to keep it free of ice and snow accumulations. Clearly, the primary purpose of such an ordinance is to effect the safety of the pedestrian public. Nor is it likely that the typically modest ordinance penalties for noncompliance would be as effective in achieving the intended purpose as would the imposition of tort liability. It is also obvious that there is no other remedy available for a pedestrian injured as the result of noncompliance. We are therefore of the view that even if Stewart were not extended generally to impose liability on abutting residential *341 owners, there is nevertheless an independent basis for doing so where the residential owner fails to comply with an ordinance obligation to maintain the sidewalk. This basis of liability might well be favorably reconsidered by the Supreme Court.
Affirmed.
NOTES
[1] The partial summary judgment appealed from was interlocutory in that the trial judge reserved for trial the issue as to whether defendants had, by inadequately attempting to clear the sidewalk, created a new element of danger in addition to that caused by natural forces. This issue was ultimately tried and determined in defendants' favor, resulting in a final judgment.
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239 F.Supp.2d 377 (2003)
VICTORIATEA.COM, INC., the Torimiro Corporation, Rachael F. Parray, Plaintiffs,
v.
COTT BEVERAGES CANADA a/k/a/ Cott Beverages, Inc., Cott Beverages, Inc. a/k/a/ Cott Beverages USA, Cott Corporation, Universal Flavors-Canada Incorporated, and Universal Foods Corporation a/k/a/ Sensient Technologies Corporation, Defendants.
No. 02 Civ. 6512.
United States District Court, S.D. New York.
January 7, 2003.
*378 Sam O. Maduegbuna, Madu, Edozie & Madu, P.C., New York, NY, Victor Ekperigin, Maduebuna, Cooper & Ekperigin, New York, NY, for Plaintiffs.
Steven Francis Napolitano, Jay B. Kasner, Skadden, Arps, Slate, Meagher & Flom, L.L.P., New York, NY, Thomas G. Bailey, Jr., John E. Tardera, Winston & Strawn, New York, NY, for Defendants.
DECISION AND AMENDED ORDER
MARRERO, District Judge.
Plaintiffs VictoriaTea.com, Inc. ("VTI"), the Torimiro Corporation ("Torimiro") and Rachael F. Parray ("Parray") (collectively "Plaintiffs") commenced this action under the Court's diversity jurisdiction against defendants Cott Beverages Canada, Cott Beverages, Inc., Cott Beverages USA, Cott Corporation (collectively "Cott" or the "Cott Defendants") and Universal Flavors-Canada, Inc., Universal Foods *379 Corporation and Sentient Technologies Corporation (collectively the "Sentient Defendants"). Plaintiffs allege breach of contract and tort claims arising from defective manufacturing and packaging of a beverage that was the subject of an agreement between Torimiro and Cott Beverages Canada. The Cott and Sentient Defendants both moved to dismiss the action on the ground of forum non conveniens. By Order dated December 27, 2002, the Court granted the motions and indicated that its reasoning would be set forth in a separate Decision and Order.
I. FACTS
Torimiro, a Canadian corporation based in Ontario, packages and sells beverages using the brand names "VictoriaTea" and "The Victorian Iced Tea" (collectively "Victoria Tea") to wholesale and retail outlets in Canada, the United States and the Caribbean. Parray, a citizen and resident of Ontario, Canada, is the owner of the Victoria Tea trade names and trade marks. VTI, the licensee of the Victoria Tea trade names and trade marks, asserts that it is a New York corporation with its principal place of business at an address at the 26th Floor of 521 Fifth Avenue, in Manhattan.[1]
Cott, a Canadian corporation based in Ontario, Canada, produces and supplies a brand of various beverages. Cott conducts business in the United States through a wholly-owned subsidiary, Cott Beverages Inc., which is incorporated in Georgia and headquartered in Florida. Sentient Flavors Canada Inc., formerly known as Universal Flavors Canada, Inc., is a Canadian corporation engaged in manufacturing food flavors and other ingredients. Sentient owns Sentient Technologies Corporation (formerly known as Universal Foods Corporation), a United States subsidiary headquartered in Wisconsin.
In July 1999, following discussions in Ontario, Torimiro and Cott Beverages Canada entered into an agreement (the "Agreement") under which Cott undertook to manufacture and package an iced tea product (the "Product") based on a concentrate formula provided by Torimiro. Plaintiffs contend that the Product was to be distributed primarily in the United States market and that all Defendants were so aware. The Agreement was negotiated and executed in Ontario. Torimiro engaged Universal Flavors-Canada to produce the flavor concentrate for the Product. This arrangement was also entered into in Canada. Cott employed the facilities of a division of its United States subsidiary located in Georgia to perform testing of the concentrate.
Plaintiffs contend that because Cott does not produce any powder form of tea concentrate in Canada, the final formulation of the Product was actually developed and approved in the United States by Cott Beverages USA. There is no dispute that Cott manufactured the Product at its facilities in Ontario and beginning in March 2000 shipped it from there to Torimiro's distribution center in Buffalo, New York, and other locations in the United States, Canada and the Caribbean specified by Torimiro.
According to Plaintiffs, beginning in April 2000, within weeks of Cott's initial shipment of the Product, Torimiro began receiving complaints from its customers that containers of the Product were exploding in the customer's warehouses in *380 various parts of the United States, Canada and the Caribbean. Torimiro informed Cott of these reports. Cott then retained two Canadian companies, Gelda Scientific and Crown Cork & Seal Canada Inc. to investigate the problem. At Torimiro's request, Cott also had the Product tested by BCN Research Laboratories in Knoxville, Tennessee ("BCN"), which prepared a report in July 2000, indicating that the Product contained a yeast contamination. Torimiro then recalled its inventory of the Product from customers to its distribution center in Buffalo, and alleges that 95 percent of it was located in the United States. Cott asserts that it reimbursed Torimiro for freight and product costs related to the defective shipments of the Product that Torimiro returned to Cott in Canada.
Plaintiffs claim that on account of these events, they were unable to sell any more of the Product after April 2000. In January of 2002 Torimiro and Cott sought to negotiate a new packaging agreement. These efforts were unsuccessful. Torimiro, which was then involved in a receivership proceeding, had not paid Cott for certain inventory of the Product and was sued by Cott in Canada under the terms of the Agreement. In that action, which also named VTI, Torimiro asserted as an affirmative defense that Cott owed Torimiro money and that VTI was not a real party to the action.
Plaintiffs commenced the instant litigation in May 2002 in State Supreme Court, New York County, contending that by reason of Defendants' wrongful conduct they lost the value of their trade names and trade marks and their market position. Specifically plaintiffs assert: (1) on behalf of Torimiro, contract claims of breach of contract, breach of implied warranties and breach of implied covenant of good faith, each arising out of alleged failure on the part of the Cott Defendants to perform properly under the terms of the Agreement; (2) negligence claims on behalf of Torimiro based on Defendants' alleged wrongful performance of their underlying obligations to Torimiro; (3) a negligence claim on behalf of Parray and VTI, as the intended beneficiaries of the relationships between Torimiro and the Defendants; (4) a prima facie tort claim; and (5) a distinct request for attorney's fees. Defendants removed the case to this Court and moved to dismiss on the ground of forum non conveniens. The Cott Defendants moved alternatively for dismissal for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(B)(2) or for transfer of venue to another district pursuant to 28 U.S.C. § 1404(a).
II. DISCUSSION
Courts employ a two-part test to analyze an invocation of the forum non conveniens doctrine. Initially, the court determines whether there exists an adequate alternative forum. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). If so, the Court assesses the appropriateness of litigating the action in the plaintiffs choice of forum, as opposed to the alternative venue, by balancing the private interests of the litigants and the public interest concerns of the court in accordance with the factors articulated by the Supreme Court in Gilbert. See id. at 508-09, 67 S.Ct. 839; see also Moscovits v. Magyar Cukor Rt, No. 00 Civ. 0031, 2001 WL 767004, at *2 (S.D.N.Y. July 9, 2001), aff'd, 34 Fed.Appx. 24 (2d Cir.2002); Ilusorio v. Ilusorio-Bildner, 103 F.Supp.2d 672, 673 (S.D.N.Y.2000), affd, 2001 U.S.App. Lexis 17157 (2d Cir. March 23, 2001). The analysis asks whether in the interest of justice and all other relevant concerns the action would best be brought in another forum. A threshold inquiry is the degree of deference that should be accorded to the plaintiffs choice of forum. See Moscovits, 2001 *381 WL 767004, at *5; see also New Hampshire Ins. Co. v. Sphere Drake Ins. Ltd., No. 01 Civ 3226, 2002 WL 1586962 (S.D.N.Y. July 17, 2002), affd in relevant part, vacated in part by 51 Fed.Appx. 342 (2d Cir.2002).
A. DEFERENCE TO PLAINTIFF'S FORUM
Generally, there is a strong presumption in favor of the plaintiffs choice of forum. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 250, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981); DiRienzo v. Philip Servs. Corp., 294 F.3d 21, 28 (2d Cir.2002); Iragorri v. United Technologies Corp., 274 F.3d 65, 70-71 (2d Cir.2001). In consequence, defendants have the burden of overcoming this presumption by establishing that the balancing of the Gilbert private and public interest factors "tilt strongly in favor" of the alternative forum. Reyno, 454 U.S. at 255-56, 102 S.Ct. 252; Iragorri, 274 F.3d at 71-72; R. Maganlal & Co. v. M.G. Chem. Co., 942 F.2d 164 (2d Cir. 1991). Deference to plaintiffs forum becomes a stronger consideration where plaintiff is an American citizen, especially in cases in which the underlying claims arose under United States law or seek to enforce or promote significant American policy interests. See Reyno, 454 U.S. at 256, 102 S.Ct. 252 (emphasizing that this rule is not intended to disadvantage foreign plaintiffs but rather reflects a realistic prediction of the ultimate convenience of the forum); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 103-104 (2d Cir. 2000); DiRienzo, 294 F.3d at 31; see also Murray v. British Broadcasting Corp., 81 F.3d 287, 290 (2d Cir.1996).
But where the local claimant is only nominally American, as in the case of an assignee of a foreign corporation, the "courts have generally refused to give special deference" to plaintiffs choice of forum. Pain v. United Technologies Corp., 637 F.2d 775, 797-98 (D.C.Cir.1980) (finding that the domestic forum choice of a "nominally American plaintiff, defined as subrogees, assignees, or representatives of foreign companies, is generally not given special deference); (citing United States Merchants' & Shippers' Ins. Co. v. AJS Den Norske Afrika Og Australie Line, 65 F.2d 392, 394 (2d Cir.1933) and Fitzgerald v. Westland Marine Corp., 369 F.2d 499, 502 (2d Cir.1966); Iragorri, 274 F.3d at 72 n. 3) ("if a plaintiff has adopted a U.S. residence for the purpose of having his suit tried in a U.S. Court, the same deference would not apply."); see also Moscovits, 2001 WL 767004, at *5.
Here, the core of the dispute before the Court arises in the first instance from the parties' relationship under the Agreement and whatever rights and obligations stem from it. In this connection, the principal parties in interest are Torimiro, the only one of Plaintiffs that was also a party to the Agreement, and presumably Parray, the owner of the Victoria Tea trade names and trade marks. Plaintiffs concede that Torimiro and Parray are both citizens and residents of Canada. The only claimant in this action asserting domestic connections to the United States and this District is VTI. However, rather than comprising one of the principal parties in interest to the underlying relationships and transactions that engendered the action, VTI is but a licensee of Torimiro to some rights to the Victoria Tea trade names and trade marks. Significantly, VTI was formed in May 2000two years after the date of the Agreement, and nearly one year after all the operative events at issue had occurredby the principal of Torimiro, who apparently also retains the ownership or control of VTI. While VTI may have been assigned some rights to the Victoria Tea trade names and trademarks, there is no *382 claim by Plaintiffs that VTI has any registered marks in the United States.[2]
Claiming to have its principal place of business at 521 Fifth Avenue in Manhattan, from which it allegedly coordinates its Northeast United States activities, VTI acknowledges that its principal asset is the license of the Victoria Tea trade names and trade marks, that this property was "no longer economially viable" and was "eventually abandoned"allegedly on account of Defendants' wrongdoingand that the location of VTI's place of business is shared space in the law offices of one of Torimiro's attorneys, where VTI does not maintain a separate listing. (Plaintiffs Memorandum of Law in Opposition to the Motion of the Cott Defendants to Dismiss the Complaint Based on Forum Non Conveniens, dated November 11, 2002, ("Pl.'s Mem."), at 15.)
Thus, at the time VTI was formed as a licensee of Torimiro in May 2001, the underlying events relating to the production, distribution and explosions of the contaminated Product, and the effects of these circumstances on the marketability of the Product and the Victoria Tea trade names and trade marks, as well as whatever damage the experience may have caused to Torimiro's business, had already occurred at least one year before. Consequently, at all relevant times, under any theory of recovery grounded on either contract or tort, when all the operative facts upon which this action is based took place, there was no entity involved in the relationships, transactions or operative events that established any significant connection of the action to the United States.
Within six months of establishing VTI, Torimiro was in receivership. It is therefore apparent from these circumstances that VTI was never an operational concern with any substantial assets, productions or employees generating any goods or services in the United States. Rather, VTI appears to exist in this forum essentially as a proxy for Torimiro's interests under another name, a paper shell with only nominal connections with this litigation and this District now used by the real parties in interest, two Canadian residents, as a means to bootstrap the prosecution of the instant action in this Court against the two sets of Canadian Defendants. In fact, Plaintiffs acknowledge implicitly that one of their motivating considerations for commencing litigation in New York is their contingency counsel agreement, an arrangement they assert is generally not available in Canada. (Pl.'s Mem. at 16.) Viewed in their totality, these circumstances give rise to a strong inference that forum shopping played a substantial role in Plaintiffs considerations to choose New York as the venue to commence their litigation. See Iragorri, 274 F.3d at 74 ("[T]he court must consider a plaintiffs likely motivations in light of all the relevant indications.") Where the connection of the litigation to plaintiffs venue is attenuated and forum-shopping appears to drive the selection, Plaintiffs choice commands less deference. See id. at 72.
Based on these facts, the Court concludes that the choice of forum of "a nominally American plaintiff is not entitled to the high deference ordinarily accorded to plaintiffs venue for the purposes of forum non conveniens analysis. See Pain, 637 *383 F.2d at 797-798; see also Reyno, 454 U.S. at 255, 102 S.Ct. 252 (noting that the "presumption in favor of plaintiffs forum choice applie[s] with less than maximum force when the plaintiff ... or the real parties in interest are foreign".)
B. ADEQUATE ALTERNATIVE FORUM
The adequate alternative venue requirement of the forum non conveniens inquiry is ordinarily satisfied if (1) the defendants are amenable to service of process there, and (2) the forum permits litigation of the subject matter of the dispute. See Ilusorio, 103 F.Supp.2d at 674 (citing Reyno, 454 U.S. at 254 n. 22, 102 S.Ct. 252); DiRienzo, 232 F.3d at 57.
The Court notes that Defendants have all consented to accept service of process in Ontario for the purposes of adjudicating this dispute in Canada.[3]
With regard to the second requirement, generally a court may find a forum inadequate only where there is "a complete absence of due process and an inability of a plaintiff to obtain substantial justice." Monegasque de Reassurances SAM. (Monde re) v. NAK Naftogaz of Ukraine, 158 F.Supp.2d 377, 385 (S.D.N.Y.2001), aff'd 311 F.3d 488 (2d Cir.2002). Applying this standard, the Court notes that in the context of forum non conveniens inquiries, other courts in this District have consistently recognized Canada as an adequate forum for adjudication of the types of a claims at issue here. See, e.g., Sempra Energy Trading Corp. v. Algoma Steel, Inc., No. 00 Civ. 9227, 2001 WL 282684, at *4 (S.D.N.Y. Mar. 22, 2001), aff'd, 300 F.3d 242 (2d Cir.2002); Lana Int'l Ltd. v. Boeing Co., No. 93 Civ. 7169, 1995 WL 144152, at *2 (S.D.N.Y. Mar.30, 1995); Toronto Stock Exchange v. Quotron Syst. Inc., No. 91 Civ. 5045, 1992 WL 116636, at *2 (S.D.N.Y. May 18, 1992), aff'd, 986 F.2d 499 (2d Cir.1992).
Plaintiffs assert in conclusory terms that Ontario is not an adequate alternate forum and that they may be unable to obtain substantial justice in Canada by reason of their inability to afford counsel, in contrast to the availability of contingency fee arrangements in this jurisdiction. This consideration has been uniformly rejected as sufficient ground to support a finding that a forum is inadequate. See, e.g., Murray, 81 F.3d at 292 (noting that absence of contingency fee arrangements "may not be considered in determining the availability of an alternative forum"); Coakes v. Arabian Am. Oil. Co., 831 F.2d 572, 575-576 (5th Cir.1987) (noting that contingency fee agreements are not permitted in most foreign jurisdictions, and therefore could not serve as a consideration in forum non conveniens alternate forum analysis); see also DeYoung v. Beddome, 707 F.Supp. 132,137 (S.D.N.Y.1989).
C. THE GILBERT FACTORS
Under the forum non conveniens doctrine, upon a finding that an adequate forum does exist, the Court then must determine, by balancing the private interests of the litigants and the public interest concerns of the court, whether adjudication of the action in plaintiffs chosen forum would be inconvenient and unjust. See Gilbert, 330 U.S. at 508-09, 67 S.Ct. 839.
*384 1. The Private Interest Factors
The private interests of the litigants the Court must consider under the Gilbert analysis are: (a) the ease of access to evidence; (b) the availability of compulsory process; (c) the cost for cooperative witnesses to attend trial; (d) the enforceability of a judgment; and (e) all other practical matters that might shorten any trial or make it less expensive. See id. at 508, 67 S.Ct. 839; Illusorio, 103 F.Supp.2d at 675-76.
Plaintiffs assert various causes of action grounded in contract and tort principles. At bottom, however, the core of their claims and the dispute before the Court rests upon the contractual relationship between Torimiro and the Cott Beverages Canada established under the Agreement. Whatever injuries Plaintiff allege they suffered by reason of Defendent's wrong doing necessarily traces back to whether the Cott Defendants properly performed their obligations under the Agreement and to what rights and liabilities the Agreement created as between the Cott Defendants and Torimiro in the event of a breach. Similarly, the causes of action Plaintiffs style as negligence claims against the various Defendent are all integrally related to and could only arise out of the breach of Defendants' underlying contractual duties in question.
On this point, the Court finds that all essential aspects relating to the formulation and performance of the Agreement occured in Canada. The contract was negotiated and executed there. The manufacturing and shipping of the Product was based in Ontario. Litigation by Cott against Torimiro to enforce the Agreement was instituted in Ontario. To the degree the Cott Defendants may have failed to produce the Product in conformity with the terms of the Agreement, the breach occured in Canada. The Sentient Defendants' role in the development of the Product also occured primarily in Canada. Consequently, as to these critical aspects of the litigation, should the matter proceed to trial, the principal parties, witnesses and the bulk of the critical documents are situated in Ontario. Any non-party witnesses who chose not to be deposed or to appear voluntarily at trial would be beyond the reach of the Court's csompulsory authority. As the Supreme Court has recognized: "[t]o fix the place of trial at a point where litigants cannot compel personal attendance [of witnesses] and may be forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or most litigants." Gilbert, 330 U.S. at 511, 67 S.Ct. 839.
In connection with the contract claims the two principal parties in interest are Torimiro and the Cott Defendant's both of which are Canadian corporations based in Ontario. In addition, insofar as Parray may be entitled to ancillary benefits of Torimiro's rights under the Agreement, she is also a citizen and resident of Canada. And the Sentient Defendants, whatever their role in Plaintiffs' claims, are all located in Canada as well. To this extent, adjudicating this dispute in Canada is likely to be less costly to the principal parties and witnesses and the action to be more efficiently resolved. Should Plaintiffs prevail on the merits of such litigation in Canada, there would be no impediment to the enforceability of a judgment. While VTI invokes rights as a New York entity to pursue litigation in this forum, VTI was not a party to the Agreement and indeed was not formed until two years later. Thus, for the reasons already discussed above, VTI's choice of forum is not entitled to any special deference in this analysis.
Plaintiffs endeavor to escape the centrality of the Agreement to their claims by reasserting the same events upon which *385 their contract causes of action are grounded and casting them in terms of negligence claims. But even under tort analysis, Plaintiffs' efforts to create sufficient connection with this forum still fail. As discussed above, under the circumstances of this case, the operative facts and associated evidence underlying whatever tort claims Plaintiffs may properly plead are necessarily integrally dependent upon and could not be disassociated from the event and relationships associated with Plaintiff contract claims. Plaintiffs' own pleadings of their negligence causes of action make clear that those claims flow from Torimiro's contractual relationships and relationships between Torimiro and Defendants. Thus, most if not all of the parties, witnesses and document which form the basis for any of Plaintiffs' tort claims are likely to be the same as those necessary to adjudicate Torimiro's contract causes of action, the controlling transactions and events of which the Court has found to be predominantly grounded in Canada.
Plaintiffs enumerate various connections between this action and the United States, including that: (1) the Product was targeted for the United States market; (2) the testing and reformulation of the Product prior to its manufacturing occured at Cott's facility in Georgia; (3) Cott shipped some cases of the contaminated Product from Canada to Torimiro's distribution center in Buffalo, New York; (4) many of the customers' reports of explosions of the Product occured in various parts of the United States, including New York; (5) some investigations of the explosions and analysis of the defective Product occured in the United States; (6) some of the potential consumers of the contaminated Product were or could have been United States residents; (7) most of the inventory of defective Product that was recalled was stored in to Torimiro's Buffalo warehouses; (8) Plaintiffs suffered damage to the Product market position and to the Victoria Tea trade name and trade marks in the United States.
These alleged connections of the action to events that occured in the United States relate solely to Plaintiffs' negligence claims. By so stressing these pleadings to the exclusion of their contract claims Plaintiffs attempt to gloss over or ignore the crucial operative facts that depend on the Agreement, and to distort the focus of the litigation, portraying the case as though it presented an ordinary products liability action. But that theory of recovery. Here, there is no claim of personal injury to any consumers proximately caused by the explosions of the Product. Nor does the action encompass direct property damage claims of the retailers whose shelves and other inventory may have been harmed by the detective goods. Undoubtedly, in any true products liability case, the location of the alleged explosions, the injuries caused to the claimants, the witness and other evidence of each event, take on undisputable centrality and immediacy to the viability of a cause of action founded on any particular occurence.
Here, however, the harm asserted is instead predominantly economic injury deriving not directly form any particular explosion of the contaminated product, but cumulatively from Defendant's alleged failure to perform their obligations to deliver a marketable Product as contemplated by the parties to the Agreement. Thus, properly viewed, the crux of the litigation should center on the real controvery: injury stemming fromTorimiro's failure to realize bargained for expectations by reason of Defendant's alleged *386 breach of contract, and the scope of Defendants' foreseeable consequential damages to Plaintiffs for loss of potential profits and markets, as well as damages to Plaintiffs' business assets and reputation flowing from Defendants' alleged wrongdoing.
From this perspective, Plaintiffs' argument that a trial in this forum is essential for the convenience of numerous witnesses to the explosions of the Product in various states loses its force and becomes what appears to be a proffer of cumulative evidence. At a trial of the central issues in dispute grounded on Plaintiffs' dominant basis for any recovery, in order to prove that the Product was defective in a manner that caused it to explode, Plaintiffs would not need to produce every witness who saw an explosion of the Product. The facts regarding the contamination and the consequential explosions could also be persuasively established by the reports of the investigations and testing of the defective Product. And while Plaintiffs allege that many of the witnesses are product sellers located in New York, they also assert that reports from witnesses of the explosions originated not only from parts of the United States, but from Canada and the Caribbean as well. Plaintiffs indicate that explosions also occurred at Torimiro's own central warehouse in Buffalo, presumably witnessed by Torimiro's agents, employees or other persons over whom Torimiro could exercise a greater measure of control to produce as witnesses at a trial regardless of the venue of the action.
Hence, for the purposes of establishing that containers of the Product exploded on the shelves of warehouses and stores, witnesses from Canada could appear for a trial in Canada with no more inconvenience than witnesses in New York for a trial in this forum. Similarly, witnesses of the explosions from other jurisdictions could be produced to testify at a trial in Canada with relatively no greater difficulty than for a trial in New York.
Under any theory of Plaintiffs case, however, the most critical witnesses are not the persons who saw the Product explode on the shelves, but those involved in the principal focus of the action: the transactions, formulation and manufacturing that resulted in the defective Product. Defendants have identified numerous specific individuals, all located in Canada, who played critical roles in these aspects of the events. Plaintiffs, by contrast, refer vaguely to unspecified numbers of unidentified witnesses from several parts of the United States, who Plaintiffs assert may be expected to testify at trial. In the Court's review of the record, by far the greater number of critical witnesses are located in Canada, and more readily subject to process and court subpoena there than in this forum. Accordingly, the Court concludes that the Gilbert private interest factors strongly support dismissal of this action on forum non conveniens grounds.
2. The Public Interest Factors
The Gilbert public interest factors to be weighed by the Court include: (a) administrative difficulties relating to court congestion; (b) imposing jury duty on citizens of the forum; (c) having local disputes settled locally; and (d) avoiding problems associated with the application of foreign law. See Gilbert, 330 U.S. at 508-09, 67 S.Ct. 839; Ilusorio, 103 F.Supp.2d at 678. These considerations also weigh in favor of dismissal of this action.
First, there is no indication that Canadian courts are any more congested than the busy courts in this District. Second, insofar as all of the primary Defendantstwo Ontario-based corporationsand the principal Plaintiffsa Canadian corporation *387 and an individual citizen and resident of Canadaare all Canadians, the core dispute is local to Canada. Furthermore, there is a significant interest in having localized matters decided at home in accordance with local law governing the case. See CCS Int'l, Ltd. v. ECI Telesystems, Ltd., No 97 Civ. 4646, 1998 WL 512951, at *10 (S.D.N.Y. Aug.18, 1998) ("[t]here is a legitimate interest in ensuring that disputes with little connection to the district be litigated elsewhere."); see also Ilusorio, 103 F.Supp.2d at 678.
Here, the Agreement was negotiated and executed in Canada. Defendants' manufacturing and shipment of the Product were carried out predominantly in Canada and the alleged breach of contract occurred there. Though Plaintiffs place great emphasis on the explosions of the Product that occurred in the United States, their own assertions indicate that the defective Product was distributed and exploded in Canada as well. Consequently, Canada is the forum with the most significant contacts with this case. See Moscovits, 2001 WL 767004, at *7. The controlling substantive law governing interpretation of the Agreement and the rights and liabilities stemming from it is therefore likely to be that of Canada.
An action should be tried in a forum familiar with the law governing the case. See Gilbert, 330 U.S. at 508-09, 67 S.Ct. 839; see also Monde Re, 158 F.Supp.2d at 387 ("[A]}lthough reluctance to apply foreign law is not dispositive, courts have a legitimate interest in considering the difficulty with questions of conflicts of law and the application of foreign law."); see also Moscovits, 2001 WL 767004, at *7. Indeed, as already described above, Cott Beverages Canada and Torimiro have already been involved in litigation in Toronto concerning the terms of the Agreement. Thus, to some extent, the respective contractual rights and duties of the parties arising under the Agreement may have been construed and adjudicated under an application of Canadian law, any judgment of which could create preclusive effect in any subsequent litigation of the same claims or issues.
The Court has considered Plaintiffs' various assertions of this action's connections to the United States, including the Product's potential harms to American consumers. Those purported claims or claimants, however, are not before this Court in the matter actually at issue here. The Court concludes that on balance the links of this action with this District are less consequential and that the central dispute concerns Canada more than the United States. See Ilusorio, 103 F.Supp.2d at 678 (noting that the action there had at most an attenuated American connection and that "plaintiffs `attempt[ ] to morphose [sic] this case into a dispute that concerns the United States' lacks merit.") (quoting Capital Currency Exch., N.V. v. National Westminster Bank PLC, 155 F.3d 603, 612 (2d Cir.1998)).
The Court concludes that the balance of the Gilbert private and public interest factors weigh heavily in favor of dismissal of this action.
III. ORDER
For the reasons described above, it is hereby
ORDERED that the Court's Order of December 27, 2002 herein is amended to incorporate the discussion set forth above; and it is finally;
ORDERED that Defendants' motions to dismiss this action on the grounds of forum non conveniens are GRANTED.
*388 The Clerk of Court is directed to close this case.
SO ORDERED.
NOTES
[1] Defendants contend that there is no record of VTI being located in that building, that the address indicated is that of a law firm retained by Torimiro in connection with the instant action, that in fact VTI was formed and granted its license by Torimiro in May 2001 and that VTI is actually located in Erie County, New York and Ontario, Canada.
[2] The Sentinent Defendants point out that research of records they have conducted indicates that, while Torimiro has pending applications for registration of the Victoria Tea trademarks for use on beverages in Canada, none of the three Plaintiffs has any United States registered trademarks to these names or marks or any other trademarks. (Sentinent Defendants' Reply Memorandum of Law In Support of Motion to Dismiss on the Grounds of Forum Non Conveniens, (undated), at 2.)
[3] See Memorandum of Law in Support of the Cott Defendants' Motion (i) to Dismiss Based on Forum Non Conveniens or, in the Alternative, Pursuant to Fed.R.Civ.P. 12(B)(2) and (6) or (ii) to Transfer Venue Pursuant to 28 U.S.C. § 1404(a), dated September 23, 2002, at 8, and Memorandum of Law in Support of Sentient Defendants' Motion to Dismiss, (undated), at 7.
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(2008)
Amy D'AMATO, Plaintiff,
v.
Michael J. ASTRUE[1], Commissioner of Social Security, Defendant.
Civil Action No. 06-203-JJF.
United States District Court, D. Delaware.
March 12, 2008.
MEMORANDUM OPINION
FARNAN, District Judge.
Presently before the Court is an appeal pursuant to 42 U.S.C. § 1383(c)(3), which incorporates 42 U.S.C. § 405(g), filed by Plaintiff, Amy D'Amato, seeking review of the final administrative decision of the Commissioner of the Social Security Administration (the "SSA") denying her application for supplemental security income ("SSI") under Title XVI of the Social Security Act. 42 U.S.C. §§ 1381-1383f. Plaintiff has filed a Motion For Summary Judgment requesting the Court to enter judgment in her favor, or in the alternative to remand this matter to the SSA for further review by the Appeals Council or an Administrative Law Judge. In response to Plaintiffs Motion, Defendant has filed a Cross-Motion For Summary Judgment (D.I. 36) requesting the Court to affirm the Commissioner's decision. For the reasons set forth below, Defendant's Motion For Summary Judgment will be granted and Plaintiffs Motion For Summary Judgment will be denied. The decision of the Commissioner dated November 21, 2003, will be affirmed.
BACKGROUND
I. Procedural Background
Plaintiff protectively filed an application for SSI on September 28, 2001, alleging disability since September 1998, due to a mental impairment and back injury. (Tr. 104-107, 182). Plaintiffs application was denied initially and upon reconsideration. (Tr. 26, 44-51). Thereafter, Plaintiff requested a hearing before an administrative law judge (the "A.L.J."). On November 21, 2003, the A.L.J. issued a decision denying Plaintiffs application for SSI. (Tr. 26-34). Following the unfavorable decision, Plaintiff timely appealed to the Appeals Council. (Tr. 22). On February 14, 2006, the Appeals Council denied Plaintiffs request for review (Tr. 8-11), and the A.L.J.'s decision became the final decision of the Commissioner. Sims v. Apfel, 530 U.S. 103, 107, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000).
After completing the process of administrative review, Plaintiff filed the instant civil action pursuant to 42 U.S.C. § 1383(c)(3), seeking review of the A.L.J.'s decision denying her claim for SSI. In response to the First Amended Complaint, Defendant filed an Answer (D.I. 25) and the Transcript (D.I. 27) of the proceedings at the administrative level.
Thereafter, Plaintiff filed a Motion For Summary Judgment and Opening Brief in support of the Motion. In response, Defendant filed a Cross-Motion For Summary Judgment and a combined opening brief in support of his Cross-Motion and opposition to Plaintiffs Motion requesting the Court to affirm the A.L.J.'s decision. Plaintiff has declined to timely file a Reply Brief. Accordingly, this matter is fully briefed and ripe for the Court's review.
II. Factual Background
A. Plaintiffs Medical History, Condition and Treatment
At the time of the A.L.J.'s decision on Plaintiffs application, Plaintiff was twenty-six years old. (Tr. 27, 104). Plaintiff has a general equivalency degree ("GED") and past relevant work experience as a cashier and nursing assistant. (Tr. 168, 188). Plaintiff alleges disability since September 1998, but her work history report shows that she maintained employment until December 2000.
Plaintiffs arguments concerning the errors of the A.L.J. center on her alleged mental impairments. Therefore, the Court will limit its discussion of the medical record to those facts relevant to Plaintiffs mental and emotional condition.
Plaintiff treated at the Mobile Health Center with R.S. Joshi, M.D., from April 1999 through July 1999 for depression and other emotional disturbances. Treatment notes discuss mood swings, difficulty sleeping, and temper control issues. Plaintiff was diagnosed with major depression, recurrent and chronic. As of July 1999, Plaintiff indicated that she continued to have problems with her temper, had beaten her husband twice and had thoughts of hurting herself, her husband and her son. Dr. Joshi noted that. Plaintiffs mood was irritable and dysphoric, but she had logical coherent thoughts within normal limits, spontaneous and coherent speech, no hallucinations or delusions, intact memory and fair insight and judgment. Plaintiff was instructed to discontinue Zoloft and Trazondone and to replace those medications with Depakote and Wellbutin. (Tr. 219-231).
In October 1999, Plaintiff underwent a mental status examination at Carelink. (Tr. 233-236). Plaintiff was friendly and cooperative during the examination, had coherent speech, intact attention and memory, adequate concentration, average intelligence, fair insight and judgment, and no preoccupations, delusions or hallucinations. However, Plaintiffs mood was depressed. Plaintiff was diagnosed with dysthymic disorder and assigned a global assessment of functioning ("GAF") score of 60.[2] (Tr. 236).
In December 1999, at the request of the state agency, Plaintiff underwent a psychological evaluation with Patricia Lifrak, M.D. (Tr. 239-245). Plaintiff reported mood swings, difficulty sleeping, low energy, inability to concentrate and irritability. Upon examination, Dr. Lifrak found Plaintiff to be cooperative, friendly and talkative. Dr. Lifrak found that Plaintiffs thought process was logical and goal-directed, but that her mood was depressed. Plaintiffs recent memory was intact, but there was some impairment in her remote memory. Her concentration was also intact and her cognitive function, intelligence and fund of knowledge were average for her age. Plaintiff further exhibited average judgment and insight during the interview. Based upon her observations, Dr. Lifrak diagnosed Plaintiff with major depression, recurrent, moderate; polysubstance dependence in sustained, full remission; and a history of symptoms consistent with attention deficit/hyperactive disorder. Dr. Lifrak assigned Plaintiff a GAF score of 55-60 and found her prognosis to be fair. Dr. Lifrak further noted that a psychological evaluation would be helpful to rule out the presence of a learning disorder. Dr. Lifrak also completed a residual functional capacity ("RFC") assessment for Plaintiff in which she opined that Plaintiffs ability to relate to others was moderately severe and that she had a moderate restriction in her daily activities, personal habits, ability to perform complex tasks, ability to work where contact with others would be minimal, ability to perform repetitive tasks and ability to perform varied tasks. Dr. Lifrak noted that Plaintiff had moderate to moderately severe limitations in her ability to comprehend and follow instructions and perform work requiring frequent contact with others. (Tr. 244-245).
On December 23, 1999, D. Fugate, Ph. D., a state agency psychologist, reviewed Plaintiffs psychiatric records and concluded that Plaintiff was capable of performing simple, routine work related activities. Dr. Fugate found Plaintiff to be moderately limited in her ability to understand, remember and carry out detailed instructions, maintain concentration for extended periods of time, complete a normal work week without interruptions from psychologically based symptoms, and respond appropriately to changes in the work setting. In all other areas of evaluation, Plaintiff was noted to be "not significantly limited." (Tr. 250-261).
A second review of Plaintiffs records was conducted on May 16, 2001, by Phyllis Smoyer, M.D., a state agency psychiatrist. Dr. Smoyer concluded that Plaintiff could perform low stress work activities involving minimal contact with others. Dr. Smoyer found that Plaintiff was moderately limited in more categories than Dr. Fugate. Specifically, in addition to those categories listed by Dr. Fugate, Dr. Smoyer also found that Plaintiff had moderate limitations in her ability to perform activities within a regular schedule and maintain attendance, work in coordination with others without being distracted, accept instructions from supervisors and respond appropriately, get along with others, maintain socially appropriate behavior, respond to changes in the work settings, and set realistic goals. (Tr. 301-314).
Plaintiff also treated with Aydin Z. Bill, M.D. since September 15, 2000. However, Dr. Bill's records reveal numerous missed appointments and provide little detail regarding Plaintiffs condition during the relevant time frame.
A third state agency physician reviewed Plaintiffs medical evidence and concluded that Plaintiff retained the RFC to perform simple, light work. This state agency physician found that Plaintiff had mild restriction of daily living activities, moderate difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence and pace and no episodes of decompensation. (Tr. 344-357).
On March 14, 2002, Dr. Bill wrote a letter indicating that he was caring for Plaintiff and that she was "unable to work for a minimum of three months." (Tr. 462). Dr. Bill did not cite to any objective medical evidence to support his assertion, and indeed, did not provide any reason for his determination that Plaintiff was unable to work.
On April 1, 2002, Dr. Bill completed a psychiatric assessment form for Plaintiff in which he noted that Plaintiff had a normal appearance, average intellectual functioning, average insight and judgment, but a depressed mood with visual and tactile hallucinations. (Tr. 419-420). Dr. Bill assessed Plaintiff with a GAF score of 60.
On February 3, 2003, Dr. Bill completed another evaluation of Plaintiff in which he reported that Plaintiff suffered from severe depression, severe panic attacks and severe mood swings. Dr. Bill opined that performing her past job or similar work could make Plaintiffs symptoms worse.
In light of Dr. Bill's reports, the A.L.J. sent interrogatories to Margaret Friel, M.D., a board-certified psychiatrist. (Tr. 440). Dr. Friel reviewed Plaintiff's medical records and concluded that Dr. Bill's diagnosis of visual and tactile hallucinations was unsupported by the record. (Tr. 441). Dr. Friel concluded that Plaintiff had moderate restrictions of daily living, moderate difficulties in maintaining social functioning and moderate difficulties maintaining concentration, persistence or pace. Dr. Friel concluded that Plaintiff could perform low stress work involving minimal contacts with others.
B. The A.L.J.'s Decision
At the hearing, Plaintiff was represented by counsel. Plaintiff testified that the longest she worked at any particular job was four months and that she had difficulty holding a job because of her violent outbursts, mood swings and depression. Plaintiff testified that her medications help control her condition somewhat. Specifically, she testified that she only has violent outbursts about once a month. However, Plaintiff testified that she has crying spells on and off each day lasting anywhere from half an hour to two hours. Plaintiff testified that she reads to her child, that she and her sister both do the cooking, food shipping and clothes washing, but that her sister does the other household chores. Plaintiff also testified that she takes care of her and her sister's children by getting them ready for school, driving them to school, feeding the baby lunch, putting her down for a nap and then picking up the children from school, getting them dinner and getting them bathed and ready for bed.
Plaintiffs sister also testified on her behalf. According to Plaintiffs sister, Plaintiff gets very frustrated when she can't do things. Plaintiff suffers from crying spells and angry outbursts.
The A.L.J. then consulted a vocational expert. The A.L.J. asked the vocational expert to assume a younger individual with a series of jobs as a cashier and nurse assistant, who was limited to low stress work with minimal contact with others in the light vocational range. In response, the vocational expert identified the job of housekeeping cleaner, adding that "something along the light lines like an officer cleaner" would be appropriate. The A.L.J. further explained that 500 jobs would be available in Delaware and 600,000 nationally.
The A.L.J. then asked the vocational expert to consider a person who had a moderate to moderately severe limitation comprehending and following instructions. The vocational expert testified that a moderately severe limitation in this area could compromise the ability of someone to perform the house cleaner job. The A.L.J. also asked the vocational expert to consider someone with crying spells lasting an hour or two, and the vocational expert testified that such an individual would have difficulty maintaining any work.
In his decision dated November 21, 2003, the A.L.J. found that Plaintiff suffered from the following impairments: a history of attention deficit disorder, oppositional defiance disorder, major depression, mood disorder and polysubstance dependence in remission. The A.L.J. found that these impairments were severe, but they did not meet or equal, alone or in combination, a listed impairment. The A.L.J. compared Plaintiffs condition with the Listings found at 12.02, 12.04 and 12.08 and found that the record substantiated the "A" criteria for organic mental disorder, affective disorder and personality disorder. With regard to the severity of Plaintiffs functional limitations under the "B" criteria, the A.L.J. found that Plaintiff experienced a moderate degree of limitation in her activities of daily living, social functioning, and concentration persistence and pace. The A.L.J. further found that Plaintiff had no episodes of decompensation and did not meet the "C" criteria of the listings.
Having concluded that Plaintiffs condition did not meet a listing, the A.L.J. considered her RFC and concluded that Plaintiff was capable of performing light exertional work, and that her emotional problems "moderately limited [her] in that she requires low stress, simple, routine repetitive tasks, with little or no contact with the general public, supervisors or coworkers." (Tr. 34). The A.L.J. also concluded that Plaintiffs testimony regarding her limitations was not fully credible. Using Medical-Vocational Rule 201.20 as a framework for decisionmaking, the A.L.J. found that Plaintiff could perform a significant number of jobs in the national economy. Accordingly, the A.L.J. concluded that Plaintiff was not under a disability within the meaning of the Act.
STANDARD OF REVIEW
Findings of fact made by the Commissioner of Social Security are conclusive, if they are supported by substantial evidence. Accordingly, judicial review of the Commissioner's decision is limited to determining whether "substantial evidence" supports the decision. Monsour Medical Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir.1986). In making this determination, a reviewing court may not undertake a de novo review of the Commissioner's decision and may not re-weigh the evidence of record. Id. In other words, even if the reviewing court would have decided the case differently, the Commissioner's decision must be affirmed if it is supported by substantial evidence. Id. at 1190-91.
The term "substantial evidence" is defined as less than a preponderance of the evidence, but more than a mere scintilla of evidence. As the United States Supreme Court has noted substantial evidence "does not mean a large or significant amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 555, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988).
With regard to the Supreme Court's definition of "substantial evidence," the Court of Appeals for the Third Circuit has further instructed, "A single piece of evidence will not satisfy the substantiality test if the [Commissioner] ignores or fails to resolve a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence . . . or if it really constitutes not evidence but mere conclusion." Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.1983). Thus, the substantial evidence standard embraces a qualitative review of the evidence, and not merely a quantitative approach. Id.; Smith v. Califano, 637 F.2d 968, 970 (3d Cir.1981).
DISCUSSION
I. Evaluation Of Disability Claims
Within the meaning of social security law, a "disability" is defined as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment, which can be expected to result in death, or which has lasted or can be expected to last, for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3). To be found disabled, an individual must have a "severe impairment" which precludes the individual from performing previous work or any other "substantial gainful activity which exists in the national economy." 20 C.F.R. § 416.905. Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir.1990). The claimant bears the initial burden of proving disability. 20 C.F.R. § 416.912(a); Podedworny v. Harris, 745 F.2d 210, 217 (3d Cir.1984).
In determining whether a person is disabled, the Regulations require the A.L.J. to perform a sequential five-step analysis. 20 C.F.R. § 416.920. In step one, the A.L.J. must determine whether the claimant is currently engaged in substantial gainful activity. In step two, the A.L.J. must determine whether the claimant is suffering from a severe impairment. If the claimant fails to show that his or her impairment is severe, he or she is ineligible for benefits. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.1999).
If the claimant's impairment is severe, the A.L.J. proceeds to step three. In step three, the A.L.J. must compare the medical evidence of the claimant's impairment with a list of impairments presumed severe enough to preclude any substantial gainful work. Id. at 428. If the claimant's impairment meets or equals a listed impairment, the claimant is considered disabled. If the claimant's impairment does not meet or equal a listed impairment, the A.L.J.'s analysis proceeds to steps four and five. Id.
In step four, the A.L.J. is required to consider whether the claimant retains the residual functional capacity to perform his or her past relevant work. Id. The claimant bears the burden of establishing that he or she cannot return to his or her past relevant work. Id.
In step five, the A.L.J. must consider whether the claimant is capable of performing any other available work in the national economy. At this stage the burden of production shifts to the Commissioner, who must show that the claimant is capable of performing other work if the claimant's disability claim is to be denied. Id. Specifically, the A.L.J. must find that there are other jobs existing in significant numbers in the national economy, which the claimant can perform consistent with the claimant's medical impairments, age, education, past work experience and residual functional capacity. Id. In making this determination, the A.L.J. must analyze the cumulative effect of all of the claimant's impairments. At this step, the A.L.J. often seeks the assistance of a vocational expert. Id. at 428.
II. Whether The A.L.J.'s Decision Is Supported By Substantial Evidence
By her Motion, Plaintiff contends that the A.L.J.'s decision is not supported by substantial evidence. Specifically, Plaintiff contends that the A.L.J. failed to fully and correctly evaluate the testimony of the vocational expert; acknowledge that Plaintiff had prior episodes of decompensation in work settings and the impact of such episodes on her ability to engage in substantial gainful activity; and correctly interpret, recite and evaluate the medical evidence as it applies to Plaintiffs mental RFC. Each of Plaintiffs arguments turn on two key issues: (1) whether the A.L.J. failed to consider the moderate to moderately severe limitation on Plaintiff's ability to comprehend and follow instructions, and (2) whether the A.L.J. erred in failing to credit the testimony of Plaintiff and her sister regarding her emotional restrictions, including episodes of decompensation.
In evaluating Plaintiff, Dr. Lifrak opined that Plaintiff suffered from moderate to moderately severe limitations in her ability to comprehend and follow instructions.[3] Plaintiff contends that the A.L.J. ignored this limitation in formulating Plaintiffs RFC and ignored the vocational expert's related testimony that such a moderately severe limitation would preclude Plaintiff from performing all work.
A claimant's RFC is "that which an individual is still able to do despite the limitations caused by his or her impairment[s]." Fargnoli v. Massanari, 247 F.3d 34, 40 (3d Cir.2001) (citation omitted). When determining an individual's RFC at step four of the sequential evaluation, the A.L.J. must consider all relevant evidence including medical records, observations made during medical examinations, descriptions of limitations by the claimant and others, and observations of the claimant's limitations by others. Id. Before an individual's RFC can be expressed in terms of an exertional level of work, the A.L.J. "must first identify the individual's functional limitations or restrictions and assess his or her work related abilities on a function by function basis." SSR 96-8p. The RFC must also address both the exertional and non-exertional capacities of the individual. Id. Non-exertional capacity refers to "all work-related limitations and restrictions that do not depend on an individual's physical strength," such as limitations which are psychological or mental in nature. Id.; 20 C.F.R. § 416.945(a)-(c) (listing examples of non-exertional limitations).
The A.L.J.'s RFC assessment must "be accompanied by a clear and satisfactory explanation of the basis on which it rests." Fargnoli, 247 F.3d at 41. In weighing the evidence, the A.L.J. must give some indication of the evidence which he or she rejects and his or her reason for discounting the evidence. Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir.2000); see also SSR 96-8p. "In the absence of such an indication, the reviewing court cannot tell if significant probative evidence was not credited or simply ignored." Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.1981). The responsibility for formulating an RFC rests exclusively with the A.L.J., and the RFC finding is considered an administrative finding and not a medical opinion. SSR 96-5p, 1996 WL 374183 (1996).
Reviewing the A.L.J.'s decision in light of the record as a whole, the Court concludes that the A.L.J.'s decision that Plaintiff retained the RFC to perform a significant range of light work limited by jobs requiring low stress, simple routine repetitive tasks, with little or no contact with the general public was supported by substantial evidence. Both in his opinion and at the hearing, the A.L.J. considered the results of Dr. Lifrak's consultative examination, including her opinion that Plaintiff had moderate to moderately severe difficulty following instructions. Plaintiff contends that the A.L.J. ignored the vocational expert's testimony that this limitation precluded Plaintiff from performing the identified job of house/office cleaner; however, a review of the vocational expert's testimony reveals that her opinion was centered more on someone with a moderately severe to severe limitation following instructions than someone like Plaintiff whose limitation was moderate to moderately severe. In this regard, the vocational expert explained, "In my opinion, I think the limitations would sort of border on moderately severe limitations in comprehending and following instructions may [sic] affect the ability to do the housekeeping job." (Tr. 547) (emphasis added). The vocational expert went on to clarify that "[s]omeone who has severe limitations in following instructions, that could compromise the ability to do that job." (Tr. 547). Indeed, each time the vocational expert referred to this limitation, she did so in the context of evaluating the limitation as a moderately severe to severe limitation, rather than a limitation ranging from moderate to moderately severe, which is how Dr. Lifrak couched the limitation.[4] (Tr. 548).
Moreover, the A.L.J. correctly noted that other state agency physicians opined that Plaintiff's restrictions were more properly characterized as moderate restrictions, and to the extent Dr. Lifrak's assessment differed, the A.L.J. was entitled to reject that portion of her opinion in favor of the other state agency physicians' opinions which were supported by the record evidence as a whole. See Jones v. Sullivan, 954 F.2d 125, 128-129 (3d Cir. 1991) (recognizing that a non-examining physician can provide substantial evidence to support the A.L.J.'s decision); Rivera v. Barnhart, 239 F.Supp.2d 413, 420 (D.Del. 2002) (recognizing that A.L.J. could rely on state agency physician opinions where they were consistent with other evidence in the record). Indeed, three state agency physicians and a medical expert obtained by the A.L.J. all opined that Plaintiff had the RFC to perform low stress work involving minimal contact with others. These opinions are supported by the medical evidence of record, including the GAF scores of Dr. Lifrak who assessed Plaintiff with a GAF of 55-60[5], and Plaintiffs treating psychologist, Dr. Bill, who assessed Plaintiff with a GAF of 60. Both scores indicate moderate, even bordering on mild, mental limitations.
In addition, the A.L.J. took into account Plaintiffs compromised ability to follow instructions by limiting her to routine, repetitive tasks. This assessment is further supported by Plaintiffs testimony regarding her daily activities, which included taking care of two small children, reading, completing crossword puzzles and watching television. Accordingly, the Court cannot conclude that the A.L.J. erred in his RFC determination or in his evaluation of the vocational expert testimony as those issues relate to a moderate to moderately severe limitation on Plaintiffs ability to comprehend and follow instructions.
As for the testimony of Plaintiff and her sister regarding episodes of decompensation, the Court concludes that the A.L.J. did not err in declining to fully credit this testimony. Although the A.L.J. must consider a plaintiffs subjective complaints, the A.L.J. has the discretion to evaluate the plaintiffs credibility and "`arrive at an independent judgment in light of medical findings and other evidence regarding the true extent of the pain alleged by the claimant.'" Gantt v. Commissioner Social Sec., 205 Fed.Appx. 65, 67 (3d Cir.2006) (citations omitted). Subjective complaints alone are insufficient to establish disability and allegations of pain or other subjective symptoms must be supported by objective medical evidence. Id., 20 C.F.R. § 416.929. In this regard, the A.L.J. must first determine whether the plaintiff suffers from a medical impairment that could reasonably be expected to cause the alleged symptoms. Once the A.L.J. makes this determination, he or she must evaluate the intensity and persistence of the pain or symptoms, and the extent to which they affect the individual's ability to work. Specifically, the A.L.J. is required to consider such factors as (1) plaintiffs daily activities; (2) the duration, location, frequency, and intensity of the pain and other symptoms; (3) any precipitating and aggravating factors; (4) any medication taken to alleviate pain or other symptoms; (5) treatments other than medication; (6) any other measures used to relieve the symptoms; and (7) other factors concerning functional limitations or limitations, due to pain or other symptoms. 20 C.F.R. §§ 416.929(c)(3)(i)-(vii).
This analysis requires the ALJ to assess the plaintiffs credibility to determine the extent to which he or she is accurately stating the degree of pain or subjective symptoms and/or the extent to which he or she is disabled by them. See 20 C.F.R. § 416.929(c). Generally, the A.L.J.'s assessment of a plaintiffs credibility is afforded great deference, because the A.L.J. is in the best position to evaluate the demeanor and attitude of the plaintiff. See e.g. Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir.2001); Griffith v. Callahan, 138 F.3d 1150, 1152 (7th. Cir.1998); Wilson v. Apfel, 1999 WL 993723, *3 (E.D.Pa. Oct. 29, 1999). However, the A.L.J. must explain the reasons for his or her credibility determinations. Schonewolf v. Callahan, 972 F.Supp. 277, 286 (D.N.J.1997) (citations omitted).
In this case, the A.L.J. concluded that not all of Plaintiffs allegations regarding her limitations were supported by the medical evidence, and therefore, he declined to credit her testimony that her limitations precluded her from performing all work. The Court concludes that the A.L.J.'s decision is not erroneous and is supported by substantial evidence. Treatment records concerning Plaintiffs mental health condition contain no evidence regarding episodes of decompensation, and her GAF scores, assessed by both her treating psychiatrist as well as by the consultative examiner, suggest a higher level of functioning than that to which Plaintiff testified.
Because the Court finds no error in the A.L.J.'s determination regarding Plaintiffs credibility, the Court further concludes that the A.L.J. was not required to include episodes of decompensation in his hypothetical question to the vocational expert. Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir.1987) (holding that hypothetical question must contain claimant's limitations supported by the record for vocational expert's answer to be considered substantial evidence). Further, the vocational expert was able to identify at least one occupation which existed in significant numbers in the national economy which Plaintiff was able to perform. 20 C.F.R. § 416.966(b). Accordingly, the Court concludes that the A.L.J. did not err in his determination that Plaintiff was not disabled, and substantial evidence supports the A.L.J.'s decision.
CONCLUSION
For the reasons discussed, the Court will grant Defendant's Motion For Summary Judgment and deny Plaintiffs Motion For Summary Judgment. The decision of the Commissioner dated November 21, 2003, will be affirmed.
An appropriate Order will be entered.
ORDER
At Wilmington, this 12th day of March 2008, for the reasons discussed in the Memorandum Opinion issued this date;
IT IS HEREBY ORDERED that:
1. Defendant's Cross-Motion For Summary Judgment (D.I. 36) is GRANTED.
2. Plaintiffs Motion For Summary Judgment is DENIED.
3. The final decision of the Commissioner dated November 21, 2003 is AFFIRMED.
4. The Clerk is directed to enter judgment against Plaintiff and in favor of Defendant.
NOTES
[1] On February 12, 2007, Michael J. Astrue became the Commissioner of Social Security. Accordingly, pursuant to Fed. R. Civ. P. 25(d)(1), Michael J. Astrue is substituted for the former Commissioner JoAnne B. Barnhart.
[2] A GAF score of 51-60 indicates moderate symptoms (e.g. flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g. few friends, conflicts with peers and co-workers). A GAF score of 61-70 indicates mild symptoms (e.g., depressed mood and mild insomnia) and some difficulty in social, occupational or school functions (e.g. occasional truancy or theft within the household), but generally functioning well with meaningful interpersonal relationships. Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed., text rev., 2000) ("DSIV-TR.")
[3] Dr. Lifrak also opined that Plaintiff had moderate to moderately severe limitations in her ability to perform work requiring frequent contact with others. Plaintiff does not appear to challenge the A.L.J.'s assessment as it relates to this restriction, and in any event, the Court finds that the A.L.J. properly accounted for this limitation when he restricted Plaintiff to work requiring little or no contact with the public, supervisors or co-workers. The Court further notes that the vocational expert was still able to identify work Plaintiff would be able to perform with this limitation, and therefore, the Court cannot conclude the A.L.J.'s decision was erroneous as it pertains to this limitation.
[4] At most, the vocational expert's testimony can be construed as suggesting that an individual with moderately severe limitations is "borderline" in the ability to hold the job, an opinion which is quite different from Plaintiff's characterization of the vocational expert's testimony that she would be precluded from performing all work.
[5] Even Dr. Lifrak opined that Plaintiff had intact attention, adequate concentration, average cognitive function and intelligence. These observations by Dr. Lifrak further suggest that the limitation on Plaintiff's ability to comprehend and follow instructions was not as severe as the vocational expert considered it to be when responding to the A.L.J.'s questions.
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547 U.S. 268 (2006)
ARKANSAS DEPARTMENT OF HEALTH AND HUMAN SERVICES et al.
v.
AHLBORN
No. 04-1506.
Supreme Court of United States.
Argued February 27, 2006.
Decided May 1, 2006.
*271 Lori Freno, Assistant Attorney General of Arkansas, argued the cause for petitioners. With her on the briefs was Mike Beebe, Attorney General.
Patricia A. Millett argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, William Kanter, and Anne Murphy.
H. David Blair argued the cause for respondent. With him on the brief was Phillip Farris.[*]
*272 JUSTICE STEVENS delivered the opinion of the Court.
When a Medicaid recipient in Arkansas obtains a tort settlement following payment of medical costs on her behalf by Medicaid, Arkansas law automatically imposes a lien on the settlement in an amount equal to Medicaid's costs. When that amount exceeds the portion of the settlement that represents medical costs, satisfaction of the State's lien requires payment out of proceeds meant to compensate the recipient for damages distinct from medical costslike pain and suffering, lost wages, and loss of future earnings. The Court of Appeals for the Eighth Circuit held that this statutory lien contravened federal law and was therefore unenforceable. Ahlborn v. Arkansas Dept. of Human Servs., 397 F. 3d 620 (2005). Other courts have upheld similar lien provisions. See, e. g., Houghton v. Department of Health, 2002 UT 101, 57 P. 3d 1067; Wilson v. Washington, 142 Wash. 2d 40, 10 P. 3d 1061 (2000) (en banc). We granted certiorari to resolve the conflict, 545 U. S. 1165 (2005), and now affirm.
I
On January 2, 1996, respondent Heidi Ahlborn, then a 19-year-old college student and aspiring teacher, suffered severe *273 and permanent injuries as a result of a car accident. She was left brain damaged, unable to complete her college education, and incapable of pursuing her chosen career. Although she possessed a claim of uncertain value against the alleged tortfeasors who caused her injuries, Ahlborn's liquid assets were insufficient to pay for her medical care. Petitioner Arkansas Department of Health and Human Services (ADHS) [1] accordingly determined that she was eligible for medical assistance and paid providers $215,645.30 on her behalf under the State's Medicaid plan.
ADHS required Ahlborn to complete a questionnaire about her accident, and sent her attorney periodic letters advising him about Medicaid outlays. These letters noted that, under Arkansas law, ADHS had a claim to reimbursement from "any settlement, judgment, or award" obtained by Ahlborn from "a third party who may be liable for" her injuries, and that no settlement "shall be satisfied without first giving [ADHS] notice and a reasonable opportunity to establish its interest."[2] ADHS has never asserted, however, that Ahlborn has a duty to reimburse it out of any other subsequently acquired assets or earnings.
On April 11, 1997, Ahlborn filed suit against two alleged tortfeasors in Arkansas state court seeking compensation for the injuries she sustained in the January 1996 car accident. She claimed damages not only for past medical costs, but also for permanent physical injury; future medical expenses; past and future pain, suffering, and mental anguish; past loss of earnings and working time; and permanent impairment of the ability to earn in the future.
ADHS was neither named as a party nor formally notified of the suit. Ahlborn's counsel did, however, keep ADHS informed of details concerning insurance coverage as they became known during the litigation.
*274 In February 1998, ADHS intervened in Ahlborn's lawsuit to assert a lien on the proceeds of any third-party recovery Ahlborn might obtain. In October 1998, ADHS asked Ahlborn's counsel to notify the agency if there was a hearing in the case. No hearing apparently occurred, and the case was settled out of court sometime in 2002 for a total of $550,000. The parties did not allocate the settlement between categories of damages. ADHS did not participate or ask to participate in settlement negotiations. Nor did it seek to reopen the judgment after the case had been dismissed. ADHS did, however, assert a lien against the settlement proceeds in the amount of $215,645.30the total cost of payments made by ADHS for Ahlborn's care.
On September 30, 2002, Ahlborn filed this action in the United States District Court for the Eastern District of Arkansas seeking a declaration that the lien violated the federal Medicaid laws insofar as its satisfaction would require depletion of compensation for injuries other than past medical expenses. To facilitate the District Court's resolution of the legal questions presented, the parties stipulated that Ahlborn's entire claim was reasonably valued at $3,040,708.12; that the settlement amounted to approximately one-sixth of that sum; and that, if Ahlborn's construction of federal law was correct, ADHS would be entitled to only the portion of the settlement ($35,581.47) that constituted reimbursement for medical payments made. See App. 17-20.
Ruling on cross-motions for summary judgment, the District Court held that under Arkansas law, which it concluded did not conflict with federal law, Ahlborn had assigned to ADHS her right to any recovery from the third-party tortfeasors to the full extent of Medicaid's payments for her benefit. Accordingly, ADHS was entitled to a lien in the amount of $215,645.30.
*275 The Eighth Circuit reversed. It held that ADHS was entitled only to that portion of the judgment that represented payments for medical care. For the reasons that follow, we affirm.
II
The crux of the parties' dispute lies in their competing constructions of the federal Medicaid laws. The Medicaid program, which provides joint federal and state funding of medical care for individuals who cannot afford to pay their own medical costs, was launched in 1965 with the enactment of Title XIX of the Social Security Act (SSA), as added, 79 Stat. 343, 42 U. S. C. § 1396 et seq. (2000 ed. and Supp. III). Its administration is entrusted to the Secretary of Health and Human Services (HHS), who in turn exercises his authority through the Centers for Medicare and Medicaid Services (CMS).[3]
States are not required to participate in Medicaid, but all of them do. The program is a cooperative one; the Federal Government pays between 50% and 83% of the costs the State incurs for patient care,[4] and, in return, the State pays its portion of the costs and complies with certain statutory requirements for making eligibility determinations, collecting and maintaining information, and administering the program. See § 1396a.
One such requirement is that the state agency in charge of Medicaid (here, ADHS) "take all reasonable measures to ascertain the legal liability of third parties . . . to pay for care and services available under the plan." § 1396a(a)(25)(A) *276 (2000 ed.).[5] The agency's obligation extends beyond mere identification, however;
"in any case where such a legal liability is found to exist after medical assistance has been made available on behalf of the individual and where the amount of reimbursement the State can reasonably expect to recover exceeds the costs of such recovery, the State or local agency will seek reimbursement for such assistance to the extent of such legal liability." § 1396a(a)(25)(B).
To facilitate its reimbursement from liable third parties, the State must,
"to the extent that payment has been made under the State plan for medical assistance in any case where a third party has a legal liability to make payment for such assistance, [have] in effect laws under which, to the extent that payment has been made under the State plan for medical assistance for health care items or services furnished to an individual, the State is considered to have acquired the rights of such individual to payment by any other party for such health care items or services." § 1396a(a)(25)(H).
The obligation to enact assignment laws is reiterated in another provision of the SSA, which reads as follows:
"(a) For the purpose of assisting in the collection of medical support payments and other payments for medical care owed to recipients of medical assistance under the State plan approved under this subchapter, a State plan for medical assistance shall
"(1) provide that, as a condition of eligibility for medical assistance under the State plan to an individual who *277 has the legal capacity to execute an assignment for himself, the individual is required
"(A) to assign the State any rights . . . to support (specified as support for the purpose of medical care by a court or administrative order) and to payment for medical care from any third party;
"(B) to cooperate with the State . . . in obtaining support and payments (described in subparagraph (A)) for himself . . .; and
"(C) to cooperate with the State in identifying, and providing information to assist the State in pursuing, any third party who may be liable to pay for care and services available under the plan . . . ." § 1396k(a).
Finally, "any amount collected by the State under an assignment made" as described above "shall be retained by the State as is necessary to reimburse it for medical assistance payments made on behalf of" the Medicaid recipient. § 1396k(b). "[T]he remainder of such amount collected shall be paid" to the recipient. Ibid.
Acting pursuant to its understanding of these third-party liability provisions, the State of Arkansas passed laws that purport to allow both ADHS and the Medicaid recipient, either independently or together, to recover "the cost of benefits" from third parties. Ark. Code Ann. §§ 20-77-301 through XX-XX-XXX (2001). Initially, "[a]s a condition of eligibility" for Medicaid, an applicant "shall automatically assign his or her right to any settlement, judgment, or award which may be obtained against any third party to [ADHS] to the full extent of any amount which may be paid by Medicaid for the benefit of the applicant." § 20-77-307(a). Accordingly, "[w]hen medical assistance benefits are provided" to the recipient "because of injury, disease, or disability for which another person is liable," ADHS "shall have a right to recover from the person the cost of benefits so provided." § 20-77-301(a).[6]*278 ADHS' suit "shall" not, however, "be a bar to any action upon the claim or cause of action of the recipient." § 20-77-301(b). Indeed, the statute envisions that the recipient will sometimes sue together with ADHS, see § 20-77-303, or even alone. If the latter, the assignment described in § 20-77-307(a) "shall be considered a statutory lien on any settlement, judgment, or award received . . . from a third party." § 20-77-307(c); see also § 20-77-302(a) ("When an action or claim is brought by a medical assistance recipient. . ., any settlement, judgment, or award obtained is subject to the division's claim for reimbursement of the benefits provided to the recipient under the medical assistance program").[7]
The State, through this statute, claims an entitlement to more than just that portion of a judgment or settlement that represents payment for medical expenses. It claims a right to recover the entirety of the costs it paid on the Medicaid recipient's behalf. Accordingly, if, for example, a recipient sues alone and settles her entire action against a third-party tortfeasor for $20,000, and ADHS has paid that amount or more to medical providers on her behalf, ADHS gets the whole settlement and the recipient is left with nothing. This is so even when the parties to the settlement allocate damages between medical costs, on the one hand, and other injuries like lost wages, on the other. The same rule also *279 would apply, it seems, if the recovery were the result not of a settlement but of a jury verdict. In that case, under the Arkansas statute, ADHS could recover the full $20,000 in the face of a jury allocation of, say, only $10,000 for medical expenses.[8]
That this is what the Arkansas statute requires has been confirmed by the State's Supreme Court. In Arkansas Dept. of Human Servs. v. Ferrel, 336 Ark. 297, 984 S. W. 2d 807 (1999), the court refused to endorse an equitable, nontextual interpretation of the statute. Rejecting a Medicaid recipient's argument that he ought to retain some of a settlement that was insufficient to cover both his and Medicaid's expenses, the court explained:
"Given the clear, unambiguous language of the statute, it is apparent that the legislature intended that ADHS's ability to recoup Medicaid payments from third parties or recipients not be restricted by equitable subrogation principles such as the `made whole' rule stated in [Franklin v. Healthsource of Arkansas, 328 Ark. 163, 942 S. W. 2d 837 (1997)]. By creating an automatic legal assignment which expressly becomes a statutory lien, [Ark. Code Ann. § 20-77-307 (1991)] makes an unequivocal statement that the ADHS's ability to recover Medicaid payments from insurance settlements, if it so chooses, is superior to that of the recipient even when the settlement does not pay all the recipient's medical costs." Id., at 308, 984 S. W. 2d, at 811.
Accordingly, the Arkansas statute, if enforceable against Ahlborn, authorizes imposition of a lien on her settlement proceeds in the amount of $215,645.30. Ahlborn's argument before the District Court, the Eighth Circuit, and this Court *280 has been that Arkansas law goes too far. We agree. Arkansas' statute finds no support in the federal third-party liability provisions, and in fact squarely conflicts with the anti-lien provision of the federal Medicaid laws.
III
We must decide whether ADHS can lay claim to more than the portion of Ahlborn's settlement that represents medical expenses.[9] The text of the federal third-party liability provisions suggests not; it focuses on recovery of payments for medical care. Medicaid recipients must, as a condition of eligibility, "assign the State any rights . . . to payment for medical care from any third party," 42 U. S. C. § 1396k(a)(1)(A) (emphasis added), not rights to payment for, for example, lost wages. The other statutory language that ADHS relies upon is not to the contrary; indeed, it reinforces the limitation implicit in the assignment provision.
First, ADHS points to § 1396a(a)(25)(B)'s requirement that States "seek reimbursement for [medical] assistance to the extent of such legal liability" (emphasis added) and suggests that this means that the entirety of a recipient's settlement is fair game. In fact, as is evident from the context of the emphasized language, "such legal liability" refers to "the legal liability of third parties . . . to pay for care and services available under the plan." § 1396a(a)(25)(A) (emphasis added). Here, the tortfeasor has accepted liability for only one-sixth of the recipient's overall damages, and ADHS has stipulated that only $35,581.47 of that sum represents compensation for medical expenses. Under the circumstances, *281 the relevant "liability" extends no further than that amount.[10]
Second, ADHS argues that the language of § 1396a(a) (25)(H) favors its view that it can demand full reimbursement of its costs from Ahlborn's settlement. That provision, which echoes the requirement of a mandatory assignment of rights in § 1396k(a), says that the State must have in effect laws that, "to the extent that payment has been made under the State plan for medical assistance for health care items or services furnished to an individual," give the State the right to recover from liable third parties. This must mean, says ADHS, that the agency's recovery is limited only by the amount it paid out on the recipient's behalf and not by the third-party tortfeasor's particular liability for medical expenses. But that reading ignores the rest of the provision, which makes clear that the State must be assigned "the rights of [the recipient] to payment by any other party for such health care items or services." § 1396a(a)(25)(H) (emphasis added). Again, the statute does not sanction an assignment of rights to payment for anything other than medical expensesnot lost wages, not pain and suffering, not an inheritance.
Finally, ADHS points to the provision requiring that, where the State actively pursues recovery from the third party, Medicaid be reimbursed fully from "any amount collected by the State under an assignment" before "the remainder of such amount collected" is remitted to the recipient. § 1396k(b). In ADHS' view, this shows that the State must be paid in full from any settlement. See Brief for Petitioners 13. But, even assuming the provision applies in cases where the State does not actively participate in the litigation, ADHS' conclusion rests on a false premise: The *282 "amount recovered . . . under an assignment" is not, as ADHS assumes, the entire settlement; as explained above, under the federal statute the State's assigned rights extend only to recovery of payments for medical care. Accordingly, what § 1396k(b) requires is that the State be paid first out of any damages representing payments for medical care before the recipient can recover any of her own costs for medical care.[11]
At the very least, then, the federal third-party liability provisions require an assignment of no more than the right to recover that portion of a settlement that represents payments for medical care.[12] They did not mandate the enactment of the Arkansas scheme that we have described.
*283 IV
If there were no other relevant provisions in the federal statute, the State might plausibly argue that federal law supplied a recovery "floor" upon which States were free to build. In fact, though, the federal statute places express limits on the State's powers to pursue recovery of funds it paid on the recipient's behalf. These limitations are contained in 42 U. S. C. §§ 1396a(a)(18) and 1396p. Section 1396a(a)(18) requires that a state Medicaid plan comply with § 1396p, which in turn prohibits States (except in circumstances not relevant here) from placing liens against, or seeking recovery of benefits paid from, a Medicaid recipient:
"(a) Imposition of lien against property of an individual on account of medical assistance rendered to him under a State plan
"(1) No lien may be imposed against the property of any individual prior to his death on account of medical assistance paid or to be paid on his behalf under the State plan, except
"(A) pursuant to the judgment of a court on account of benefits incorrectly paid on behalf of such individual, or
"(B) [in certain circumstances not relevant here]
. . . . .
"(b) Adjustment or recovery of medical assistance correctly paid under a State plan
"(1) No adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the *284 State plan may be made, except [in circumstances not relevant here]." § 1396p.
Read literally and in isolation, the anti-lien prohibition contained in § 1396p(a) would appear to ban even a lien on that portion of the settlement proceeds that represents payments for medical care.[13] Ahlborn does not ask us to go so far, though; she assumes that the State's lien is consistent with federal law insofar as it encumbers proceeds designated as payments for medical care. Her argument, rather, is that the anti-lien provision precludes attachment or encumbrance of the remainder of the settlement.
We agree. There is no question that the State can require an assignment of the right, or chose in action, to receive payments for medical care. So much is expressly provided for by §§ 1396a(a)(25) and 1396k(a). And we assume, as do the parties, that the State can also demand as a condition of Medicaid eligibility that the recipient "assign" in advance any payments that may constitute reimbursement for medical costs. To the extent that the forced assignment is expressly authorized by the terms of §§ 1396a(a)(25) and 1396k(a), it is an exception to the anti-lien provision. See Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 383-385, and n. 7 (2003). But that does not mean that the State can force an assignment of, or place a lien on, any other portion of Ahlborn's property. As explained above, the exception carved out by *285 §§ 1396a(a)(25) and 1396k(a) is limited to payments for medical care. Beyond that, the anti-lien provision applies.
ADHS tries to avoid the anti-lien provision by characterizing the settlement proceeds as not Ahlborn's "property."[14] Its argument appears to be that the automatic assignment effected by the Arkansas statute rendered the proceeds the property of the State.[15] See Brief for Petitioners 31 ("[U]nder Arkansas law, the lien does not attach to the recipient's `property' because it attaches only to those proceeds already assigned to the Department as a condition of Medicaid eligibility"). That argument fails for two reasons. First, ADHS insists that Ahlborn at all times until judgment retained her entire chose in actiona right that included her claim for medical damages. The statutory lien, then, cannot have attached until the proceeds materialized. That much is clear from the text of the Arkansas statute, which says that the "assignment shall be considered a statutory lien on any settlement . . . received by the recipient from a third party." Ark. Code Ann. § 20-77-307(c) (2001) (emphasis added). The settlement is not "received" until the chose in action has been reduced to proceeds in Ahlborn's possession. Accordingly, the assertion that any of the proceeds belonged to the State all along lacks merit.
Second, the State's argument that Ahlborn lost her property rights in the proceeds the instant she applied for medical assistance is inconsistent with the creation of a statutory *286 lien on those proceeds. Why, after all, would ADHS need a lien on its own property? A lien typically is imposed on the property of another for payment of a debt owed by that other. See Black's Law Dictionary 922 (6th ed. 1990). Nothing in the Arkansas statute defines the term otherwise.
That the lien is also called an "assignment" does not alter the analysis. The terms that Arkansas employs to describe the mechanism by which it lays claim to the settlement proceeds do not, by themselves, tell us whether the statute violates the anti-lien provision. See United States v. Craft, 535 U. S. 274, 279 (2002); Drye v. United States, 528 U. S. 49, 58-61 (1999). Although denominated an "assignment," the effect of the statute here was not to divest Ahlborn of all her property interest; instead, Ahlborn retained the right to sue for medical care payments, and the State asserted a right to the fruits of that suit once they materialized. In effect, and as at least some of the statutory language recognizes, Arkansas has imposed a lien on Ahlborn's property.[16] Since none of the federal third-party liability provisions excepts that lien from operation of the anti-lien provision, its imposition violates federal law.
*287 V
ADHS and its amici urge, however, that even if a lien on more than medical damages would violate federal law in some cases, a rule permitting such a lien ought to apply here either because Ahlborn breached her duty to "cooperate" with ADHS or because there is an inherent danger of manipulation in cases where the parties to a tort case settle without judicial oversight or input from the State. Neither argument is persuasive.
The United States proposes a default rule of full reimbursement whenever the recipient breaches her duty to "cooperate," and asserts that Ahlborn in fact breached that duty.[17] But, even if the Government's allegations of obstruction were supported by the record, its conception of the duty to cooperate strays far beyond the text of the statute and the relevant regulations. The duty to cooperate arises principally, if not exclusively, in proceedings initiated by the State to recover from third parties. See 42 U. S. C. § 1396k(a)(1)(C) (recipients must "cooperate with the State in identifying . . . and providing information to assist the State in pursuing" third parties). Most of the accompanying federal regulations simply echo this basic duty; all they add is that the recipient must "[p]ay to the agency any support or medical care funds received that are covered by the assignment of rights." 42 CFR § 433.147(b)(4) (2005).
In any event, the aspersions the United States casts upon Ahlborn are entirely unsupported; all the record reveals is that ADHS, despite having intervened in the lawsuit and *288 asked to be apprised of any hearings, neither asked to be nor was involved in the settlement negotiations. Whatever the bounds of the duty to cooperate, there is no evidence that it was breached here.
ADHS' and the United States' alternative argument that a rule of full reimbursement is needed generally to avoid the risk of settlement manipulation is more colorable, but ultimately also unpersuasive. The issue is not, of course, squarely presented here; ADHS has stipulated that only $35,581.47 of Ahlborn's settlement proceeds properly are designated as payments for medical costs. Even in the absence of such a postsettlement agreement, though, the risk that parties to a tort suit will allocate away the State's interest can be avoided either by obtaining the State's advance agreement to an allocation or, if necessary, by submitting the matter to a court for decision.[18] For just as there are risks in underestimating the value of readily calculable damages in settlement negotiations, so also is there a countervailing concern that a rule of absolute priority might preclude settlement in a large number of cases, and be unfair to the recipient in others.[19]
*289 VI
Finally, ADHS contends that the Court of Appeals' decision below accords insufficient weight to two decisions by the Departmental Appeals Board of HHS (Board) rejecting appeals by the States of California and Washington from denial of reimbursement for costs those States paid on behalf of Medicaid recipients who had settled tort claims. See App. to Pet. for Cert. 45-67 (reproducing In re Washington State Dept. of Social & Health Servs., Dec. No. 1561, 1996 WL 157123 (HHS Dept. App. Bd., Feb. 7, 1996)); App. to Pet. for Cert. 68-86 (reproducing In re California Dept. of Health Servs., Dec. No. 1504, 1995 WL 66334 (HHS Dept. App. Bd., Jan. 5, 1995)). Because the opinions in those cases address a different question from the one posed here, make no mention of the anti-lien provision, and, in any event, rest on a questionable construction of the federal third-party liability provisions, we conclude that they do not control our analysis.
Normally, if a State recovers from a third party the cost of Medicaid benefits paid on behalf of a recipient, the Federal Government owes the State no reimbursement, and any funds already paid by the Federal Government must be returned. See 42 CFR § 433.140(a)(2) (2005) (federal financial participation "is not available in Medicaid payments if . . . [t]he agency received reimbursement from a liable third party"); § 433.140(c). Washington and California both had adopted schemes according to which the State refrained from claiming full reimbursement from tort settlements and instead took only a portion of each settlement. (In California, the recipient typically could keep at least 50% of her settlement, see App. to Pet. for Cert. 72; in Washington, the proportion varied from case to case, see id., at 48-51.) Each scheme resulted in the State's having to pay a portion of the recipient's medical costsa portion for which the State sought partial reimbursement from the Federal Government. CMS (then called HCFA) denied this partial reimbursement *290 on the ground that the States had an absolute duty to seek full payment of medical expenses from third-party tortfeasors.
The Board upheld CMS' determinations. In California's appeal, which came first, the Board concluded that the State's duty to seek recovery of benefits "from available third party sources to the fullest extent possible" included demanding full reimbursement from the entire proceeds of a Medicaid recipient's tort settlement. Id., at 76. The Board acknowledged that § 1396k(a) "refers to assignment only of `payment for medical care,'" but thought that "the statutory scheme as a whole contemplates that the actual recovery might be greater and, if it is, that Medicaid should be paid first." Ibid. The Board gave two other reasons for siding with CMS: First, the legislative history of the third-party liability evinced a congressional intent that "the Medicaid program . . . be reimbursed from available third party sources to the fullest extent possible," ibid.; and, second, California had long been on notice that it would not be reimbursed for any shortfall resulting from failure to fully recoup Medicaid's costs from tort settlements, see id., at 77. The Board also opined that the State could not escape its duty to seek full reimbursement by relying on the Medicaid recipient's efforts in litigating her claims. See id., at 79-80.
Finally, responding to the State's argument that its scheme gave Medicaid recipients incentives to sue thirdparty tortfeasors and thus resulted in both greater recovery and lower costs for the State, the Board observed that "a state is free to allow recipients to retain the state's share" of any recovery, so long as it does not compromise the Federal Government's share. Id., at 85.
The Board reached the same conclusion, by the same means, in the Washington case. See id., at 53-64.
Neither of these adjudications compels us to conclude that Arkansas' statutory lien comports with federal law. First, the Board's rulings address a different question from the one *291 presented here. The Board was concerned with the Federal Government's obligation to reimburse States that had, in its view, failed to seek full recovery of Medicaid's costs and had instead relied on recipients to act as private attorneys general. The Board neither discussed nor even so much as cited the federal anti-lien provision.
Second, the Board's acknowledgment that the assignment of rights required by § 1396k(a) is limited to payments for medical care only reinforces the clarity of the statutory language. Moreover, its resort to "the statutory scheme as a whole" as justification for muddying that clarity is nowhere explained. Given that the only statutory provisions CMS relied on are §§ 1396a(a)(25), 1396k(a), and 1396k(b), see id., at 75-76; id., at 54-55, and given the Board's concession that the first two of these limit the State's assignment to payments for medical care, the "statutory scheme" must mean § 1396k(b). But that provision does not authorize the State to demand reimbursement from portions of the settlement allocated or allocable to nonmedical damages; instead, it gives the State a priority disbursement from the medical expenses portion alone. See supra, at 282. In fact, in its adjudication in the Washington case, the Board conceded as much: "[CMS] may require a state to assert a collection priority over funds obtained by Medicaid recipients in [thirdparty liability] suits even though the distribution methodology set forth in section [1396k(b)] refers only to payments collected pursuant to assignments for medical care." App. to Pet. for Cert. 54 (emphasis added). The Board's reasoning therefore is internally inconsistent.
Third, the Board's reliance on legislative history is misplaced. The Board properly observed that Congress, in crafting the Medicaid legislation, intended that Medicaid be a "payer of last resort." S. Rep. No. 99-146, p. 313 (1985). That does not mean, however, that Congress meant to authorize States to seek reimbursement from Medicaid recipients themselves; in fact, with the possible exception of a lien *292 on payments for medical care, the statute expressly prohibits liens against the property of Medicaid beneficiaries. See 42 U. S. C. § 1396p(a). We recognize that Congress has delegated "broad regulatory authority to the Secretary [of HHS] in the Medicaid area," Wisconsin Dept. of Health and Family Servs. v. Blumer, 534 U. S. 473, 496, n. 13 (2002), and that agency adjudications typically warrant deference. Here, however, the Board's reasoning couples internal inconsistency with a conscious disregard for the statutory text. Under these circumstances, we decline to treat the agency's reasoning as controlling.
VII
Federal Medicaid law does not authorize ADHS to assert a lien on Ahlborn's settlement in an amount exceeding $35,581.47, and the federal anti-lien provision affirmatively prohibits it from doing so. Arkansas' third-party liability provisions are unenforceable insofar as they compel a different conclusion. The judgment of the Court of Appeals is affirmed.
It is so ordered.
NOTES
[*] A brief of amici curiae urging reversal was filed for the State of Washington et al. by Rob McKenna, Attorney General of Washington, William L. Williams, Senior Assistant Attorney General, and Kimberly D. Frinell, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: David W. Márquez of Alaska, Terry Goddard of Arizona, John W. Suthers of Colorado, Richard Blumenthal of Connecticut, Robert J. Spagnoletti of the District of Columbia, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Phill Kline of Kansas, Gregory D. Stumbo of Kentucky, G. Steven Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Michael A. Cox of Michigan, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Kelly A. Ayotte of New Hampshire, Peter C. Harvey of New Jersey, Eliot Spitzer of New York, Wayne Stenehjem of North Dakota, Jim Petro of Ohio, Hardy Myers of Oregon, Patrick Lynch of Rhode Island, Henry McMaster of South Carolina, Lawrence E. Long of South Dakota, Mark L. Shurtleff of Utah, Peggy A. Lautenschlager of Wisconsin, and Patrick J. Crank of Wyoming.
Louis M. Bograd, Ned Miltenberg, and Kenneth M. Suggs filed a brief for the Association of Trial Lawyers of America as amicus curiae urging affirmance.
[1] ADHS was then named Arkansas Department of Human Services.
[2] Affidavit of Wayne E. Olive, Exhs. 5 and 6 (Mar. 6, 2003).
[3] Until 2001, CMS was known as the Health Care Financing Administration or HCFA. See 66 Fed. Reg. 35437.
[4] The exact percentage of the federal contribution is calculated pursuant to a formula keyed to each State's per capita income. See 42 U. S. C. § 1396d(b).
[5] A "third party" is defined by regulation as "any individual, entity or program that is or may be liable to pay all or part of the expenditures for medical assistance furnished under a State plan." 42 CFR § 433.136 (2005).
[6] Under the Arkansas statute, ADHS' right to recover medical costs appears to be broader than that of the recipient. When ADHS sues, "no contributory or comparative fault of a recipient shall be attributed to the state, nor shall any restitution awarded to the state be denied or reduced by any amount or percentage of fault attributed to a recipient." § 20-77-301(d)(1) (2001).
[7] The Arkansas Supreme Court has held that ADHS has an independent, nonderivative right to recover the cost of benefits from a third-party tortfeasor under § 20-77-301 even when the Medicaid recipient also sues for recovery of medical expenses. See National Bank of Commerce v. Quirk, 323 Ark. 769, 792-794, 918 S. W. 2d 138, 151-152 (1996).
[8] ADHS denies that it would actually demand the full $20,000 in such a case, see Brief for Petitioners 49, n. 13, but points to no provision of the Arkansas statute that would prevent it from doing so.
[9] The parties here assume, as do we, that a State can fulfill its obligations under the federal third-party liability provisions by requiring an "assignment" of part of, or placing a lien on, the settlement that a Medicaid recipient procures on her own. Cf. §§ 1396k(a)(1)(B)(C) (the recipient has a duty to identify liable third parties and to "provid[e] information to assist the State in pursuing" those parties (emphasis added)).
[10] The effect of the stipulation is the same as if a trial judge had found that Ahlborn's damages amounted to $3,040,708.12 (of which $215,645.30 were for medical expenses), but because of her contributory negligence, she could only recover one-sixth of those damages.
[11] Implicit in ADHS' interpretation of this provision is the assumption that there can be no "remainder" to remit to the Medicaid recipient if all the State has been assigned is the right to damages for medical expenses. That view in turn seems to rest on an assumption either that Medicaid will have paid all the recipient's medical expenses or that Medicaid's expenses will always exceed the portion of any third-party recovery earmarked for medical expenses. Neither assumption holds up. First, as both the Solicitor General and CMS acknowledge, the recipient often will have paid medical expenses out of her own pocket. See Brief for United States as Amicus Curiae 12 (under § 1396k(b), "the beneficiary retains the right to payment for any additional medical expenses personally incurred either before or subsequent to Medicaid eligibility and for other damages"); CMS, State Medicaid Manual § 3907, available at https://www.lexis. com>Legal>Secondary Legal>CCH>Health Law>CMS Program Manuals>CCH CMS Program Manuals P 3907 (as updated Mar. 25, 2006, and available in Clerk of Court's case file) (envisioning that "medical insurance payments," for example, will be remitted to the recipient if possible). Second, even if Medicaid's outlays often exceed the portion of the recovery earmarked for medical expenses in tort cases, the third-party liability provisions were not drafted exclusively with tort settlements in mind. In the case of health insurance, for example, the funds available under the policy may be enough to cover both Medicaid's costs and the recipient's own medical expenses.
[12] ADHS concedes that, had a jury or judge allocated a sum for medical payments out of a larger award in this case, the agency would be entitled to reimburse itself only from the portion so allocated. See Brief for Petitioners 49, n. 13; see also Brief for United States as Amicus Curiae 22, n. 14 (noting that the Secretary of HHS "ordinarily accepts" a jury allocation of medical damages in satisfaction of the Medicaid debt, even where smaller than the amount of Medicaid's expenses). Given the stipulation between ADHS and Ahlborn, there is no textual basis for treating the settlement here differently from a judge-allocated settlement or even a jury award; all such awards typically establish a third party's "liability" for both "payment for medical care" and other heads of damages.
[13] Likewise, subsection (b) would appear to forestall any attempt by the State to recover benefits paid, at least from the "individual." See, e. g., Martin ex rel. Hoff v. Rochester, 642 N. W. 2d 1, 8, n. 6 (Minn. 2002); Wallace v. Estate of Jackson, 972 P. 2d 446, 450 (Utah 1998) (Durham, J., dissenting) (reading § 1396p to "prohibi[t] not only liens against Medicaid recipients but also any recovery for medical assistance correctly paid"). The parties here, however, neither cite nor discuss the antirecovery provision of § 1396p(b). Accordingly, we leave for another day the question of its impact on the analysis.
[14] "Property" is defined by regulation as "the homestead and all other personal and real property in which the recipient has a legal interest." 42 CFR § 433.36(b) (2005).
[15] The United States as amicus curiae makes the different argument that the proceeds never became Ahlborn's "property" because "to the extent the third party's payment passes through the recipient's hands en route to the State, it comes with the State's lien already attached." Brief as Amicus Curiae 18. Even if that reading were consistent with the Arkansas statute (and it is not, see infra this page), the United States' characterization of the "assignment" simply reinforces Ahlborn's point: This is a lien that attaches to the property of the recipient.
[16] Because ADHS insists that "Arkansas law did not require Ahlborn to assign her claim or her right to sue," Brief for Petitioners 33 (emphasis in original), we need not reach the question whether a State may force a recipient to assign a chose in action to receive as much of the settlement as is necessary to pay Medicaid's costs. The Eighth Circuit thought this would be impermissible because the State cannot "circumvent the restrictions of the federal anti-lien statute simply by requiring an applicant for Medicaid benefits to assign property rights to the State before the applicant liquidates the property to a sum certain." App. to Pet. for Cert. 6. Indeed, ADHS acknowledges that Arkansas cannot, for example, require a Medicaid applicant to assign in advance any right she may have to recover an inheritance or an award in a civil case not related to her injuries or medical care. This arguably is no different; as with assignment of those other choses in action, assignment of the right to compensation for lost wages and other nonmedical damages is nowhere authorized by the federal third-party liability provisions.
[17] See, e. g., Brief for United States as Amicus Curiae 14 (alleging that Ahlborn "omitt[ed] or understat[ed] the medical damages claim from her lawsuit and attempt[ed] to horde for herself the third-party liability payments"); id., at 15 ("[H]aving forsaken her federal and state statutory duties of candid and forthcoming cooperation[,] respondent, rather than the taxpayers, must bear the financial consequences of her actions"); id., at 21, 24 (referring to Ahlborn's "backdoor settlement" and "obstruction and attrition," as well as her "calculated evasion of her legal obligations").
[18] As one amicus observes, some States have adopted special rules and procedures for allocating tort settlements in circumstances where, for example, private insurers' rights to recovery are at issue. See Brief for Association of Trial Lawyers of America 20-21. Although we express no view on the matter, we leave open the possibility that such rules and procedures might be employed to meet concerns about settlement manipulation.
[19] The point is illustrated by state cases involving the recovery of workers' compensation benefits paid to an employee (or the family of an employee) whose injuries were caused by a third-party tortfeasor. In Flanigan v. Department of Labor and Industry, 123 Wash. 2d 418, 869 P. 2d 14 (1994), for example, the court concluded that the state agency could not satisfy its lien out of damages the injured worker's spouse recovered as compensation for loss of consortium. The court explained that the department could not "share in damages for which it has provided no compensation" because such a result would be "absurd and fundamentally unjust." Id., at 426, 869 P. 2d, at 17.
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986 A.2d 1261 (2009)
COM.
v.
OLONOVICH.
No. 671 EDA 2009.
Superior Court of Pennsylvania.
September 9, 2009.
Affirmed.
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256 P.3d 896 (2010)
STATE
v.
REYNOLDS.
No. 101437.
Court of Appeals of Kansas.
June 11, 2010.
Decision Without Published Opinion
Affirmed.
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198 Kan. 16 (1967)
422 P.2d 868
LANGDON WOODS CHANCE, Appellant,
v.
STATE OF KANSAS, Appellee.
No. 44,365
Supreme Court of Kansas.
Opinion filed January 21, 1967.
Glenn Jones, of Parsons, argued the cause and was on the brief for the appellant.
Rex Lawhorn, County Attorney, argued the cause and was on the brief for the appellee.
The opinion of the court was delivered by
SCHROEDER, J.:
This is a proceeding instituted pursuant to K.S.A. 60-1507. Appeal has been duly perfected by the petitioner from an order of the district court of Labette County entered on the 21st day of June, 1965, overruling the petitioner's motion to vacate his sentence.
The underlying question is whether the record in the criminal proceeding which resulted in the petitioner's conviction and sentence in the district court of Labette County is sufficient to disclose compliance with the provisions of G.S. 1949 (now K.S.A.) 62-1304.
*17 The pertinent facts are that on the 9th day of April, 1953, the petitioner (appellant) was sentenced by the district court of Labette County, Kansas, to the Kansas State Penitentiary for one to ten years upon his plea of guilty to a charge of second degree forgery.
He later filed a petition for writ of habeas corpus and writ of coram nobis in the Labette County district court while still incarcerated in the state penitentiary. The district court denied the petitioner's writ on the ground that it, the Labette County district court, did not have jurisdiction. On appeal this court affirmed the decision in State v. Chance, 187 Kan. 27, 353 P.2d 516.
Upon completing the sentence imposed by the district court of Labette County the petitioner was released.
Thereafter in 1958 the petitioner was sentenced by the Linn County district court to fifteen years in the state penitentiary upon his plea of guilty to burglary in the second degree and attempted larceny. In so doing the district court of Linn County invoked the provisions of the habitual criminal act, G.S. 1949 (now K.S.A.) 21-107a. The two prior convictions upon which the sentence was based were a prior conviction of a felony in federal court and the Labette County conviction above referred to.
In the year 1965 the petitioner filed a motion to vacate the Linn County judgment and sentence raising various questions, among which was one challenging the validity of the Labette County conviction on the ground that the district court of Labette County failed to find that the appointment of counsel (having been waived by the petitioner) would not be to the petitioner's advantage. The district court of Linn County denied the motion, and on appeal this court affirmed in Chance v. State, 195 Kan. 711, 408 P.2d 677. The district court of Linn County, in answer to the foregoing question asserted by the petitioner, said it "`should not in a collateral proceeding attempt to determine the validity of the action taken by the Labette County District Court. If petitioner is successful in his direct attack upon the judgment in Labette County District Court, the matter can again be raised in this court by a subsequent motion, and leave is granted to file such successive motion in the event of such determination.'" (p. 716.)
The Supreme Court in that opinion quoted in full the memorandum decision of the trial court which included findings of fact and conclusions of law, and held the contentions of the petitioner *18 to have been correctly disposed of by the trial court through its decision, and therefore adopted the decision of the trial court upholding the judgment of conviction of the Linn County district court.
The instant proceeding is therefore designed as the petitioner's direct attack upon the judgment of the Labette County district court. By this proceeding he challenges the validity of the judgment used by the Linn County district court as a prior conviction upon which to enhance the penalty under the habitual criminal act.
When the petitioner was brought to trial in the district court of Labette County he waived his right to counsel and entered a plea of guilty. The record discloses, and the state concedes, the journal entry of conviction entered by the district court of Labette County contains no recital of a finding by the trial court that the appointment of counsel over the petitioner's objection would not be to his advantage. It may also be said the journal entry contains no finding which would indicate that such finding was not made. The stenographic transcript of the criminal proceeding upon which the petitioner was convicted in the district court of Labette County does not disclose an express finding by the trial court that the appointment of counsel over the petitioner's objection would not be to his advantage.
The question at hand was fully considered by this court in Ramsey v. Hand, 185 Kan. 350, 343 P.2d 225, cert. den. 362 U.S. 970, 4 L.Ed.2d 901, 80 S.Ct. 956, where the provisions of G.S. 1949 (now K.S.A.) 62-1304 were construed. The court there held where an accused waives his right to be represented by counsel pursuant to the provisions of 62-1304, supra, the finding of the trial court, that the appointment of counsel over the objection of the accused will not be to his advantage, need not be an express finding which the trial court state in the record of the trial proceedings. It was said such finding must, however, appear in the journal entry of the trial and judgment to show that such finding was in fact made.
In Ramsey, supra, the journal entry was corrected by a nunc pro tunc order to show that such finding was in fact made, and this court held the correction of the journal entry nunc pro tunc by the trial court was proper.
In the instant case the journal entry does not disclose that such finding was in fact made, and there is nothing in the record to show any correction of the journal entry by a nunc pro tunc order.
*19 It is thus apparent the district court of Labette County failed to comply with the provisions of G.S. 1949 (now K.S.A.) 62-1304 in that the record required by the provisions of the statute, to prove that the trial court had jurisdiction to accept a plea of guilty, is insufficient. Under these circumstances the Labette County judgment of conviction is void.
The provisions of 60-1507, supra, state that a prisoner in custody under sentence of a court of general jurisdiction may at any time move the court which imposed the sentence to vacate, set aside or correct the sentence.
It is argued by the state that the district court of Labette County is not the court which imposed the sentence the petitioner is now serving. The state thus contends the petitioner is entitled to no relief under 60-1507, supra.
Technically, it would appear that the petitioner is entitled to no relief under 60-1507, supra. But on the facts in this case the petitioner was thwarted in his efforts to make a direct attack upon the Labette County conviction in State v. Chance, 187 Kan. 27, 353 P.2d 516, because he was then incarcerated in Leavenworth County, Kansas, and did not then have a statute such as 60-1507, supra, which was enacted as a part of the new code of civil procedure and did not become effective until January 1, 1964. Furthermore, the petitioner's efforts to have the sentence of the Linn County district court corrected by a direct attack in the sentencing court were also thwarted on the ground that he was making a collateral attack upon the judgment of the Labette County district court.
Under these circumstances a denial of the petitioner's right to attack the Labette County sentence in this proceeding would be nothing less than an arbitrary denial of the petitioner's right to his day in court.
A situation almost identical to that in the instant case was presented in McCarty v. Hudspeth, 166 Kan. 476, 201 P.2d 658, by an original habeas corpus proceeding. There the petitioner was sentenced by the Wyandotte County district court under the habitual criminal act based upon two prior felony convictions. One of these prior convictions was in the Wyandotte County district court when the petitioner was sixteen years of age. The record in that proceeding disclosed he had no counsel at the trial. Under our decisions he should have had counsel appointed to represent him. Various contentions were advanced by the state as to why the peitioner was *20 entitled to no relief. Among these was an argument that the petitioner in a habeas corpus proceeding could not raise the question of the invalidity of his sentence, and that a collateral attack could not be made in a habeas corpus action. The court, however, took the case saying, "The law and the courts are not so impotent that such a result must follow," (p. 480) and granted relief.
Under all of the facts, conditions and circumstances of this case we think there is a sufficient thread connecting the sentence of the Linn County district court, which the petitioner is presently serving, to the Labette County conviction to authorize this proceeding in the district court of Labette County. It cannot be denied that but for the Labette County conviction the sentence of the Linn County district court would have been different. (See, G.S. 1949 [now K.S.A.] 21-609; 21-631; and 21-107a.) We therefore hold the petitioner is entitled to relief under 60-1507, supra, in this proceeding in the Labette County district court.
The judgment of the district court of Labette County is reversed with directions to vacate the judgment of conviction.
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548 So.2d 345 (1989)
STATE of Louisiana
v.
James BOLTON.
No. KA 9064.
Court of Appeal of Louisiana, Fourth Circuit.
August 10, 1989.
*346 D. Michael Dendy, Gretna, for appellant.
Harry F. Connick, Dist. Atty., Charles L. Collins, Asst. Dist. Atty., New Orleans, for appellee.
Before BYRNES, CIACCIO and BECKER, JJ.
CIACCIO, Judge.
James Bolton was charged with and convicted of distribution of heroin. La.R.S. 40:966. He was sentenced to life imprisonment without benefit of parole. He appeals his conviction and sentence on the basis of three assignments of error. We affirm.
On January 13, 1987 at approximately 3:30 p.m. a surveillance was conducted in response to a citizen's call to the effect that there was heroin trafficking in the area and drugs were being stored at the location of 1728 Martin Luther King Boulevard. Additionally, there had been a complaint that James Bolton was trafficking drugs in the neighborhood and he had been under investigation, with his brother, for this complaint. On the date in question New Orleans Police Officers Clarence Weathern and Wayne Farve saw Bolton in front of the residence at 1723 Martin Luther King when a red van drove up. The van contained a white male driver and female passenger. The occupants were recognized by the police officers as being Jerry Bergeron and Peggy Bergeron (a/k/a Ray, a/k/a *347 Carpenter) who were known heroin users. The pair had, on a previous occasion, been stopped by Officer Weathern in the company of James Bolton. Jerry Bergeron exited the van, walked over to the front of 1723 Martin Luther King Boulevard and talked to James Bolton. Thereafter Bolton went to the house at 1728 Martin Luther King and he returned to the driver's side of the van with a package. He opened the package and counted out two small objects and placed them in the hand of the female occupant of the van. She then handed him what appeared to be currency. Bolton appeared to count the currency. Thereafter the van with the two occupants left the scene, drove to the corner of Martin Luther King and Baronne Streets and turned left. The policemen on the scene radioed to other police cars in the area. Officers Rice, McNeil and Simpson were advised that the drug transaction had occurred and for them to follow the Bergeron vehicle, which they did.
At the intersection of Howard and O'Keefe Avenues the policemen stopped the Bergeron vehicle. Officers McNeil and Simpson approached the passenger's side and Officer Rice went to the driver's side of the van. The female occupant of the van then attempted to swallow something. Fearing she was swallowing the evidence, Officer Simpson took her by the throat and told her to "spit it out." She then expelled the two packets from her mouth into his hand. The subjects were placed under arrest and they and the evidence were transported to police headquarters. The evidence was secured, later tested and found to be heroin. The female's wrist and hands were examined and found to contain track marks compatible with drug usage.
During this time James Bolton had left the crime scene in another van which was occupied by one of his brothers. After the arrest of the occupants in the Bergeron van, the policemen who had been present at the scene of the drug transaction were informed of these arrests. They located James Bolton at his brother's house on St. Andrew Street, some 2-3 blocks away, and they placed him under arrest.
Assignments of Error Nos. 1 and 3
In his first assignment of error the defendant contends the trial court erred in denying the motion to suppress the evidence. Bolton reasons that the evidence should have been suppressed because the police officers did not have reasonable suspicion to stop the Bergeron van, search the occupants and seize the heroin.
To temporarily detain a person for purposes of investigation an officer must have a reasonable suspicion that the person is committing, has committed or is about to commit a crime. La.C.Cr.P. Art. 215.1. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Sims, 426 So.2d 148 (La., 1983). "Reasonable suspicion" for an investigatory stop is something less than probable cause and must be determined under the facts of each case by a consideration of whether the police officer had sufficient knowledge of the facts and circumstances to justify an infringement on the individual's right to be free from governmental interference. State v. Square, 433 So.2d 104 (La., 1983); State v. Keller, 403 So.2d 693 (La., 1981).
In this case the police had received phone calls advising them that Bolton was trafficking heroin and that he was keeping his drugs at 1728 Martin Luther King Boulevard. The area is known to the police as a high drug traffic area. Jerry Bergeron and his female companion were known to the officers as heroin users. The officers observed James Bolton as he went into the house at 1728 Martin Luther King Boulevard after having been contacted by Bergeron. They also observed him as he went to the side of Bergeron's van and exchanged what appeared to be two packets for currency. These facts establish reasonable suspicion that the occupants of Bergeron's van had purchased drugs and thus the stop of the vehicle was legal.
The defendant further complains that the forcible extraction of heroin from the mouth of the female suspect constituted an unreasonable search and seizure. U.S. Const. Amend. 4; La. Const. Art. 1, Sec. 5.
The defendant relies on State v. Tapp, 353 So.2d 265 (La., 1977) for support of this *348 position. Although the Louisiana Supreme Court in Tapp, supra found the search and seizure unreasonable, that case is factually distinguishable from the present in the nature and extent of the intrusion. In State v. Tapp, supra, the defendant walked in on the police as they were conducting a warranted search of his house. Upon seeing the officers the defendant put a small tinfoil object covered in cellophane into his mouth and the following events transpired prior to the seizure of the evidence:
Because the officers believed he was trying to swallow a packet of heroin, the three officers set upon him and attempted to force the packet out of his mouth. Tapp resisted their efforts and the ensuing fight rolled onto the front porch, down the steps, and into the yard where two other officers joined the fight. One officer held his hands around defendant's throat in an effort to prevent him from swallowing the evidence. According to the officers, they pummelled defendant in the face and head with their fists, and called on defendant to "Spit it out!" According to defendant's uncontradicted testimony one officer eventually held defendant's nose in an effort to cut off his breathing. The officers estimated that the fight, which one of them described as "one hell of a fight." lasted fifteen to twenty minutes. Eventually the five officers successfully caused defendant to spit up the packet, which was then apparently lodged near or at the top of his esophagus, and they arrested him for heroin possession. Defendant Tapp and two of the officers were taken to the hospital for treatment of their injuries. State v. Tapp, Id. at 267.
The present set of facts regarding the seizure of evidence are more closely akin to those in State v. Winfrey, 359 So.2d 73 (La., 1978). In Winfrey, supra at 73, these events occurred:
As Officers Bourg and Welsh patrolled Claiborne Avenue in New Orleans one night, they observed an automobile traveling without its lights on. The defendant drove that automobile and his co-defendant at trial was the passenger. With the intention of giving him a warning, the officers pulled the defendant over.
Upon stopping, the officers shined a spot light into the defendant's rear-view mirror, and approached the car with flashlights. They saw the defendant and the passenger lean toward the middle of the seat, pick up some objects, and place them in their mouths. When Officer Bourg arrived at the driver's window, he saw the defendant crumble small pieces of foil and put them into his mouth. Officer Welsh observed the passenger swallow the objects he had placed in his mouth. A roll of tin foil lay on the front seat.
Officer Bourg immediately informed the defendant that he was under arrest. When he opened the door, the defendant slammed it shut. He then began to struggle as Officer Bourg attempted to remove him from the car. During this time, the defendant threw a bundle of money to the rear of the car. To retrieve the objects from his mouth, the officer placed one hand by his mouth to get his fingers into it and the other hand on his throat to prevent him from swallowing. Officer Bourg succeeded in removing twenty-two packets of heroin. The struggle lasted approximately one to two minutes.
In upholding the seizure as reasonable under the Fourth Amendment of the U.S. Constitution, the Louisiana Supreme Court in Winfrey, supra, at 77, stated:
Whether police action in extracting contraband from the defendant's person is unreasonable depends upon the totality of the circumstances. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Law enforcement officials may adopt reasonable measures to retrieve contraband and prevent its destruction. State v. Wood, 262 La. 259, 263 So.2d 28 (1972).
To recover the contraband, Officer Bourg held the defendant with one hand so that he might put his fingers in his mouth and with the other hand to prevent *349 him from swallowing. This occurred during a one to two minute struggle which the defendant initiated. There were no injuries.
We conclude that Officer Bourg used reasonable measures in procuring the heroin. His actions do not shock the conscience or "offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically..." Rochin v. California, supra.
In the present case the struggle to retrieve the contraband was short in duration and limited in extent. No injuries resulted. Under the circumstances the measures utilized to retrieve the contraband and prevent its destruction were reasonable.
Additionally, once the heroin was retrieved, it corroborated the information received by the officers who had observed the apparent drug transaction and thus, provided probable cause for the defendant's arrest.
The trial court did not err in refusing to grant the defendant's motion to suppress the evidence.
By assignment of error number 3 the defendant alleges that the trial court erred in refusing to re-open the hearing on the motion to suppress. The motion to re-open was made after the close of all testimony but before the closing arguments and it was based upon the decision in State v. Tapp, supra.
Since we find that State v. Tapp, supra, is factually distinguishable from the instant case and that State v. Winfrey, supra, is controlling, we conclude that the trial court did not err in refusing to reopen the hearing on the motion to suppress the evidence. This assignment lacks merit.
Assignment of Error No. 2
Defendant argues by this assignment of error that there was insufficient evidence to convict him of the crime charged. In this regard he contends that Ms. Peggy Bergeron (a/k/a Ray, a/k/a Carpenter) was not a credible witness, as she was promised reduced charges in exchange for her testimony.[1]
This assignment lacks merit. This court will not review issues of credibility on appeal. State v. Turner, 499 So.2d 1282 (La. App., 4th Cir., 1986).
Additionally, the evidence viewed in the light most favorable to the prosecution was sufficient to support the jury's verdict. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The defendant was charged with distribution of heroin. La.R.S. 40:966.
The record reveals that the policemen observed an apparent drug transaction between James Bolton and the male and female occupants of the red and grey van. The female occupant of the van was found in possession of the substance which tested positive for heroin. She thereafter testified that the defendant had distributed the narcotic.
This assignment lacks merit.
In addition to the defense assignments of error, we have reviewed this record for errors patent on its face. In this regard we observe one such error.
The trial court in this case sentenced the defendant to life imprisonment without benefit of "parole." Although Louisiana Revised Statute Title 40 Section 966 provides for imposition of such a sentence without benefit of probation or suspension of sentence it does not provide that the sentence is to be without benefit of parole. As such we amend the defendant's sentence to delete the provision that it is to be served without benefit of parole.
For these reasons the defendant's conviction is affirmed, his sentence is amended to delete the provision that it is to be served without benefit of parole and as amended, the sentence is affirmed.
CONVICTION AFFIRMED; SENTENCE AMENDED and AFFIRMED.
NOTES
[1] It is noteworthy that the promises made to this witness were fully disclosed at trial.
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107 F.3d 875
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.Dale HOXWORTH, Appellant,v.IMPERIAL HOLLY CORPORATION, Appellee.
No. 96-1713.
United States Court of Appeals, Eighth Circuit.
Feb. 12, 1997.
Appeal from the United States District Court for the Eastern District of Missouri.
Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.
PER CURIAM.
1
Dale Hoxworth appeals the district court's1 denial of his motion for a new trial after a jury returned a verdict in favor of the defendant in his diversity action. Having carefully reviewed the record and the parties' submissions on appeal, we conclude that the district court's judgment was correct. Accordingly, we affirm. See 8th Cir. R. 47B.
1
The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri
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811 F.2d 1507
Hacker (Walter, Anita, Kenneth C.)v.U.S.
NO. 85-4177
United States Court of Appeals,Ninth Circuit.
FEB 04, 1987
1
Appeal From: W.D.Wash.
2
AFFIRMED.
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42 F.3d 460
James A. DUTY; Opal Duty, Appellees,v.CITY OF SPRINGDALE, ARKANSAS; Stanley Ludwig, Individuallyand In His Capacity as Municipal Judge ofSpringdale, Arkansas, Appellants.
No. 94-1611.
United States Court of Appeals,Eighth Circuit.
Submitted Dec. 5, 1994.Decided Dec. 14, 1994.Rehearing and Suggestion for Rehearing En Banc Denied Jan. 25, 1995.
Matthew Keith Wren, Little Rock, AR, argued, Mark R. Hayes, North Little Rock, AR, for appellants.
Erin Lanway, Grove, OK, argued, for appellees.
Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.
PER CURIAM.
1
In this action commenced under 42 U.S.C. Secs. 1983 and 1988 (1988 & Supp. III 1991), the City of Springdale and Springdale Municipal Judge Stanley Ludwig appeal the District Court's order denying their motion for summary judgment. Because we conclude that the District Court erred in denying Ludwig absolute immunity, we reverse the denial of summary judgment as to him. We dismiss the City's appeal for lack of jurisdiction.
I.
2
The material facts are undisputed. Following a bench trial before Ludwig in April 1991, James A. Duty was convicted of speeding and driving with a suspended driver's license. Duty timely appealed and, under Arkansas law, was entitled to a trial de novo in the circuit court. After he was again convicted and sentenced to pay fines and court costs, he timely appealed. While the appeal was pending in the Arkansas Court of Appeals, Ludwig issued a warrant for Duty's arrest for failing to pay the fines and court costs imposed by the circuit court. Thereafter, Duty was arrested and held in custody for several hours before posting bond.II.
3
Relevant to this appeal, the complaint alleged that Ludwig was without jurisdiction to issue the arrest warrant during the pendency of Duty's appeal. It also alleged that the City, "as the employer of the Municipal Judge, ... has failed to properly maintain a constitutionally proper Court by improperly training and supervising its Court." For summary judgment, defendants contended, inter alia, that Ludwig was absolutely immune from suit and that the City could not be liable for Ludwig's actions. In rejecting Ludwig's absolute-immunity argument, the District Court determined that Ludwig acted in the clear absence of jurisdiction because, when he issued the arrest warrant, "there was no case or judgment before the Municipal Court." As to the City, the Court concluded, inter alia, that issues of fact remained as to whether the City had a custom or policy "regarding the collection of court costs after a case has been appealed to Circuit Court."
A.
4
We have jurisdiction over Ludwig's appeal because "the denial of a substantial claim of absolute immunity is an order appealable before final judgment." Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). Unlike Ludwig, however, the City asserted no immunity defense. Because the District Court's order denying summary judgment to the City is not final, we have no jurisdiction to consider the City's interlocutory appeal.1 See Mahers v. Harper, 12 F.3d 783, 785 (8th Cir.1993) ("denial of a motion for summary judgment is not a final judgment, and therefore it ordinarily is not appealable").
B.
5
Turning to Ludwig's appeal, we review de novo an order denying absolute immunity. See Brown v. Griesenauer, 970 F.2d 431, 434 (8th Cir.1992). Although judges are generally immune from suit for money damages, they can be sued in two circumstances. First, a judge may be subject to suit for non-judicial acts. See Lopez v. Vanderwater, 620 F.2d 1229, 1235 (7th Cir.) (judge not absolutely immune for certain "prosecutorial acts" such as deciding to prosecute and determining offense to be charged), cert. dismissed, 449 U.S. 1028, 101 S.Ct. 601, 66 L.Ed.2d 491 (1980). Although Duty argues otherwise, the undisputed facts show Ludwig was acting in his judicial capacity when he issued the arrest warrant, because Arkansas law vests municipal judges with the power to issue arrest warrants. Ark.Code Ann. Sec. 16-81-104(a)(1) (Michie 1987) (vesting judges of police courts with power to issue warrants of arrest); id. Sec. 16-17-205 (Michie 1994) (vesting municipal courts with all jurisdiction exercised by police courts).
6
Second, judges are not immune from lawsuits based on actions taken in the complete absence of all jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 288, 116 L.Ed.2d 9 (1991) (per curiam). But "[b]ecause some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, the scope of the judge's jurisdiction must be construed broadly where the issue is the immunity of the judge." Stump v. Sparkman, 435 U.S. 349, 356, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331 (1978) (internal quotation and citation omitted). An act in excess of jurisdiction will not deprive a judge of immunity. Id.
7
A distinction thus exists between acts performed in excess of jurisdiction and those done in the absence of jurisdiction. As to the former, a "judge acts in excess of jurisdiction if the act complained of is within his general power of jurisdiction but is not authorized because of certain circumstances." Billingsley v. Kyser, 691 F.2d 388, 389 (8th Cir.1982) (per curiam). As to the latter, "[t]here is a clear absence of jurisdiction when a court of limited jurisdiction attempts to adjudicate a case outside of its jurisdiction, such as when a probate court conducts a criminal trial." Mann v. Conlin, 22 F.3d 100, 104 (6th Cir.) (internal quotation omitted), cert. denied, --- U.S. ----, 115 S.Ct. 193, 130 L.Ed.2d 126 (1994).
8
Even accepting as true Duty's contention that an Arkansas municipal judge lacks authority to enforce the circuit court's judgment, we hold that Ludwig is entitled to absolute immunity. Because Arkansas law authorizes municipal judges to issue arrest warrants, it is clear that in these circumstances Ludwig acted, at most, in excess of jurisdiction and not in the clear absence of jurisdiction. See Billingsley, 691 F.2d at 389-90 (Missouri circuit court judge, who erroneously amended inmate's sentence during pendency of appeal, acted only in excess of jurisdiction because he was empowered to rule on criminal matters, including amendment of sentences); see also King v. Myers, 973 F.2d 354, 357-59 (4th Cir.1992) (Virginia magistrate, who under state law had authority to arrange for arrest of an individual, accorded absolute immunity even though "authority to issue process of arrest may well have been overstepped, perhaps even widely").
III.
9
For the reasons stated, we reverse the order of the District Court and remand the case with directions that Ludwig's motion for summary judgment on the ground of absolute immunity be granted and that final judgment in his favor be entered. We dismiss the City's appeal and remand for further proceedings consistent with this opinion.
1
We express no view as to the merits of the City's arguments on appeal
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 27, 2009*
Decided May 29, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08‐3140
SHAUN DONOVAN, Secretary of On Petition to Enforce an Administrative
Housing and Urban Development, Consent Order of the United States
Petitioner, Department of Housing and Urban
Development.
v.
No. 07‐044‐FH
MICHAEL BASSALI,
Respondent.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 08‐3140 Page 2
O R D E R
Roziel Reyes filed a complaint with the United States Department of Housing and
Urban Development (HUD), claiming that landlord Michael Bassali violated the Fair
Housing Act by refusing to rent to Reyes on the basis of her familial status. See 42 U.S.C.
§ 3604(c). After Bassali failed to attend the initial hearing on the complaint, the ALJ granted
HUD’s motion for a default judgment and, shortly thereafter, entered an order to which
both parties consented, requiring Bassali to pay Reyes $15,000, pay the government $2,000,
and attend fair housing training. HUD then dismissed the complaint with prejudice, as
agreed. See http://www.hud.gov/offices/fheo/enforcement/bassali‐consent.pdf (last visited
May 15, 2009). Bassali failed to comply with his obligations in the consent order and HUD
now petitions for enforcement of that order. See 42 U.S.C. § 3612(j).
Bassali responded to the Secretary’s petition, arguing that his attorneys misled him
into accepting the consent order and that HUD should expunge from the internet the now‐
dismissed allegations. But he never filed a petition for review of the consent order, raising
these objections, within 45 days as required under the Act. See 42 U.S.C. § 3612(l). What is
more, the consent order contains an explicit waiver of Bassali’s right to petition for review,
which prevents us from considering any of the objections. See ACORN v. Edgar, 99 F.3d 261,
262 (7th Cir. 1996). Because the Act provides that the clerk of the court of appeals “shall
forthwith” enter a decree enforcing the order where no petition for review has been filed, 42
U.S.C. § 3612(n), HUD is entitled to enforcement of the consent order. And in any case, the
consent order contains no promise to rid the internet of all references to the allegation, and
Bassali’s complaint about his attorneys may be brought against them in a separate suit, but
not in these proceedings.
Accordingly, we GRANT the petition and hereby ENFORCE the consent order.
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336 F.Supp. 576 (1971)
William A. A. TAHL, Petitioner,
v.
Joseph O'CONNOR, Sheriff of San Diego County, Respondent.
Civ. No. 70-234.
United States District Court, S. D. California.
November 23, 1971.
*577 Charles M. Sevilla, William A. Brockett, John J. Cleary, of Federal Defenders of San Diego, Inc., San Diego, Cal., for petitioner.
Evelle J. Younger, Atty. Gen., by Jay D. Coulter, Deputy Atty. Gen., San Diego, Cal., for respondent.
MEMORANDUM OF DECISION
TURRENTINE, District Judge.
On February 24, 1966, petitioner, William A. A. Tahl, was sentenced to death by the Superior Court of California, in and for the County of San Diego, subsequent to his pleas of guilty to two counts of murder in the first degree, one count of attempted armed robbery, one count of rape, and one count of grand theft auto. Pursuant to 28 U.S.C. § 2254, petitioner now seeks to overturn his conviction on the following basis:
(1) The standards for the acceptance of a guilty plea as enunciated in the case of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), were not satisfied;
(2) The guilty pleas were not voluntarily and intelligently entered due to:
(a) Inadequate and misleading examination by the trial court as to the meaning and consequence of his pleas;
(b) The disabling effects of petitioner's ingestion of six one-quarter grain tablets of phenobarbital;
(3) The incompetence of counsel rendered the guilty pleas involuntary and generally reduced the entire trial to a sham or farce;
(4) The prosecutor failed to disclose to the defense evidence favorable to the defendant, in direct contravention of the mandate in the case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963).
After thoroughly reviewing the pleadings, the points and authorities submitted by the parties, the evidence adduced at the evidentiary hearing which was held on September 16 and 17, 1971, and October 14, 1971, as well as the arguments *578 of counsel, this court determines that the Petition of Writ of Habeas Corpus should be denied for the reasons set forth hereinafter. This memorandum of decision embodies the court's findings of fact and conclusions of law pursuant to Rule 52, Federal Rules of Civil Procedure.
I. APPLICABILITY OF THE DOCTRINE ENUNCIATED IN THE CASE OF BOYKIN v. ALABAMA, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 2d 274 (1969).
With respect to the first contention, this court is of the opinion the doctrine of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), is inapplicable because of its wholly prospective nature. United States ex rel. Sanders v. Maroney, 438 F.2d 1185 (3rd Cir. 1971); Benn v. Eyman, 436 F.2d 1074 (9th Cir. 1971); Jones v. Fitzharris, 435 F.2d 553 (9th Cir. 1971); Simmons v. Craven, 435 F.2d 554 (9th Cir. 1971); Smith v. Cox, 435 F.2d 453 (4th Cir. 1970); United States ex rel. Baity v. Maroney, 435 F.2d 1254 (3rd Cir. 1970); United States ex rel. Rogers v. Adams, 435 F.2d 1372 (2nd Cir. 1970); United States ex rel. Sadler v. Commonwealth of Pennsylvania, 434 F. 2d 997 (3rd Cir. 1970); Meller v. State of Missouri, 431 F.2d 120 (8th Cir. 1970); Lawrence v. Russell, 430 F.2d 718 (6th Cir. 1970); Perry v. Crouse, 429 F.2d 1083 (10th Cir. 1970); United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3rd Cir. 1970); Moss v. Craven, 427 F.2d 139 (9th Cir. 1970); Miller v. Cupp, 427 F.2d 710 (9th Cir. 1970); Del Piano v. United States, 427 F.2d 1156 (3rd Cir. 1970); United States ex rel. Fear v. Commonwealth of Pennsylvania, 423 F.2d 55 (3rd Cir. 1970); United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3rd Cir. 1969).
II. VOLUNTARINESS OF THE GUILTY PLEAS.
(1) Petitioner's contention that the examination by the trial court as to the meaning and the consequences of the pleas was inadequate and misleading.
This court notes that petitioner previously has raised this point before the Supreme Court of California in an original proceeding in habeas corpus. In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 (1969). In an able and exhaustive opinion, that court gave careful consideration to this contention and ruled adversely to the petitioner. After a review of that decision and after hearing testimony on this issue, this court concurs with the finding of the Supreme Court of California for the reasons set forth in its decision, that "the trial court here adequately examined petitioner prior to accepting his plea of guilty." In re Tahl, supra at 1 Cal.3d 122, 129, 81 Cal. Rptr. 577, 582, 460 P.2d 449, 454.
(2) Petitioner's contention that the disabling effects of his ingestion of six one-quarter grain tablets of phenobarbital rendered him incapable of voluntarily and intelligently entering a plea of guilty.
Petitioner contends that on the day which his guilty pleas were entered he had ingested six one-quarter grain tablets of phenobarbital which had the effect of rendering him incapable of understanding the meaning of his pleas. In support of this contention, petitioner testified that the pills were provided him by a cellmate, Edward Graham, who had "palmed" them over a period of time. Evidence was introduced to establish that Edward Graham had received four phenobarbital tablets daily for a period of four months, commencing October 8, 1965 and ending January 23, 1966, while he was incarcerated in the San Diego County Jail. Psychiatric testimony was then presented to establish that there is a cross-sensitivity between alcohol and phenobarbital so that individuals who are highly sensitive to alcohol, such as the petitioner is alleged to be, are likely to be sensitive to phenobarbital.
This contention must fail for several reasons. First, the only evidence which the petitioner has introduced in direct *579 support of this contention is his own testimony, and the court is well aware that where a witness has a strong personal interest in the result of the suit, the temptation is strong to color, pervert or withhold the facts. Reagan v. United States, 157 U.S. 301, 15 S.Ct. 610, 39 L.Ed. 709 (1895). That some perversion of the facts did occur is evident from certain portions of petitioner's testimony, with respect to this and another matter, which can best be described as outright prevarications. In an apparent zeal to bolster his own position, petitioner testified that Edward Graham had supplied him with the phenobarbital pills during the week of the trial and subsequent thereto (RT. 157). However, evidence presented by the respondent, State of California, clearly indicates that Mr. Graham had been transferred from the San Diego County Jail ten days prior to the entry of petitioner's pleas. Also, in a matter collateral to the instant question, petitioner testified that the victim of the rape, Mrs. Diana Dawson, had visited him several times while he was in jail awaiting trial. During these visitations, according to Tahl, she repudiated her statement to the authorities concerning the alleged rape. This "backtracking" allegedly was made explicit in a letter which Mrs. Dawson mailed to Tahl before the penalty phase of the trial (RT. 119, 120). The letter, as well as the substance of Mrs. Dawson's conversations with petitioner, purportedly, were revealed to petitioner's counsel, who is now faulted for failing to use this information to petitioner's advantage. However, not only did petitioner's former attorney steadfastly deny that such information was communicated to him (RT. 212), but also when Mrs. Dawson was called to testify she unequivocally stated that she had never indicated to anyone that the charge of rape was untrue (RT. 262). The court, therefore, is, constrained to view the testimony of petitioner in a most cautious manner.
Further repudiation of petitioner's contention is found in the fact that each of the two psychiatrists who were called to testify in petitioner's behalf indicated that six tablets of phenobarbital was not a large dosage and would have little effect on the average person. While the argument might be made that petitioner is not an average man in this respect, this court is ultimately persuaded by the fact that no fewer than six witnesses testified that they had an opportunity to closely observe petitioner's demeanor at the time the pleas were entered and detected nothing which would indicate to them that petitioner was under the influence of drugs. These witnesses consisted of the presiding judge, the prosecutor, petitioner's own counsel, the court reporter and two deputies from the San Diego County Sheriff's Office. The court can, therefore, only conclude that, in the words of Albert Camus, "In prison, dreams have no limits and reality is no curb."
III. INCOMPETENCE OF COUNSEL.
The Sixth Amendment of the Constitution, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, guarantees to every defendant in a criminal trial, the effective assistance of counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Petitioner seeks redress on the basis that the counsel appointed to represent him in the trial was so incompetent as to afford him virtually no representation at all, thereby reducing the trial to a complete farce or sham. While this issue has never been presented to the courts of the State of California and, therefore, is not properly before this court,[1] this court, in the interest of justice, will take cognizance of the question of counsel's competency. Gingrich v. Oberhauser, 305 F.Supp. 738 (1969).
In support of this allegation, petitioner focuses mainly upon five aspects *580 of counsel's representation: failure of counsel to raise the issue of petitioner's diminished capacity; failure of counsel to raise the issue of petitioner's sanity; failure of counsel to introduce in evidence a letter from the rape victim which is purported to have contained information which would have rendered her subject to impeachment; failure of counsel to make an opening statement; and failure of counsel to introduce evidence at the penalty phase other than the testimony of one psychiatrist when additional evidence was available.
To place these contentions in the proper perspective, it is necessary to recapitulate, in some detail, the evidence which was confronting petitioner's former counsel when the critical decisions of trial strategy were being made. However, the court initially notes that this is not a case of an unfortunate defendant being swiftly delivered into the hands of the executioner by an inexperienced attorney who found himself overwhelmed by a superior adversary. Indeed, at the time of petitioner's trial, his appointed counsel had been engaged in the practice of law for eight years, of which three and one half years were spent as a deputy district attorney in San Bernardino County, California, during which time he prosecuted mainly felonies, including two homicides. Subsequent to his experience as a prosecutor, counsel engaged in the private practice of law, devoting twenty-five percent of his time to the representation of defendants in criminal proceedings.
On March 31, 1965, at 4:30 A.M., a San Diego police officer received a radio call to proceed to the Mission Bay Yacht Club to investigate a possible gunshot incident. Upon arriving at the scene, the officer found Victor Bowen and his wife, Vernice Bowen, lying severely wounded in their caretaker's cottage. Both had been shot in the lower abdomen with a .410 shotgun, which was later found on the premises. Their condition was extremely critical, so much so that the attending physicians were amazed that they did not succumb during surgery but rather lingered for several days. Nonetheless, the victims were conscious and able to respond to questions by the officer and his colleagues concerning the identity of their assailant. Each stated that he was an Eskimo by the name of Art Tahl who was employed at the Mission Bay Yacht Club as a handyman, a position he had held for several months previous to this incident. The victims stated that they had been confronted by Tahl brandishing a weapon and demanding the keys to the office safe. Mr. Bowen had refused, whereupon a brief scuffle ensued, ending tragically with petitioner shooting the Bowens from close range.
Petitioner then fled the Yacht Club in a 1953 Ford pickup truck, one of the three motor vehicles which petitioner had stolen on the eve of the shootings. He proceeded to the home of Diana Dawson, where he threatened to kill her child with the knife he was carrying unless she submitted to an act of sexual intercourse with him. Suffice it to say that the evidence overwhelmingly establishes that this act was engaged in without the consent of Mrs. Dawson.
The prosecution also had at its disposal evidence that this was not the first time that the crime of rape had been perpetrated by petitioner. Indeed, in 1959, a rather bizarre incident took place in a sparsely populated area in the northern regions of the City of San Diego. There, petitioner stopped the stolen car in which he was transporting his eighteen year old female passenger, whom he had met only that evening, to her home. He demanded that she partake in an act of sexual intercourse with him, but she refused. The woman fled the automobile and secreted herself in the underbrush, trying to avoid detection until such time as she could escape. But Tahl carefully searched the area, threatening to kill the woman unless she disclosed her whereabouts. After several anxious minutes, she decided to leave her hiding place and began to make her way down the road. However, petitioner caught her and forced her to submit to *581 an act of sexual intercourse. After completion of the act, petitioner and his victim returned to the automobile at which time he stated that he was taking her to another state. She protested but to no avail. As the car proceeded along the highway the woman opened the door and stuck her legs out in a desperate attempt to attract the attention of a passing motorist. A police patrol car was parked by the side of the road, with its driver a curious spectator to this unusual event. Immediately the officer began to pursue the vehicle at speeds ranging up to 80 miles per hour. As the officer drew his patrol car alongside the fleeing vehicle, petitioner swerved his automobile into the officer's forcing it onto the center island. After petitioner had rammed the patrol car three times, the officer drew his revolver and began firing. One of the bullets hit the left front tire, ending the chase. Petitioner was then taken into custody, but for reasons unknown to this court, these acts were never the basis of any criminal prosecution.
After raping Diana Dawson, petitioner then fled to Dallas, Texas, where he procured employment in a labor pool, using the alias "Arthur Spencer." On April 26, 1965, petitioner arrived late for work, asking if his paycheck was ready. When the operator of the labor pool inquired why he had not shown up for work that morning, petitioner stated that "he had Ward got hold of some bad whiskey" and that Ward was home in bed. "Ward" was William Eugene Ward whose lifeless, battered body was discovered that same day on the floor of the small apartment he and Tahl had been sharing. The evidence established that petitioner had severely beaten and stabbed Ward, and then, in what only can be described as a vicious act of sadism, petitioner took a broken leg of a wooden stool, lubricated it with hair dressing, and inserted it in the victim's rectum.
Tahl then left Dallas and traveled to St. Louis, Missouri, where he brutally beat yet another individual, Marvin Thomas, his hapless roommate of approximately six months. On the night of November 4, 1965, petitioner attacked Marvin Thomas with a shot-filled blackjack and slashed him across the stomach with a hunting knife. Petitioner then tied the unconscious victim to the bed and commenced to suffocate him, but, in a rare moment of compassion, he changed his mind and satisfied himself by merely robbing Thomas of an undetermined amount of money. After leaving the scene of this crime, petitioner returned fifteen minutes later only to find that police officers had been summoned and already were in the apartment. When one of the officers attempted to question Tahl, he pulled two pistols from his own person and pointed them at the officer. A ninety minute unilateral conversation then ensued, with the petitioner not only making an unsolicited confession of the California and Texas murders but also voicing his intentions to travel to Cleveland, Ohio, where he planned to murder yet another man.
Finally, in what must have been viewed as prosecutorial overkill by the defense, there were three prior convictions for auto theft which the prosecution had at its disposal and which ultimately were introduced at the penalty phase of the trial.
The test by which this court is to judge the competency of petitioner's counsel is clearly established. Petitioner must prevail if he can establish that "the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference or preparation." Williams v. Beto, 354 F.2d 698, 704 (5th Cir. 1965); Bouchard v. United States, 344 F.2d 872 (9th Cir. 1965); United States ex rel. Cooper v. Reincke, 333 F.2d 608 (2nd Cir. 1964). The test remains the same in capital and noncapital cases alike.
*582 Addressing the issue of incompetency of counsel, this court finds that, as to the fifth item of counsel's alleged incompetency, namely, his failure to introduce evidence at the penalty phase other than the testimony of one psychiatrist, there is no merit in petitioner's contention. Aside from the question of Tahl's sobriety and sanity on the morning of the California murders, factors which are discussed below, there has been no showing that additional relevant and persuasive evidence of an extenuating or mitigating nature was available. Petitioner now makes reference to "his background and personal history (e. g., prior history of violence in other children of the family), and the absence of any prior convictions of assaultive crimes." (Petitioner's Proposed Findings of Fact and Conclusions of Law, p. 4). While there has been no indication that counsel had ever been apprised of the family's background, even if the court were to find that counsel knew of these details but elected to keep them from the jury, this court still would not be persuaded that counsel was derelict in this respect. Indeed, evidence of the Tahl family's proclivity for violence and aberrant acts, short of a basis for a defense of insanity or diminished capacity, could have succeeded only in advancing the case of the prosecution; and, as subsequently shown in this opinion, neither of these defenses appeared to be viable.
This court is somewhat amazed by the assertion of petitioner that counsel was negligent in failing to introduce evidence of the "absence of any prior convictions of assaultive crimes," in light of the fact that the prosecution submitted evidence of three savage murders, three aggravated assaults, and two rapes. Suffice it to say that this court fails to understand how evidence that petitioner had never before been convicted of similar acts would persuade even the most naive of jurors.
With respect to the fourth item of evidence of counsel's alleged incompetence, failure to make an opening statement, the court points out that opening statements are commonly waived by trial attorneys, especially when counsel has only a weak case to present. In the words of the Fifth Circuit, "It could well be considered that this was no time for defense counsel, at the very outset, in an opening statement to reveal the weak hand he had to play." Williams v. Beto, 354 F.2d 698, 703 (5th Cir. 1965). This was a matter of professional judgment for which this court cannot fault counsel.
Mention has already been made with respect to petitioner's third claim of counsel's incompetency, regarding the failure of counsel to introduce into evidence a letter from the rape victim which is purported to have contained information which would have rendered her subject to impeachment. In support of this contention, petitioner testified that while he was incarcerated in the San Diego County Jail, Diana Dawson, the rape victim, sent him a letter wherein she indicated that she was sorry that she filed the rape charges and the reason for so doing was because of her mistaken belief that she was pregnant by Tahl, the implication obviously being that intercourse was consensual. Petitioner then stated that he personally delivered this letter to his former attorney who failed to use it to his, petitioner's, advantage (RT. 119, 120). However, Mrs. Dawson's version of any letter-writing is in direct contravention of petitioner's assertions, as indicated by the following colloquy:
COUNSEL FOR RESPONDENT: Mrs. Dawson, have you ever, since making these charges, told anybody that they were not true?
MRS. DAWSON: No, sir.
COUNSEL FOR RESPONDENT: Have you ever written a letter, or made a written statement to anybody to the effect that the charges that Mr. Tahl raped you weren't true?
MRS. DAWSON: No, sir. (RT. 262.)
Accordingly, the court finds that there was, in fact, no letter from Diana Dawson *583 which would have rendered her subject to impeachment.
Of greater concern to the court is the failure of counsel to raise the question of petitioner's sanity and the issue of diminished responsibility, especially in view of the fact that two psychiatrists were called to testify at this hearing and each was of the opinion that petitioner was not aware of the nature of his acts in shooting Mr. and Mrs. Bowen on March 31, 1965. Indeed, Dr. Phillip Solomon unequivocally stated at the hearing that, in his opinion, petitioner was insane at the time of the shootings (RT. 75); whereas, Dr. Ira N. Frank opined that petitioner was suffering from an alcoholic blackout at the time of the shootings, which rendered him unable to control his actions. (RT. 91.)
Taken out of context, such an "oversight" on the part of any defense counsel would have to be considered of great significance in assessing the competency of the representation provided a defendant accused of homicide in the first degree. However, this court is charged with the responsibility of judging the actions or inactions, of counsel in their proper perspective, namely, at the time preceding and during the trial of petitioner.
It is not as if counsel for petitioner completely overlooked the defense of insanity; indeed, the evidence before this court indicates that petitioner's counsel diligently attempted to procure the services of no fewer than seven psychiatrists, each of whom declined to render assistance because of the amount of time such assistance would entail. Finally, he was successful in persuading Dr. Brent C. Campbell a neurologist and board certified psychiatrist[2] to consult with the petitioner. Based upon a psychiatric interview, a Minnesota Multiphasic Personality Inventory and an electroencephalogram, Dr. Campbell concluded that petitioner was not insane at the time of the commission of the acts for which he was tried.
It is not for this court now to decide which of the three psychiatrists, Dr. Solomon, Dr. Frank, or Dr. Campbell, is the most learned or most qualified; it is not for this court to now say which of the various approaches used by each psychiatrist was the more proper or more professional one. The role of this court is to scrutinize the actions, or inactions, of counsel relative to the question of petitioner's sanity, and thereby determine his competency. Unless it can be said that Dr. Campbell's examination of petitioner was cursory or non-existent or that Dr. Campbell was in some way unqualified to act in the capacity of an expert witness, and petitioner's counsel knew or should have known of these shortcomings, then this court cannot fault petitioner's counsel for relying on the opinion of Dr. Campbell that Tahl was sane at the time of the commission of the offense and structuring the case for the defense accordingly.
The record before this court is devoid of any evidence which would lead this court to conclude that Dr. Campbell's opinion was ill-founded and that petitioner's counsel knew, or should have known, of this fact. On the contrary, the evidence reflects that Dr. Campbell adequately performed his examination by personally interviewing the petitioner and administering him a series of tests. The fact that petitioner is now able to *584 produce other psychiatrists who take exception to the opinion of Dr. Campbell is not persuasive in resolving the question of counsel's competency. After scrutinizing the psychiatric report submitted by Dr. Campbell and his testimony, as given at the penalty phase of this case, the report of Dr. Melvin G. Goldzband concurring with Dr. Campbell's diagnosis (Exhibit A) and the testimony of Drs. Solomon and Frank, this court can only conclude that this is an instance of well-qualified experts disagreeing as to the conclusion to be drawn from a given set of facts. Each opinion is separately defensible and separately supportable by carefully gathered psychological data concerning petitioner. None can be said to be so unworthy of merit that reliance upon the opinion by an accused's counsel per se, reduces the trial to a sham, farce, or mockery.
Implicit in the argument of petitioner is the contention that counsel was derelict in relying only upon the opinion of Dr. Campbell. While petitioner's present counsel disclaims any suggestion that his predecessor should have engaged in the oft-practiced art of doctor-shopping, the point is made that more than one psychiatrist should have been consulted. As previously indicated, petitioner's former counsel contacted no fewer than seven psychiatrists, each of whom declined to examine petitioner, before he was able to procure the services of Dr. Campbell. This well-qualified neurosurgeon and board certified psychiatrist was unable to provide defense counsel with even a scintilla of hope that the defense of insanity was a viable issue. On the contrary, in his opinion, petitioner suffered only from a sociopathic personality, a defect which falls short of qualifying as a basis for defense of insanity. McMullen v. Superior Court, 6 Cal.App.3d 224, 85 Cal.Rptr. 729 (1970).
In the last analysis, the test must necessarily be that of the reasonably competent defense attorney. With this standard in mind, the court cannot say, as a matter of law, that it was incumbent upon petitioner's counsel to consult with other psychiatrists, especially in light of the qualifications of Dr. Campbell and his considered opinion that the defense of insanity was not medically supportable.
Turning next to the question of diminished capacity, petitioner's present counsel makes an able argument in support of his contention that the failure of petitioner's former counsel to raise this issue was evidence of his incompetency. However, after listening to the explanation of petitioner's former counsel, which was rendered at the evidentiary hearing in this case, this court finds that his decision not to place this issue before the jury is entirely defensible.
There can be no doubt that counsel was very much aware that voluntary intoxication, though not a complete excuse of homicide, may be the basis of diminished capacity as a defense to murder. People v. Juarez, 258 Cal.App.2d 349, 65 Cal.Rptr. 630 (1968). This awareness is reflected both in the notes which counsel prepared prior to trial (Exhibit 3) and from his testimony at the evidentiary hearing:
Q. What defense strategies did you consider on the issue of guilt or innocence at the trial phase?
A. If we were to put on a defense, the only possibility I saw was the possibility of using the diminished capacity. Frankly, there was little you could go to as far as defense. There was not a question, apparently, no raising of a question of the acts not having been committed, which certainly limited what you can raise in the juror's mind. The rest of the question was mainly of mental capacity.
Q. Did you consider the factor of drunkenness on the evening of the shootings?
A. Yes, and felt that if I had any possibility of working with it, I had to have medical support. Without the medical support, I felt it would harm Mr. Tahl rather than help him, if he attempted to go himself with this testimony *585 and had an almost directly contradictory evaluation from Dr. Campbell.
Q. When you indicated you needed medical testimony, are you referring to the issue of drunkenness?
A. No, not on the issue of drunkenness; but I had to consider that again, the fact we had almost, as I recall, about six hours of constant activity involving movements of three or four, I think three vehicles, actions covering travel across and about the city. I felt that trying to support that without a psychiatrist's opinion was more harm than it was good.
Q. Did you have a psychiatrist's opinion on the issue of drunkenness that evening?
A. Only that part of the report that indicated that the doctor did not seem to find a mental state that would indicate a great deal of drunkenness on this evening. His opinion seemed to be contraindicated. (RT. 40).
. . . . .
Q. Referring your attention to the last paragraph where Dr. Campbell is discussing the issue of alcoholism, would you read that into the record please?
. . . . .
A. "Although I personally think that alcoholism is a defense in certain instances. I do not believe that this man has the disease of alcoholism as such. His manner of presentation, the psychiatric interview, as well as . . the other tests would certainly indicate a primary sociopathic personality with the usual behavior resulting from that." (RT. 42).
. . . . .
Q. If I understand your testimony, your attemptyou attempted to find witnesses who could testify that Mr. Tahl had been drinking, or was under the influence of alcohol, and you were successful?
. . . . .
A. No, I found witnesses who would say he had been drinking, but I could not find could not get witnesses that would go on the idea that he absolutely did not know what he was doing, and I could not get a tie in with some medical testimony that would present, in my mind, at least, a good diminished capacity defense. Yes, you could have put on Mr. Tahl, you could have put on these other people. It was highly questionable as to how successful the defense would be. (RT. 66, 67).
* * * * * *
Q. Let me go over one point again. The reason you did not call any witnesses that would have testified that Mr. Tahl had been drinking in the regarding the diminished capacity defense is simply you did not feel they would be credible to the jury, is that correct?
A. That's correct; and I also felt that even if believed at that point, they were going to hurt us bad. At this point the question was of life or death. To my way of thinking, if the jury got the idea it was a drunken spree, it was the best thing to send him to the gas chamber. (RT. 212, 213).
. . . . . .
Q. If you had testimony available as to Mr. Tahl's consuming a great deal of liquor, and his appearing intoxicated, why is it that you decided to forego that defense?
A. For this reason, and I think I reiterated it before. I had testimony available that he had been drinking a great deal. I had Wilma Tahl's testimony. I had his own, and whoever else was residing in the house. As I recall, that was in the police reports. These people would testify he had been drinking, and drinking a great deal, according to the information I had; but I had this problem. There is an indication of lack of recollection. I have no doctor who is going to support me on the point of diminished capacity. The witnesses I talked to, and in my estimation, would not have really established this defense in the minds *586 of the jury; and I have, again, the idea that there is no recollection. I have a complete statement taken in St. Louis, and as far as I could tell, it would have gotten by the Miranda defense, because all indications are the officers there didn't know about these matters in San Diego. So, you don't have an accusatory statement as to this crime where thewhere you could use the Miranda defense. To my understanding and belief at that time, that evidence was going to come in, and I'm up against this problem. I have all the movement. I have Diana Dawson who would talk about the rape charge, indicating not a particular amount of drinking. To me the focal point was whether I could back it up with medical testimony, and I had no good medical testimony. (RT. 223, 224.)
The defense of diminished capacity was one which counsel adequately explored, but one for which he could find no persuasive evidence to place before the jury in support thereof. At the evidentiary hearing in this matter, petitioner's present counsel adduced testimony from witnesses who ostensibly were in a position to testify in Tahl's behalf at the trial but were not called. Petitioner, himself, also testified regarding his level of intoxication and his inability to recall the events which transpired. However, after having had the opportunity to personally observe the demeanor of these witnesses and review the substance of their testimony, along with other evidence relevant to this issue, this court is of the considered opinion that the decision on the part of counsel not to put this testimony before the jury was the result of careful calculation as to the adverse effect such testimony might have on the jury. This court finds that, to a great extent, the testimony of these witnesses as to the degree of petitioner's intoxication is rebutted by other evidence which was available at the time of trial and which was subsequently brought to the court's attention at the evidentiary hearing.
Those factors which stood to undermine any defense of diminished capacity are as follows: Tahl now claims that he was so intoxicated at the time of the commission of the capital offense that he was unable to formulate the requisite specific intent, yet there is evidence of constant activity on Tahl's part for a six hour period of time immediately before and after the shooting of Mr. and Mrs. Bowen. This activity consisted of not only the theft of three different automobiles and a substantial amount of driving across one of California's largest urban areas, but also involved an accomplished act of sexual intercourse. In direct contravention of petitioner's contention of an "alcoholic blackout" is the testimony of Diana Dawson wherein she stated that Tahl gained entrance to her home by means of a ruse, telling her that her mother was so seriously ill that she was being taken to a hospital. Once within her home, Tahl admitted he had lied, saying he was playing an "April Fool's" joke. After consummating the rape, petitioner requested a cup of coffee. While Mrs. Dawson was preparing the coffee she turned on the radio and heard that two people were shot at the Mission Bay Yacht Club, the suspect being William Tahl. When Mrs. Dawson did not hear the names of the victims mentioned in the broadcast, she rhetorically asked "Oh, I wonder who that was." Petitioner immediately replied "That was Vic and his wife." (RT. Penalty Phase, 396, 397).[3] Later testimony indicated that the news broadcast did not identify the victims; the only logical inference, in view of the other evidence submitted, was that the petitioner was the conscious perpetrator of these acts, and that he was not intoxicated at the time of this encounter with Diana Dawson, which took place no more than ninety minutes after the shootings.
Additionally, the prosecution had the benefit of Tahl's detailed St. Louis confession, *587 wherein he stated that he "killed two people in San Diego, California, on April Fool's Day of this year (1965) with a shotgun." (RT., Penalty Phase, 483, 484). He then went on to state that his victims were an elderly man and woman who had been his former employers at a yacht club in the San Diego area, and that after the shooting he had taken an unknown amount of money from the man. (RT. Penalty Phase, 484.) These acts are hardly representative of a man who was too intoxicated to form a requisite specific intent to support a conviction of first degree murder under California Penal Code, §§ 20, 187 and 189.
Petitioner emphasizes the fact that Dr. Ira Frank is now of the opinion that petitioner was operating in an "alcoholic blackout" at the time of the shootings. (RT. 93). However, Dr. Frank admitted that he had not been apprised of the fact that Tahl's St. Louis confession which certainly establishes an awareness by petitioner of the nature of his acts in San Diego. While Dr. Frank stated that such information would not substantially vary his opinion, he stated he would certainly have less confidence in the opinion. This court shares Dr. Frank's failing confidence in such an opinion.
Essentially, this issue devolves into one similar to the question of petitioner's sanity, and must be resolved in a like manner. Petitioner has produced a psychiatrist who now concludes that petitioner was suffering from an "alcoholic blackout" at the time of the shootings, but Dr. Campbell explored this question of intoxication and concluded that the defense was not a medically supportable one:
In view of the sociopathic scale and the story which this man told, I do not fully believe any of the details concerning his treatment at the county jail, the story that he was completely blacked out during this episode when the offense occurred, as well as many of the other details of his former life. (Exhibit 4, p. 2.)
Again we are confronted with the dilemma of choosing between the differing opinions of two well qualified psychiatrists. Again we reiterate, that it is not the role of the court, in the resolution of this issue, to make such an election. This court is reviewing only the representation accorded by petitioner's counsel and finds that he was completely justified in relying upon the opinion of Dr. Campbell that a defense of diminished capacity by virtue of voluntary intoxication was not medically supportable.
Faced with petitioner's repeated desire to plead to the offense, (RT. 133, 134), the lack of medical testimony regarding this "defense," the fact of constant activity on the night of the shootings, Tahl's St. Louis confession and the testimony of Diana Dawson who had previously stated to petitioner's counsel that there was no indication that Tahl was intoxicated (RT. 209, 210), and after hearing the witnesses who were available to testify in support of this defense, this court does not find that his decision to forego the interposition of the defense of diminished capacity reduced the trial to a farce or a sham.
IV. NONDISCLOSURE BY PROSECUTOR OF EVIDENCE FAVORABLE TO THE DEFENDANT.
The gravamen of this assertion of error is that the prosecutor failed to disclose to the defense the information which he is alleged to have received from Diana Dawson to the effect that the act of sexual intercourse with Tahl was conensual. The prosecutor is then supposed to have threatened to prosecute Mrs. Dawson for perjury should she vary her testimony from that given to the grand jury. Were such allegations within the realm of reality, this court would have no choice but to order the issuance of the writ. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, such is not the case.
In support of this contention, petitioner called the prosecutor, who is now a *588 judge of the Municipal Court of the San Diego Judicial District, and who emphatically denied such allegations. Diana Dawson was then called, and she also indicated that no such information had been communicated to anyone. Accordingly, this court finds no misconduct on the part of the prosecutor and no basis for petitioner's final contention.
V. CONCLUSION
For the aforementioned reasons, this court finds each of petitioner's contentions of error to be without merit. Petitioner has failed to establish that any of his safeguarded constitutional rights were violated in the initial trial of the case. This court finds that petitioner was adequately represented by competent counsel at those proceedings and that he knowingly and intelligently entered a voluntary plea of guilty to the offenses for which he had been indicted. Further, there has been no showing that the prosecutor in any way abused his office and prejudiced petitioner by failing to disclose evidence favorable to the accused. Lastly, as previously stated, the doctrine enunciated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), is not to be applied retroactively.
The court is well aware of petitioner's plight and the strong temptation to beleaguer the federal courts with numerous petitions under 28 U.S.C. § 2254 in an attempt to stay indefinitely the execution of his sentence. Accordingly, the court specifically notes that petitioner was accorded ample opportunity to submit each and every allegation of error which might constitute grounds for the issuance of said writ. Additionally, petitioner was accorded full opportunity to raise all issues of fact and conclusions of law in support of his allegations of error.
This court also specifically finds that petitioner was ably represented by competent counsel from the office of Federal Defenders of San Diego, Inc., whose manner of preparation and presentation is beyond criticism.
NOTES
[1] Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1962) and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed. 2d 837 (1963).
[2] Dr. Campbell's qualifications are as follows: He graduated from the University of Kansas Medical School in 1944, interning at San Diego County Hospital. From 1946 to 1949 he studied diseases of the nervous system at the Rees-Stealy Clinic under the guidance of Dr. F. G. Lindemulder. Dr. Campbell then studied neurology and psychiatry for two years at the University of California Hospital, in San Francisco. From 1951 to the date of the penalty trial, Dr. Campbell practiced as a neurosurgeon and psychiatrist in San Diego. He is an associate member of the American Allergy Association, the American Academy of Neurology, the Southern California Psychiatric Association, the Western Society of Electroencephalographers, the American Medical Association and the California Medical Association. He is qualified for both the Boards of Neurology and Psychiatry.
[3] Reference to "RT, Penalty Phase" means petitioner's Exhibit 5, which consists of four volumes.
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456 N.E.2d 1094 (1983)
Loyd BURNETT, et al., Defendants-Appellants,
v.
Mary L. HECKELMAN, Plaintiff-Appellee.
No. 1-483A107.
Court of Appeals of Indiana, First District.
December 14, 1983.
*1095 J. Scott Waters, IV, Indianapolis, for defendants-appellants.
Anne Marie Sedwick, Sedwick & Sedwick, Sellersburg, for plaintiff-appellee.
RATLIFF, Judge.
STATEMENT OF THE CASE
In an action initiated by Mary Heckelman to have certain restrictive covenants pertaining to her property declared unenforceable, the Clark Superior Court granted judgment in her favor. Various adjoining landowners who had opposed Heckelman in the lower court proceedings now appeal.
We reverse.
*1096 FACTS[1]
In June of 1955, Heckelman, together with her husband and his parents,[2] purchased five lots in the Beechwood Manor Subdivision in Clarksville, Indiana. While Mary and her husband originally intended to build several houses on these lots, none were ever erected and the lots remain vacant.
Heckelman's lots, numbers 5 through 9, together with the remaining 165 lots in the subdivision, are subject to certain restrictive covenants which run with the land.[3] Among other things, the restrictive covenants prohibited property owners from using their lots for commercial purposes. Consequently, no commercial structures have been erected on any of the 170 lots.
Since 1955, the area surrounding the subdivision has become highly commercialized by the erection of various restaurants, gasoline stations, and retail stores. According to the parties' stipulations, nearly fifty such establishments are now in operation within close proximity to the subdivision.
In addition to the changes occurring in the surrounding area, changes also occurred in the subdivision. Again, referring to the parties' stipulations, it appears as much as fifty feet of the nine lots facing State Road 131 was condemned by the State of Indiana in 1969 to facilitate the widening of the highway. All five of Heckelman's lots were affected by this condemnation.
Because of these changes, Heckelman believed her property was no longer suitable for residential purposes and accordingly, filed her action to have the restrictive covenants declared unenforceable. Rendering judgment in her favor, the trial court modified the restrictive covenants pertaining to Heckelman's lots to permit her to use the property for commercial purposes. Further, the trial court ordered Heckelman to grant all landowners in the subdivision a twenty foot easement across her rear property line. The court also directed Heckelman to erect a fence and plant trees along the entire length of the easement in order to create a barrier between her property and the balance of the subdivision.
Dissatisfied with this arrangement, the remaining property owners sought and were granted a stay of execution pending the outcome of this appeal.
ISSUES
We believe the fundamental issue in the present case may be distilled into the following question:
Were the changes within the subdivision and the area surrounding it so radical in nature that the intended purpose of the restrictive covenants was defeated, thus justifying the trial court's decision to declare them unenforceable?
DISCUSSION AND DECISION
Fundamentally, resolution of the instant case turns on the degree of change which has occurred within the Beechwood Manor Subdivision and the surrounding area since the adoption of the restrictive covenants in 1955. Neither party disputes the fact that changes have occurred, but they strongly disagree over the degree of those changes.
Despite the heavy commercialization of the area around the subdivision, the defendants contend its residential nature has been preserved. In support of their contention they cite the fact that none of the lots are used for commercial purposes. Consequently, they argue, the trial court's decision declaring the covenants unenforceable is contrary to law and the evidence presented at trial.
*1097 Heckelman, to the contrary, submits that the changes in the surrounding area, the state's condemnation of a portion of her property, and the deterioration of several adjacent properties has radically altered the residential character of the subdivision so that the restrictive covenants are no longer useful. Thus, in Heckelman's view, the trial court was justified in declaring the covenants unenforceable.
Restrictive covenants, in essence, are a form of express contract between a grantor and a grantee in which the latter agrees to refrain from using his property in a particular manner. Cunningham v. Hiles, (1979) Ind. App., 395 N.E.2d 851, 854; Bob Layne Contractor, Inc. v. Buennagel, (1973) 158 Ind. App. 43, 53, 301 N.E.2d 671, 678, trans. denied (1974); Vierk v. Ritenour, (1961) 131 Ind. App. 547, 555, 172 N.E.2d 679, 683. Generally, their purpose is to enhance and maintain the value of property by controlling the use of adjacent lands. Cunningham, 395 N.E.2d at 854; Bob Layne, 158 Ind. App. at 53, 301 N.E.2d at 678. However, restrictive covenants are not favored in the law. Cunningham, 395 N.E.2d at 854; Bob Layne, 158 Ind. App. at 53, 301 N.E.2d 678; Bachman v. Colpaert Realty Corp., (1935) 101 Ind. App. 306, 314, 194 N.E. 783, 787 trans. denied (1936). Thus, if a covenant is ambiguous or in some manner violative of public policy, it may not be sustained. Cunningham, 395 N.E.2d at 854; Bob Layne, 158 Ind. App. at 53, 301 N.E.2d at 678. Furthermore, if the use of the subject property and its surrounding area has so radically changed from what was originally envisioned that the purpose of the covenants can no longer be attained, they may be declared unenforceable. Cunningham, 395 N.E.2d at 854; Bob Layne, 158 Ind. App. at 54, 301 N.E.2d at 678; Bachman, 101 Ind. App. at 319-20, 194 N.E. at 789. However, as other courts have noted, the degree of change "must be so great as clearly to neutralize the benefits of the restriction to such an extent as to defeat the purpose of the covenant." Franklin v. Moats, (1954) Ky., 273 S.W.2d 812, 814.
In determining whether such an extreme change has occurred there are no "hard-and-fast rule[s]" appropriate in every case. Hecht v. Stephens, (1970) 204 Kan. 559, 563, 464 P.2d 258, 262. Rather, "[e]ach case must rest on the equities of the situation as it is presented," and equitable relief from the enforcement of restrictive covenants is warranted only when the change in conditions is "so great or radical as to neutralize the benefits of the restriction and destroy its purpose." Id.
Our review of the trial court's determination in the present case is, nevertheless, one of limited scope. As an appellate tribunal, we may neither reweigh the evidence nor judge the credibility of witnesses. Smith v. Union State Bank, (1983) Ind. App., 452 N.E.2d 1059, 1062 (rehearing pending); James v. Brink & Erb, Inc., (1983) Ind. App., 452 N.E.2d 414, 416; Trinity Lutheran Church, Inc. of Evansville, Indiana v. Miller, (1983) Ind. App., 451 N.E.2d 1099, 1102, trans. denied. Moreover, because the present case is one in equity, and was tried before the court and not a jury, its decision will be reversed only if clearly erroneous. Merchants National Bank & Trust Co. of Indianapolis v. H.L.C. Enterprises, (1982) Ind. App., 441 N.E.2d 509, 511; Young v. Bryan, (1977) 178 Ind. App. 702, 705, 368 N.E.2d 1, 2, trans. denied; City of Angola v. Hulbert, (1959) 130 Ind. App. 97, 103, 162 N.E.2d 324, 327; Metrailer v. Bishop, (1959) 130 Ind. App. 77, 81, 162 N.E.2d 94, 96; Indiana Rules of Procedure, Trial Rule 52(A). Such a finding will be made by this court when the evidence is uncontradicted and supports no reasonable inferences in favor of the decision, Merchants National Bank, 441 N.E.2d at 511-12; Masson Cheese Corp. v. Valley Lea Dairies, Inc., (1980) Ind. App., 411 N.E.2d 716, 718, trans. denied (1981), or, even when there is evidence supportive of the judgment if our review of the record leaves us with a "definite and firm conviction that a mistake has been made." Merchants National Bank, 441 N.E.2d at 512; Moore v. Moriarty, (1981) Ind. App., 415 N.E.2d 779, 781; Arnold v. Dirrim, (1979) Ind. App., 398 N.E.2d 442, 446; Young, 178 *1098 Ind. App. at 705, 368 N.E.2d at 2. Our review leaves us with such a conviction.
In the instant case, aside from the changes in the property adjacent to the subdivision, Heckelman directs our attention to certain changes within the subdivision itself which she believes have altered its residential character. These changes consist of: (1) the condemnation of as much as fifty feet of the nine lots facing State Road 131 (affecting all five of Heckelman's lots); (2) the general deterioration of the four homes facing the highway; (3) the fact that one of those homes was boarded up at the time of the trial;[4] and (4) the fact that the nine lots would have greater monetary value if used for commercial purposes.[5] According to Heckelman, when these changes are viewed in light of the surrounding commercialization, the residential nature of the subdivision has been radically altered; to the extent, Heckelman argues, that the underlying purpose of the restrictive covenants has been defeated.
The argument advanced by Heckelman parallels that addressed by this court in Cunningham. Therein, when a subdivision lot owner attempted to erect and operate a retail store on his property, various adjoining lot owners sought enforcement of certain restrictive covenants which limited the use of subdivision lots to residential purposes. Like Heckelman, the defendant argued there had been radical changes in the subdivision and adjacent property which defeated the purpose of the covenants and thus, made their enforcement inequitable. As evidence of those changes the defendant cited the following facts: an office building had been erected on adjacent land and protruded more than 100 feet into the subdivision; traffic in and around the subdivision had increased dramatically; and finally, because of the subdivision's proximity to a major highway, lots located near the thoroughfare failed to attract residential buyers.
Reversing the trial court, we held these changes insufficient to warrant a finding that a radical change had occurred and that the purpose of the covenants had been defeated.
Finding the protrusion of the office building and increased traffic within the subdivision to be insignificant, central to the present case we held:
"[W]e conclude that changes in an area surrounding an area protected by a restrictive covenant should be considered in the determination of the covenant's enforceability when these changes have significantly affected the residential character of the subdivision. At the same time, we conclude that the weight attributed to these changes should not be as great as that accorded changes which have occurred within the restricted area.
... .
[Thus,] [w]hile the increase of traffic on U.S. 30 has unfortunately diminished the residential value of some adjacent subdivision tracts, there is no evidence to indicate that the increased traffic load has affected the residential nature of life within Lincoln Knolls Estates. Consequently, the evidence presented does not reveal that the changes which have occurred within and around the subdivision are so radical in nature that the purpose of the restrictive covenant has been defeated."
Id., 395 N.E.2d at 855-56 (emphasis original, citations omitted).
Likewise, in the instant case, it is unfortunate the commercialization near and the increased traffic on State Road 131 has rendered Heckelman's lots less valuable for residential purposes than they would be if put to a commercial use. However, as has been noted, "[t]here is always a line or point where commercial and residential districts must join." Franklin, 273 S.W.2d at 814. Unfortunately for Heckelman, her lots are *1099 close to that line. Nevertheless, we do not believe, in light of Cunningham, that a mere diminution in value is sufficient justification for declaring restrictive covenants unenforceable.[6]See also Osborne v. Hewitt, (1960) Ky., 335 S.W.2d 922, 924; Hodgkins v. Pickett, (1961) Tex.Civ.App., 344 S.W.2d 461, 462. Moreover, there is no evidence this diminution in value has altered the "residential nature of life within" the subdivision, Cunningham, 395 N.E.2d at 856 (emphasis original), or made continued enforcement of the covenants meaningless. To the contrary, the evidence clearly indicates the subdivision has maintained its residential character since its formation in 1955 and will continue to do so if the covenants are sustained.
Nor are we convinced the state's condemnation of a portion of Heckelman's lots constituted a radical change within the subdivision itself. True, the size of her lots was diminished. But as the record reveals, the other lots abutting the highway also experienced similar reductions in size, yet continue to be used for residential purposes. Put simply, such changes, without more, do not constitute a radical change within a subdivision. See Burden v. Lobdell, (1968) 93 Ill. App.2d 476, 235 N.E.2d 660.
We are not unsympathetic to Heckelman's plight. However, as she acknowledges, the lots were purchased with full knowledge of the covenants and their import with respect to her rights as well as the rights of other lot owners. To permit Heckelman to ignore the covenants now that her property could be more profitably used for commercial purposes would certainly be to her benefit. It would, however, be to the detriment of the other lot owners who purchased their property in reliance upon the restrictive covenants, and who, in light of the absence of any change within the subdivision, have every right to expect it will retain its residential character.
Furthermore, from the evidence in the record it cannot be said the changes which have occurred were "so radical in nature that the purpose of the covenant to maintain the residential character of the subdivision is no longer feasible." Cunningham, 395 N.E.2d at 854. Thus, the criteria established in Cunningham for declaring restrictive covenants unenforceable have not been met. The trial court's decision was, therefore, clearly erroneous, Merchants National Bank, 441 N.E.2d at 511-12, and we are compelled to reverse.
Reversed.
ROBERTSON, P.J., and NEAL, J., concur.
NOTES
[1] While the briefs in the present case are otherwise satisfactory, attention of counsel for both parties is directed to Indiana Rules of Procedure, Appellate Rule 8.3(A)(5). As we have repeatedly reminded appellate counsel, a summary of each witness' testimony does not constitute a narrative statement of the facts. Miller v. State, (1983) Ind. App., 449 N.E.2d 1119, 1120; Elsperman v. Plump, (1983) Ind. App., 443 N.E.2d 1206, 1206; Moore v. State, (1981) Ind. App., 428 N.E.2d 806, 807.
[2] Mary is the sole survivor of these parties and is the only plaintiff.
[3] These restrictive covenants were contained in the plat of the subdivision which was filed with the Clark County Recorder on April 11, 1955. Record at 41-45.
[4] The record reveals, however, the home was habitable.
[5] Heckelman's expert witness, Phil Banawitz, testified the lots had a residential value of approximately $5,000 per lot, but that their value and marketability would be greater if used for commercial purposes. Record at 203.
[6] This is especially true in view of the admonition in Cunningham that more weight should be accorded changes within a protected area than changes occurring in the surrounding area. In the instant case, there were virtually no ascertainable changes within the subdivision, only changes in the surrounding area. Furthermore, there is no evidence to support a finding that these changes have "significantly affected the residential character of the subdivision." Cunningham, 395 N.E.2d at 855. Thus, it is clear the trial court misapplied Cunningham.
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754 A.2d 1280 (2000)
Leonard DUMOFF and Patricia Dumoff
v.
Kevin SPENCER and Jack and Pamela Spencer, h/w and Harold Cooper.
Appeal of Harold Cooper.
Superior Court of Pennsylvania.
Argued March 22, 2000.
Filed June 20, 2000.
*1281 Robert LaRocco, Philadelphia, for appellant.
Allen L. Feingold, Philadelphia, for Dumoff, appellees.
Before POPOVICH, TODD and BROSKY, JJ.
POPOVICH, J.:
¶ 1 This is an appeal from an August 17, 1999, order denying Harold Cooper's ("Appellant") petition to open a default judgment. Appellant asserts that the lower court abused its discretion when it found that Appellant failed to file his petition to open promptly. We disagree and affirm the lower court's order.
¶ 2 The relevant factual and procedural history is as follows. This case arose as a result of a motor vehicle accident on February 22, 1996.[1] Leonard Dumoff and Patricia Dumoff ("Appellee") filed a complaint on January 28, 1998, and served it upon Appellant on May 1, 1998. On June 4, 1998, the lower court entered default judgment against Appellant only for failure to file his answer within the required time. Trial Order, 6/14/98. Counsel for Appellant filed an appearance on July 20, 1998. On July 9, 1999, Appellant petitioned the lower court to open the default judgment. The lower court denied Appellant's petition on August 23, 1999. This appeal followed.
¶ 3 In general, a default judgment may be opened when the moving party establishes three requirements: (1) a prompt filing of a petition to open the default judgment; (2) a meritorious defense; and (3) a reasonable excuse or explanation for its failure to file a responsive pleading. Allegheny Hydro 1 v. Am. Line Bldrs., 722 A.2d 189, 191 (Pa.Super.1998) *1282 (citing Alba v. Urology Assocs. of Kingston, 409 Pa.Super. 406, 598 A.2d 57, 58 (1991)). The standard of review for challenges to a decision concerning the opening of a default judgment is well-settled.
A petition to open a default judgment is an appeal to the equitable powers of the court. The decision to grant or deny a petition to open a default judgment is within the sound discretion of the trial court, and we will not overturn that decision `absent a manifest abuse of discretion or error of law.'
Id. 722 A.2d at 191 (citations omitted). However, we will not hesitate to find an abuse of discretion if, after our on review of the case, we find that the equities clearly favored opening the judgment. Id. 722 A.2d at 191 (citing Provident Credit Corp. v. Young, 300 Pa.Super. 117, 446 A.2d 257, 261 (1982)).
¶ 4 "An abuse of discretion is not a mere error of judgment, but if in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused." Allegheny Hydro 1, 722 A.2d at 192 (citations omitted).
¶ 5 The lower court found that Appellant met the second requirement by pleading a meritorious defense and met the third requirement by having a reasonable excuse that he believed his insurance company would protect his interests. However, the lower court denied Appellant's petition to open judgment because it was filed untimely. Trial Opinion, 11/4/99, at 2.
¶ 6 Appellant asserts that on numerous occasions, Appellee's counsel assured Appellant that he would stipulate to a petition to open the default judgment. While the record is void of evidence that Appellee's counsel made such assurances, even if we assume this to be true, the lower court did not err in finding that Appellant failed to file a prompt petition to open judgment.
¶ 7 The default judgment was entered in June of 1998, and the petition to open was filed in July of 1999. We recognize that if Appellant's delay in filing was the result of Appellee's alleged actions, equity would require the judgment to be opened. See Hersch v. Clapper, 232 Pa.Super. 550, 335 A.2d 738, 741 (1975). However, Appellee's alleged actions do not justify the entire thirteen-month delay. It is undisputed that on March 9, 1999, Mr. Jonathan Wheeler, Esquire, counsel to Appellant in an unrelated action in Bucks County, forwarded to Appellee a stipulation to open the default judgment. Appellee refused to sign the stipulation. Appellee's alleged actions may have justified Appellant's delay in filing until March but do not justify the delay from March to the filing in July.
¶ 8 In evaluating whether the petition to open judgment has been promptly filed, "[the] Court does not employ a bright line test .... [The Court focuses] on two factors: (1) the length of the delay between discovery of the entry of a default judgment, and (2) the reason for the delay." Allegheny Hydro 1, 722 A.2d at 193 (quoting Quatrochi v. Gaiters, 251 Pa.Super. 115, 380 A.2d 404, 407 (1977)). Appellant did not file the petition until four months after learning that Appellee was not going to stipulate to the opening of the judgment. In the past, we have held that delays of as little as twenty-one days have been untimely. See B.C.Y., Inc. Equipment Leasing Assocs. v. Bukovich, 257 Pa.Super. 121, 390 A.2d 276 (1978) (twenty-one day delay is not prompt); Allegheny Hydro 1, 722 A.2d at 194 (forty-one day delay is not prompt). In cases where we have held that the filing was prompt, the period of delay was generally less than one month. See Alba v. Urology Assocs. of Kingston, 409 Pa.Super. 406, 598 A.2d 57, 58 (1991) (fourteen-day delay is timely); Fink v. General Accident Ins. Co., 406 Pa.Super. 294, 594 A.2d 345, 346 (1991) (five day delay is timely). Appellant proffers no reasons for the four-month delay in filing the petition.
¶ 9 We find that the lower court did not err in finding that it was unreasonable for *1283 Appellant to not file a petition to open judgment for nearly four months after learning of Appellee's denial to the stipulation to open judgment.
¶ 10 Appellant asserts that the lower court erred when it denied the petition to open the default judgment because the late filing did not prejudice Appellee. However, after reviewing applicable case law regarding the untimely filing of a petition to open judgment, we find that prejudice is not a separate element examined by the courts when Appellant did not establish all three requirements of the test to open the default judgment. See Allegheny Hydro 1, 722 A.2d at 191-92 (examining Provident Credit Corp. v. Young, supra, and its progeny, to find that a court cannot open a default judgment based upon equities when the defendant has failed to establish all three requirements of the test to open a default judgment).
¶ 11 Order affirmed.
NOTES
[1] Leonard Dumoff was a passenger in an automobile driven by Harold Cooper. Kevin Spencer's vehicle and Cooper's vehicle collided at an intersection resulting in Dumoff's alleged injuries.
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910 F.2d 185
Ira Marshall GOODWIN, Jr., Petitioner-Appellant,v.James A. COLLINS, Director, Texas Dept. of Criminal Justice,Institutional Division, Respondent-Appellee.
No. 89-2139.
United States Court of Appeals,Fifth Circuit.
Aug. 16, 1990.Rehearing Denied Sept. 20, 1990.
Ira Marshall Goodwin, Jr., Huntsville, Tex., pro se.
Sherri Saucer (law student), Professor Henry D. Gabriel (Court-appointed), New Orleans, La., for petitioner-appellant.
Charles A. Palmer, Christine D. White, Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
(Opinion June 20, 1990, 5 Cir., 1990, 903 F.2d 1026)
Before WISDOM, POLITZ and JOHNSON, Circuit Judges:
PER CURIAM:
1
The Court has reconsidered its opinion in the instant case; accordingly, the prior opinion is withdrawn and the following substituted: Ira Marshall Goodwin filed a petition for habeas corpus with the district court alleging insufficiency of the evidence to support his conviction. The district court, concluding that Goodwin had procedurally defaulted, denied habeas relief without reaching the merits of the claim. Goodwin filed a timely appeal to this Court. Because we must conclude that Goodwin's claim is procedurally barred, we affirm the judgment of the district court.
I.
2
Goodwin was charged with the first-degree felony murder of Warren James Durkee, Jr. Goodwin pled not guilty and the case proceeded to trial before a jury before a Texas state district court. Following the presentation of evidence at the guilt-innocence phase, Goodwin moved for an instructed verdict which the court denied. The court then charged the jury regarding the murder offense as well as the lesser included offenses of voluntary manslaughter, involuntary manslaughter, criminally negligent homicide, aggravated assault and assault. Goodwin's counsel generally objected to the inclusion of instructions as to the lesser included offenses. More specifically, counsel objected to the inclusion of the instruction on involuntary manslaughter and criminally negligent homicide on the grounds that there was no evidence to support them. As to the other lesser included offenses, counsel stated no basis for the objection other than that he was instructed by his client to lodge such an objection.
3
The jury found Goodwin guilty of voluntary manslaughter, and Goodwin chose to have the court assess punishment. After finding that the enhancement allegations in the indictment were true, the court assessed punishment at thirty years in the Texas Department of Corrections. Additionally, the court imposed a $5000 fine. Goodwin appealed the conviction. On appeal, Goodwin raised the issue that " 'the trial court erred in submitting to the jury, over appellant's timely objection, a charge on the lesser included offense of voluntary manslaughter,' " because " 'the issue of voluntary manslaughter was not raised by any evidence.' " Goodwin v. State, 694 S.W.2d 19, 26 (Tex.Crim.App.--Corpus Christi 1985). The state appellate court found that the evidence was in fact insufficient to establish "sudden passion rising from an adequate cause," but held that the ground of insufficiency of the evidence for voluntary manslaughter was not preserved for review because of procedural default resulting from counsel's failure to properly object at trial. The state appellate court did, however, find that imposition of the fine was improper under the Texas habitual offender statute, set aside the punishment and remanded for further proceedings. On remand to the state district court, punishment was again set at thirty years incarceration.
4
Goodwin next filed a petition for discretionary review with the Texas Court of Criminal Appeals which was denied without written opinion. Goodwin's application for state writ of habeas corpus, raising the same issue, was also denied by the Texas Court of Criminal Appeals without written order.
5
Goodwin then filed the instant writ application in federal district court raising only the issue that there was insufficient evidence to support a finding of voluntary manslaughter. The magistrate determined that Goodwin had failed to comply with the contemporaneous objection rule. Based on the doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the magistrate recommended the petition be denied because Goodwin was procedurally barred from collateral relief and had failed to show adequate cause for the default and prejudice arising from the jury instruction given. The district court adopted the magistrate's report, added its own analysis, and denied relief. Goodwin filed a timely notice of appeal with this Court, and the district court issued a Certificate of Probable Cause.
II.
6
The Supreme Court has instructed that the mere existence of a basis for a state procedural bar is not talismanic. Rather, it must be apparent that the state court "actually ... relied on the procedural bar as an independent basis for its disposition of the case." Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985). Recently, in Harris v. Reed, the Supreme Court gave federal courts more guidance into the proper application of the procedural default rule. In that case, the Supreme Court instructed that procedural default bars federal habeas review only if the last state court rendering a judgment in the case clearly and expressly rests its judgment on the procedural default. Harris, 489 U.S. 255, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989).
7
It is significant that where a state intermediate appellate court renders a decision, and the highest state court thereafter simply denies discretionary review, then it is the judgment of the intermediate appellate court which is reviewed in the United States Supreme Court on certiorari, and the writ of certiorari runs to the intermediate appellate court. Accordingly, the Harris court's reference to "the last state court rendering a judgment in the case" should be understood to refer to the state court whose judgment would be reviewed if direct review had been granted in the United States Supreme Court. That court, the Corpus Christi Court of Appeals, clearly and expressly relied on procedural default.
III.
8
Because of the last state court's reliance on procedural default, we are procedurally barred from reviewing the merits of the claim. The judgment of the district court is affirmed.
9
AFFIRMED.
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Case: 08-40682 Document: 00511041947 Page: 1 Date Filed: 03/04/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 4, 2010
No. 08-40682 Charles R. Fulbruge III
Clerk
DEMARCUS BELL
Plaintiff-Appellant
v.
CAPTAIN NEMIER HEROD; CORRECTIONAL OFFICER IV FELIPE
MARTINEZ; CORRECTIONAL OFFICER SHERRY DICKENS
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:07-cv-415
Before KING, JOLLY, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff–appellant, DeMarcus Bell, Texas prisoner # 1252593, arrived in
prison with his right leg amputated below the knee. He does not have a
prosthetic leg and must use crutches to ambulate. He sued under 42 U.S.C. §
1983 after falling down a flight of stairs, which he was made to climb in order to
reach the third-story cell to which he had been assigned. Bell now appeals 1) the
magistrate judge’s dismissal, under 28 U.S.C. § 1915A, of Bell’s claims against
*
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: 08-40682 Document: 00511041947 Page: 2 Date Filed: 03/04/2010
No. 08-40682
the officers of the prison’s Unit Classification Committee who made the cell
assignment; 2) the magistrate judge’s denial of his motion to amend his
complaint to add additional claims and defendants, which was filed twenty-one
days before jury trial was set to commence on Bell’s claims against the
remaining defendants; and 3) the qualified immunity instruction given to the
jury. Bell also claims, for the first time on appeal, that 4) the evidence at trial
was insufficient to support the verdict. For the reasons discussed below, we
deny Bell’s bases for appeal and, accordingly, affirm the judgment of the district
court.
I. Background
Bell is a prisoner in the Beto Unit of the Texas prison system. He was
initially assigned to a cell on the ground floor of the prison, but the prison’s Unit
Classification Committee (UCC) later determined that he should be transferred
to a third-story cell. The record does not reflect why this determination was
made. On March 15, 2006, Bell complained to the prison guards tasked with
moving him to his new cell that he should not be required to climb the stairs to
his cell because his right leg was amputated below the knee, he had no
prosthetic limb, and he required crutches to move. The guards told him that he
must either take the stairs to his cell or receive a disciplinary case. On the
following day, March 16, 2006, while descending the stairs on his crutches, Bell
fell down half a flight, injuring his lower back and the leg which sustained the
amputation.
Bell sued in federal district court, pro se and in forma pauperis, under 42
U.S.C. § 1983, claiming that the defendants were deliberately indifferent to his
serious medical needs. The defendants included the members of the UCC that
assigned Bell to the third story cell, Sun A. Berg and Major Mooneyham;1 the
1
Mooneyham’s first name is not specified in the complaint or in the record.
2
Case: 08-40682 Document: 00511041947 Page: 3 Date Filed: 03/04/2010
No. 08-40682
officers who enforced the move, Captain Nemier Herod, Officer Felipe Martinez,
and Officer Sherry Dickens; and the medical attendant who treated him after
the fall, Nurse Charles Johnson. The parties consented to proceedings before a
magistrate judge.
On November 5, 2007, the magistrate judge held a hearing in accordance
with Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), to amplify Bell’s claims.
After the hearing, the magistrate judge dismissed the claims against Berg,
Mooneyham, and Johnson 2 under 28 U.S.C. § 1915A, concluding that, as to these
defendants, Bell’s complaint failed to state a claim upon which relief could be
granted and was frivolous. The magistrate judge allowed the claims against
Herod, Martinez, and Dickens to proceed and scheduled trial for May 29, 2008.
On April 1, 2008, the magistrate judge appointed counsel for Bell for pretrial and
trial purposes.
On May 8, 2008, twenty-one days before the scheduled trial, Bell filed an
opposed motion for leave to amend his complaint. Bell sought to add four new
defendants and to add claims for violations of the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq.; Section 504 of the Rehabilitation Act, 29
U.S.C. § 794; and an additional claim under 42 U.S.C. § 1983 for retaliation.
The magistrate judge denied the motion, concluding that although appointed
counsel had not been dilatory, the addition of substantial new claims and
defendants just three weeks before trial was unduly prejudicial to the defense.
The case against the remaining defendants proceeded to trial on May 29,
2008. At no point during the trial did Bell move under Federal Rule of Civil
Procedure 50(a) for judgment as a matter of law. After the parties rested, the
2
Bell also contends that the magistrate judge dismissed his claims against “an
individual by the name of Luciano Molina, who was a Building Lieutenant at the George Beto
Facility.” Molina was not named in Bell’s complaint and the magistrate judge’s written
opinion makes no mention of him. Because Bell asks for no relief relating to Molina, we do not
further address this issue.
3
Case: 08-40682 Document: 00511041947 Page: 4 Date Filed: 03/04/2010
No. 08-40682
magistrate judge instructed the jury. This included an instruction on whether
the defendants met the two-part test for qualified immunity. Bell timely
objected to this instruction. The jury returned a verdict in favor of the
defendants. Bell did not move under Federal Rule of Civil Procedure 50(b) for
judgment as a matter of law, although he did move, under Federal Rule of Civil
Procedure 59, for a new trial, arguing that the jury was improperly instructed
as to qualified immunity. The magistrate judge denied the motion, concluding
that the instruction was proper.
Bell then filed the present appeal. For the first time on appeal, Bell
challenges the sufficiency of the evidence at trial to support the verdict in favor
of the defendants.
II. Analysis
A. Dismissal under § 1915A
Bell first challenges the magistrate judge’s dismissal under § 1915A of his
claims against Berg and Mooneyham. This court reviews a dismissal as
frivolous under § 1915A for abuse of discretion. Martin v. Scott, 156 F.3d 578,
580 (5th Cir. 1998) (per curiam). A dismissal for failure to state a claim under
§ 1915A is reviewed under the same de novo standard as dismissals under
Federal Rule of Civil Procedure 12(b)(6). Bazrowx v. Scott, 136 F.3d 1053, 1054
(5th Cir. 1998) (per curiam). Because the magistrate judge found that Bell’s
complaint against these defendants both failed to state a claim and was
frivolous, review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.
2005) (per curiam).
Bell contends that the magistrate judge dismissed the claims against Berg
on the grounds that there is no respondeat superior liability under § 1983 and
the claims against Mooneyham on the grounds that Mooneyham’s name was
misspelled in the complaint. But the record does not reflect that Berg and
Mooneyham were dismissed on these grounds. Instead, the magistrate judge’s
4
Case: 08-40682 Document: 00511041947 Page: 5 Date Filed: 03/04/2010
No. 08-40682
order indicates that Berg and Mooneyham were dismissed because, as officers
of the UCC, they were entitled to rely, in making cell assignments, on medical
restrictions assigned to the prisoners by prison medical personnel. Because Bell
has failed to brief any challenge to the magistrate judge’s actual basis for
dismissal, he has waived his objection to the dismissals. See Yohey v. Collins,
985 F.2d 222, 224–25 (5th Cir. 1993); Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); F ED. R. A PP. P. 28(a)(9).
Accordingly, we affirm the dismissals.
B. Denial of Motion to Amend
Bell next contends that the magistrate judge erred in denying his motion
to amend the complaint to add additional claims and defendants. Federal Rule
of Civil Procedure 15(a)(2) provides that leave to amend shall be freely given
“when justice so requires.” A district court has the discretion to consider
numerous factors in evaluating whether to allow amendment, including the
futility of amending, the party’s repeated failure to cure deficiencies by previous
amendments, undue delay, or bad faith. Foman v. Davis, 371 U.S. 178, 182
(1962). We review the denial of a motion to amend for abuse of discretion.
Ackerson v. Bean Dredging LLC, 589 F.3d 196, 208 (5th Cir. 2009).
Bell’s motion to amend was filed twenty-one days before trial was set to
begin. In denying the motion to amend, the magistrate judge recognized that
there was no bad faith in the delay, observing that Bell’s counsel had “diligently
endeavored to develop her client’s lawsuit in a short period of time” and had not
been dilatory in doing so. The magistrate judge nevertheless concluded that
“permitting the Plaintiff to amend at this late date would cause considerable
delay, impose additional discovery requirements and be unduly prejudicial to the
current defendants.” The magistrate judge noted in particular that “[t]he focus
of the case would change substantially from a simple deliberate indifference
claim involving just three defendants to an expansive lawsuit adding ADA, RA
5
Case: 08-40682 Document: 00511041947 Page: 6 Date Filed: 03/04/2010
No. 08-40682
and retaliation claims and numerous new defendants.” The magistrate judge
also observed that there was no obstacle to Bell filing a separate lawsuit to bring
these new claims, provided such claims were not time-barred.
On appeal, Bell contends that the magistrate judge should have granted
his motion to amend because the proposed claims arose from a “continuous
course of action . . . that clearly related back to the incident that was the subject
of the suit.” Bell also urges that the proposed claims had merit. But Bell does
not address why the magistrate judge’s opinion, which carefully set out the
reasons for denying amendment, was error. Nor does Bell assert that any
statute of limitations prevents him from bringing the additional claims in a
separate suit. By failing to brief why the magistrate judge’s opinion was error,
or how he was prejudiced by it, Bell has waived this basis for appeal. See Yohey,
985 F.2d at 224–25; Brinkmann, 813 F.2d at 748. We conclude that the
magistrate judge did not abuse his discretion in denying the motion to amend.
C. Denial of Motion for New Trial
Bell also contends that the magistrate judge erred in refusing to grant his
motion under Rule 59 for a new trial, in which Bell challenged the fact that the
magistrate judge instructed the jury to decide the issue of qualified immunity.
Bell asserts on appeal that the magistrate judge had already decided this issue
in Bell’s favor before trial and therefore erred in instructing the jury to reach a
new determination. There is no support in the record for Bell’s argument. The
magistrate judge denied summary judgment to the defendants as to qualified
immunity, noting that “material facts [we]re in dispute” as to whether they were
entitled to it. The qualified immunity issue was not resolved before trial. Bell’s
contention to the contrary is inaccurate and therefore does not provide a basis
for relief.
D. Sufficiency of the Evidence at Trial
6
Case: 08-40682 Document: 00511041947 Page: 7 Date Filed: 03/04/2010
No. 08-40682
Bell contends, for the first time on appeal, that the evidence at trial was
insufficient to support the verdict rendered against him because, given his
obvious handicap, “a fair-minded jury could not have reached the conclusion”
that defendants Herod, Martinez, and Dickens were not deliberately indifferent
to Bell’s serious medical needs. Bell did not raise this objection under Federal
Rule of Civil Procedure 50(a) at the close of the defendants’ case. Because Bell,
who was represented by counsel at trial, failed to raise this objection, we may
consider Bell’s challenge to the sufficiency of the evidence only for plain error.
As we have previously stated:
If a party fails to move for judgment as a matter of law under [Rule]
50(a) on an issue at the conclusion of all of the evidence, that party
waives both its right to file a renewed post-verdict Rule 50(b) motion
and also its right to challenge the sufficiency of the evidence on that
issue on appeal. As such, it is the unwavering rule in this Circuit
that issues raised for the first time on appeal are reviewed only for
plain error. On plain error review, the question for this court is not
whether there was substantial evidence to support the jury verdict,
but whether there was any evidence to support the jury verdict.
Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 238 (5th Cir. 2001)
(emphasis added; citations, footnote, and internal quotation marks omitted); see
also Logal v. United States, 195 F.3d 229, 231 (5th Cir. 1999) (stating that when
the moving party fails to move under Rule 50(a) at the close of evidence, “this
Court’s inquiry on appeal is limited to whether there was any evidence to
support the jury’s verdict, irrespective of its sufficiency, or whether plain error
was committed which, if not noticed, would result in a manifest miscarriage of
justice” (internal quotation marks omitted)).
We do not have the benefit of a trial transcript in assessing Bell’s
challenge, as this court denied Bell’s motion for a trial transcript at government
expense by separate order. The trial minutes, however, reflect that Herod,
Martinez, and Dickens each testified at trial, along with one additional witness
7
Case: 08-40682 Document: 00511041947 Page: 8 Date Filed: 03/04/2010
No. 08-40682
for the defense. The trial minutes also reflect that the defense entered exhibits
into evidence with no objection from Bell. On appeal, Bell does not contend that
there was no evidence to support the jury’s verdict, only that the weight of the
evidence does not support the jury’s verdict. On plain error review, we sustain
the verdict if there is any evidence to support it. Flowers, 247 F.3d at 238. The
record reflects, and Bell appears to concede, that there was at least some
evidence presented at trial to support the verdict. Accordingly, Bell’s motion for
a new trial based on the sufficiency of the evidence was correctly denied.
III. Conclusion
For the reasons discussed above, the judgment of the district court is
AFFIRMED.
8
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4 So.3d 1234 (2008)
RICARDO A. ROIG, P.A.
v.
LEWIS EX REL. LEWIS;
LEVINE, HIRSCH, SEGALL, MacKENZIE & FRIEDSAM, P.A.
v.
LEWIS EX REL. LEWIS.
No. 2D08-810, 2D08-1049.
District Court of Appeal Florida, Second District.
June 20, 2008.
Decision without published opinion. Cert.denied.
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297 P.2d 1053 (1956)
61 N.M. 225
STATE of New Mexico, Plaintiff-Appellee,
v.
Valentino Ruben OCHOA, Defendant-Appellant.
No. 6044.
Supreme Court of New Mexico.
May 29, 1956.
H. E. Blattman, Las Vegas, for appellant.
Richard H. Robinson, Atty. Gen., Fred M. Standley, Asst. Atty. Gen., A. T. Montoya, Sp. Asst. Atty. Gen., for appellee.
McGHEE, Justice.
The appellant seeks a reversal of his conviction of murder in the second degree because of claimed insufficiency of the evidence to sustain the charge, and a claimed error in the instructions on unavoidable accident or misfortune.
The appellant and the prosecuting witness, Carlos Baca, attended a dance in Tucumcari, New Mexico, where trouble started between them and an innocent bystander was killed. Earlier, the appellant and one Bennie Paiz were standing together outside the dance hall when Bennie Baca, a brother of Carlos Baca, went out to address Paiz about some foul remarks it was claimed the latter had made to Bennie's wife. Appellant pulled a gun from his coat pocket, dropped it to the ground, picked it up and pointed the gun at Bennie Baca and asked, "What is going on?" Baca stated that what he had to say was for Paiz alone. The appellant then went into the dance hall. Bennie Baca followed shortly thereafter where he told a sister what had happened. The sister then told her brother, Carlos Baca, of the occurrence *1054 and pointed out the appellant who was then dancing with a Miss Salazar. When the dance stopped Carlos Baca testified that he tried to talk to the appellant, asking him what had happened; that appellant did not reply but jumped back, pulled the gun and pointed it at him (Carlos Baca), who then pulled a spring bladed knife and started for appellant but was grabbed by two women who stopped and held him. At that time Special Officer Garcia testified he stepped between Carlos Baca and the appellant, stating there must not be a fight there, and that he pushed appellant back so they could not fight; that appellant said to Garcia, "You are not going to play with me." Garcia testified that when he pushed appellant away appellant fired two shots killing Mrs. Andrea Gutierrez, a bystander. As soon as Garcia pushed appellant back and saw he had a gun, Garcia started striking appellant with a black jack. There is some conflict in the testimony as to just when the gun was drawn, but it seems to be fairly well agreed the shots were fired while the officer was striking appellant with the black jack.
The principal argument of appellant is that there was no proof of malice, or evidence from which it could fairly be inferred.
The jury was instructed on the plea of self defense and unavoidable accident or misfortune and found both issues against the appellant. Necessarily included in the finding of a verdict of murder in the second degree was a finding of malice and premeditation. The record contains some 200 pages of testimony, but it would be of little benefit to set any of it forth at length. The appellant had no reason to shoot the bystander, Andrea Gutierrez, but under the law the malice and deliberation as regards Carlos Baca was transferred to her. State v. Carpio, 1921, 27 N.M. 265, 199 P. 1012, 18 A.L.R. 914.
The malice necessary to sustain a conviction of murder in the second degree may be implied. Section 40-24-3, N.M.S.A. 1953, defines it as follows:
"Malice shall be implied when no considerable provocation appears, or when all circumstances of the killing show a wicked and malignant heart."
While malice may not be inferred from the mere carrying of the gun, the appellant was apparently on the warpath and looking for trouble that night. As heretofore stated, when Bennie Baca spoke to Paiz concerning the remarks to Bennie Baca's wife that Paiz was supposed to have made, the appellant, who was a stranger, immediately pulled the gun and pointed it at Paiz. Later when Carlos Baca asked about the argument, the gun, according to some of the testimony, was immediately drawn and pointed at Baca; appellant paid no heed to the admonition of the officer and instead said to the officer, "You are not going to play with me." Immediately thereafter appellant fired the shots.
In addition to the foregoing, it is stated in State v. Gilbert, 1933, 37 N.M. 435, 24 P.2d 280, 281, where there was a conviction of murder in the second degree:
"It seems to be well established in this jurisdiction that it is within the province of the jury to imply malice in a case where a killing with a deadly weapon has been established. [Citing cases.] * * *"
There are other New Mexico cases which support the rule.
We hold the evidence is sufficient to support the verdict.
The appellant also says the court on its own motion gave an erroneous instruction on a killing caused by unavoidable accident or misfortune. A sufficient answer to that claim is that appellant stated he had no exceptions to take to the instructions as prepared by the trial court and that he had no instructions to tender. This precludes the consideration of a claim of error in that regard. State v. Sena, 1950, 54 N.M. 213, 219 P.2d 287.
It should be stated the attorney who represents the appellant here was not in the trial below.
The judgment will be affirmed, and it is so ordered.
COMPTON, C. J., and LUJAN, SADLER and KIKER, JJ., concur.
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86 F.3d 151
96 Cal. Daily Op. Serv. 4136, 96 Daily JournalD.A.R. 6705UNITED STATES of America, Plaintiff-Appellee,v.Dianne Marie AUGUST, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Daniel Valentino BADARACCO, Defendant-Appellant.
Nos. 95-30220, 95-30224.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted May 8, 1996.Decided June 11, 1996.
1
Kenneth Ricardo Perry, Portland, Oregon, for defendant-appellant Dianne Marie August.
2
Ellen C. Pitcher, Assistant Federal Public Defender, Portland, Oregon, for defendant-appellant Daniel V. Badaracco.
3
Johnathan S. Haub, Assistant United States Attorney, Portland, Oregon, for plaintiff-appellee United States of America.
4
Appeal from the United States District Court for the District of Oregon; Malcolm F. Marsh, District Judge, Presiding.
5
Before: GOODWIN and SCHROEDER, Circuit Judges, and ARMSTRONG,* District Judge.
ARMSTRONG, District Judge:
6
Dianne Marie August and Daniel V. Badaracco appeal their sentences of imprisonment, arguing that the district court miscalculated their guideline range under the United States Sentencing Guidelines ("U.S.S.G.") by improperly multiplying the estimated capacity of their methamphetamine laboratory to determine the amount of methamphetamine involved in their offenses. We find that the district court did not err, and affirm the sentences imposed.
I. FACTS
7
On March 3, 1992, Drug Enforcement Administration ("DEA") agents discovered a methamphetamine lab and three firearms while serving a federal search warrant at the appellants' home on Boyd Street in Milwaukie, Oregon ("the Boyd Street lab"). Appellants were arrested during the search. Further investigation revealed that from 1988 to 1989, appellants operated methamphetamine labs at the residence of Bill Olson ("the Olson lab") and at the residence of Rick and Sue Seaman, which was known as the "frog pond" ("the frog pond lab").
8
Appellants were convicted of conspiracy to manufacture, possess with intent to distribute, and to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846, as well as multiple counts of possession with intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1), manufacturing methamphetamine, 21 U.S.C. § 841(a)(1), distribution of methamphetamine, 21 U.S.C. § 841(a)(1), and use of a firearm in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1).
9
The base offense level for all of appellants' drug convictions was determined under U.S.S.G. § 2D1.1 based on the amount of methamphetamine involved in their offenses. At the sentencing hearing, the government argued that a conservative estimate of the amount of methamphetamine involved in appellants' offenses was between three and ten kilograms. This estimate was based on the following evidence:
10
The capacity of the Boyd street lab was 1,750 grams to 2,650 grams per reaction based on a 3,500 milliliter reaction vessel found at the Boyd Street lab ("the flask"). There was clearly more than one reaction at the Boyd Street lab because 20 kilograms of waste material were found at that site. Further, Richard Schnazer testified at trial that he had purchased four gallons of hydriodic acid for the appellants during the period in which they operated the Boyd Street lab. According to Roger Ely, a senior forensic chemist with the DEA, four gallons of hydriodic acid will produce between 2,000 grams and 3,000 grams of methamphetamine.
11
Additionally, Sue Seaman testified at trial that she had observed August with a bag containing approximately three pounds (1.36 kg) of methamphetamine. Ms. Seaman also testified that she had purchased methamphetamine from the appellants at both the frog pond and Boyd street locations, and that appellants had a steady stream of customers at the Boyd street address. The government did not present any specific evidence with respect to the amount of methamphetamine associated with the Olson or frog pond labs.
12
The district court found that there was clear evidence that methamphetamine was produced at all three labs, and that there were at least two full reactions at the Boyd Street lab. Moreover, the court found that, as the Boyd Street lab was capable of producing a minimum of 1,750 grams of methamphetamine in one reaction, that at least 3,500 grams had been manufactured at that lab. The court concluded that this was a "very conservative finding" and that based on the Boyd Street lab capacity, the evidence of continuous sales, and the fact that methamphetamine was also produced at the other two labs, at least 3,500 grams of methamphetamine were involved in the offense.
13
Based on this finding, the Court sentenced appellant August to the guideline minimum 151 months of imprisonment for each of the drug offenses, to be served concurrently, and 60 months of imprisonment for the firearm offenses, to be served concurrently with each other, and consecutively to the drug offenses. Appellant Badaracco was sentenced to 240 months for each of the drug offenses, to be served concurrently, and 60 months for the firearm offenses, to be served concurrently with each other, and consecutively to the drug offenses.
14
Appellants appealed to this Court. We held that the trial court was within its discretion to consider both the lab capacity and the potential amount of methamphetamine produced based on the hydriodic acid. However, we found that the lab capacity was misstated in the presentence report, and that the actual lab capacity was 500-1,000 grams, not 1,750-2,650 grams. Accordingly, we remanded "for a recalculation of relevant conduct and appropriate resentencing, using the correct lab capacity." United States v. Badaracco, No. 93-30028, 1994 WL 41105 (Feb. 10, 1994) (memorandum disposition); United States v. August, No. 93-30031, 1994 WL 637146 (Nov. 7, 1994) (memorandum disposition).
15
On remand, the district court applied the same calculations to the correct minimum lab capacity, resulting in a finding of 1,000 grams. The district court concluded that the government had proven, by a preponderance of the evidence, that the offense involved at least 999 grams of methamphetamine.1 Based on this finding, the district court sentenced appellant August to the guideline minimum 97 months of imprisonment for each of the drug offenses, to be served concurrently, and 60 months of imprisonment for the firearm offenses, to be served concurrently with each other, and consecutively to the drug offenses. Appellant Badaracco was sentenced to 140 months for each of the drug offenses, to be served concurrently, and 60 months for the firearm offenses, to be served concurrently with each other, and consecutively to the drug offenses. Both August and Badaracco appealed the sentences imposed on remand.
II. STANDARD OF REVIEW
16
The district court's interpretation and application of the Sentencing Guidelines are reviewed de novo. United States v. Buenrostro-Torres, 24 F.3d 1173, 1174 (9th Cir.1994) (per curiam). Whether the method adopted by the district court to approximate the relevant quantity of drugs is proper under the guidelines is therefore reviewed de novo. United States v. Williams, 989 F.2d 1061, 1073 (9th Cir.1993).III. METHOD OF APPROXIMATING RELEVANT AMOUNT OF DRUGS
17
The sole question presented in these appeals is whether the district court's method of approximating the relevant amount of methamphetamine is permissible under the guidelines. Appellants argue that, while the district court properly took a conservative view of the lab capacity, the court erred by doubling that estimate based on the district court's finding that there was evidence of at least two incidents of manufacturing. Appellants assert that since the district court chose to rely on an approximate lab capacity, that capacity represents the "endpoint" of the district court's calculations, or in other words, the maximum amount of drugs which the district court is allowed to consider under the guidelines.
18
Although the guidelines clearly authorize the district court to approximate drug quantities, as with all factors which increase a defendant's offense level, the government is required to prove the approximate quantity by a preponderance of the evidence. United States v. Howard, 894 F.2d 1085, 1090 (9th Cir.1990). The district court must "conclude that the defendant is more likely than not actually responsible for a quantity greater than or equal to the quantity for which the defendant is being held responsible." United States v. Walton, 908 F.2d 1289, 1302 (6th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990); accord United States v. Sepulveda, 15 F.3d 1161, 1198 (1st Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2714, 129 L.Ed.2d 840 (1994). Furthermore, the information which supports an approximation must possess "sufficient indicia of reliability to support its probable accuracy." USSG § 6A1.3(a); United States v. Ortiz, 993 F.2d 204, 207 (10th Cir.1993).
19
Additionally, since a defendant's sentence depends in large part upon the amount of drugs attributable to his conduct, and approximation is by definition imprecise, the district court must err on the side of caution in choosing between two equally plausible estimates. See Walton, 908 F.2d at 1302 ("when choosing between a number of plausible estimates of drug quantity, none of which is more likely than not the correct quantity, a court must err on the side of caution").
20
We have not specifically addressed the parameters of the district court's discretion in making approximations under U.S.S.G. § 2D1.1 application note 12. We have, however, approved several methods for making such approximations. See United States v. Basinger, 60 F.3d 1400, 1409-10 (9th Cir.1995) (approximation based on two empty one-pound containers of ephedrine); Williams, 989 F.2d at 1073 n. 5 (capacity of glassware and some precursor chemicals); United States v. Gonzalez-Sanchez, 953 F.2d 1184, 1187 (9th Cir.1992) (conversion of cash proceeds into equivalent amount of drugs).
21
The appellants' argument is premised on a very narrow definition of "capacity". Appellants essentially argue that the lab's "capacity" is restricted to the capacity of the flask found at the Boyd Street lab; in other words, the amount of methamphetamine which could be manufactured at one time. We reject appellants' constricted reading of application note 12. First, appellants' argument is illogical. Where a defendant manufactures drugs over an extended period of time, the amount of drugs which he could have produced on one occasion does not determine or circumscribe the amount of drugs involved in his total offense. Second, appellants' arguments are not supported by the prior decisions of this Circuit, or of other circuits. Our decisions approving the use of "lab capacity" as an approximation of the relevant amount of drugs make clear that the "capacity" of a drug lab is the amount of drugs which could have been produced during the course of the offense. For example, in United States v. Putney, 906 F.2d 477 (9th Cir.1990), the defendant admitted that "he had produced about four pounds of methamphetamine during the period for which he was charged. The government supplied information to the probation office that the laboratory was capable of producing twelve pounds." Id. at 478-79 (emphasis added). We approved the use of the twelve pound "capacity of the laboratory to determine the base offense level." Id. at 480. The "capacity" which was relevant in Putney was clearly the lab's capacity "during the period for which [defendant] was charged", not merely the capacity on any given day. Id. at 478-79.
22
Moreover, the Sixth Circuit expressly recognized the need to account for defendants' behavior over time in estimating the relevant quantity of drugs for sentencing purposes in Walton. "[F]irst one must determine a weekly quantity and then select a time period over which it is more likely than not that [defendants] were dealing in that quantity." Walton, 908 F.2d at 1302. The Third Circuit has also expressly approved the use of a multiplier in approximating the relevant quantity of drugs. In United States v. Paulino, 996 F.2d 1541 (3d Cir.1993) (subsequent history omitted), the government presented evidence that on one day $12,000 worth of cocaine, or 12 ounces, was sold at a saloon where cocaine was regularly sold. The district court multiplied that 12 ounces by the number of days over which the conspiracy occurred, and then reduced the result by one-half. The Third Circuit affirmed, finding that "[t]he district court's calculation was squarely based on the quantifiable trial evidence--Novoa's statement concerning the day when sales in the amount of $12,000 were transacted. The halving of this amount, rather than being arbitrary, is, instead a reasonable calculation by the district court, erring on the side of caution, to take into consideration 'off' days and days in which perhaps lesser sales occurred." Id. at 1548.
23
Further, the plain language of application note 12 suggests that lab capacity is merely one of the factors which the district court may consider in approximating the relevant amount of drugs in any given case. There is no suggestion that "capability" is the "endpoint" of the district court's calculations.
24
Finally, appellants' argument ignores the plain language of Roger Ely's testimony, the basis for the district court's finding, that the flask found at the Boyd Street lab was capable of producing "between 500 and 1,000 grams [of methamphetamine] per wash."
25
The district court determined that the flask found at the Boyd Street lab was capable of producing between 500--1,000 grams of methamphetamine per reaction and that the evidence clearly demonstrated repeated reactions at the Boyd Street lab. The district court properly took the minimum estimate of 500 grams, and multiplied it by two to reflect the fact that at least two reactions occurred. We find no error in the methodology employed by the district court.
26
AFFIRMED.
*
Honorable Saundra Brown Armstrong, United States District Judge for the Northern District of California, sitting by designation
1
After the district court concluded that the relevant amount of methamphetamine was 1,000 grams, Badaracco's counsel argued that a finding of 1,000 grams was unfair because it resulted in the application of a 20 year minimum for Badaracco and a 10 year minimum for August under 21 U.S.C. § 841(b)(1)(viii). The district court subsequently reduced this 1,000 gram calculation to 999 grams in order to avoid application of 21 U.S.C. § 841(b)(1)(viii)
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Case: 15-40327 Document: 00513442881 Page: 1 Date Filed: 03/29/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40327 FILED
Summary Calendar March 29, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN MANUEL REYES VASQUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:13-CR-634
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Juan Manuel Reyes Vasquez appeals his convictions for conspiracy and
the substantive offense of possession with intent to distribute heroin for which
he was sentenced to concurrent sentences of 121 months of imprisonment. He
contends that the prosecutor’s comments during closing argument improperly
commented on his failure to testify in his own defense and improperly shifted
the burden of proof to him.
* 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: 15-40327 Document: 00513442881 Page: 2 Date Filed: 03/29/2016
No. 15-40327
Review is for plain error since Reyes Vasquez did not object in the district
court. See United States v. Virgen-Moreno, 265 F.3d 276, 292 (5th Cir. 2001).
During closing argument, the prosecutor commented that the evidence that
Reyes Vasquez’s voice was on the recorded conversations was unrefuted. These
comments did not impermissibly comment on Reyes Vasquez’s silence or shift
the burden of proof to Reyes Vasquez because they were responsive to defense
counsel’s closing argument that the evidence of the phone calls and voice
identification involved no specific training or scientific methods or a voice
comparison. See Virgen-Moreno, 265 F.3d at 293-93. Viewing the prosecutor’s
comments in context and in light of the jury instructions, the jury would not
“naturally and necessarily” interpret the challenged remarks as a comment on
the defendant’s failure to testify or an impermissible shifting of the burden of
proof. See Virgen-Moreno, 265 F.3d at 292-93; see also United States v.
Jefferson, 258 F.3d 405, 414 (5th Cir. 2001).
The judgment of the district court is AFFIRMED.
2
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16398
Non-Argument Calendar
________________________
D.C. Docket No. 1:16-cv-22053-UU
WARREN OLIVER,
Plaintiff-Appellant,
versus
KATHLEEN FUHRMAN,
Public Health Nutrition Program
Manager,
SHANE PHILLIPS,
Operation Manager,
CRAIG MCCORMICK,
Public Health Nutrition Program
Manager,
FLORIDA DEPARTMENT OF
CORRECTIONS,
JOHN DOE,
Food Director at Martin Correctional
Institution, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 30, 2017)
Before MARCUS, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:
Warren Oliver, a Florida prisoner proceeding pro se, appeals the district
court’s dismissal of his civil rights complaint, filed against various prison officials
pursuant to 42 U.S.C. § 1983, for failure to state a claim, pursuant to 28 U.S.C. §
1915(e). On appeal, Oliver argues that: (1) his complaint sufficiently stated an
Eighth Amendment claim, where he alleged that prison officials served prisoners
“toxic meat,” and that prison officials failed to ensure that the dishes were properly
cleaned; and (2) the district court should have allowed him the opportunity to
amend his complaint. After careful review, we vacate and remand.
We review de novo a district court’s sua sponte dismissal for failure to state
a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), using the same standards that
govern Fed. R. Civ. P. 12(b)(6) dismissals. Mitchell v. Farcass, 112 F.3d 1483,
1490 (11th Cir. 1997). Section 1915(e) provides, inter alia, that an IFP action shall
be dismissed at any time if the court determines that it fails to state a claim for
which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). However, the district
2
court may not dismiss an IFP complaint pursuant to § 1915(e)(2)(B)(ii) without
allowing leave to amend when required by Fed. R. Civ. P. 15. Brown v. Johnson,
387 F.3d 1344, 1348-49 (11th Cir. 2004). Under Rule 15(a), a party may amend a
complaint once as a matter of course within either 21 days after serving it, or 21
days after service of a responsive pleading or a motion under Rule 12(b), (e), or (f),
whichever is earlier. Fed. R. Civ. P. 15(a).
To avoid dismissal, the complaint must state a claim for relief that is
plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se
pleadings, however, are held to less stringent standards than those drafted by
lawyers and are liberally construed by this Court. Alba v. Montford, 517 F.3d
1249, 1252 (11th Cir. 2008).
The Eighth Amendment governs the conditions under which prisoners are
confined and the treatment they receive in prison. Farmer v. Brennan, 511 U.S.
825, 832 (1994). Accordingly, it imposes duties on prison officials, who “must
ensure that inmates receive adequate food, clothing, shelter, and medical care.” Id.
To establish an Eighth Amendment violation, a prisoner must satisfy both an
objective and subjective inquiry regarding a prison official’s conduct. Chandler v.
Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004). Under the objective component, a
prisoner must allege a condition that is sufficiently serious to violate the Eighth
Amendment. Id. The challenged condition must be extreme and must pose an
3
unreasonable risk of serious damage to the prisoner’s future health or safety. Id.
The Eighth Amendment only guarantees that prisoners are provided with a
minimal civilized level of life’s basic necessities. Id. Restrictive or harsh
conditions alone do not rise to the level of an Eighth Amendment violation. Id.
Second, the prisoner must allege that the prison official, at a minimum, acted
with a state of mind that constituted deliberate indifference. Id. This means the
prisoner must show that the prison officials: (1) had subjective knowledge of a risk
of serious harm; (2) disregarded that risk; and (3) through conduct that is more
than mere negligence. Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003).
A prisoner is entitled to reasonably adequate food. See Hamm v. DeKalb
Cty., 774 F.2d 1567, 1575 (11th Cir. 1985). This requires only that he receives a
well-balanced meal with sufficient nutritional value to preserve health. Id. “The
fact that the food occasionally contains foreign objects or sometimes is served
cold, while unpleasant, does not amount to a constitutional deprivation.” Id.
For starters, the district court did not err in dismissing the instant complaint
for failure to state an Eighth Amendment claim. As for Oliver’s complaints about
the food, Oliver did not allege a condition sufficiently severe to establish an Eighth
Amendment objection. See Chandler, 379 F.3d at 1289. Oliver alleged that the
meat is “toxic,” contains soy and rodent meat, and has long-term medical
consequences for the inmates, including kidney stones, chronic acne, digestive
4
problems, and lowered cognitive functioning. However, he did not say he
personally has suffered from any of these issues, or even that he personally knows
prisoners who have suffered from these issues. The only medical issue Oliver
personally alleged he has suffered based on his exposure to the soy-laden products
is H. pylori -- a bacteria in his stomach -- but he provided no details about the
severity of his H. pylori symptoms. Thus, Oliver did not adequately allege that he
was being deprived of constitutional rights based on poor nutrition. See Hamm,
774 F.3d at 1575.
Moreover, Oliver failed to allege facts showing that the prison officials acted
with deliberate indifference to any serious medical need. See Farrow, 320 F.3d at
1245. Oliver claimed the defendants knew the meats were toxic based on
complaints from sickened inmates and their families, but he did not allege any
facts to suggest that any of the inmates presented evidence to the prison officials
establishing that their illnesses stemmed from soy-based protein. Nor did he allege
that any governmental agency, such as the U.S. Department of Agriculture or the
U.S. Food and Drug Administration, has determined that soy protein is not safe for
human consumption, much less that any of the prison officials were aware of any
determination like that.
In addition, Oliver’s complaints about the cleanliness of the dishes at the
prison do not state an Eighth Amendment claim. Oliver has not alleged that the
5
dishes are not cleaned at all; he alleges only that they were not cleaned properly.
And his prison grievances state that grease remained on the dishes after they had
been washed. But this allegation is not sufficiently serious to show an Eighth
Amendment violation because spots left on washed dishes simply do not show that
Oliver has been deprived of a minimal civilized level of life’s basic necessities.
See Chandler, 379 F.3d at 1289. In short, the district court did not err in
dismissing Oliver’s complaint for failure to state an Eighth Amendment claim.
Nonetheless, the district court did err in dismissing Oliver’s complaint
without permitting him leave to amend. The record indicates that Oliver’s
complaint had not yet been served on any of the defendants, and none of the
defendants had filed any responsive pleadings. As a result, Oliver was still able to
amend his complaint as of right, and the district court could not dismiss his
complaint without permitting him to amend it. See Brown , 387 F.3d at 1348-49.
Oliver objected to the magistrate judge’s report and recommendation (“R&R”),
asserting, in part, that he should be allowed to amend his complaint to fix any
deficiency. The district court provided no reason about why Oliver could not
amend his complaint; rather, it summarily adopted the reasoning in the R&R.
Accordingly, we vacate and remand to the district court for proceedings consistent
with this opinion.
VACATED AND REMANDED.
6
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} |
428 F.Supp.2d 714 (2006)
Wanda PATTERSON, et al., Plaintiffs,
v.
HEARTLAND INDUSTRIAL PARTNERS, LLP, et al., Defendants.
No. 5:03CV1596.
United States District Court, N.D. Ohio, Eastern Division.
April 21, 2006.
*715 Colleen C. Curran, Precision Orthopaedic Specialties, Inc., Chardon, OH, Glenn Taubman, William L. Messenger, National Right to Work Legal Defense, Springfield, VA, John N. Childs, Brennan, Manna & Diamond, Akron, OH, for Plaintiffs.
James M. Stone, Michael L. Snyder, Mc-Donald Hopkins, Jeffrey B. Keiper, Mc-Donald, Hopkins, Burke & Haber, David M. Fusco, Schwarzwald & McNair LLP, Cleveland, OH, Danielle E. Leonard, Jeffrey B. Demain, Peter D. Nussbaum, Stephen P. Berzon, Altshuler, Berzon, Nussbaum, Rubin & Demain, San Francisco, CA, Robert D. Clark, United Steelworkers of America, Pittsburgh, PA, for Defendants.
MEMORANDUM OPINION
(Resolving Doc. Nos. 128, 131, 138)
DOWD, District Judge.
INTRODUCTION
Unlikely advocates advance the positions in this case. The six plaintiffs are employees at a company where there is no union representation. They challenge cooperative agreements between their employer and a union, arguing that the union is giving away too many of their rights and possible benefits in order to secure information and access for an organizing campaign. At the same time, the plaintiffs make clear they have no interest in any union representing them. Plaintiffs are represented in their efforts in part by the National Right to Work Legal Defense Foundation, an organization that champions the right of individual workers to be free from union representation.
The defendant employer is owned by an investment partnership firm led by David Stockman, a member of the Reagan administration who served in the capacity of Budget Director. Mr. Stockman, one of the founding partners of Heartland Indus *716 trial Partners, LLP ("Heartland"), claims that cooperative agreements, also called neutrality agreements, are essential to permit fair access to unions in their organizing efforts and to avoid the combative environment that often accompanies those efforts.
Stockman claims that he receives the union's assurance of no strikes and other guarantees related to wages in return for providing the defendant union with worker addresses and by making plant facilities available to the union for designated periods of time.
Defendant United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC ("USW" or "the union") defends its actions in the neutrality agreements as necessary to achieve success in the organizing campaign. The union is placed in the odd position of defending these cooperative agreements from employee complaints of undue compromise to the demands of an employer.
The relatively rare claim is made that the union is being too "cozy" with an industrial employer in the Midwest. These Plaintiff employees claim that contrary to 29 U.S.C. Section 186(a) and (b), the employer has agreed to "pay, lend or deliver, any money or other thing of value" to the union in order to obtain the neutrality agreement and therefore, it must be invalidated by the Court. The parties have filed cross motions for summary judgment on the issue. Finding that there are no material facts in dispute, and for the following reasons, the Court grants the motions of the employer and the union and denies the plaintiffs' motion for summary judgment. The Court's analysis follows.
FACTUAL BACKGROUND
Defendant Heartland is a company formed by Stockman with the stated intent of acquiring underutilized manufacturing plants in the Midwest that the company believes could again be made profitable. According to Stockman, harmonious labor relations is a chief goal of the company. (Doc. No. 130, Stockman Depo. at 22-23). In his view, "[t]reating organized labor as an economic partner rather an adversary can provide significant value in industrial company private equity investments." Id. Stockman found a willing union partner in the USW. Ron Bloom, Special Assistant to the USW's President, was the union's primary negotiator with respect to the Heartland agreement. At early meetings, Bloom and Stockman discussed how Heartland might enter into a constructive relationship with labor. Bloom suggested a neutrality agreement after listening to Stockman's desire for an alliance with labor:
I told him I thought what he was doing was extremely important for the country and for workers who work in manufacturing. And in that context, after I after some more conversation where I better understood what he yet had in mind, I approached him with the idea, as I put it at the time I believe, kind of codifying the vision that I thought we shared into an agreement. That is the genesis of what eventually became the framework agreement and the side letter.
Doc. No. 130, Exhibit 9, Bloom Deposition, p. 84.
In 2000, Defendants Heartland and USW agreed to the "Framework for a Constructive Collective Bargaining Relationship" and a separate side letter agreement (hereinafter "the agreements")(See Doc. No. 129, Plaintiffs' Motion for Summary Judgment, Exhibit 15). In general, the agreements provided the union with company cooperation for membership organizing drives in exchange for negotiated terms of what union representation would *717 look like at the company in the event the drive was successful. For the organizing campaign, the company agreed to provide full names and addresses; access to the workplace to permit the union conduct its campaign; and the company would refrain from speaking unfavorably about the union.
In return, the employer received the union's agreement to limit its organizing campaign to a ninety day period; to agree not to speak unfavorably about the employer during the, campaign; and in the event that the organizing was unsuccessful, the union agreed to only conduct one organizing campaign per year and no more than 3 organizing campaigns in a five year period.
Rather than an election to accept or reject the union's representation, a "card check process" was to be used to determine the success of an organizing drive. As Defendant USW describes the procedure:
A card check process involves a union collecting signed authorization cards from employees during an organizing campaign and submitting those cards to the employer or a third-party neutral to determine whether the union has the support of a majority of employees in the relevant bargaining unit. If the union has received authorization cards from a majority of the bargaining unit, the employer, per the recognition agreement, recognizes the union as the employees' bargaining representative, thereby avoiding the time, expense, delay and acrimony associated with a NLRB-supervised election.
Doc. No. 131, Defendant USW's Motion for Summary Judgment, at 3. See Framework Agreement, Exhibit 15, at (I)(A)(5).
The agreements also contained key direction for the terms of a first collective bargaining agreement if employees chose the union as their bargaining representative. In the event of a dispute, most of the terms of the agreement were to be submitted to arbitration, and the procedure for arbitrating disputes was also described in the agreements.
Finally, if there were other companies in which Heartland gained a controlling interest, Heartland would also cause those newly acquired companies to also enter into a Framework and Side Agreement with the union to govern the terms of organizing drives at those newly acquired facilities.
In early 2001, Heartland gained a controlling interest in Collins & Aikman Corporation and several manufacturing plants operated by Collins & Aikman Products Co. (hereinafter "C & A"). Heartland caused C & A to enter into its own neutrality agreements with defendant USW for the six manufacturing plants C & A operates in the Midwest, which produce manufactured goods that serve the automotive industry (Stockman Depo. at 36-37). One of the plants owned by C & A is located in Holmesville, Ohio, where the Plaintiffs make interior automotive components. It is undisputed that while there are minor differences between the Heartland/USW Framework and Side Letter agreements and the subsequent agreements between the USW and C & A, there are not material or substantive differences between the agreements. See Doc. No. 129, Plaintiffs' Motion for Summary Judgment, Exhibit 16.
In August, 2003, according to the agreements, Defendant USW began organizing efforts at the C & A Holmesville, Ohio plant. The union and C & A negotiated an agreement for union organizers to have access to the plant during non-work hours, as required by the agreements. The union then began its campaign to persuade a majority of those within the Holmesville bargaining unit to sign union authorization cards. If a majority of workers signed *718 such cards, then the drive was to be considered a success. No votes on membership as such were to be held.
These organizing efforts were met with Plaintiffs' and other employees' active resistance. An Anti-Union Committee was formed and a campaign to persuade employees not to join the union went forward without company support or interference. See Docket No. 138, Heartland's Motion for Summary Judgment, at 9, and, e.g. Docket No. 133, Exhibit A, Plaintiff Wanda Patterson's Deposition at 59-63. Two weeks before the end of the ninety day organizing period, and while the organizing drive was still proceeding, Plaintiffs filed this lawsuit. The organizing effort failed after it failed to garner a majority of employees in the plant.[1] To date, no further organizing efforts by the USW have been made at the Holmesville plant.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. When considering a motion for summary judgment, "the inferences to be drawn from the underlying facts contained in [affidavits, pleadings, depositions, answers to interrogatories, and admissions] must be viewed in the light most favorable to the party opposing the motion." U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). However, the adverse party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In sum, "[t]he inquiry performed is the threshold inquiry of determining whether there is the need for a trialwhether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505. Put another way, this Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505. See also Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 578 (6th Cir.2003).
DISCUSSION
This case has appeared to the Court, throughout the proceedings,[2] to present a new and unique method for developing a potential collective bargaining agreement. Here, the investor, Heartland, by agreeing to control its subsidiary companies, C & A, the actual employer, has apparently selected and contracted with a union of Heartland's choice, with which Heartland wishes its subsidiary to be engaged with, in the event the subsidiary's employees decide, in the future, that they wish to be represented in a collective bargaining situation as opposed to remaining as non-union employees.
Plaintiff employees claim they have standing to challenge these agreements, that their vehicle for the challenge is a private right of action pursuant to the 29 U.S.C. Section 186,[3] and that they have *719 demonstrated factually just such a violation of the statute because the employer gives to the union "other things of value" in exchange for cooperative or neutrality agreements. The union and employer defendants insist that there is no standing, there is no private right of action and that even if both existed, there was no violation of 29 U.S.C. Section 186.
A. Standing: Constitutional Standing
Plaintiffs argue that they have both constitutional and prudential standing to bring these claims. As to constitutional standing, the parties agree that Plaintiffs' claim must demonstrate three things:
(1) injury in fact, by which we mean an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a casual relationship between the injury and the challenged conduct . . . and (3) a likelihood that the injury will be redressed by a favorable decision.
Associated Gen. Contractors of America v. Columbus, 172 F.3d 411, 421 (6th Cir.1999) quoting Associated General Contractors v. Jacksonville, 508 U.S. 656, 663, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993).
Plaintiffs argue that constitutional standing is met because (1) there is an injury in fact arising from the harm of being represented by a union that gained representation through an allegedly corrupt agreement and the potential deprivation of common law associational rights based on the process by which the union would gain the right to represent Plaintiffs as employees plus injuries alleged to likely result from the terms of that representation; (2) there is a casual relationship between the injury and the challenged conduct because as employees, the terms and conditions of employment will be determined pursuant to the agreements, which Plaintiffs allege are illegal; and (3) there is a substantial likelihood that if the Court invalidates the agreements the remedy Plaintiffs seek, not to be organized pursuant to the agreements, will occur.
Defendants both argue there is no standing, taking the view that Plaintiffs have no injuries because the organizing drive failed and it is not likely to repeated. Defendants correctly point out that any harms from a collective bargaining agreement may never come to pass and that potential harms are not sufficient to confer standing. In essence, it seems, Defendants argue that Plaintiffs claims are premature and speculative.
Defendants made an early attempt to have this matter dismissed on the basis of standing. See Docket Nos. 7 & 11. The Court denied the motions without prejudice and directed the parties to complete discovery based on the likely appeal of the Court's decision given the nature of the dispute. The union sought a writ of mandamus from the Sixth Circuit directing this Court to rule on the motion on standing and other jurisdictional grounds rather than complete discovery. The writ was denied. See Docket No. 57.
Discovery proceeded and in the motions for summary judgment, Defendants more pointedly argue that Plaintiffs have produced no evidence of harm to entitle them to bring a lawsuit under 29 U.S.C. Section 186. The Court agrees that the need for evidence to support Plaintiffs' standing to bring this claim is greater after the conclusion of discovery because at this late stage of the litigation, Plaintiff must muster all the facts at its disposal to resist the motion. Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351(1992); Sault St. Marie Tribe of Chippewa *720 Indians v. U.S., 288 F.3d 910, 915 (6th Cir.2002).
Defendants point to the absence of such evidence and several of the Plaintiffs' own statements that they were not harmed by the union or prevented by the defendant company from conducting an effective resistance to the organizing campaign.
As to harm, the Second Amended Complaint alleges that Defendants violated their "right to organize and select representatives of their own choosing, or to select no representative at all." Docket No. 55, Second Amended Complaint, at Para. 41. Plaintiffs also allege that if the agreements are given effect, they will be represented pursuant to a "corrupt arrangement" by the employer, Para. 39, and the union, Para. 40. Plaintiffs also allege they will be "otherwise subjected to injury and irreparable infringements of their rights." Second Amended Complaint, Para. 42(e).
The Court agrees with Defendants that it is not clear, meaning there are no facts showing, that Plaintiffs' working conditions would be harmed if a collective bargain agreement came into place as a result of the agreements. The Court also recognizes that "standing is not `an ingenious academic exercise in the conceivable' . . . but as we have said requires, at the summary judgment stage, a factual showing of perceptible harm." Lujan, 504 U.S. at 566, 112 S.Ct. 2130. There is little demonstrated by Plaintiffs in what the Court considers harm.
However, the Court finds that there is standing because of the allegation of other injuries arising from what Plaintiffs claim is an illegal agreement. At the time the lawsuit was filed, Plaintiffs were resisting the organizing campaign launched pursuant to the agreements. There is injury concrete and sufficiently particularized arising from Plaintiffs self-funded resistance to the organizing campaign. See Docket No. 133, Exhibit A, Deposition of Wanda Patterson, at 60-68. What Plaintiffs argue for is the right not to be represented in a collective bargaining arrangement that violates 29 U.S.C. Section 186.
Defendants argue that the union engaged in lawful conduct, despite Plaintiffs' claims, and that the Court ought not reward Plaintiffs with the ability to maintain an action to prevent the associational rights of those who would wish to join a union. But in this case, it is not organizing in general that is challenged, but organizing pursuant to the agreements alleged to be in violation of 29 U.S.C. Section 186 that forms the gravamen of the complaint.
Defendants also argue that the first campaign is over and for that reason, so is the risk of harm. However, the lawsuit commenced during the first organizing campaign, while Plaintiffs were resisting the union's efforts to represent them pursuant to means that Plaintiffs allege are contrary to law. Further, pursuant to the agreements, there may be a second or third campaign in which Plaintiffs allege they will be forced to again resist being represented by a union that, under their allegations, gained its position pursuant to an illegal process. Accordingly, the Court finds on this narrow ground, i.e. alleged violations of 29 U.S.C. 186(a) and (b), Plaintiffs have Article III standing to maintain the action.
A. Standing: Prudential Standing
Defendants Heartland/C & A also claim that Plaintiffs lack prudential standing, citing Toyota Landscaping v. Southern Cal. Dist. Council, 11 F.3d 114 (9th Cir.1993). In Toyota Landscaping, the plaintiff contractor attacked a provision of a collective bargaining agreement, to which it was not a party, as violating 29 U.S.C. 186 because the agreement required damages to be paid to the defendant *721 union if a contractor paid laborers less than the negotiated rate of the agreement. The Ninth Circuit concluded that plaintiff lacked standing to attack the agreement because as a contractor it was not within the "zone of interests" intended by the statute for enforcement. 11 F.3d at 117.
According to the Toyota Landscaping case, the test for prudential standing focuses on the following factors:
"(1) whether implying a remedy for Toyota Landscaping is consistent with the underlying purpose of the statutory scheme; (2) whether the Congress intended to create or deny a remedy; and (3) whether Toyota Landscaping is a member of the class for whose benefit the statute was enacted."
Toyota Landscaping, 11 F.3d at 117.
However, courts have repeatedly found that employees are within this zone of interests to maintain a private right of action to enforce the provisions of 29 U.S.C. Section 186. See, e.g., Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 205, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962); Holmes v. Donovan, 984 F.2d 732 (6th Cir.1993). Cf. Hotel Employees Local 57 v. Sage Hospitality, 390 F.3d 206, 219 (employees have standing, not contractors, under Section 29 U.S.C. 186).[4] Accordingly, the Court concludes that Plaintiffs have prudential standing to maintain this action.
B. Private Right of Action
The Court further holds that Plaintiffs may maintain a private right of action pursuant to 29 U.S.C. Section 186. As discussed previously, in the instant case Defendants sought a writ of mandamus, alleging that Defendants should not be required to engage in discovery because there was no basis for jurisdiction. The Sixth Circuit responded to that argument in part as follows:
The petitioner asserts that it should not be required to produce any discovery until there has been a determinative ruling on whether the plaintiffs can pursue their action for an injunction under Section 302(e). However, the federal courts have entertained private rights of action for injunctive relief under Section 302(e). See, e.g., Local 144 Nursing Home Pension Fund v. Demisay, 508 U.S. 581, 587-88, 113 S.Ct. 2252, 124 L.Ed.2d 522 (1993) ("By its unmistakable language, Section 302(e) provides district courts with jurisdiction `to restrain violations of this section.' A `violation' of Section 302 occurs when the substantive restrictions in Sections 302(a) and (b) are disobeyed. . . ."); Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 205, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962) ("noting that Section 302(e) permit[s] private litigants to obtain injunctions in order to protect the integrity of employees' collective bargaining representatives in carrying out their responsibilities."), overruled on other grounds, Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); Holmes v. Donovan, 984 F.2d 732 (6th Cir.1993) (affirming the dismissal of such an action as barred by the six month statute of limitations); Sellers v. O'Connell, 701 F.2d 575 (6th Cir. 1983); Reinforcing Iron Workers Local Union 426 v. Bechtel Power Corp., 634 F.2d 258 (6th Cir.1981).
Order, Case No. 04-3290, at 2-3 (6th Cir. April 28, 2004). See Docket No. 57.
*722 Plaintiffs argue that the Sixth Circuit has already ruled on, the issue of whether a private right of action exists by virtue of the Order above. In Plaintiffs' view, by listing the cases that recognize a private right of action, the Sixth Circuit was telling the Court how to rule on the issue. Further, according to Plaintiffs, the Order has become the law of the case and thus the Court must find there was a private right of action.
The language of the Order would seem to support that view, except for the fact that there are no case citations from the period after the decision in Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), which Defendants claim caused a reexamination of the implied private right of action as asserted by employees under 29 U.S.C. Section 186. Defendants are asking for that analysis.
The Supreme Court has outlined four factors to consider when determining the existence of an implied right of action from a statute:
First, is the plaintiff one of a class for whose especial benefit the statute was enacted, that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication in the legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).
With regard to 29 U.S.C. Section 186, the answer to all of the questions above has traditionally been "yes" with regard to an implied right of actions by employees found to have standing to allege such claims. Defendants do not cite any cases before or after the Supreme Court decision in Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) to question that view but instead argue that the using the reasoning in that case would lead the Court to conclude there is no private right of action.
The Sandoval decision did cause a reexamination of the implied private right of action. In that case, a private right of action was created in regulations promulgated under a federal statute. The Supreme Court concluded that the statute itself did not grant such power to create an implied cause of action. Sandoval, 532 U.S. at 291, 121 S.Ct. 1511. The Supreme Court also focused on the fact that no enforcement mechanism was contained in the statute before it; accordingly, no private right of action was intended. In the instant matter, Congress specifically granted to the courts the power to enforce by injunction the provisions of 29 U.S.C. Section 186. As the Sixth Circuit noted in denying the mandamus petition, Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 205, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962) stands for the proposition that ("Section 302(e) permit[s] private litigants to obtain injunctions in order to protect the integrity of employees' collective bargaining representatives in carrying out their responsibilities."), overruled on other grounds, Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970).
Defendants also point to other considerations discussed in Sandoval including whether the statute contains rights creating language, determined by whether the statute is phrased in terms of the individuals protected or the person regulated. The statute at issue herein is mindful of the rights of employees by regulating *723 those who harm employees by self-dealing and other wrongful conduct. Finally, the fact that other provisions within the same statutory scheme, i.e. 29 U.S.C. Section 187, have more explicit causes of actions described within those statutes is only one of several, considerations to be used when examining whether or not to imply a private right of action.
Accordingly, for the reasons stated, the Court concludes that Plaintiffs may maintain a private right of action pursuant to 29 U.S.C. Section 186.
C. Alleged Violations of 29 U.S.C. 186
Although the Court finds there is standing and the ability to maintain a private right of action, the Court concludes that Plaintiffs have not demonstrated facts to support a violation of 29 U.S.C. Section 186 by virtue of the agreements entered into by Defendants.
The Court first notes that it seems a misnomer to call these "neutrality" agreements. In this case, by design, one union is selected and given preference over all other unions. There is undisputed evidence that under similar circumstances as the Holmesville organizing drive, the defendant employer actively opposed the efforts of another union. See Doc. No. 128, Exhibit 50 which states that while C & A had a neutrality agreement with USW and would not oppose its organizing efforts at its Columbia, Missouri plant, C & A told its employees in a public announcement that it was opposed to a rival union, the United Automobile Workers ("UAW").
QUESTION: What is C & A's position on the UAW?
ANSWER: I am opposed to the UAW coming into this facility. We do not feel the UAW has anything constructive to offer you, your family or this facility. I feel this way because I know that the UAW can cause disruptions and discord within a plant. We simply do not want the potential disruptions and problems the UAW could bring into our facility. We will do everything we can that is legal and proper to keep the UAW out of the Columbia plant.
Exhibit 50, at 2. See also Doc. No. 129, Plaintiffs' Motion for Summary Judgment, at 11-12.
In order to gain that preferred status, Defendant USW gave something to Heartland/C & A: the promise of settled terms for their representation. According to Stockman, stability and predictability are high values for the venture and the company was willing to provide cooperation for the USW's organizing drive even if it meant that its employees might ultimately become a union shop. It is undisputed that this was an intensely negotiated agreement, which by necessity means there was give and take in the process. This means that the employer Heartland/C & A also gave, and the union received, certain benefits from the agreements related to access for the organizing drive and future benefits related to a collective bargaining agreement if the union was chosen through the card check procedure.
Further, the statute upon which the claims are based clearly prevents an employer from seeking to influence the conduct of a union or union official by giving money or other thing of value. 29 U.S.C. Section 186(a). The statute also prevents a union official from receiving or accepting "any money or other thing of value" from an employer. 29 U.S.C. Section 186(b). The five counts of the Second Amended Complaint (Doc. No. 55) allege variations of the same claim based on different parties identified in the statute, whether the alleged payments are made to or received by an actual union or simply one who represents employees engaged in commerce.
There is no allegation made that money changed hands. But do neutrality or cooperative *724 agreements given between the parties constitute the kind of "other thing of value" that the statute prohibits? The Third Circuit recently upheld the validity of a so-called neutrality agreement in Hotel Employees Local 57 v. Sage Hospitality, 390 F.3d 206 (3rd Cir.2004). In that case, Defendant Sage Hospitality sought to have declared void a neutrality agreement it entered into with the plaintiff union citing 29 U.S.C. Section 186, the same statute at issue in this case . . . Quoting from the United States Supreme Court decision in Arroyo v. United States, 359 U.S. 419, 79 S.Ct. 864, 3 L.Ed.2d 915, the Third Circuit stated:
"When Congress enacted section 302, it was `concerned with corruption of collective bargaining through bribery of employee representatives by employers, with extortion by employee representatives, and with the possible abuse by union officers of the power which they might achieve if welfare funds were left to their sole control.'"
Sage Hospitality, 390 F.3d at 218, quoting Arroyo v. United States, 359 U.S. at 425-426, 79 S.Ct. 864.
Plaintiffs argue that the Third Circuit opinion is not binding on this Court because (a) it comes from the Third Circuit and (b) the 29 U.S.C. Section 186 claim was a backup claim for the defendant in that case and that it therefore did not receive due consideration.
The Court, however, agrees with the Third Circuit's holding and reasoning, especially as it relates addresses the claim that neutrality agreements constitute a "thing of value" under the statute:
There are many reasons why this argument makes no sense, including the language of Section 302 itself, which proscribes agreements to "pay, lend, or deliver . . . any money or other thing of value." The agreement here involves no payment, loan, or delivery of anything. The fact that a Neutrality Agreementlike any other labor arbitration agreementbenefits both parties with efficiency and cost saving does not transform it into a payment or delivery of some benefit. "Furthermore, any benefit to the union inherent in a more efficient resolution of recognition disputes does not constitute a thing of value within the meaning of the statute." (citation omitted).
Sage Hospitality, 390 F.3d at 219.
The Sixth Circuit recently decided a case where the issue of what is a "thing of value" pursuant to 29 U.S.C. Section 186 was ultimately not relevant to the final decision. In U.S. v. Douglas, 398 F.3d 407 (6th Cir.2005), Defendants were charged with a violation of 18 U.S.C. 371, which criminalizes an intent to defraud the United State through a conspiracy to violate the LMRA. One of the claims made was that Defendants violated 29 U.S.C. 186 by demanding a "thing of value" to settle a labor dispute in the form of a job appointment and the authority to amend agreements necessary to secure the appointment. The district court dismissed the indictment, finding that those items were not "things of value." The government did not appeal that determination. The Sixth Circuit ultimately determined that the government was not required to allege a separate violation of the LMRA in order to sustain a claim under 18 U.S.C. 371. Id. at 413.
Because there is no apparent Sixth Circuit decision on point, and for the preceding reasons, the Court concludes that the Neutrality Agreements in this case do not violate 29 U.S.C. 186 as a matter of law. Accordingly, Defendants' motions for summary judgment are well-taken.
CONCLUSION
In summary, the Court finds that Plaintiffs have standing and the ability to maintain *725 a private right of action pursuant to 29 U.S.C. 186. The Court further finds, there being no material facts in dispute, that the neutrality agreements entered into by Defendants did not constitute "things of value" that the employers gave or the union received in violation of 29 U.S.C. 186.
Accordingly, Defendants' USW and Heartland/C & A's Motions for Summary Judgment (Doc. Nos. 131 and 138) are GRANTED. Plaintiffs' Motion for Summary Judgment (Doc. No. 128) is DNIED.
IT IS SO ORDERED.
NOTES
[1] The Court notes that organizing efforts by the USW at two of the six other C & A plants were successful.
[2] Those proceedings include several hard fought discovery disputes, a mandamus petition to the Sixth Circuit, and a stay during the bankruptcy of one of the parties.
[3] Within this Memorandum Opinion, the Court will also refer to 29 U.S.C. Section 186 as it is better known as Section 302 of the Labor Management Relations Act ("LMRA").
[4] In many respects, prudential standing and the determination of an implied private right of action use tests similar in nature, as both trace their lineage to Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Cf. Toyota Landscaping, 11 F.3d at 117 with Alexander v. Sandoval, 532 U.S. 275, 287, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). The Court addresses the issue of a private right of action in the next section.
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685 F.2d 90
UNITED STATES of America, Appellant,v.Michael NEWMAN.
No. 82-5109.
United States Court of Appeals,Third Circuit.
Argued July 7, 1982.Decided Aug. 3, 1982.Rehearing and Rehearing En Banc Aug. 24, 1982.
J. Alan Johnson, U. S. Atty., Paul J. Brysh (argued), Asst. U. S. Atty., Pittsburgh, Pa., for appellant.
Thomas A. Livingston (argued), Dennis J. Clark, Livingston, Miller, O'Malley & Clark, Pittsburgh, Pa., for appellee.
Before SEITZ, Chief Judge, VAN DUSEN and SLOVITER, Circuit Judges.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
1
Pursuant to 18 U.S.C. § 3731, the government appeals the district court's order suppressing certain evidence seized by law enforcement officials during a search of defendant's office pursuant to a warrant. The evidence of the articles seized was the basis for defendant's subsequent indictment. We hold that the evidence should not have been suppressed, and therefore reverse.
I.
2
On July 30, 1981, agents of the federal Alcohol, Tobacco, and Firearms Bureau conducted a warrant-authorized search of defendant Newman's office in McKeesport, Pennsylvania. The warrant was issued on the basis of the affidavit of a special agent from the Bureau. The affidavit recited that on May 6, 1981 a named employee of Newman had provided information that he had seen guns in Newman's apartment and office, particularly a shotgun in the corner of Newman's office which Newman had told him "was for protection"; that on May 12, 1981, a confidential informant had stated that he had seen a shotgun located in the same corner of the office; that on June 24, 1981, an undercover agent had entered Newman's office and observed "a long, blue barreled shotgun" in the same corner; and that on July 28, 1981, the affiant verified that Newman was a convicted felon, which would have rendered his possession of a shotgun a violation of 18 U.S.C. § 922(h). App. at 6a-7a. The affidavit concluded with the affiant's statement that he had reason to believe, based upon his experience as an agent of the Bureau, that Newman's office contained "a long blue barrelled shotgun and ammunition for the operation of the shotgun and other fruits and instrumentalities of the previously described crime." App. at 7a-8a. The search warrant, issued on July 29, 1981, authorized a search of Newman's office for "a long blue barreled shotgun, any and all ammunition for the shotgun, any and all documentation of acquisition of the shotgun, ownership and possession of the shotgun along with documentation of ownership, possession or control of the office."
3
In the course of the search of Newman's office, the agents seized, inter alia, the shotgun described in the affidavit, a variety of ammunition found in Newman's desk, a .38 caliber revolver found in a closed briefcase located on a credenza in the office, and numerous documents found both in the briefcase and elsewhere in the office. Thereafter, Newman was indicted on two counts of violating 18 U.S.C.App. § 1202(a)(1), count 1 based on his alleged possession of the shotgun, and count 2 based on his alleged possession of the revolver. Newman moved to suppress the evidence seized in the search of his office on the ground, inter alia, that the search violated his rights under the Fourth Amendment.
4
Following a hearing, the district court entered an order on February 18, 1982 granting the motion to suppress "with respect to the seizure of the handgun obtained by a search of a closed briefcase on the credenza in the defendant's office," and denying the motion to suppress "in all other respects." The order further stated that the court would "supplement this ruling with appropriate findings of fact and conclusions of law." In its supplemental opinion, delivered orally on February 26, 1982, the district court distinguished between the validity of the search of the office pursuant to a "search warrant limited to a search of the premises for the weapon and ammunition and documentation of ownership", App. at 60a, and the search of the briefcase itself. The court concluded that the search warrant
5
was a proper and valid warrant for a search of the premises known as Mr. Newman's office and the premises which actually were searched, and that that would include and there was probable cause for the agents to search the fixtures in that office ... for the documentation of ownership of the office and of the shotgun and for ammunition, and that the warrant was not a valid warrant for a search of the briefcase which was on the credenza, and that the agents acted unreasonably in extending their search under that warrant or incident to that warrant to the briefcase which was on the premises, because there was an insufficient basis for them reasonably to believe that they would find the objects authorized by the warrant to be searched for and seized in the briefcase.
6
App. at 62a-63a. The district court therefore stated that "the motion of the defendant to suppress will be granted as to those items found in the briefcase and denied as to all other matters seized." App. at 63a.
II.
7
The government contends that the district court's holding that the warrant for the office did not encompass the briefcase "is contrary to the basic principle that a warrant-authorized search of a place may encompass any containers in which objects named in the warrant might be found." Government's Brief at 5. We agree. The district court apparently was under the impression that the warrant should have specifically designated the briefcase as an area to be searched. App. at 62a. However, an authorized search may encompass any containers in which the objects may reasonably be found. See United States v. Morris, 647 F.2d 568, 572-73 (5th Cir. 1981). This principle was recently reaffirmed by the Supreme Court, which stated,
8
A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found .... When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.
9
United States v. Ross, --- U.S. ----, ---- - ----, 102 S.Ct. 2157, 2169-71, 72 L.Ed.2d 572 (1982) (footnotes omitted). The dimensions of a briefcase may be too small to permit the searchers to reasonably expect to find a shotgun there. On the other hand, it is not unreasonable to expect to find ammunition in a briefcase found in the same room as a shotgun or to find documentation relating to ownership of an office in a briefcase found in that office. Therefore, if the warrant validly authorized a search for ammunition and documents, the court erred in holding that the search could not properly extend to the opening of the briefcase. See United States v. Micheli, 487 F.2d 429 (1st Cir. 1973).
10
The district court upheld the validity of the search warrant itself. Newman argues that the suppression order should be affirmed because the warrant was defective on the ground that there was no probable cause for a search for either ammunition or documentation.1 The affidavit upon which the warrant was based, while replete with references to the shotgun, is devoid of any mention either of ammunition or of documents relating to ownership, possession or control of the shotgun or office. The conclusory statement of the affiant that based on his experience he had reason to believe that ammunition and "other fruits and instrumentalities of the ... crime" would be found in the office cannot serve as a substitute for a demonstration of probable cause in the factual recitations of the affidavit.
11
Nevertheless, we believe that the district court was correct in holding that there was sufficient probable cause to support the magistrate's authorization of a search of the premises that extended at least to ammunition as well as to the shotgun. App. at 58a. One can reasonably infer that where a gun is located, ammunition is likely to be found particularly, as in this case, where the affidavit recited that Newman claimed the gun was there for protection. This differs from a situation where the gun is retained as, for example, a collector's piece.
12
Since the search of the briefcase leading to the seizure of the revolver would have been proper pursuant to a search warrant which authorized a search only for the shotgun and ammunition, we need not reach the more troublesome issue of whether probable cause existed to authorize a search for documents pertaining to ownership, possession or control of the shotgun or office. The parties briefed and argued this case as if the order suppressed the documents found in the briefcase as well as the revolver. The district court's order, which was not included in the appendix despite the requirement to do so in Rule 10(3) of the Rules of this Circuit, provided only "that with respect to the seizure of the handgun obtained by a search of a closed briefcase on the credenza in the defendant's office, the motion to suppress be, and the same hereby is, granted and the handgun shall not be permissible as evidence at trial; and that in all other respects the motion to suppress evidence be, and the same hereby is, denied." Order of February 18, 1982 (emphasis added). There is some language in the court's subsequent oral opinion that all of the contents of the briefcase should be suppressed, App. at 63a, but there is other language referring only to suppression of the revolver. App. at 55a. In any event, it is only the order itself which is appealable, and the suppression order is limited to the handgun. We are not free to speculate as to what the district court might have intended to do, but must proceed on the basis of what it actually did. We hold that the warrant validly authorized a search for ammunition, and that pursuant to that search the agents properly opened the briefcase.2
13
Once the briefcase was properly opened, the revolver was properly seized under the "plain view" exception to the warrant requirement. The district court found that "when the agent opened the briefcase, the agent noticed something wrapped in terry cloth in the briefcase, triangular in form, and which the agent recognized and believed to be, before unwrapping the wrapped object, a handgun." App. at 55a. We reject Newman's contention that the fact that the revolver was concealed in a non-transparent material removes it from the plain view doctrine.
14
Accordingly, the order of the district court suppressing the revolver found in the briefcase will be reversed, and the case remanded for further proceedings not inconsistent with this opinion.
1
Newman appears to concede that there was sufficient probable cause to authorize a search for the shotgun
2
Although the affidavit of one of the agents who executed the search warrant stated that the search of the briefcase was conducted "for the purpose of recovering documentation of the possession and control of the office along with ownership, acquisition and possession of the ... shotgun," the failure of the agent to state that he was also searching for ammunition is not fatal. As the Supreme Court stated in Warden v. Hayden, 387 U.S. 294, 299, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782 (1967), the failure of the executing officer to "state explicitly" that he was searching for a particular item, "in the absence of a specific question to that effect, can hardly be accorded controlling weight."
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619 So.2d 1382 (1993)
William R. MIKKELSEN and Theresa Lena Mikkelsen
v.
Samir SALAMA.
1911774.
Supreme Court of Alabama.
April 30, 1993.
*1383 Samuel G. McKerall, Gulf Shores, for appellants.
R. Alan Alexander and Thomas H. Nolan, Jr. of Brown, Hudgens, P.C., Mobile, for appellee.
HOUSTON, Justice.
This is an appeal from the dismissal of a third-party complaint.
Richard Coggin sued Theresa L. Mikkelsen and her father, William R. Mikkelsen, for damages for personal injuries, and Richard's wife Lisa Coggin sued the Mikkelsens for damages for loss of consortium; the Coggins alleged that the injuries resulted from a collision between the vehicle Theresa Mikkelsen was driving and the bicycle Richard Coggin was riding. Against Theresa Mikkelsen the Coggins alleged negligence, gross negligence, and wantonness and/or recklessness in the operation of her vehicle. Against William Mikkelsen the Coggins alleged the negligent entrustment of his vehicle to Theresa Mikkelsen. The Mikkelsens answered, generally denying the allegations in the complaint. Thereafter, they filed a third-party complaint against Dr. Samir Salama, a physician who had treated Theresa Mikkelsen and had prescribed medication for her for a mental condition known as "bipolar disorder" (a manic/depressive illness). Dr. Salama moved to dismiss the third-party complaint pursuant to Rule 12(b)(6), Ala.R.Civ. P., alleging that it failed to state a claim upon which relief could be granted and that the Mikkelsens sought indemnity or contribution that was not allowed under Alabama law. The trial court granted Dr. Salama's motion to dismiss and certified the judgment of dismissal as final pursuant to Rule 54(b), A.R.Civ.P. The Mikkelsens appeal. We reverse and remand.
Although the Mikkelsens maintain that they are not joint tort-feasors with Dr. Salama, they nevertheless contend that if they are determined to be joint tort-feasors they should have been allowed to proceed against Dr. Salama because, they say, this case fits within a recognized exception to the rule prohibiting indemnity among joint tort-feasorsthe exception applies in those instances "where both parties are at fault, but the fault of the party from whom indemnity is sought was the proximate or primary cause of the injury." Crigler v. Salac, 438 So.2d 1375, 1385 (Ala.1983). According to the Mikkelsens, this case fits within that exception because Dr. Salama's "failure to warn [Theresa] and her father that [she] should not operate automobiles while suffering from `bi-polar disorder' and *1384 taking [the prescribed medication for the disorder] was the proximate or primary cause of the Coggins' injuries."
According to Dr. Salama, although the Mikkelsens alleged that he "negligently failed to advise or warn Theresa about certain alleged facts, [they] failed to allege that [he] did not conform to the proper standard of practice in his treatment [of] or advice [to] Theresa," so as to state a claim against him under the Alabama Medical Liability Act, Ala.Code 1975, § 6-5-540 et seq. He also maintains that the trial court properly dismissed the Mikkelsens' third-party complaint as a claim for indemnity or contribution among tort-feasors not allowed under Alabama law.
A dismissal for failure to state a claim is proper only if it appears beyond a reasonable doubt that the nonmoving party can prove no set of facts that would entitle him to relief. See, Pearce v. Schrimsher, 583 So.2d 253 (Ala.1991).
Generally, under Rule 8, Ala.R.Civ.P., pleadings need only put the defending party on notice of claims against him; however, Ala.Code 1975, § 6-5-551, qualifies the generalized pleadings permitted by Rule 8(a) by requiring in medical malpractice actions that the complaint include a detailed specification and factual description of the act and omission the plaintiff says renders the health care provider liable to the plaintiff. See, e.g., Miller v. Mobile County Board of Health, 409 So.2d 420 (Ala.1982). Section 6-5-551 provides:
"In any action for injury, damages, or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care the plaintiff shall include in the complaint filed in the action a detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provider liable to plaintiff.... Any complaint which fails to include such detailed specification and factual description of each act and omission shall be subject to dismissal for failure to state a claim upon which relief can be granted."
There are no cases specifically dealing with the pleading requirements of § 6-5-551. However, because the pleading requirements of § 6-5-551 are similar to the requirement of pleading fraud with specificity under Rule 9(b), Ala.R.Civ.P., the comments and the case law applicable to Rule 9 aid us in determining whether a pleading sufficiently complies with the requirements of § 6-5-551.
Thus, when a plaintiff files a complaint alleging that a health care provider breached the standard of care owed to the plaintiff, although every element of the cause of action need not be stated with particularity, the plaintiff must give the defendant health care provider fair notice of the allegedly negligent act and must identify the time and place it occurred and the resulting harm. If the complaint affords the defendant health care provider fair notice of these essential elements, the courts should strive to find that the complaint includes the necessary "detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provider liable to plaintiff." Section 6-5-551; see Comments, Rule 9; see, e.g., Keller v. Security Federal Savings & Loan Ass'n, 555 So.2d 151 (Ala.1989); Kabel v. Brady, 519 So.2d 912 (Ala.1987).
Therefore, in order for the Mikkelsens to state a claim for relief against Dr. Salama, they had to include in their third-party complaint a statement of the allegedly negligent act of Dr. Salama, identifying the time and place it occurred and the resulting harm.
The Mikkelsens' third-party complaint reads, in part, as follows:
"[I]f they or any of them is found to be liable to [the Coggins] on the occasion complained of in the complaint on the grounds that it was negligence, gross negligence, wanton conduct or reckless conduct for [Theresa] to operate or be allowed to operate an automobile on the occasion in question while under the care of [Dr. Salama] who, with full knowledge of [Theresa's] condition, had not warned her not to drive, and who, in fact encouraged her to drive, or while taking medication prescribed by [Dr. Salama], without having been warned by [Dr. Salama] *1385 or by labels or in any other way that she should not operate an automobile while taking such medication, ... then ... [Dr. Salama] is liable over to them for any and all such liability and damage on the following grounds:
"....
"B. Prior to the automobile accident which is the subject of this action, [Theresa] was under the medical care of [Dr. Salama] and while under such medical care was diagnosed by him and treated by him for a certain mental condition then described by him as `bi-polar disorder.'
"C. While treating [Theresa] ..., [Dr. Salama] prescribed for ... and instructed [Theresa] to take on a regular basis, a prescription medication known as halperidol. [The third-party complaint uses the word `halperidol.' This is apparently a reference to the drug `haloperidol.' See Physician's Desk Reference, 1424-26 (47th ed. 1993).]
"D. While treating [Theresa] ..., [Dr. Salama], knowing full well the condition of [Theresa] and knowing full well that he had prescribed for her and instructed her to take on a regular basis, a prescription medication known as halperidol, nevertheless did not advise or instruct [Theresa], her father,... or any other member of her family, that she should not operate an automobile.
"E. While treating [Theresa] ..., [Dr. Salama], knowing full well [the] condition of [Theresa] and knowing full well that he had prescribed for her and instructed her to take on a regular basis, a prescribed medication, known as halperidol, nevertheless did advise and instruct [Theresa] and her father,..., and her mother, ..., that [Theresa] should live a normal life and drive herself to and from her place of employment.
"F. The automobile accident made the basis of [the Coggins'] complaint occurred while [Theresa] was driving herself home from her place of employment, as [Dr. Salama] had instructed her to do; and during the several weeks preceding the said accident, [Theresa] took on a regular basis, as prescribed by [Dr. Salama], the halperidol medication which [he] had prescribed for her."
The Mikkelsens' third-party complaint met the requirements of § 6-5-551 by giving Dr. Salama fair notice of the claim asserted against him and against which he had to defend. It sufficiently alleged that Dr. Salama's negligent act was his failure to warn Theresa or her family that she should not drive while suffering from the mental disorder he had diagnosed or while taking the medication he had prescribed; it sufficiently alleged that his negligent act was informing Theresa that she should live a normal life and drive herself to and from her place of employment; it sufficiently alleged the date and place of his negligent act; and it sufficiently alleged that the harm resulting from his negligent act was the accident made the basis of this case, which, it alleged was the proximate or primary cause of the Coggins' injuries.
The trial court erred in dismissing the Mikkelsens' third-party complaint against Dr. Salama.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
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Opinion filed March 5, 2020
In The
Eleventh Court of Appeals
__________
No. 11-20-00064-CR
__________
IN RE CHRISTOPHER W. HUMBLE
Original Mandamus Proceeding
MEMORANDUM OPINION
Relator, Christopher W. Humble, has filed in this court an original mandamus
proceeding seeking to compel the 358th District Court of Ector County, the
Honorable W. Stacy Trotter, and the Ector County District Attorney, R.N. (Bobby)
Bland, to issue orders requiring Relator’s release from custody on pending criminal
charges. We dismiss for want of jurisdiction.
This court only has mandamus jurisdiction over a judge of a district or county
court or when necessary to enforce our own jurisdiction. TEX. GOV’T CODE ANN.
§ 22.221(a), (b) (West Supp. 2019). Accordingly, we do not have mandamus
jurisdiction over District Attorney Bland for the matters asserted by Relator because
they do not involve matters that are necessary to enforce our own jurisdiction.
Furthermore, Relator seeks his release from custody by way of mandamus. A
defendant’s request to be released from custody on pending criminal charges is the
proper subject of a petition for pretrial habeas corpus. See In re Lozano, No. 14-12-
00049-CR, 2012 WL 274076, at *1 (Tex. App.—Houston [14th Dist.] Jan. 31, 2012,
orig. proceeding) (“[T]o the degree relator seeks release from custody, relator is
seeking pretrial habeas corpus relief . . . .”). “The courts of appeals do not have
original habeas jurisdiction in criminal law matters.” In re Sampson, No. 12-11-
00362-CR, 2012 WL 760307, at *1 (Tex. App.—Tyler Mar. 7, 2012, orig.
proceeding) (citing Section 22.221). Therefore, this court’s habeas jurisdiction in
criminal matters is appellate only. See id. Because this is an original proceeding,
we do not have jurisdiction to address the merits of Relator’s petition. See id.
Accordingly, we dismiss the petition for want of jurisdiction.
PER CURIAM
March 5, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
2
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452 S.W.2d 709 (1970)
E. M. FOREHAND, Petitioner,
v.
Mary Poindexter LIGHT et vir, Respondents.
No. B-1885.
Supreme Court of Texas.
March 25, 1970.
Kugle & Douglas, William H. Kugle, Jr., Athens, for petitioner.
Glusing & Sharpe, Nelson R. Sharpe, Kingsville, for respondents.
POPE, Justice.
The question presented is that of ownership of two certificates of deposit which were issued by the Citizens State Bank of Malakoff, Texas and were made payable to the order of "Mrs. J. B. Poindexter or Mary Light." Mary Light, the daughter of Mrs. Poindexter, instituted this suit against E. M. Forehand, as executor of Mrs. Poindexter's estate, and joined the Citizens State Bank. She seeks a judgment that she owns the certificates and all of their proceeds as a donee third party beneficiary. This is the only issue presented to this court.
The trial court rendered judgment that Mary Light take nothing, but the court of civil appeals reversed that judgment and rendered judgment that Mary Light recover the proceeds of the certificates. 446 S.W.2d 355. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.
The case was tried upon admissions and answers to interrogatories. The first certificate was dated December 28, 1967, and states:
"This certifies that Mrs. J. B. Poindexter has deposited in this Bank Twelve Hundred and 00/100 Dollars payable to the order of Mrs. J. B. Poindexter or Mary Light in current funds on the return of this Certificate properly endorsed 6 months after date with interest at the rate of 5 per cent per annum until maturity."
The second certificate was dated January 9, 1968 and was due in twelve months but was otherwise identical to the first certificate. The settled facts are that Mrs. Poindexter furnished all of the funds for the certificates, that Mary Light is her daughter and that the certificates have been in the possession of the defendant executor since Mrs. Poindexter's death. There is no other writing or evidence which bears upon the nature of the relationship created.
Mary Light relies upon several decisions of this court for her contention that she was entitled to the proceeds of the certificates. *710 This court has held, under the terms of certain contractual agreements, that a third party may be vested with a present, though defeasible, interest upon the completion of a contract for his benefit. We so held in Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823, 158 A.L.R. 470 (1945) as to United States Savings Bonds which were "payable to Julia E. Rhode and on her death to Retta B. Edds." We upheld the rights of the survivor as a third party beneficiary in Davis v. East Texas Savings & Loan Association, 163 Tex. 361, 354 S.W.2d 926 (1962) upon proof that both payees signed the contract on a signature card for a savings certificate which was payable "as joint tenants with rights of survivorship and not as tenants in common." See 346 S.W.2d 178. We again so held in Quilter v. Wendland, 403 S.W.2d 335 (Tex.Sup.1966) because a savings association issued certificates and delivered passbooks for joint payees "as joint tenants with right of survivorship and not as tenants in common." Our refusal of a writ in Brown v. Lane, 383 S.W.2d 649 (Tex.Civ.App.1964, writ ref.), showed this court's approval of that decision. There we had the case of Helen Reib opening a joint savings account in her name and the name of Margaret Lane with both persons signing the account card. The agreement authorized the bank "to pay to either of the undersigned or the survivor of them any funds now on deposit * * * as well as any addition hereafter made thereto by either of the undersigned."
We had a more difficult decision in Krueger v. Williams, 163 Tex. 545, 359 S. W.2d 48 (1962) because a "joint control card" which evidenced the agreement of the decedent with a bank concerning an investment share account provided that the certificate was payable to "W. T. Williams and/or Ila Mae Krueger or payable to the survivor of either." Williams signed the card but Ila Mae Krueger did not. We held that the phrase "payable to the survivor" contained apt words to raise a presumption of an intent to create survivorship rights even though the words fell short of the phrase "as joint tenants with the right of survivorship." The word "survivor" was vital to our decision in Krueger.
In each of the cases mentioned above there is embodied in the contractual arrangement some reference to an intent that a survivor would have rights in the fund or certificate. The contract which is now before us makes no reference to any right of a survivor. In that situation, most jurisdictions deny the claim to rights as a survivor to the funds. 10 Am.Jur.2d, Banks §§ 369, 377, 386.
Mary Light relies upon the case of In re Staver's Estate, 218 Wis. 114, 260 N. W. 655 (1935), which was cited and discussed in the Krueger and Brown cases. Krueger contained contractual language which vested some rights in the survivor and raised a presumption in favor of survivorship rights. It was in that situation that the case was cited for its statement of the measure of proof which on must make to overcome a presumption favoring survivorship. Here we have only the contract for an "or" certificate, which is lacking in any suggestion of survivorship rights. Here there is no presumption and the rule of the Staver's case concerning the burden to overcome a presumption favoring survivorship rights is not applicable.
We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court that the certificates of deposit are the property of the estate of Mrs. J. B. Poindexter.
McGEE, J., notes his dissent.
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193 Ill. App.3d 390 (1990)
549 N.E.2d 964
WILLIAM J. JINES, Plaintiff-Appellee,
v.
JAMES A. SEIBER, Defendant-Appellant.
No. 5-88-0251.
Illinois Appellate Court Fifth District.
Opinion filed January 16, 1990.
*391 *392 William C. Evers III, of Collinsville, for appellant.
Harry J. Sterling and John Long, both of Sterling, Kelley & Long, P.C., of Fairview Heights, for appellee.
Judgment affirmed.
JUSTICE RARICK delivered the opinion of the court:
Plaintiff, William J. Jines, filed an action in the circuit court of St. Clair County against James Seiber, alleging assault and battery and seeking both compensatory and punitive damages. Seiber filed a counterclaim alleging, inter alia, assault and battery, trespass and defamation of character. Pursuant to a jury verdict, judgment was entered against Seiber in the amount of $8,500 on Jines' complaint. The jury also found against Seiber on his counterclaim.
The record reveals that Seiber owned property adjacent to Jines' property, but had no access from public roads. A private roadway ran between Jines' property and that of an adjacent landowner, and Seiber could reach his property via this roadway. Seiber had requested an easement, but had not been given one. Nevertheless, Seiber continued to use the road for access. On September 1, 1986, as Seiber was using the road, he was confronted by Jines. During this confrontation, Seiber struck Jines over the head with a walking stick. Seiber was charged with the criminal offense of battery, but was acquitted. Jines also filed the present action seeking civil damages. The jury rendered a verdict in Jines' favor, awarding him $2,000 in compensatory damages and $6,500 in punitive damages.
On appeal, Seiber argues that the claim for punitive damages should have been stricken and not sent to the jury, maintaining that the imposition of punitive damages in a civil case violates the eighth amendment to the United States Constitution because it imposes criminal sanctions without the protection of the Code of Criminal Procedure and therefore constitutes cruel and unusual punishment. Seiber also maintains that because of his acquittal of the criminal charge, the imposition of punitive damages violates the constitutional bar against double jeopardy.
We address Seiber's double jeopardy argument first. Seiber maintains that the imposition of punitive damages in light of his acquittal on the criminal charge violates the prohibition against double jeopardy contained in the fifth amendment of the United States Constitution. He maintains that punitive damages are criminal in nature, that they *393 are a form of punishment, and therefore subject to prohibition against double jeopardy. In support of his argument, Seiber cites Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 9 L.Ed.2d 644, 83 S.Ct. 554. In Kennedy, the Supreme Court held that the fifth and sixth amendments applied to all forms of punishment, not just traditional criminal actions. In Kennedy, the high court struck down a statute which divested a person of his citizenship for leaving or remaining outside the United States for purposes of evading the draft.
1 The critical distinction for purposes of double jeopardy, however, is that Kennedy dealt with the exercise of governmental power, whereas in this case we are dealing with litigation between private parties. In United States v. Halper (1989), 490 U.S. 435, 104 L.Ed.2d 487, 109 S.Ct. 1892, the Supreme Court held that civil as well as criminal sanctions constituted punishment where such sanctions serve the traditional goals of punishment deterrence and retribution. Although punitive damages are penal in nature and serve to punish a wrongdoer, the court in Halper went on to state that nothing in its opinion precluded a private party from seeking damages for conduct that previously was the subject of criminal prosecution and punishment and that the protection of the double jeopardy clause was not triggered by litigation between private parties. The double jeopardy clause of the fifth amendment applies to proceedings that are "essentially criminal" in nature. (Breed v. Jones (1975), 421 U.S. 519, 44 L.Ed.2d 346, 95 S.Ct. 1779; Helvering v. Mitchell (1938), 303 U.S. 391, 82 L.Ed. 917, 58 S.Ct. 630.) Because punitive damages are not "essentially criminal" in nature, their imposition does not violate the fifth amendment prohibition against double jeopardy. (Hansen v. Johns-Manville Products Corp. (1984), 734 F.2d 1036.) Seiber also raises a double jeopardy argument under article I, section 10, of the Illinois Constitution. (Ill. Const. 1970, art. I, § 10.) He cites no authority, however, supporting his argument that an award of punitive damages violates the Illinois Constitution's prohibition against double jeopardy, and while we find no case law on point, we believe our analysis of his argument as to the United States Constitution is equally applicable to the Illinois Constitution.
2 We next address Seiber's claim that the imposition of punitive damages constitutes cruel and unusual punishment. Again, he bases this argument on the premise that punitive damages are criminal in nature, and again we reject that premise. Seiber argues that because punitive damages are imposed without benefit of the protection afforded by the Code of Criminal Procedure, they constitute cruel and unusual punishment. Again, Seiber cites no authority supporting this *394 proposition. In Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc. (1989), 492 U.S. 257, 106 L.Ed.2d 219, 109 S.Ct. 2909, the Supreme Court considered whether to extend the excessive fines clause of the eighth amendment to awards of punitive damages. Though Seiber's challenge to the punitive damages award is not made under the excessive fines clause, we believe the Supreme Court's rationale for not extending the excessive fines clause to punitive damages is equally applicable in this case. We therefore hold that the eighth amendment, as applied to the States through the fourteenth amendment, in no way precludes the imposition of punitive damages in a suit between private parties. Based upon an examination of the history and nature of punitive damages and eighth amendment jurisprudence, the court concluded that the eighth amendment was intended to apply to the prosecutorial powers of government and that it "places limits on the steps a government may take against an individual, whether it be keeping him in prison, imposing excessive monetary sanctions, or using cruel and unusual punishments." (Browning-Ferris, 492 U.S. at 275, 106 L.Ed.2d at 238, 109 S.Ct. at 2920.) We therefore hold that the imposition of punitive damages does not violate the eighth amendment's ban on cruel and unusual punishment.
3-5 We next consider Seiber's argument that the amount of the punitive damage award, $6,500, was excessive. He argues that the amount of the punitive damage award bears no reasonable relationship to the actual damage award and that Jines' injury was not serious. The amount of punitive damages to be awarded rests with the discretion of the trier of fact and will not be disturbed on review unless clearly excessive. (Smith v. Seiber (1984), 127 Ill. App.3d 950, 469 N.E.2d 231.) In determining whether a punitive damages award is excessive, our courts have looked to: (1) the nature and enormity of the wrong; (2) the financial status of the defendant; and (3) the potential liability of the defendant. (Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App.3d 703, 450 N.E.2d 1199.) In the present case, Seiber deliberately struck Jines over the head with a walking stick. Although he maintained that Jines was the aggressor and that he was merely defending himself, the jury clearly resolved that factual dispute against him. Regarding the second factor, although there was no indication of Seiber's exact net worth, evidence was elicited that Seiber was a man of substantial financial means. Further, a punitive damages award may stand absent evidence of the defendant's financial status as it is not the plaintiff's burden to present such evidence. (Deal v. Byford (1989), 127 Ill.2d 192, 537 N.E.2d 267.) As to the third factor, which deals with possible multiple awards, Seiber will not *395 be subjected to further punitive damage claims as a result of his conduct in this particular case. A $6,500 punitive damage award is not excessive in light of the factors discussed above. As to Seiber's argument that the amount of the punitive damages greatly exceeds the amount of the compensatory award, there is no requirement that a punitive damage award bear any proportional relationship to the amount of the compensatory damage award. (Loitz v. Remington Arms Co. (1988), 177 Ill. App.3d 1034, 532 N.E.2d 1091; Smith v. Seiber (1984), 127 Ill. App.3d at 957, 469 N.E.2d at 236.) We conclude that the punitive damage award is not excessive and decline to reduce the amount.
6 Seiber next argues that the trial court erred in refusing to give IPI Civil 2d No. 5.01 (Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971)), which states:
"If a party to this case has failed to produce a witness within his power to produce, you may infer that the testimony of the witness would be adverse to that party if you believe each of the following elements:
1. The witness was under the control of the party and could have been produced by the exercise of reasonable diligence.
2. The witness was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the testimony would be favorable to him.
4. No reasonable excuse for the failure has been shown."
The witness in question was the emergency room doctor who Seiber maintains could have provided valuable insight into the nature and extent of Jines' injury and whose testimony could have had an impact on the jury's assessment of damages.
Seiber offers no evidence or argument that the witness was any more under Jines' control than his or that he did not have equal access to the witness. Under such circumstances, the instruction is not required and no error can be assigned to the trial court for refusing to give it. J.L. Simmons Co. v. Firestone Tire & Rubber Co. (1984), 126 Ill. App.3d 859, 467 N.E.2d 327, aff'd (1985), 108 Ill.2d 106, 483 N.E.2d 273; Chuhak v. Chicago Transit Authority (1987), 152 Ill. App.3d 480, 504 N.E.2d 875; Scattone v. Clark (1983), 120 Ill. App.3d 290, 457 N.E.2d 1077.
7 Finally, Seiber argues that the trial court erred in several evidentiary rulings and that he was prejudiced thereby. Specifically, Seiber refers to plaintiff's closing argument wherein he asked the *396 jury, "How do you punish a millionaire?" and when plaintiff asked Seiber if he had been involved in litigation with people over the easement he claimed. Seiber maintains that there was no evidence of his net worth in the record and that plaintiff's unsupported characterization of him gave the jury the impression that he could pay a large punitive damage award. Even if erroneous, neither of these statements is such that Seiber would have been prejudiced and by no stretch of the imagination are they such that Seiber was denied the right to a fair trial. The trial as a whole was fair and the evidence clearly supports the jury's verdict. Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill. App.3d 445, 501 N.E.2d 830.
For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.
Affirmed.
GOLDENHERSH and HOWERTON, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
In the United States Court of Federal Claims
No. 11-90C
Filed: January 25, 2013
TO BE PUBLISHED
************************************* 10 U.S.C. § 1201 (2006) (compensable
* disabilities);
* 10 U.S.C.A. § 1216a(b) (2012) (medical
NATHAN T. MEIDL, * conditions considered in disability
* determinations);
Plaintiff, * Army Regulation 635-40 (physical evaluation
* for separation);
v. * 38 C.F.R. § 4.3 (resolving reasonable doubt in
* disability ratings);
THE UNITED STATES, * 38 C.F.R. § 4.7 (choosing between two
* disability evaluations);
Defendant. * RCFC 52.1 (judgment on the administrative
* record);
* RCFC 52.2 (remanding to an administrative
* body).
*************************************
Jason E. Perry, Cheshire, Connecticut, Counsel for Plaintiff.
Sheryl L. Floyd, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for Defendant.
Captain Rachel A. Landsee, United States Army Litigation Division, Of Counsel for
Defendant.
MEMORANDUM OPINION AND ORDER
I. RELEVANT FACTS. 1
On September 8, 1993, Nathan T. Meidl (“Plaintiff”) enlisted in the Army Reserve
Officers’ Training Corps (“Army ROTC”) program while attending the University of Wisconsin.
AR 209. On April 9, 1996, Plaintiff entered active duty in the United States Army. AR 99. On
April 30, 2000, he was appointed as a commissioned officer in the Active Guard Reserve
(“AGR”). AR 167.
1
The relevant facts are derived from the May 6, 2011 Administrative Record (“AR 1-
211”), as supplemented on July 8, 2011 (“SAR 1-16”), June 7, 2011 (“Pl. Ex. at 1-10”), and
February 27, 2012 (“Gov’t SR at A1-A38”), and discussed in large part in Meidl v. United States,
100 Fed. Cl. 1 (2011) (“Meidl I”).
In 2000, while serving in the AGR, Plaintiff began to experience bilateral foot pain that
was aggravated by prolonged standing and running. AR 10. In 2001, he was diagnosed with pes
planus. 2 Id. In early 2002, Plaintiff began to experience pain as a result of degenerative changes
to his left wrist. AR 3, 10.
On October 5, 2005, Plaintiff entered into active duty in Iraq as an Acquisitions Corps
Officer. AR 10, 95. In April 2006, while lifting weights, Plaintiff tore his left pectoralis major
and injured his shoulder, requiring surgery. AR 10, 95. As a result of these injuries, Plaintiff
had a limited range of motion and difficulty bearing more than five pounds of weight. AR 10.
On April 26, 2006, he was diagnosed with hypertension. AR 11.
In October 2008, Plaintiff again was deployed to Iraq for a temporary tour of duty. AR
10. After his return to the United States, in April 2009, Plaintiff’s pes planus was “graded as
severe, bilaterally with pronation, intolerance to weight bearing, extended standing, and extended
walking.” AR 10-11. In June 2009, Plaintiff began to develop bilateral plantar fasciitis 3 that
was painful when he wore military footwear. AR 11. In 2009, Plaintiff suffered a basketball
injury; his left Achilles tendon ruptured, requiring orthopedic surgery and resulting in residual
heel pain. AR 11. Thereafter, Plaintiff’s military physicians directed that he be evaluated for
physical disability by a Medical Evaluation Board (“MEB”). 4 AR 1.
On November 12, 2009, Plaintiff was examined at an orthopedic clinic in preparation for
evaluation by an MEB. 5 AR 1-3. The clinic examined Plaintiff’s left shoulder, his left ankle, a
surgical scar, and his left wrist. AR 2. The clinic concluded that Plaintiff’s left shoulder and
wrist pain did not meet Army retention standards, because they interfered with his ability to
perform military duties, but that Plaintiff’s left ankle pain met retention standards. AR 2. The
orthopedic clinic did not examine Plaintiff’s pes planus or plantar fasciitis. AR 28.
On February 26, 2010, Plaintiff’s Commander recommended that the Army not retain
Plaintiff due to his left shoulder injury, left wrist pain, bilateral pes planus, and bilateral plantar
2
Pes planus is the medical term for flatfoot. See DORLAND’S ILLUSTRATED MEDICAL
DICTIONARY at 1441 (31st ed. 2007) (“DORLAND’S”).
3
Plantar fasciitis refers to inflammation of the sole of the foot. See DORLAND’S at 692,
1476.
4
The Administrative Record does not contain a document reflecting the date of this
referral.
5
The Army may convene a medical evaluation “when a question arises as to the Soldier’s
ability to perform the duties of his or her office, grade, rank, or rating because of physical
disability.” Army Reg. 635-40 ¶¶ 4-6, 4-7, 4-8. A MEB is convened to “document a Soldier’s
medical status and duty limitations insofar as duty is affected by the Soldier’s status.” Army
Reg. 635-40 ¶¶ 4-10. If the MEB finds that a Soldier is not medically qualified for retention, a
referral is made to a Physical Evaluation Board. Id.
2
fasciitis, because Plaintiff could not perform his Military Occupational Specialty (“MOS”) as an
acquisition or logistics officer. AR 8.
On February 28, 2010, however, an MEB considered Plaintiff’s medical condition and
concluded that, due to the condition of his left shoulder and left wrist and his pes planus, and
plantar fasciitis, Plaintiff did not meet the Army’s retention standards, but his left Achilles
tendon rupture and hypertension met retention standards. AR 10-13. As a result, the MEB
recommended a referral to a Physical Evaluation Board (“PEB”) 6 for further evaluation. AR 13.
On March 9, 2010, before the PEB convened, Plaintiff was afforded an opportunity to
have the MEB’s findings reviewed by an impartial medical professional and to review the
MEB’s findings and submit any disagreement. AR 14. Plaintiff declined the opportunity for an
impartial medical evaluation and did not dispute the findings and recommendation of the MEB.
AR 15-17.
On March 25, 2010, the PEB considered Plaintiff’s medical records and determined that
his chronic shoulder and wrist pain rendered him unfit for service, at a twenty percent disability. 7
AR 19-20. The PEB, however, determined that the bilateral pes planus, bilateral plantar
fasciitis, left Achilles tendon rupture, and hypertension did not warrant a disability rating. AR
19. Consequently, the PEB recommended a discharge with severance pay at a twenty percent
disability rate. AR 20.
On March 31, 2010, after the PEB issued a determination, the orthopedic clinic also
issued an Addendum indicating that, although it had not examined Plaintiff’s bilateral pes planus
and plantar fasciitis, an examination by a podiatrist on April 13, 2009 found that these
conditions did not meet retention standards. AR 28.
On April 7, 2010, Plaintiff acknowledged that he was informed of his rights by the PEB
Liaison Officer. AR 27. Plaintiff was given three options: (1) accept the PEB preliminary
findings and waive his right to a formal hearing; (2) contest the preliminary findings and waive
his right to a formal hearing; and (3) contest the preliminary findings and demand a formal
hearing. AR 27. Plaintiff concurred with the PEB findings and waived a formal hearing of his
case. AR 27.
6
PEBs have authority to evaluate a Soldier’s physical disability based on the following
three factors: 1) whether the Soldier is physically fit or unfit to perform the duties of the
Soldier’s office, grade, rank, or rating; 2) whether the disability is of a permanent nature; and 3)
whether the disability meets the criteria established by law for compensation. See Army Reg.
635-40 ¶¶ 4-19(a)(1)-(3). If the PEB determines that a Soldier is unfit because of a physical
disability and is entitled to benefits, the PEB determines a percentage rating for each disability
rendering the Soldier unfit for duty. See Army Reg. 635-40 ¶ 4-19(i).
7
The Veterans Affairs Schedule for Rating Disabilities is used to determine disability
ratings. See Army Reg. 635-40 ¶ 4-19.
3
On June 27, 2010, Plaintiff was diagnosed with severe obstructive sleep apnea. Pl. Ex. at
6-7.
On July 13, 2010, Plaintiff was discharged from active duty in the Army with disability
severance pay, but did not receive medical retirement because his disability rating was less than
thirty percent and he had fewer than twenty years of service. AR 19, 30.
II. PROCEDURAL HISTORY.
On February 10, 2011, Plaintiff filed a Complaint (“Compl.”) in the United States Court
of Federal Claims alleging that he was denied disability retirement pay and benefits to which he
is entitled under 10 U.S.C. § 1201. Compl. ¶ 22. The Complaint also alleges that the PEB failed
to: rate his disabilities at an eighty percent level; provide an adequate MEB evaluation; and apply
applicable evidentiary standards. Compl. ¶ 22.
On May 6, 2011, the Government filed the Administrative Record and a Motion For
Judgment On The Administrative Record. On June 7, 2011, Plaintiff filed a Cross-Motion For
Judgment On The Administrative Record, together with attached Exhibits. On July 8, 2011, the
Government filed a Reply, together with a Supplemental Administrative Record.
On August 10, 2011, the United States Court of Federal Claims remanded the case to the
Army Board for Correction of Military Records (“ABCMR”) for further administrative action
pursuant to RCFC 52.2. 8 See Meidl I. Specifically, the court ordered the ABCMR to consider
the following issues: (1) whether Plaintiff’s separation from active duty complied with applicable
laws and policies; (2) whether Plaintiff had unfitting physical conditions in addition to shoulder
and wrist pain at the time of separation; and (3) whether Plaintiff’s disability rating was
appropriate. Id. at 8. The case was stayed during the remand. Id.
On October 24, 2011, the United States Army Physical Disability Agency (“USAPDA”)
issued an advisory opinion “[r]ecommending no change to the Plaintiff’s military records.”
Gov’t SR at A35-A38. On December 13, 2011, Plaintiff responded that the USAPDA factual
findings were incorrect and that the recommendation to deny relief was contrary to law and did
not address the injustices in the case. Gov’t SR at A18-A34.
On February 2, 2012, the ABCMR denied Plaintiff’s request for relief. Gov’t SR at A3-
A17. The ABCMR found: (1) Plaintiff’s separation from service complied with applicable laws
and policies; (2) Plaintiff properly was processed through the Army’s physical disability
evaluation system; (3) Plaintiff was provided an appropriate disability rating based on the
unfitting conditions identified by the PEB; and (4) Plaintiff’s rights were fully protected during
the separation process. Gov’t SR at A15-A17.
On May 18, 2012, Plaintiff filed a Supplemental Brief In Support Of Plaintiff’s Motion
For Judgment On The Administrative Record in the United States Court of Federal Claims (“Pl.
8
The court, sua sponte, may “order the remand of appropriate matters to an
administrative or executive body or official.” RCFC 52.2(a).
4
Supp.”). On June 22, 2012, the Government filed a Supplemental Brief In Opposition To
Plaintiff’s Cross-Motion For Judgment On The Administrative Record And In Support Of
Defendant’s Motion For Judgment On The Administrative Record (“Gov’t Supp.”). On July 10,
2012, Plaintiff filed a Reply (“Pl. Reply”).
II. DISCUSSION.
A. Jurisdiction And Standing.
The jurisdiction of the United States Court of Federal Claims is established by the Tucker
Act. See 28 U.S.C. § 1491. The Tucker Act authorizes the court “to render judgment upon any
claim against the United States founded either upon the Constitution, or any Act of Congress or
any regulation of an executive department, or upon any express or implied contract with the
United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28
U.S.C. § 1491(a)(1). The Tucker Act, however, is “a jurisdictional statute; it does not create any
substantive right enforceable against the United States for money damages. . . . [T]he Act merely
confers jurisdiction upon [the United States Court of Federal Claims] whenever the substantive
right exists.” United States v. Testan, 424 U.S. 392, 398 (1976). Therefore, a plaintiff must
identify and plead an independent contractual relationship, constitutional provision, federal
statute, or executive agency regulation that provides a substantive right to money damages. See
Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc) (“The Tucker Act itself
does not create a substantive cause of action; in order to come within the jurisdictional reach and
the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that
creates the right to money damages.”). The burden of establishing jurisdiction falls upon the
plaintiff. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990) (holding that the burden is on
the plaintiff to allege facts sufficient to establish jurisdiction); see also RCFC 12(b)(1)
(establishing lack of subject matter jurisdiction as a defense).
In Meidl I, the court determined that the February 10, 2011 Complaint invoked the
jurisdiction of the United States Court of Federal Claims under the Tucker Act, 28 U.S.C. §
1491(a)(1) as it challenged the determination of Plaintiff’s disability status under 10 U.S.C. §
1201. Compl. ¶ 2; see also Sawyer v. United States, 930 F.2d 1577, 1580-81 (Fed. Cir. 1991)
(holding that claims challenging disability status under 10 U.S.C. § 1201 may be adjudicated by
the United States Court of Federal Claims). In addition, although Plaintiff “voluntarily waived
judicial review of the informal PEB[,]” he retained the right to seek administrative review of the
informal PEB decision and judicial review of that administrative review. See Meidl I, 100 Fed.
Cl. at 8. The court remanded the case to the ABCMR. Id.
In addition, in Meidl I, the court determined that the February 10, 2011 Complaint
alleged that Plaintiff suffered an injury in fact that can be determined in a specific amount and is
traceable to the Army’s unlawful determination of disability retirement pay and benefits. Compl.
¶ 22; see also Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 180-81
(2000) (“[A] plaintiff must show [that] it has suffered an ‘injury in fact’ that is . . . concrete and
particularized and . . . actual or imminent, not conjectural or hypothetical; . . . the injury is fairly
traceable to the challenged action of the defendant; and . . . it is likely, as opposed to merely
5
speculative, that the injury will be redressed by a favorable decision.” (internal citations
omitted)).
B. Standard For Judgment On The Administrative Record, Pursuant To RCFC
52.1.
A motion for judgment on the administrative record, pursuant to RCFC 52.1, is akin to an
expedited trial on the record and has no counterpart in the Federal Rules of Civil Procedure. See
RCFC 52.1, Rules Committee Note (July 13, 2009); see also Bannum, Inc. v. United States, 404
F.3d 1346, 1356 (Fed. Cir. 2005) (“[T]he judgment on an administrative record is properly
understood as intending to provide for an expedited trial on the record.”). Accordingly, on a
motion for judgment on the administrative record, the court is required to determine whether the
plaintiff has met the burden of proof to show that the relevant federal agency decision was
without a rational basis or not in accordance with the law. Id. at 1348 (instructing the trial court
to make “factual findings under RCFC [52.1] from the [limited] record evidence as if it were
conducting a trial on the record”); see also Afghan Am. Army Servs. Corp. v. United States, 90
Fed. Cl. 341, 355 (2009) (“In reviewing cross-motions for judgment on the administrative
record, the court must determine ‘whether, given all the disputed and undisputed facts, a party
has met its burden of proof based on the evidence in the record.’” (citations omitted)). The
existence of a material issue of fact, however, does not prohibit the court from granting a motion
for judgment on the administrative record, nor is the court required to conduct an evidentiary
proceeding. See Bannum, 404 F.3d at 1353-54 (“RCFC [52.1] requires the [United States] Court
of Federal Claims, when making a prejudice analysis in the first instance, to make factual
findings from the record evidence as if it were conducting a trial on the record.”).
The United States Court of Federal Claims “reviews a [board for correction of military
records] decision to determine if it is arbitrary, capricious, contrary to law, or unsupported by
substantial evidence.” Roth v. United States, 378 F.3d 1371, 1381 (Fed. Cir. 2004). A plaintiff
must “show by cogent and clearly convincing evidence” that the board’s decision failed by at
least one of those standards. Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986).
The court now applies this standard of review to the ABCMR’s February 2, 2012 remand
decision.
C. Whether The Army Board For Correction Of Military Records’ Finding
Regarding Plaintiff’s Pes Planus And Plantar Fasciitis Was Contrary To
Law, Arbitrary, Capricious, Or Unsupported By Substantial Evidence.
Plaintiff asserts that the ABCMR decision violated 10 U.S.C. §§ 1201, 1216a; 38 C.F.R.
§§ 4.3, 4.7; and Army Reg. 635-40 ¶ 4-19 and was arbitrary and capricious. Pl. Supp. at 5-6.
Plaintiff asserts that the ABCMR was arbitrary and capricious in pointing to the
longstanding nature of Plaintiff’s foot conditions as evidence that they did not make him unfit for
service. Pl. Supp. at 5 (“There is no statutory or regulatory reason why the timing of these
disabilities . . . was a disqualifying factor for compensability.” (citing 10 U.S.C. § 1201 (2006)
(basing disability determinations on conditions “not noted at the time of the [service] member’s
entrance on active duty”) and Army Reg. 635-40 ¶ 4-19 (compensating disabilities “incurred or
6
aggravated while the Soldier was entitled to basic pay”))). The Government responds that
Plaintiff’s ability to continue performing his duties after his foot conditions were diagnosed
evidences that they did not render him unfit to serve. Gov’t Supp. at 8 (quoting Army Reg. 635-
40 ¶ 3-1 (“[I]t is necessary to compare the nature and degree of physical disability present with
the requirements of the duties the Soldier reasonably may be expected to perform because of
their office, grade, rank, or rating.”)). The ABCMR also quoted Army Reg. 635-40 ¶ 3-1 and, by
implication, applied it when noting Plaintiff’s “outstanding duty performance record over the
period he suffered from the conditions.” Gov’t SR at A13, A15. For these reasons, the court has
determined that the ABCMR’s consideration of the timing of Plaintiff’s disabilities was not
arbitrary or capricious.
Next, Plaintiff argues that “there is no statutory or regulatory requirement that a condition
be ‘aggressively treated with appropriate medication’ before being compensable.” Pl. Supp. at 5.
The Government does not challenge that assertion. Gov’t Supp. at 6-9. But, Plaintiff cites no
statute nor regulation that barred the PEB from considering the treatment of Plaintiff’s condition
as evidence of the condition’s impact on his fitness for duty. Pl. Supp. 3-6. For this reason, the
court also has determined that the ABCMR’s consideration of Plaintiff’s medical treatment was
not contrary to law.
Plaintiff also asserts that the ABCMR failed to consider evidence from Plaintiff’s
Commander as to the consequences of Plaintiff’s foot conditions. Pl. Supp. at 5-6. The record,
however, confirms that the ABCMR did consider that evidence:
Although the [C]ommander included these conditions in his statement regarding
the applicant’s fitness for duty, the limitation on the applicant’s duty performance
only became apparent with the progression of the left shoulder and wrist pain.
The medical evidence related to these conditions do [sic] not show his bilateral
foot pain disqualified the applicant from taking an alternate [Army Physical
Fitness Test] or rendered him unfit to perform his duties as a field grade
acquisition officer.
Gov’t SR at A15. Instead of failing to consider the evidence from Plaintiff’s Commander, the
ABCMR merely reached a conclusion with which Plaintiff disagreed, and that disagreement does
not establish that the ABCMR was arbitrary or capricious in its consideration of the
Commander’s statement.
Plaintiff adds that the ABCMR also failed to consider that the Veterans Affairs Schedule
for Rating Disabilities required a fifty percent disability rating for Plaintiff’s pes planus and
plantar fasciitis. Pl. Supp. at 6 (citing 38 C.F.R. § 4.3 (stating that doubt regarding a disability
should be resolved in favor of the claimant); 38 C.F.R. § 4.7 (“Where there is a question as to
which of two evaluations shall be applied, the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for that rating.”); and AR 28 (Medical
Board Addendum recommending that, based on Plaintiff’s Apr. 13, 2009 podiatry evaluation, the
PEB consider Plaintiff’s foot conditions in evaluating him for a disability)). Because the
ABCMR concluded that Plaintiff’s foot conditions were not unfitting, the ABCMR had no
reason to address the appropriate disability rating for those conditions. See 10 U.S.C.A. §
1216a(b). For these reasons, the court has further determined that the ABCMR’s failure to
7
address the appropriate disability rating for Plaintiff’s foot conditions was neither arbitrary nor
capricious.
Section 1216a provides that disability ratings “shall take into account all medical
conditions, whether individually or collectively, that render the member unfit to perform the
duties of the member’s office, grade, rank, or rating.” 10 U.S.C.A. § 1216a(b) (2012) (emphasis
added). Plaintiff argues that although the ABCMR concluded that his foot conditions alone did
not render him unfit for duty, it failed to consider whether his foot conditions contributed to
rendering him unfit for duty. Pl. Supp. at 6; Pl. Reply at 10. The Government does not counter
this argument; in fact, it replaces the words “whether individually or collectively” with an
ellipsis when it quotes from section 1216a(b). Gov’t Supp. at 8-9 (“[T]he statute provides that,
in making rating determinations, the military will ‘take into account all medical conditions . . .
that render the member unfit to perform the duties of the member’s office, grade, rank, or
rating.’”). The ABCMR Record of Proceedings supports Plaintiff’s contention. Gov’t SR at A3-
A17. The ABCMR reviewed “whether [Plaintiff] had unfitting physical conditions in addition to
the shoulder and wrist pain at the time of separation,” instead of whether Plaintiff had physical
conditions in addition to his shoulder and wrist pain that contributed to rendering him unfit for
service. Gov’t SR at A14; see also Gov’t SR at A15 (discussing whether Plaintiff “had other
unfitting physical conditions in addition to shoulder and wrist pain,” rather than whether other
conditions contributed to rendering Plaintiff unfit for service). The ABCMR’s review of the
PEB’s reasoning reflects this focus on whether the foot conditions, in isolation, were unfitting.
Gov’t SR at A15. The fact that the conditions were “long standing” and had not previously
rendered Plaintiff unfit for service (Gov’t SR at A15) had no bearing on whether they
contributed to his unfitness, once he incurred his shoulder and wrist injuries. Furthermore, the
ABCMR concluded that Plaintiff’s initial concurrence with the PEB’s findings “shows he
understood his unfitness was primarily related to his left shoulder and wrist pain.” Gov’t SR at
A15 (emphasis added). Section 1216a(b), however, does not limit disability ratings to the
primary cause of a soldier’s unfitness; it requires that disability ratings “take into account all
medical conditions, whether individually or collectively, that render the member unfit.” 10
U.S.C.A. § 1216a(b).
By failing to consider whether Plaintiff’s foot conditions contributed to rendering him
unfit, the ABCMR violated the applicable statute and acted arbitrarily and capriciously. See Ala.
Aircraft Indus. Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (“Courts
have found an agency's decision to be arbitrary and capricious when the agency ‘entirely failed
to consider an important aspect of the problem[.]’” (quoting Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))).
D. Whether The Army Board For Correction Of Military Records’ Finding
Regarding Plaintiff’s Sleep Apnea Was Arbitrary, Capricious, Contrary To
Law, Or Unsupported By Substantial Evidence.
Plaintiff raises two arguments regarding his sleep apnea: it was unfitting at the time of
Plaintiff’s MEB and PEB and should have been rated then; or it became unfitting after Plaintiff’s
MEB and PEB, but before his separation from the Army, so that the MEB and PEB decisions
were legally insufficient. Pl. Supp. at 8 (citing Army Reg. 635-40 ¶ 2-8, requiring MEBs be
8
“complete, accurate, and fully documented”). The Government argues that “[i]t is evident from
the fact that Mr. Meidl did not raise any concerns about his sleep apnea before the MEB or the
PEB that this condition was not unfitting at the time of his separation from the Navy [sic].”
Gov’t Supp. at 11. But this is a non sequitur, because the MEB and PEB evaluations occurred
months before Plaintiff’s separation from the Army. AR 1-3 (stating that the orthopedic
evaluation for Plaintiff’s MEB occurred on Nov. 12, 2009); AR 16-17 (stating that Plaintiff’s
MEB proceedings were on Mar. 2, 2010); AR 19-20 (stating that the PEB considered Plaintiff’s
case on Mar. 25, 2010); AR 19, 30 (stating that Plaintiff was discharged on July 13, 2010). The
ABCMR addressed only whether Plaintiff’s sleep apnea was unfitting at the time of his MEB
and PEB evaluations. Gov’t SR at A16 (stating that the evidence available to the MEB and PEB
did not support the conclusion that Plaintiff’s sleep apnea was unfitting, and listing that
evidence). Although the ABCMR wrote that “the medical evidence related to this condition is
not sufficiently compelling to show this condition was unfitting at the time of his separation,”
the evidence cited for that proposition is that Plaintiff did not raise sleep apnea “before the MEB
or PEB . . . during the [Physical Disability Evaluation System] process.” Gov’t SR at A16
(emphasis added). The ABCMR report also fails to document any consideration given to the
possibility that Plaintiff’s condition became unfitting after the MEB and PEB but before his
separation from the Army. By failing to consider whether Plaintiff’s sleep apnea became
unfitting after the MEB and PEB evaluations but before his separation from the Army, the
ABCMR acted arbitrarily and capriciously. See Ala. Aircraft Indus. Inc.-Birmingham, 586 F.3d
at 1375 (“Courts have found an agency's decision to be arbitrary and capricious when the agency
‘entirely failed to consider an important aspect of the problem[.]’” (quoting Motor Vehicle Mfrs.
Ass’n, 463 U.S. at 43)).
III. CONCLUSION.
For these reasons, the court has determined that this case must be remanded to the
ABCMR for further administrative action, pursuant to RCFC 52.2. The case is stayed for the
duration of remand proceedings. The Government is directed to report to the court 90 days
hereafter as to on the status of the remand proceedings. The ABCMR is directed to provide the
court with a decision within 180 days.
On remand, the ABCMR is to consider the following issues: whether Plaintiff’s foot
conditions contributed to rendering him unfit; whether Plaintiff’s sleep apnea became unfitting
after the MEB and PEB proceedings, but before Plaintiff’s separation from the Army; and, in
light of its resolution of those two issues, whether, Plaintiff's disability rating was appropriate.
The ABCMR is directed to take any corrective action deemed appropriate based on its review
and to advise the court of the same.
IT IS SO ORDERED.
s/ Susan G. Braden
SUSAN G. BRADEN
Judge
9
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967 F.2d 40
UNITED STATES of America, Appellee,v.Thomas H. GANNON, Jr., Defendant-Appellant.
No. 973, Docket 91-1560.
United States Court of Appeals,Second Circuit.
Argued Feb. 7, 1992.Decided June 10, 1992.
Joseph W. Ryan, Jr., Uniondale, N.Y. (Irving A. Cohn, Judith Hepworth, Joseph W. Ryan, Jr., P.C., of counsel), for defendant-appellant.
James W. Lowe, U.S. Dept. of Justice, Washington, D.C. (James F. Rill, Asst. Atty. Gen., Charles A. James, Deputy Asst. Atty. Gen., Robert B. Nicholson, John J. Powers, III, U.S. Dept. of Justice, Washington, D.C., Charles V. Reilly, Edward Friedman, Patricia Howland, U.S. Dept. of Justice, N.Y. City, Andrew J. Maloney, U.S. Atty. E.D.N.Y. New York City, of counsel), for appellee.
Before: OAKES, Chief Judge, CARDAMONE and PIERCE, Circuit Judges.
OAKES, Chief Judge:
1
This appeal involves a question under the Double Jeopardy Clause. The government seeks to prosecute the appellant, Thomas H. Gannon, Jr., for perjury in denying certain bid-rigging allegations before a grand jury to which he was summoned after he and his company were acquitted by a jury in a previous bid-rigging conspiracy indictment. In the previous indictment, it was alleged that he and other road paving contractors conspired to rig bids to obtain slurry seal road paving work awarded by the Village of Pelham Manor, New York, and the Town of Brookhaven, New York. It alleged that Gannon and his company had agreed with the other contractors to submit "accommodation bids" that would facilitate one other contractor (Lansdell) in obtaining work let by the Village of Pelham Manor, and that in return Gannon would win the work of the Town of Brookhaven through similar accommodation bids by the other contractors. At trial, the prosecution sought to prove that Gannon and the other contractors were trying to keep Lansdell out of Suffolk County. In the course of the trial, evidence was introduced to the effect that the contractors, including Gannon, divided up the six maintenance districts of Suffolk County. This evidence was objected to by Gannon but it was admitted as evidence of a larger conspiracy and to show Gannon's knowledge and intent. Admitted into evidence was a government-compiled summary of bids submitted to Suffolk County for slurry seal work let by the Suffolk County Department of Highways.
2
Following the verdict of acquittal in reference to the Brookhaven-Pelham Manor conspiracy, Gannon was summoned before a grand jury and asked questions relative to Suffolk County highway bid rigging. His denial of having had conversations or attending meetings regarding that bid rigging led to the instant perjury indictment.
3
In this interlocutory appeal from denial of a motion to dismiss the perjury indictment, see Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977), Gannon relies upon the Double Jeopardy Clause and the doctrine of collateral estoppel, principally citing Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), as explicated in United States v. Calderone, 917 F.2d 717 (2d Cir.1990), vacated and remanded, --- U.S. ----, 112 S.Ct. 1657, 118 L.Ed.2d 381 (1992), as well as Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The government, on the other hand, relies principally on Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), also as explicated in Calderone, 917 F.2d at 724 (Newman, J., concurring) and as further elaborated upon recently by United States v. Felix, --- U.S. ----, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992). While we think the question closer than the government makes it out to be, on balance we believe the teaching of the cases above mentioned requires us to affirm.
I. FACTS
4
In the 1970s and 1980s, Gannon and his company operated a road paving and highway repair business located in Coram in Suffolk County, eastern Long Island, which is denominated area 2 of the six different Suffolk County Maintenance Districts, and is located on the north shore of the island. Gannon's company was also favorably located to area 5, which encompasses Northport. Location is significant in the business because the closer the highway to be repaved is to the business operations, the less trucking and other expenses that may be involved. Proximity to the worksite, of course, is not the only factor which enters into the determination of costs. As came out in Gannon's testimony at his Pelham Manor/Brookhaven trial, among the other factors are: population density, since prior to commencing repaving all residents must be notified and alternate parking places found for them; road conditions; cost of labor and supplies, including meals and lodging, traffic time, tools, etc.; and availability of water for slurry seal operations. In the Pelham Manor/Brookhaven case, Gannon's testimony effectively substantiated the proposition that he could bid lower than other bidders because of his proximity to the Town of Brookhaven, whereas he would have to bid higher, say, in the Village of Pelham Manor.
5
The prosecution in the Pelham Manor/Brookhaven conspiracy case sought to prove, through the testimony of Robert Lansdell, president of the Lansdell Company, Inc., and its Long Island manager, Eugene Martino, that Lansdell, Gannon, Ascon Distributing Corp., and Bimasco, Inc. submitted rigged bids so as to let Lansdell win work let by the Village of Pelham Manor, while Gannon would win work let by the Town of Brookhaven. The prosecution also sought to prove the existence of a larger conspiracy--that Gannon and the principals of Ascon and Bimasco had attempted to keep Lansdell, a larger east coast contractor, out of Suffolk County by facilitating his bidding efforts at Pelham Manor. The government pretrial brief indicated that the conspiracy, to which Lansdell and Martino would testify, involved "dividing up maintenance districts on the Suffolk County bid." According to the government, the participating contractors agreed in advance which company would be the low bidder in each area. Pursuant to the bidding scheme, the government alleged that Ascon proposed that Lansdell be allocated Pelham Manor in Westchester County in return for agreeing not to compete for slurry seal work on Long Island. Subsequently, the government alleged that Lansdell and Gannon made arrangements to ensure that Lansdell's bid would be lower than Gannon's for the Pelham Manor work.
6
When the government, during the trial, sought to elicit its proof of a broader conspiracy from the witness Lansdell, Gannon objected on the ground that the prosecution was offering proof of other crimes not charged. The prosecution successfully argued, however, that the proof was offered as "evidence of a larger conspiracy [of] which Pelham Manor-Brookhaven was a part," and to show Gannon's knowledge and intent. The defense countered that the alleged Suffolk County conspiracy commenced a year later and was independent of the alleged Pelham Manor/Brookhaven conspiracy. The district court ruled in favor of the prosecution that the evidence of a larger conspiracy could be admitted under Fed.R.Evid. 404(b) as showing Gannon's intent and motive. Lansdell thus testified, over objection, to a meeting relating to the Suffolk County bidding system and the division of the six Suffolk County maintenance district awards through a bid-rigging scheme. In support of its broader conspiracy theory, the government submitted its Exhibit 58, a five-page summary of bids covering the years 1976-85 for each of the six maintenance districts. The exhibit detailed Lansdell's successful bids in areas 3, 4 and 5 in December 1977 bids, and in areas 3 and 4 from 1979-82, and area 4 from 1983-84, and Gannon's successful bids in areas 5 and 6, commencing in 1979 and continuing through 1985. On the basis of this evidence, the prosecution claimed that there was "sufficient evidence for the jury to conclude that this was all part of one larger conspiracy."
7
On cross-examination of Gannon, the government elicited from him denials about not just the Town of Brookhaven and Village of Pelham Manor bid-rigging agreements, but as to a 1979 meeting with Lansdell and the Bimasco and Ascon principals to divide up Suffolk County bids. Gannon also denied attending subsequent meetings in subsequent years.
8
In summation, the government sought to place the alleged Brookhaven/Pelham Manor conspiracy within the context of the larger conspiracy. The government argued that since Gannon had a half a million dollars a year's worth of work from the Town of Brookhaven, had he lost that to Lansdell he would have had to venture into the exclusive havens of Ascon and Bimasco in Smithtown, Islip and Babylon, hence, the call from the Ascon principal to Lansdell, "If you leave us alone in eastern Long Island you can have Pelham Manor." The government further referred to "the patterns on the Suffolk County bid" and told the jury to "see how the patterns of bidding on that Suffolk County bid changed dramatically" after the alleged meeting of January 1979. In short, the prosecution argued that the agreement to divide up the maintenance districts in Suffolk county grew out of the agreement to allocate Pelham Manor and Brookhaven.
9
The district court charged the jury that "there is only one issue in this case. Did the defendants enter into a conspiracy for the bidding of slurry seal work in the village of Pelham Manor and the town of Brookhaven?" As indicated above, the jury acquitted Gannon and his company. A month after the verdict of acquittal, however, Gannon was summoned by the grand jury, and, after a grant of immunity under 18 U.S.C. § 6002 (1988), he was questioned about a meeting with other road paving contractors--particularly Martino of Lansdell, Harry Streuli from Ascon, and Grant Hendricks from Bimasco--called for the purpose of dividing up the Suffolk County bid including the bids for road work in certain towns on Long Island including Babylon, Smithtown and Islip. The grand jury indicted him for his negative answers in reference to his participation in discussions, conversations, and meetings about the bids, particularly in years following 1979, and also for saying he never told any other contractor what he intended to bid on. Gannon appeals from the district court's adverse ruling on his double jeopardy/collateral estoppel argument.
II. DISCUSSION
10
Since Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Court has held that the Double Jeopardy Clause of the Fifth Amendment prohibits successive prosecutions for the same criminal act or transaction under two criminal statutes whenever the offense charged in the subsequent prosecution does not "require[ ] proof of a fact which the other does not." In Illinois v. Vitale, 447 U.S. 410, 419-21, 100 S.Ct. 2260, 2266-67, 65 L.Ed.2d 228 (1980), the Court suggested that even if the Blockburger test did not bar a successive prosecution, the second prosecution would be barred if the prosecution sought to establish an essential element of the second crime by proving the conduct for which the defendant was convicted in the first prosecution. In Grady v. Corbin, 110 S.Ct. at 2087, the Court adopted the suggestion from Vitale, holding that "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." In so doing, the Court made clear that "The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct." Id. at 2093. Citing Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), the Court noted that the presentation of specific evidence in one trial does not forever prevent the government from introducing that same evidence in a subsequent proceeding. The Court further elaborated that the Blockburger test is not a "same evidence" test since it has "nothing to do with the evidence presented at trial," but is concerned "solely with the statutory elements of the offenses charged." Grady, 110 S.Ct. at 2093 n. 12. A prosecution, however, "cannot avoid the dictates of the Double Jeopardy Clause merely by altering in successive prosecutions the evidence offered to prove the same conduct." Id. at 2093. In Grady, the state had admitted that it would prove the entirety of the conduct for which Corbin was convicted--driving while intoxicated and failing to keep right of the median--to establish "essential elements" of the homicide and assault offenses; therefore, the Double Jeopardy Clause barred the second prosecution.
11
In Calderone, a majority of the Second Circuit panel held that Grady barred reprosecution of Calderone and Catalano for activities related to heroin selling following acquittal in a previous conspiracy prosecution, which involved a larger conspiracy in addition to the heroin-selling activities alleged in the second prosecution. 917 F.2d at 722. The panel majority thought that the Grady test was intended to guide Double Jeopardy analysis in all cases involving successive prosecutions, not just in the limited circumstance involving successive prosecution of separate crimes arising from a single event. Calderone, 917 F.2d at 721. Consequently, it was of the view that to the extent that United States v. Korfant, 771 F.2d 660 (2d Cir.1985) (per curiam), and other Second Circuit cases specified a balancing approach to determining whether successive prosecutions for overlapping conspiracies were barred--instead of the Grady "same conduct" test--these cases "were no longer good law." Calderone, 917 F.2d at 721. The panel majority opinion concluded that Grady's "same conduct" test barred prosecution not only of the conspiracy count but also of substantive telephone and heroin distribution counts. The panel majority reasoned that even though the defendants were not charged with the substantive crimes in the case previously prosecuted, they were prosecuted for the conduct that supported those offenses, which, pursuant to Grady, was sufficient to bar reprosecution. Id. at 722.
12
Judge Newman's concurring opinion pointed out three distinctions between Grady and Calderone, none of which Judge Newman felt made Grady inapplicable: (1) Grady presented the issue whether the Double Jeopardy Clause barred prosecution under one statute after prosecution under a different statute; (2) Grady involved successive prosecutions of offenses arising out of a single occurrence whereas Calderone was concerned with continuing conduct; and (3) Grady did not involve "compound-complex crimes," a distinction accepted by the Third Circuit in United States v. Pungitore, 910 F.2d 1084, 1109-11 (3rd Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2009, 114 L.Ed.2d 98 (1991). Calderone, 917 F.2d at 722-23.
13
Judge Newman went on to say that he felt the word "element" in the Grady majority opinion was chosen with care and must be read with equal care to prevent the Grady-test from becoming a "same evidence test." Calderone, 917 F.2d at 723-24. Judge Newman suggested that the Grady "element" component "means barring the second prosecution only when the conduct previously prosecuted is to be used to 'establish' the element of the second crime," which Judge Newman thought "must mean 'constitute the entirety of' the element." Calderone, 917 F.2d at 724. He went on to point out that the majority opinion in Grady declined to overrule Dowling, even though the dissenters thought that the majority opinion had done so. Calderone, 917 F.2d at 724, see also Grady, 110 S.Ct. at 2095-96 (O'Connor, J., dissenting) & 2102 (Scalia, J., dissenting).1 Judge Newman then sought to explicate Grady 's reference to "conduct that constitutes an offense for which the defendant has already been prosecuted," 110 S.Ct. at 2087, while preserving Dowling. He concluded that the Grady-test bars a second prosecution "whenever the defendant is at risk that the entirety of an element of an offense in a pending prosecution might be established by conduct constituting the entirety of a previously prosecuted offense (as in Grady ), or the entirety of an element of such an offense, or the entirety of a distinct component of such an offense...." Calderone, 917 F.2d at 725 (emphasis added). Under Judge Newman's analysis, Grady would not bar Gannon's prosecution for perjury relative to the Long Island conspiracy (the Suffolk County bid rigging), since the acquittal related only to the Pelham Manor/Brookhaven conspiracy--a conspiracy which constituted neither the entirety of an element nor the entirety of a distinct component of the perjury charge.
14
A case decided by the Supreme Court a few weeks after the Gannon case was argued sheds more light on the meaning of Grady and its application to the instant case. In United States v. Felix, the Court--following United States v. Bayer, 331 U.S. 532, 542-43, 67 S.Ct. 1394, 1399, 91 L.Ed. 1654 (1947), and Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 1181, 90 L.Ed. 1489 (1946)--held that a substantive crime and a conspiracy to commit that crime are not "the same offense" for Double Jeopardy purposes even if they are based on the same underlying incidents. 112 S.Ct. at 1384. The Court noted that Grady had not questioned this established doctrine; the Court further noted that lesser included offense-type analyses--such as the Grady and Blockburger tests--are "much less helpful in analyzing subsequent conspiracy prosecutions that are supported by previously prosecuted overt acts." Felix, 112 S.Ct. at 1385.
15
The Felix Court elaborated on the Double Jeopardy analysis in two ways that bear on the case at hand. First, it pointed out that evidence of drug transactions in which Felix had participated in Oklahoma was first admitted against Felix for Fed.R.Evid. 404(b) purposes at the Missouri trial, the first prosecution, and that Felix was subsequently prosecuted for those same Oklahoma drug transactions. Felix, 112 S.Ct. at 1383 n. 3. The Court specifically declined to adopt "a rule that the admission of evidence concerning a crime under Rule 404(b) constitutes prosecution for that crime," pointing out that under such rule the Double Jeopardy Clause would have barred the subsequent admission of the Henry evidence, thus, overturning Dowling. Felix, 112 S.Ct. at 1383 n. 3.
16
Second, the Court referred in depth to our Calderone case, pointing out that the Calderone court decided that the conduct at issue in a conspiracy prosecution is not the agreement itself but the conduct from which the government asks the jury to infer that there was an agreement, and making specific mention of Judge Newman's conclusion that Grady bars a subsequent prosecution only when previously prosecuted conduct will be used to establish the entirety of an element of the second crime. Felix, 112 S.Ct. at 1385. The Court went on to say, after recounting these views, that "[i]t appears that while Grady eschewed a 'same evidence' test and Garrett [v. United States, 471 U.S. 773, 790, 105 S.Ct. 2407, 2417, 85 L.Ed.2d 764 (1985) ] rejected a 'single transaction' test, the line between those tests and the 'same conduct' language of Grady is not easy to discern." Felix, 112 S.Ct. at 1385. The Court, however, declined to become enmeshed "in such subtleties," staying with the rule that a conspiracy to commit a crime is a separate offense from the crime itself. Id.
17
Applying the teachings of this line of cases to our present situation, Gannon's perjury charges are not barred by the previous acquittal. None of the perjury charges relate to the offense for which he was first prosecuted, namely, a conspiracy to rig bidding for Pelham Manor and Brookhaven. Rather, the perjury charges relate to bid rigging for the Suffolk County highway districts and possibly as to certain other Long Island municipalities. True, evidence as to the Suffolk County conspiracy was admitted under rule 404(b) in the Pelham Manor/Brookhaven case; Government exhibit 58, recounted above, specifically involved that Suffolk County highway district bidding. The Felix footnote referred to above, however, specifically says that admission of rule 404(b) evidence does not constitute a prosecution within the meaning of the cases. 112 S.Ct. at 1383 n. 3. Beyond that, neither Grady nor Felix would support the proposition that acquittal of the Pelham Manor/Brookhaven conspiracy necessarily amounted to an acquittal as to the Suffolk County conspiracy. See also United States v. Citron, 853 F.2d 1055, 1058 (2d Cir.1988) (government collaterally estopped from relitigating issues necessarily decided in favor of the defendant by a previous final judgment). It may be that the Suffolk bid-rigging conspiracy grew out of the Pelham Manor/Brookhaven conspiracy--in the sense that by giving Lansdell the bid for Pelham Manor it was hoped by the others to keep Lansdell out of Long Island--but this would not necessarily involve an agreement to rig the bids in Suffolk County involving the other paving contractors, Ascon and Bimasco. And it is the conversations relating to Suffolk County, which took place between the Ascon and Bimasco principals, Streuli and Hendricks, as to which Gannon was asked questions by the grand jury and to which he is alleged to have given false answers. In no sense would Grady, as explicated in Felix and Calderone, bar this prosecution.
18
Affirmed.
1
In Dowling, the defendant was prosecuted successively for two separate robberies. Following acquittal for the first robbery, the so called Henry robbery, the defendant was prosecuted for a second robbery. At the second trial, the prosecution introduced evidence of the defendant's conduct in the Henry robbery to establish his identity as the perpetrator of the second robbery. The Court held that this use of rule 404(b) evidence did not violate the Double Jeopardy Clause. Dowling, 493 U.S. at 349-50, 110 S.Ct. at 672-73
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621 S.E.2d 550 (2005)
275 Ga. App. 574
PATTEN
v.
The STATE.
No. A05A1038.
Court of Appeals of Georgia.
September 23, 2005.
*551 Peter D. Johnson, Augusta, for Appellant.
Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for Appellee.
RUFFIN, Chief Judge.
A jury found Norval Patten guilty of possessing marijuana with intent to distribute and trafficking in cocaine. Patten appeals, and for reasons that follow, we reverse.
Viewed in a light most favorable to the jury's verdict, the evidence shows that in *552 April 2001, law enforcement officers were informed by UPS that a suspicious package had been shipped from California to Augusta, Georgia.[1] Upon arriving at the UPS facility, Investigator Matthue Phares discovered an open package that contained approximately 40 pounds of marijuana, wrapped in cellophane, and smeared with a pungent chemical. The package was addressed to "Kate White" at 2814 Ridgecrest Drive.
A man who identified himself as "Dante White" called UPS regarding the package and indicated that he would pick it up that day. When no one arrived, Phares drove to the address listed on the package, which was an apartment. In front of the apartment, Phares saw several vehicles, including a blue Chevrolet Tahoe.
The next day, police called the number they had for Dante White and left a numeric page. A male then called back to say that the package would be picked up by Joseph Scurry. Thereafter, police observed a white Ford Escort pull into the UPS parking lot followed by a blue Tahoe. The driver of the Escort later identified as Scurry retrieved the package. As Scurry was leaving UPS, he was arrested in the parking lot. The driver of the Tahoe, Robert Hall, immediately tried to leave the parking lot, but he was apprehended along with his passenger, Kevin Taylor. Two cell phones were discovered in the Tahoe, and when Phares called the number he had for "Dante White," a phone in the Tahoe began to ring. Law enforcement officers obtained a warrant to search the apartment on Ridgecrest. Inside the apartment, which was leased to Patten and his son, police discovered a kilogram of cocaine and over $98,000.
Patten, Hall, and Taylor were tried together for possessing marijuana with intent to distribute and trafficking in cocaine. At trial, Patten waived his right to remain silent and testified on his own behalf. According to Patten, he leased the apartment for Hall as a favor. Patten conceded that he bought furniture for the apartment and that he used his credit card to pay the rent on at least one occasion. However, he claimed he was not involved in any drug activity with Hall. The jury nonetheless found Patten guilty, and this appeal ensued.
1. As a threshold matter, we must address Patten's suggestion that we review his enumerations of error for plain error. As a general rule, a party must interpose an objection to an alleged error in order to preserve an issue for appellate review.[2] Here, Patten acknowledges that "[i]n most instances alleged as error, [his] trial counsel failed to voice an objection or otherwise preserve the record for appellate review." Nonetheless, he urges this Court to review his enumerated errors under the "plain error" doctrine.
A plain error is one that is so clearly erroneous that it creates a likelihood of a grave miscarriage of justice or seriously affects the fairness, integrity, or public reputation of the judicial proceeding.[3] The Supreme Court has limited the application of this doctrine to either capital cases or cases in which there is an alleged violation of OCGA § 17-8-57, which prohibits a trial judge from intimating an opinion as to the guilt of an accused.[4] Accordingly, we decline to review each and every alleged error to ascertain whether it constitutes plain error.
*553 2. In two enumerations of error, Patten challenges the sufficiency of the evidence. In reviewing such challenge, "`the relevant question 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 beyond a reasonable doubt.'"[5] It is the jury's prerogative and not this Court's to resolve conflicts in the evidence.[6] "`As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.'"[7]
A person who owns or leases premises is presumed to be in control and possession of any contraband found therein.[8] Although this presumption may be rebutted, whether the presumption has been rebutted is a question for the jury.[9] Here, a kilogram of cocaine and over $98,000 were found in an apartment leased by Patten. Although Patten testified that he leased the apartment as a favor for Hall, the jury was not required to believe this testimony. To the contrary, the jury was free to reject Patten's claim that he not only leased, but also furnished, an apartment for someone he described as a "casual friend." Moreover, Patten paid for the cell phone Hall used, which further links Patten to the criminal venture. Under these circumstances, the jury was authorized to conclude that Patten was a participant in the large-scale cocaine trafficking operation taking place from the apartment he leased.
Nonetheless, the same cannot be said for Patten's conviction for possessing marijuana with intent to distribute as neither marijuana nor marijuana paraphernalia was discovered in the apartment.[10] Thus, there is no presumption that Patten possessed or controlled any marijuana.[11] And the only evidence linking Patten to the marijuana is circumstantial.
To warrant a conviction based solely on circumstantial evidence, "the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused."[12] Here, there is a dearth of evidence linking Patten to the marijuana. We do not believe the mere fact the package was addressed but never delivered to an apartment Patten leased is sufficient to tie him to the drugs. It is equally plausible that Hall, Taylor, and Scurry were dealing marijuana independently of the cocaine operation. Without additional evidence linking Patten to the marijuana, his conviction for this offense must be reversed.[13]
3. Patten opted to testify at trial, and Hall's attorney attempted to impeach him with evidence of a prior drug conviction. The record shows that, during cross-examination, Patten was asked whether he knew about Hall's "California drug offense," and Patten responded negatively. On redirect, Patten's attorney asked Patten where he was when Hall's "drug offense went down," and Patten said he "was in the Persian Gulf." According to Hall's attorney, Patten could not have been in the Persian Gulf during that time because his prior conviction shows that, during that time, he was in South Carolina where he had been charged with possessing cocaine with intent to distribute. The trial court admitted the evidence of the prior conviction, which Patten alleges as error.
Patten contends that admission of this impeachment evidence violated OCGA § 24-9-20(b) because he did not put his character in *554 issue.[14] However, the evidence was not admitted for the purpose of refuting evidence of good character. Indeed, the trial court explained that the testimony was "not being [offered] to put [Patten's] character in issue; this is being [admitted] to refute his testimony on the stand."
In this regard, Patten contends that nothing about this conviction tended to impeach his testimony. The State, on the other hand, asserts that the conviction was admissible as a prior inconsistent statement. Although not generally admissible, evidence of a prior conviction may be tendered to rebut specific testimony.[15] However, we fail to see how Patten's prior conviction impeached his trial testimony, and the State makes no attempt whatsoever to clarify the issue.[16] Our review of the record shows that, whereas Hall was charged with possessing marijuana in March 1998, Patten's South Carolina offense allegedly occurred in July 1999. Since the timing of Patten's conviction is not inconsistent with his trial testimony, we agree that the trial court erred in admitting the evidence for impeachment purposes. Moreover, we cannot say that the error was harmless since the evidence of Patten's guilt although sufficient was not overwhelming.[17] Under these circumstances, Patten's conviction for cocaine trafficking must be reversed. Although he may be retried for this offense, the State may not retry him for possessing marijuana with intent to distribute as we found the evidence insufficient to sustain this conviction.[18]
4. In view of our holding in Division 3, we need not address Patten's remaining enumerations of error, all of which were either abandoned or unlikely to recur at retrial.
Judgment reversed.
JOHNSON, P.J., and BARNES, J., concur.
NOTES
[1] We note that Patten has failed to comply with virtually all of this Court's rules regarding the formatting of briefs. Most notably, he has provided inadequate citation to the record to support his factual allegations. However, the State conceded that Patten's factual recitation is accurate. Thus, pursuant to Court of Appeals Rule 25(b)(1), the State has "consent[ed] to a decision based on the appellant's statement of facts." Thus, we treat Patten's facts as true.
[2] See, e.g., Allen v. State, 273 Ga.App. 227, 230(2)(b), 614 S.E.2d 857 (2005) (severance); Cummings v. State, 272 Ga.App. 886, 888(1), 614 S.E.2d 121 (2005) (evidentiary ruling); Walker v. State, 258 Ga.App. 333, 335(1), 574 S.E.2d 400 (2002) (voir dire); Davitt v. State, 257 Ga.App. 384, 385(1), 571 S.E.2d 427 (2002) (improper questioning of witness).
[3] See Lynd v. State, 262 Ga. 58, 61, n. 2, 414 S.E.2d 5 (1992).
[4] See Pittman v. State, 273 Ga. 849, 850, n. 2, 546 S.E.2d 277 (2001).
[5] (Emphasis in original.) Taylor v. State, 263 Ga.App. 420, 421(1), 587 S.E.2d 791 (2003).
[6] See id.
[7] Id.
[8] See Wilkerson v. State, 269 Ga.App. 190, 191(2), 603 S.E.2d 728 (2004); Hill v. State, 253 Ga.App. 658, 659(1), 560 S.E.2d 88 (2002).
[9] See Wilkerson, supra; Hill, supra.
[10] The State's brief in this regard is particularly unhelpful as it completely fails to address Patten's conviction for possessing marijuana with intent to distribute.
[11] Cf. Wilkerson, supra; Hill, supra.
[12] (Punctuation omitted.) Baltazar v. State, 254 Ga.App. 773, 774, 564 S.E.2d 202 (2002).
[13] See id. at 774-775, 564 S.E.2d 202; Sandoval v. State, 260 Ga.App. 61, 65-66(4), 579 S.E.2d 75 (2003).
[14] Prior to July 1, 2005, OCGA § 24-9-20(b) provided, inter alia, that "[i]f a defendant testifies, he shall be sworn as any other witness and may be examined and cross-examined as any other witness, except that no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue."
[15] See Sanders v. State, 199 Ga.App. 671, 673(3), 405 S.E.2d 727 (1991); Bland v. State, 198 Ga.App. 671, 671-672, 402 S.E.2d 782 (1991).
[16] The State's brief on this point is so pithy as to be useless.
[17] Compare Hargrove v. State, 188 Ga.App. 336, 338(4), 373 S.E.2d 44 (1988) (improper admission of character evidence not grounds for reversal where evidence of guilt ample).
[18] See Jenkins v. State, 259 Ga.App. 47, 49(2), 576 S.E.2d 300 (2002) ("The general rule is that the retrial of the defendant is not barred where reversal of the conviction results from trial error rather than evidentiary insufficiency.") (punctuation omitted).
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995 F.2d 1061
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.Charles Merrill MOUNT, Plaintiff, Appellant,v.Rya ZOBEL, Defendant, Appellee.Charles Merrill MOUNT, Plaintiff, Appellant,v.UNITED STATES of America, Defendant, Appellee.
Nos. 92-2113, 92-2127, 92-2128.
United States Court of Appeals,First Circuit.
June 8, 1993.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Charles Merrill Mount on brief pro se.
A. John Pappalardo, United States Attorney, and Suzanne E. Durrell, Assistant United States Attorney, on Memorandum in Support of Motion for Summary Disposition for appellee in No. 92-2113.
A. John Pappalardo, United States Attorney, and Tobin N. Harvey, Assistant United States Attorney, on Memoranda in Support of Motion for Summary Disposition for appellee in Nos. 92-2127 and 92-2128.
D.Mass.
AFFIRMED.
Before Torruella, Cyr and Boudin, Circuit Judges.
Per Curiam.
1
Having reviewed the parties' submissions and the district court records, we affirm the judgment of dismissal in each of these three consolidated appeals.
2
In No. 92-2113, Mount seeks the return of cash ($18,400) and property (135 "autograph letters") that were seized in connection with his criminal prosecution. In the alternative, he seeks damages for the "embezzlement" and "misappropriation" of such property. The lower court properly characterized each of these claims as frivolous. Defendant (the district court judge who presided over the criminal trial) is protected by absolute immunity as to any claim for damages. See, e.g., Decker v. Hillsborough County Attorney's Office, 845 F.2d 17, 21 (1st Cir. 1988) (per curiam). We rejected in a previous appeal Mount's effort to regain possession of the currency. Mount v. United States, No. 92-1576 (1st Cir. Mar. 16, 1993) (per curiam). And Fed. R. Crim. P. 41(e) provides the proper avenue for his effort to regain possession of the letters. The record discloses that he filed such a motion for just that purpose on April 22, 1992, which the district court denied on January 14, 1993.
3
The remaining two appeals involve 28 U.S.C. § 2255 petitions.1 In the first, Mount alleges that the trial court's refusal to subpoena, and/or authorize payment of travel expenses for, various witnesses in this country deprived him of compulsory process guaranteed by the Sixth Amendment. We rejected a nearly identical argument on direct appeal. See United States v. Mount, 896 F.2d 612, 620-21 (1st Cir. 1990). Mount alleges that, whereas that earlier argument involved foreign witnesses, his instant claim involves domestic witnesses. Yet the only such witness here identified (Barbara Johnson) not only was discussed in the direct appeal but "eventually paid her own expenses and testified at trial." Id. at 620. Mount fails to identify the other alleged witnesses involved, referring to them simply as "autograph dealers in New York and Boston" and "associates and friends."
4
In the remaining appeal, Mount alleges that he was denied the right to confront a "witness" named Rodney Armstrong. Yet Armstrong did not testify at trial. And there is no suggestion that Mount was denied access to the notes of the relevant FBI interview or was himself precluded from calling Armstrong as a witness. As such, this claim is likewise baseless.
5
The judgments are affirmed. The motion for default judgment in No. 92-2127 is denied.
1
The district court dismissed each of these petitions sua sponte without calling for a response from the government. As a result, the government did not-indeed, was unable to-plead abuse of the writ below. See, e.g., McCleskey v. Zant, 111 S. Ct. 1454, 1470 (1991); Whittemore v. United States, 986 F.2d 575, 578 (1st Cir. 1993) ("The burden is on the government to first plead abuse of the writ."). We therefore will address the § 2255 petitions on the merits
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FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 4, 2011
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
SHAWN P. BLAZIER,
Plaintiff-Appellant,
v. No. 11-4056
(D.C. No. 2:09-CV-01132-DAK)
CURTIS L. LARSON, as an individual (D. Utah)
and in his official capacity; UTAH
COUNTY, a body politic, in its
official capacity, a/k/a Utah County
Attorney’s Office,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and
GORSUCH, Circuit Judge.
Plaintiff Shawn P. Blazier appeals from a district court order dismissing
this civil rights action. Blazier sued Utah County and deputy county attorney
Curtis L. Larson, claiming they violated his constitutional rights in connection
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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.
with an aborted prosecution under Utah Code Ann. § 76-8-508.3 (“Retaliation
against a witness, victim or informant”). We review the legal grounds for
dismissal de novo, see Merryfield v. Jordan, 584 F.3d 923, 926 (10th Cir. 2009),
and affirm for substantially the reasons stated by the district court.
While facing prosecution for assaulting Troy Menlove, Blazier launched an
adverse publicity campaign on the internet against Menlove and his girlfriend.
This prompted Larson to charge Blazier under § 76-8-508.3(2), which makes it a
felony to “cause[] harm,” including “injury or damage to . . . reputation,” through
“threat or action against a witness or . . . victim of any crime” in “retaliation or
retribution against the witness [or] victim.” Blazier moved to dismiss, contending
that application of the statute to truthful speech was illegal and unconstitutional. 1
Before the motion was resolved, Larson dismissed all charges against Blazier.
But he also sent an email to Blazier’s counsel indicating that he would consider
reinitiating criminal proceedings should Blazier resume his campaign against
Menlove and his girlfriend. Blazier filed this suit claiming that both the initial,
aborted prosecution and the threatened future prosecution violated his
constitutional rights. The district court dismissed, and this appeal followed.
1
Blazier’s contention that Larson had applied the statute illegally, as distinct
from and in addition to unconstitutionally, rests on Blazier’s view that his internet
attacks were a form of “legal redress” within the meaning of § 76-8-508.3, which
provides an exception for “seeking any legal redress to which the person is
otherwise entitled.” The grounds for our disposition here do not require us to
address this issue of statutory interpretation.
-2-
We limit our review to the rulings challenged by Blazier on appeal.
See, e.g., Dubbs v. Head Start, Inc., 336 F.3d 1194, 1202 n.2 (10th Cir. 2003).
These involve the claims for damages and injunctive relief against Larson, whom
Blazier sued in his individual and official capacities. 2
With respect to the individual-capacity claim, the district court held Larson
was entitled to absolute prosecutorial immunity. We agree. “Prosecutors are
entitled to absolute immunity for their decisions to prosecute, their investigatory
or evidence-gathering actions, their evaluations of evidence, their determinations
of whether probable cause exists, and their determination of what information to
show the court.” Nielander v. Bd. of County Comm’rs, 582 F.3d 1155, 1164
(10th Cir. 2009). The allegations against Larson fall within this broad category of
conduct. The decision to file criminal charges “is a quintessential prosecutorial
function protected by absolute immunity.” Stein v. Disciplinary Bd. of Supreme
Ct. of N.M., 520 F.3d 1183, 1194 (10th Cir. 2008). And this immunity extends to
“conditional prosecutorial decisions,” which provisionally withhold charges in
exchange for a quid pro quo, so long as the threat of prosecution is not tied to a
demand “manifestly or palpably beyond [the prosecutor’s] authority.” Schloss v.
Bouse, 876 F.2d 287, 291 (2d Cir. 1989) (internal quotation marks omitted); see,
e.g., Arnold v. McClain, 926 F.2d 963, 967 (10th Cir. 1991) (granting absolute
2
The district court dismissed the claims against Utah County for several
reasons that have not been challenged on appeal.
-3-
immunity to prosecutor who threatened to file perjury charges against police
officer unless officer resigned). Threatening to bring charges for conduct a
prosecutor believes to be felonious could hardly be manifestly or palpably beyond
his authority. 3
With respect to the official-capacity claim for injunctive relief against
future witness-retaliation charges, the district court held such relief was not
warranted because
[t]he possibility of such a charge being filed against Mr. Blazier if he
posted on his website the truthful information he seeks to post is far
too speculative, and the specific circumstances surrounding any such
charge simply cannot be known at this time. More importantly, this
court declines to interfere with any future state criminal
prosecutions. Mr. Blazier is not without a remedy if he were to be
improperly charged in the future, as he could challenge the charge
within the context of any future criminal case and/or file a § 1983
action after the fact.
Aplt. App. at 106. This ruling also reflects a proper application of the governing
law. “[G]enerally a court will not enjoin the enforcement of a criminal statute
even though unconstitutional, since such a result seriously impairs the State’s
interest in enforcing its criminal laws, and implicates the concerns for federalism
which lie at the heart of Younger [v. Harris, 401 U.S. 37 (1971)].” Wooley v.
3
Blazier’s contention that Larson is not entitled to qualified immunity in
light of clearly established law is simply inapposite. Absolute immunity–which
involves an entirely different analysis, turning on the scope of the prosecutorial
function rather than the established nature of the right allegedly violated, see
Spielman v. Hildebrand, 873 F.2d 1377, 1381 (10th Cir. 1989)–obviates any
consideration of qualified immunity, Arnold, 926 F.2d at 967-68.
-4-
Maynard, 430 U.S. 705, 712-13 (1977) (internal quotation marks and citations
omitted). “[T]his is not an absolute policy,” but “[t]o justify such interference
there must be exceptional circumstances and a clear showing that an injunction
is necessary in order to afford adequate protection of constitutional rights.”
Id. at 713 (internal quotation marks omitted).
The kind of exceptional circumstances contemplated by Wooley are evident
from the egregious facts in that case, which are not replicated here. In Wooley,
one of the plaintiffs had been prosecuted three times for violating the challenged
law, resulting in two fines and fifteen days in jail, id. at 708–a circumstance
“quite different from . . . when a prosecution is threatened for the first time,”
id. at 712. Only one charge was brought against Blazier and it was voluntarily
dismissed after he challenged application of the statute to his conduct. This fact
not only attenuates the extant prejudice to Blazier, it also (1) undercuts the
likelihood that charges would actually be brought for similar conduct in the future
(Larson’s threat notwithstanding) and, more importantly, (2) leaves open the
possibility that, should such charges be brought, the state courts would accept his
defense that the statute was unconstitutionally applied to his conduct, thus
undercutting the showing he must make that a preemptive federal injunction is
necessary to afford adequate protection of his constitutional rights. Indeed, these
two points are what the district court meant when it characterized Blazier’s claim
as speculative and stated that he was not without a remedy in any event.
-5-
In addition, for the plaintiffs in Wooley, avoiding future prosecution under
the challenged law (which required use of license plates with a motto repugnant
to their religious beliefs) would have required them to give up “their ability to
perform the ordinary tasks of daily life which require an automobile.” Id.
Nothing so extensively intrusive into daily life activities is remotely involved
here.
The judgment of the district court is AFFIRMED.
Entered for the Court
Neil M. Gorsuch
Circuit Judge
-6-
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87 F.3d 1327
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Michael LOPEZ, Plaintiff-Appellant,v.The CITY AND COUNTY OF DENVER; David Michaud, in hisindividual capacity and his official capacity as Chief ofthe Denver Police Department; L.N. Valencia, Detective, inhis official and individual capacity; T. Demmell,Detective, in his official and individual capacity; UnknownOfficers of the Denver Police Department, in theirindividual and official capacity, Defendants-Appellees.
No. 95-1498.
United States Court of Appeals, Tenth Circuit.
June 25, 1996.
Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.
ORDER AND JUDGMENT*
SEYMOUR, Chief Judge.
1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
2
Mr. Michael Lopez filed this action under 42 U.S.C. § 1983,1 alleging that defendants violated his Fourth Amendment right against warrantless seizures and his Fifth Amendment right to due process. In addition he alleged outrageous conduct and professional negligence. The district court granted defendants' motion for summary judgment. Mr. Lopez timely filed this pro se appeal, and we affirm.
3
An appellant is required to include in the record on appeal "pertinent written findings and conclusions, opinions or orders of a district judge ... or, if the findings and conclusions were stated orally, a copy of the transcript pages reproducing those findings and conclusions." 10th Cir. R. 10.3.1(c); see also 10th Cir. R. 28.2(d).2 "[F]ailure to file the required transcript .... raises an effective barrier to informed, substantive appellate review." McGinnis v. Gustafson, 978 F.2d 1199, 1201 (10th Cir.1992). Because Mr. Lopez failed to include a transcript of the district court's oral findings and conclusions, we are left "no alternative but to affirm the affected ruling." Id.
4
In any event, we have reviewed the record and the response to summary judgment prepared by the attorneys who represented Mr. Lopez below, and we are not persuaded by the presentation that summary judgment was improperly granted. Misidentification is always regrettable, but unless there is proof of intent or reckless disregard by a police officer, there is no constitutional violation. See Beard v. City of Northglenn, 24 F.3d 110, 114-15 (10th Cir.1994).
5
The decision of the district court is AFFIRMED. The mandate shall issue forthwith.
*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
1
Mr. Lopez was represented by counsel in the district court
2
"This court has repeatedly insisted that pro se parties 'follow the same rules of procedure that govern other litigants.' " Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.1994)(citing Green v. Dorreu, 969 F.2d 915, 917 (10th Cir.1992), cert. denied, 507 U.S. 940 (1993))
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-426-CV
IN RE DAVID TULLOS RELATOR
------------
ORIGINAL PROCEEDING
------------
MEMORANDUM OPINION 1
------------
The court has considered relator’s petition for writ of mandamus and is
of the opinion that relief should be denied. Accordingly, relator’s petition for
writ of mandamus is denied.
Relator shall pay all costs of this original proceeding, for which let
execution issue.
PER CURIAM
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DELIVERED: November 20, 2008
1
… See T EX. R. A PP. P. 47.4.
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Cite as 2015 Ark. 230
SUPREME COURT OF ARKANSAS
No. CR-99-1102
JAMES CHARLES FUDGE Opinion Delivered May 21, 2015
PETITIONER
SECOND PRO SE PETITION TO
REINVEST JURISDICTION IN THE
V. TRIAL COURT TO CONSIDER A
PETITION FOR WRIT OF ERROR
CORAM NOBIS
STATE OF ARKANSAS [PULASKI COUNTY CIRCUIT COURT,
RESPONDENT NO. 60CR-98-626]
PETITION DENIED.
PER CURIAM
In 1999, James Charles Fudge was found guilty by a jury in the Pulaski County Circuit
Court of capital murder and sentenced to death. We affirmed. Fudge v. State, 341 Ark. 759, 20
S.W.3d 315 (2000). In subsequent proceedings under Arkansas Rule of Criminal Procedure 37.5
(1999), the trial court granted Fudge a new sentencing hearing based upon trial counsel’s failure
to object to evidence that was presented as an aggravating circumstance. This court affirmed
the order. State v. Fudge, 361 Ark. 412, 206 S.W.3d 850 (2005). On resentencing in 2006, Fudge
was sentenced to life imprisonment without parole.
In 2010, Fudge filed a pro se petition asking that this court reinvest jurisdiction in the
trial court to consider a petition for writ of error coram nobis.1 A petition to reinvest
1
The petition was assigned the same docket number as the direct appeal, CR-99-1102.
Cite as 2015 Ark. 230
jurisdiction is necessary because a circuit court can entertain a petition for writ of error coram
nobis only after this court grants permission. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001)
(per curiam). This court will grant such permission only when it appears the proposed attack
on the judgment is meritorious. Echols v. State, 354 Ark. 414, 418, 125 S.W.3d 153, 156 (2003).
In making such a determination, we look to the reasonableness of the allegations of the petition
and to the existence of the probability of the truth thereof. Id.
A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial
than its approval. Cromeans v. State, 2013 Ark. 273; Howard v. State, 2012 Ark. 177, 403 S.W.3d
38. The writ is allowed only under compelling circumstances to achieve justice and to address
errors of the most fundamental nature. Hooper v. State, 2015 Ark. 108 (per curiam). We have
held that a writ of error coram nobis is available to address certain errors that are found in one
of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld
by the prosecutor, or a third-party confession to the crime during the time between conviction
and appeal. Cromeans, 2013 Ark. 273; Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per
curiam).
The function of the writ is to secure relief from a judgment rendered while there existed
some fact that would have prevented its rendition if it had been known to the circuit court and
which, through no negligence or fault of the defendant, was not brought forward before
rendition of judgment. McFerrin v. State, 2012 Ark. 305 (per curiam); Cloird v. State, 2011 Ark.
303 (per curiam). The petitioner has the burden of demonstrating a fundamental error of fact
extrinsic to the record. Williams v. State, 2011 Ark. 541 (per curiam). Coram-nobis proceedings
2
Cite as 2015 Ark. 230
are attended by a strong presumption that the judgment of conviction is valid. Roberts v. State,
2013 Ark. 56, 425 S.W.3d 771; Carter v. State, 2012 Ark. 186 (per curiam); Penn v. State, 282 Ark.
571, 670 S.W.2d 426 (1984) (citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975)).
Fudge raised a number of allegations in the petition filed in 2010, including the claim that
the State withheld exculpatory evidence from the defense, which, if proven, would have
constituted a violation of Brady v. Maryland, 373 U.S. 83 (1963). A Brady violation is established
when evidence favorable to the defense is wrongfully withheld by the State. Such a violation is
cause to grant the writ. Pitts, 336 Ark. 580, 986 S.W.2d 407. In Strickler v. Greene, 527 U.S. 263
(1999), the Supreme Court revisited Brady and declared that, when the petitioner contends that
material evidence was not disclosed to the defense, the petitioner must show that “there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” 527 U.S. at 280 (quoting United States v. Bagley, 473 U.S.
667, 682 (1985)). In Strickler, the Court also set out the three elements of a true Brady violation:
(1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or
because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully
or inadvertently; and (3) prejudice must have ensued. Strickler, 527 U.S. 263; Buchanan v. State,
2010 Ark. 285 (per curiam). Fudge did not establish a Brady violation in the 2010 petition.
Fudge v. State, 2010 Ark. 426(per curiam).
Now before us is Fudge’s second petition to reinvest jurisdiction in the trial court in his
case to consider a petition for writ of error coram nobis. He has also filed an amendment to the
3
Cite as 2015 Ark. 230
petition with exhibits.2 He again claims that there was other evidence hidden by the State at trial
in violation of Brady.
We first note that the allegation in the petition to reinvest jurisdiction in the trial court
is itself entirely conclusory. There is no factual substantiation for the claim, and the evidence
alleged to have been concealed is not stated. Fudge has, however, included with his petition for
leave to proceed in the trial court the petition that he intends to file there if granted permission
to do so. Even if that petition is considered in the interest of judicial economy as part of the
petition before us,3 we find no ground to warrant the writ. See Slocum v. State, 2014 Ark. 398, 442
S.W.3d 858 (per curiam) (The petition to be filed in trial court, if leave were granted by this court
to proceed with coram-nobis petition, was considered in determining whether cause for the writ
had been established by the petitioner.)
The evidence alleged by Fudge to have been hidden by the State consisted of
impeachment evidence. As with Fudge’s first coram-nobis petition, the allegations raised are
2
In the amendment to the petition, Fudge states that officials employed by the Arkansas
Department of Correction where he is incarcerated declined to photocopy 575 additional pages
of material that he desired to add to his petition. He asks that this court direct the officials to
provide the copies. Fudge does not explain the significance of any specific document in the 575
pages; but, in any event, it is the responsibility of the petitioner in a coram-nobis proceeding to
obtain whatever documentation he desires to include in his petition. This court does not assist
petitioners in preparing the petition or in obtaining material in support of allegations contained
in the coram-nobis petition.
3
We have held in past cases that all claims must be raised in the petition to this court. See
O’Neal v. State, CR-95-148 (Ark. Feb. 10, 2005) (unpublished per curiam). Nevertheless, in more
recent cases, in the interest of judicial economy when the trial-court petition is appended to the
petition, rather than require the petitioner to redraft his petition, we have addressed claims in
the trial-court petition. Evans v. State, 2012 Ark. 161, at 3 (per curiam).
4
Cite as 2015 Ark. 230
convoluted and extremely difficult to follow. Fudge goes into minute detail in the forty-seven
page petition about his actions beginning December 24, 1997, and ending several days later after
he admits to having buried his wife’s body. He accuses several persons of giving “exaggerated,
fabricated, mendacious” testimony concerning interaction with the victim at a time when the
victim was already dead and raises questions about his interrogation by the police. He further
asserts that his own attorney withheld exculpatory evidence concerning a sheriff’s investigator’s
interview with a State’s witness who admitted “getting tough in jail for lying in court, if caught
lying.” He states that the witness’s interview was taped, but his attorney refused to play the tape
at a pretrial hearing or at trial. Fudge also asserts that his wife’s uncles purchased “blood
testimonies” of a boot-legger and that the sheriff’s investigators used “about, around, and after
terms” to influence the boot-legger in some manner. He further questions the credibility of a
witness from the Arkansas State Crime Laboratory and that of a doctor whom petitioner accuses
of testifying as though he had participated in the victim’s autopsy when he had not. In a
continuation of his myriad claims, Fudge asserts dozens of similar allegations that ostensibly
show that evidence was hidden by the State. We need not enumerate all of the allegations,
however, because none of the assertions is supported with facts sufficient to demonstrate a Brady
violation.
Clearly, Fudge was aware of his own actions before and after the victim’s death; thus,
those actions were known about at the time of trial. As to his claims of hidden evidence, Fudge
has not provided any factual substantiation from which it can be determined that the State
deliberately suppressed any exculpatory information. This court is not required to take claims
5
Cite as 2015 Ark. 230
of a Brady violation in a coram-nobis petition at face value without substantiation. Mackey v.
State, 2014 Ark. 491 (per curiam). The application for coram-nobis relief must make a full
disclosure of specific facts relied upon. Maxwell v. State, 2009 Ark. 309 (citing Cloird v. State, 357
Ark. 446, 182 S.W.3d 477 (2004)). Fudge’s mere claims, which amount to contentions that the
jury was not given a full picture of the events surrounding the murder of the victim, do not
establish that there was evidence withheld that meets the threshold requirements of a Brady
violation. It is the petitioner’s burden to demonstrate that there is a reasonable probability that
the judgment of conviction would not have been rendered, or would have been prevented, had
the information been disclosed at trial. Wilson v. State, 2014 Ark. 273 (per curiam). Fudge has
fallen short of meeting that burden because he has failed to provide facts to show that evidence
that was both material and prejudicial, and that would have prevented rendition of the judgment
had it been known at the time of trial, was wrongfully hidden by the State.
At several points in his petition, Fudge refers to the ineffectiveness of his counsel at trial,
errors by the trial court, and the insufficiency of the evidence to sustain the judgment. None of
those grounds is a ground for the writ. Claims of ineffective assistance of counsel, trial error,
and insufficiency of the evidence are not within the purview of a coram-nobis proceeding.
Philyaw v. State, 2014 Ark. 130 (per curiam).
Petition denied.
6
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936 F.2d 583
Unpublished DispositionNOTICE: Tenth Circuit Rule 36.3 states that unpublished opinions and orders and judgments have no precedential value and shall not be cited except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel.Harry G. GUST, Jr., Plaintiff-Appellant,v.The COLEMAN COMPANY, Defendant-Appellee.
No. 90-3243.
United States Court of Appeals, Tenth Circuit.
July 2, 1991.
Before LOGAN, JOHN P. MOORE and BALDOCK, Circuit Judges.
ORDER AND JUDGMENT*
BALDOCK, Circuit Judge.
1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
2
Plaintiff appeals from a district court order granting summary judgment to defendant on plaintiff's claim under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. Sec. 1132(a)(1)(B), to recover disability pension benefits from plaintiff's employer and its pension plan.
3
The facts, as set forth in the district court's opinion, Gust v. Coleman Co., 740 F.Supp. 1544, 1546-47 (D.Kan.1990), are undisputed on appeal. In brief, the administrator of the plan reduced plaintiff's plan benefits by the amounts plaintiff has and continues to receive from the Workers' Compensation Fund of the State of Kansas, based on its interpretation of a set-off provision in the plan. Plaintiff disagrees with this interpretation.
4
On appeal, plaintiff contends that 1) the district court erroneously applied a deferential standard of review to the plan administrator's interpretation of the set-off provision, and 2) even under a deferential standard, that interpretation is unreasonable.
5
Our standard of review on summary judgment is de novo, applying the same standard as the district court. Where the facts are undisputed, our review is limited to determining whether the substantive law was correctly applied by the district court. See Railhead Freight Sys., Inc. v. United States Fire Ins. Co., 924 F.2d 994, 995 (10th Cir.1991).
6
The parties acknowledge that the standard of review in this case is governed by Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989). They differ only as to the result of applying the Bruch decision to the language of the plan. We have reviewed the plan provisions pertinent to the level of deference paid the plan representatives and the substantive provision concerning offset. See Gust, 740 F.Supp. at 1546-47, 1549-50. Based upon the Supreme Court's holding in Bruch and our recent decisions construing similar plan language, we agree with the district court that the plan language authorizing the administrator to determine benefit eligibility constitutes a grant of discretionary authority sufficient to warrant deferential review. See Bruch, 489 U.S. at 115; Woolsey v. Marion Laboratories, Inc., No. 90-6011, slip op. at 7-9 (10th Cir. June 4, 1991) ; Pratt v. Petroleum Prod. Management, Inc. Employee Sav. Plan & Trust, 920 F.2d 651, 657 n. 7 (10th Cir.1990). See also Baker v. United Mine Workers of Am. Health & Retirement Funds, 929 F.2d 1140, 1144 (6th Cir.1991) (discretionary authority to determine benefit eligibility warranted deferential review); Richards v. United Mine Workers of Am. Health & Retirement Fund, 895 F.2d 133, 135 (4th Cir.1990) (same); De Nobel v. Vitro Corp., 885 F.2d 1180, 1185 (4th Cir.1989) (authority to determine benefits and resolve questions of interpretation warranted deferential review). But see Ziaee v. Vest, 916 F.2d 1204, 1206-07 (7th Cir.1990) (authority to make decisions about benefits did not implicate discretion to construe terms), cert. denied, 111 S.Ct. 1581 (1991); Baxter ex rel. Baxter v. Lynn, 886 F.2d 182, 188 (8th Cir.1989) (same).
7
Benefit decisions by plan administrators which warrant deference are reviewed under the arbitrary and capricious standard, rather than the abuse of discretion standard applied by the district court. See Pratt, 920 F.2d at 657-68. It is well-established in this circuit that we will uphold benefit decisions of plan representatives unless the decision is arbitrary and capricious, not supported by substantial evidence or incorrect on the law. Woolsey, slip op. at 7 (citing cases). However, we agree with the district court that, under the reasonableness inquiry called for by Bruch, 489 U.S. at 111, the administrator's interpretation of the plan set-off provision survives scrutiny.1
8
The plan calls for set-off of amounts "for which the Company ... is liable pursuant to Workers' Compensation ... laws." The administrator interprets the word "liable" in this language to encompass the Kansas Workers' Compensation Fund payments being made to plaintiff because Coleman is liable for contributions made to that state fund. Plaintiff contends that his workers' compensation payments should not be deducted from his plan benefits because Coleman is not directly liable for them. Defendant asserts that plaintiff's interpretation would result in double payment to certain injured workers and not to others, in violation of a nondiscrimination provision in the plan.2
9
Though the plan administrator's interpretation of the set-off provision is not the most natural interpretation, it is sufficiently justified when viewed against the employer's actual and potential liability under workers' compensation and a backdrop of the entire plan and its purpose. See Bruch, 489 U.S. at 111 (deferential standard of review); Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 514 (1981) (approving integration of benefits). The interpretation contradicts no stated goals of the plan, is consistent with the nondiscrimination provision, and complies with the requirements of ERISA. The language of section 4.7 of the plan does not clearly compel an opposite result.
10
The judgment of the United States District Court for the District of Kansas is AFFIRMED.
*
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3
1
Plaintiff argues, for the first time on appeal, that a conflict of interest between the plan administrator and Coleman should be considered in our deferential review. See Bruch, 489 U.S. at 115. We decline to consider matters not argued before the district court. Gillihan v. Shillinger, 872 F.2d 935, 938 (10th Cir.1989)
2
Plaintiff receives payments from the Kansas Workers' Compensation Fund because his disability resulted from a preexisting condition. Gust, 740 F.Supp. at 1546
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759 F.Supp. 467 (1991)
Robert E. DIETRICH, Plaintiff,
v.
LIBERTY MUTUAL INSURANCE COMPANY, Defendant.
Civ. No. H90-053.
United States District Court, N.D. Indiana, Hammond Division.
February 22, 1991.
*468 Jerry T. Jarrett, Hammond, Ind., for plaintiff.
Frank J. Galvin, Jr. and Robert H. Bahner, Hammond, Ind., for defendant.
MEMORANDUM OPINION AND ORDER
LOZANO, District Judge.
The matters before the court include defendant's, Liberty Mutual Insurance Company ("Liberty"), Motion to Dismiss filed on April 16, 1990, Motion to Dismiss and Opposition to F.R.C.P. 15(a) Motion for Leave to Amend filed on October 22, 1990, and Motion to Dismiss Plaintiff's First Amended Complaint filed on January 18, 1991. For the reasons set forth herein, Liberty's motions to dismiss are GRANTED.
BACKGROUND
Robert E. Dietrich ("Dietrich"), an employee of Pittsburgh Metals Purifying Company in Hammond, Indiana, injured his back while working on or about February 25, 1985. Pittsburgh Metals Purifying Company was covered by a workmen's compensation policy of insurance provided by Liberty. Dietrich reported the injury to his employer and was referred to the company's physician, Dr. James Claro. Dietrich was under the care of Dr. Claro through April 1985 at which time Dietrich was released to return to work at Pittsburgh Metals Purifying Company. After working for approximately ten (10) days, Dietrich's injury became further aggravated and he returned to Dr. Claro's care. Dietrich's condition did not improve from April 1985 to August 1985 and he subsequently requested additional diagnostic testing for purposes of treating his back injuries. In August 1985, Dr. Claro advised Dietrich that Liberty would not authorize additional testing, and on August *469 20, 1985 Dr. Claro released Dietrich to return to work. Before Dietrich could complete one day of work, he had to be taken to the hospital for back pain and injuries. Dietrich has not returned to work since that date.
Dietrich alleges that he performed all the conditions required of him under the workmen's compensation policy issued by Liberty, and that he therefore was entitled to medical benefits, medical treatment, disability benefits, and permanent impairment benefits as provided by the insurance policy and pursuant to the Indiana Workmen's Compensation Act. Dietrich contends that, by refusing further disability benefits, Liberty violated provisions of the Indiana Workmen's Compensation Act, committed fraud, and breached a fiduciary duty to Dietrich.[1] Dietrich further contends that as a direct and proximate result of Liberty's conduct, Dietrich sustained financial damages, and suffered psychological and physical distress. Dietrich prays for relief in the form of compensatory and punitive damages.
DISCUSSION
In ruling on a Rule 12(b)(6) motion to dismiss, this court must follow "the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957). This court must accept "all allegations in the complaint as true", and must "view all allegations in the light most favorable to the plaintiff." Collins v. County of Kendall, Ill., 807 F.2d 95, 99 (7th Cir.1986) cert. denied, 483 U.S. 1005, 107 S.Ct. 3228, 97 L.Ed.2d 734 (1987) (citations omitted). See also Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59, 65 (1984); Gomez v. Illinois State Board of Education, 811 F.2d 1030, 1039 (7th Cir.1987). In order to prevail, the defendant "must demonstrate that the plaintiff's claim, as set forth by the complaint, is without legal consequence." Gomez, 811 F.2d at 1039.
INDIANA UNFAIR CLAIMS PRACTICES ACT
Title 27 of the Indiana Code codifies Indiana insurance law. Article 4 of this Title deals with unfair competition, unauthorized insurers, and foreign insurers. Chapter 1 of Article 4 allows the Commissioner of Insurance to issue cease and desist orders against unfair competition within the insurance industry. See generally I.C. 27-4-1-5 (statement of charges by commissioner, notice and hearing, intervention); I.C. 27-4-1-5.5 (unfair claims settlement practice complaint filed by individual with the commissioner and commissioner's response); I.C. 27-4-1-6 (cease and desist order after hearing by commissioner); I.C. XX-X-X-XX (cumulative powers and remedies vested in the commissioner and the department). Section 4.5 of Chapter 1 contains a list of unfair claims settlement practices.
Section 18 of Article 4, Chapter 1 provides as follows:
This article does not create a cause of action other than an action by:
(1) the commissioner to enforce his order; or
(2) a person, as defined in section 1 of this chapter, to appeal an order of the commissioner.
I.C. XX-X-X-XX. The first section of Chapter 1 describes the purpose of the chapter and does not contain definitions. Therefore, it is necessary to look to I.C. 27-4-1-2 for definitions of terms as used in the chapter. In section 2, "person" is defined as *470 ... any individual, corporation, company including any farmers' mutual insurance company, association, partnership, firm, reciprocal exchange, inter-insurer, Lloyds insurers, society, fraternal benefit society, lodge, order, council, corps, and any other association or legal entity, engaged in the business of insurance, including but not in limitation of the foregoing, agents, brokers, solicitors, advisors, auditors, and adjusters.
I.C. 27-4-1-2 (emphasis added). Thus, chapter 1 creates a cause of action only for the Commissioner of Insurance or for entities in the business of insurance who wish to appeal an order of the commissioner, not for private individuals such as Dietrich. Accordingly, Dietrich's allegations that Liberty violated I.C. 27-4-1-4.5 do not state a claim upon which relief may be granted.
BAD FAITH AND BREACH OF FIDUCIARY DUTY
The Workmen's Compensation Act ("Act") creates a contract between an employer and employee and thus between an employee and the insurer. Jones v. National Union Fire Ins. Co., 664 F.Supp. 440, 447 (N.D.Ind.1987) (citations omitted). Once an employer procures workmen's compensation insurance, the Act operates "directly upon the insurance contract[] and so extend[s] the insurer's obligation to the employee." Id. Thus, to the extent that the Act governs an insurance contract, and because insurers owe their insureds an obligation to deal in good faith, the insurer comes to owe the same obligation of good faith to the employee of the insured employer. Id. However, the duty to deal in good faith is owed "only to persons who have, or claim to have, suffered injury, death or disease arising out of the course of their employment." Id. (emphasis added). In sum, Liberty owed Dietrich a duty to deal with him in good faith only by virtue of Dietrich's back injuries which occurred at Pittsburgh Metals Purifying Company.
The Worker's Compensation Board of Indiana derives its authority to conduct proceedings from the Indiana Code. Specifically, I.C. 22-3-1-2 provides that "[t]he worker's compensation board shall administer the worker's compensation law...." Rights and remedies concerning disabilities arising out of or in the course of employment are exclusively within the realm of Indiana's Worker's Compensation Board. See I.C. 22-3-2-6. As previously noted, Liberty's duty to deal in good faith arose out of the course of Dietrich's employment. Accordingly, Dietrich's argument that Liberty breached a contractual duty to deal in good faith can only be adjudicated before the Worker's Compensation Board of Indiana. See Jones, 664 F.Supp. at 447.[2]
Likewise, Dietrich cannot maintain a cause of action for breach of fiduciary duty with respect to the workmen's compensation policy at issue. Assuming, arguendo, that a fiduciary relationship existed, any fiduciary duty owed by Liberty to Dietrich could exist only by virtue of Dietrich's disablement arising out of and in the course of his employment. Dietrich's remedy for the alleged breach of fiduciary duty is exclusively within the realm of the Indiana Worker's Compensation Board. Accordingly, Dietrich's breach of fiduciary duty allegations state no claim upon which relief can be obtained in federal court pursuant to Indiana law. See generally, Jones, 664 F.Supp. at 446-448.[3]
FRAUD
By an order filed on January 8, 1991, this court granted Dietrich's Motion for Leave to File Amended Complaint. Pursuant to that order, Liberty responded in a timely *471 fashion with respect to the fraud allegations in the First Amended Complaint For Damages. Dietrich was allowed to reply to Liberty's response if he did so by January 23, 1991. To date, Dietrich has failed to reply to Liberty's response.
Rule 12(b) provides that, with respect to a motion to dismiss for failure to state a claim upon which relief can be granted, if matters outside the pleading are presented to the court, the motion may be treated as one for summary judgment and disposed of as provided in Fed.R.Civ.P. 56. Rule 12(b) also provides that all parties must be given a reasonable opportunity to present material made pertinent to such a motion by Rule 56. Attached to Liberty's Motion to Dismiss Plaintiff's First Amended Complaint are various affidavits and other materials extraneous to the pleadings. Moreover, Dietrich was given a reasonable opportunity to present any materials pertinent to Liberty's motion and has wholly failed to do so. Nor has Dietrich requested additional time in which to respond to Liberty's motion. Accordingly, under Rule 12(b), this court will treat the motion as one for summary judgment pursuant to Rule 56.
Rule 56(c) provides that summary judgment is proper only if it is demonstrated "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." Walter v. Fiorenzo, 840 F.2d 427, 434 (7th Cir.1988); Beard v. Whitley County R.E. M.C., 840 F.2d 405, 409 (7th Cir.1988); Roman v. U.S. Postal Service, 821 F.2d 382, 385 (7th Cir.1987); McGraw-Edison Co. v. Walt Disney Productions, 787 F.2d 1163, 1167 (7th Cir.1986); Federal Deposit Insurance Corp. v. Meyer, 781 F.2d 1260, 1267 (7th Cir.1986). "Whether a fact is material depends on the substantive law underlying a particular claim and `only disputes over facts which might effect the outcome of the suit under governing law will properly preclude the entry of summary judgment.'" Walter, 840 F.2d at 434 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 211 (1986)).
The burden is upon the moving party to establish that no material facts are in genuine dispute, and any doubt as to the existence of a genuine issue must be resolved against the moving party. Donald v. Polk County, 836 F.2d 376 (7th Cir.1988); Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 1610, 26 L.Ed.2d 142 (1970); Backes v. Valspar Corp., 783 F.2d 77, 79 (7th Cir.1986). To preclude summary judgment, a non-moving party must show a material issue of fact. "A party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial." Beard, 840 F.2d at 410. Therefore, if a party fails to establish the existence of an essential element of its case on which it bears the burden of proof at trial, summary judgment will be appropriate. In this situation, "there can be no `genuine issue as to any material fact', since a complete failure of proof concerning an essential element of a non-moving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265, 273 (1986). See also Anderson, 477 U.S. at 250, 106 S.Ct. at 2511, 91 L.Ed.2d at 212.
A plaintiff cannot rest on pleadings once a defendant files a motion for summary judgment; rather, the plaintiff becomes obligated to affirmatively demonstrate that there is a genuine issue of material fact which requires trial. Beard v. Whitley County R.E.M.C., 840 F.2d 405, 410 (7th Cir.1988) (citations omitted). Here, Dietrich failed to respond to Liberty's motion and therefore failed to demonstrate by any means that Liberty committed the alleged fraud against him. Certainly, Dietrich bears the burden of establishing the existence of a genuine issue of material fact with respect to the elements of his fraud cause of action. "A district court need not scour the record to make the case of a party who does nothing." Hermann v. City of Chicago, 870 F.2d 400, 404 (7th Cir.1989). In sum, based on the record before the court at this time, no genuine issue of material fact exists with respect to *472 Dietrich's allegations of fraud and Liberty is entitled to summary judgment in its favor.
CONCLUSION
For the reasons set forth herein, Liberty's Motion to Dismiss, Motion to Dismiss and Opposition to F.R.C.P. 15(a) Motion for Leave to Amend, and Motion to Dismiss Plaintiff's First Amended Complaint are GRANTED.
NOTES
[1] To the extent that Dietrich alleges a cause of action for intentional injury to his person or to personal property interests, such cause accrued no later than August 1985. The applicable statute of limitations provides that claims for intentional injury to person or personal property must be filed within two years of the accrual date. I.C. 34-1-2-2. Thus, Dietrich's Complaint, originally filed on February 6, 1990, is time-barred with respect to Dietrich's claim of intentional injury to his person or to personal property. Notably, Dietrich has not presented any argument to the contrary.
[2] While Indiana does not appear to recognize an independent cause of action for breach of the duty to deal in good faith, allegations of bad faith "may warrant additional or punitive damages when coupled with [another appropriate cause of action]." Jones, 664 F.Supp. at 448 (citations omitted).
[3] Moreover, Dietrich cannot base his breach of fiduciary duty claim on the contention that he is a third-party beneficiary of the workmen's compensation policy issued by Liberty. Indiana case law holds that employees are not third-party beneficiaries of workmen's compensation insurance policies. Baker v. American States Ins. Co., 428 N.E.2d 1342, 1347 (Ind.App.1981).
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524 F.Supp. 277 (1981)
Howard E. HINKIE, Sr., et al.
v.
UNITED STATES of America, et al.
Civ. A. No. 79-2340.
United States District Court, E. D. Pennsylvania.
October 19, 1981.
*278 Benjamin Kuby, Philadelphia, for plaintiffs.
Dawn MacPhee, Asst. U.S. Atty., Peter F. Vaira, Jr., William J. McGettigan, Philadelphia, Pa., M. S. Landman, M. L. Grad, Torts Branch, Civil Division U.S. Dept. of Justice, Washington, D. C., for United States.
Walter R. Milbourne, E. Parry Warner, Philadelphia, Pa., George R. Lyles, Las Vegas, Nev., for Reynolds Electrical.
MEMORANDUM
SHAPIRO, District Judge.
INTRODUCTION
Irene Hinkie is the wife of Howard E. Hinkie, Sr. ("Hinkie, Sr."), a former serviceman allegedly exposed to harmful doses of radiation during the 1955 Army nuclear testing in Nevada. She, Paul Hinkie (her son), and the estate of Timothy Hinkie (her deceased son), bring this action against the United States and against Reynolds Electric and Engineering Company ("REECO"). They charge that various injuries sustained by them were caused by defendants' negligence in the conduct of the "Teapot Dome" series of nuclear tests that took place in the Nevada desert in the 1950's. Hinkie, Sr. has stated a claim against REECO but not against the United States. Before us is the United States' motion to dismiss the claims of Irene, Paul and Timothy Hinkie on the ground that under Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the general waiver of sovereign immunity enacted in the Federal Torts Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"), does not apply to claims asserting injuries to a servicemen incident to military service. For the reasons which follow, defendant's motion will be denied.
I. FACTS
In ruling on the motion to dismiss, we must accept plaintiffs' allegations of fact. Plaintiffs allege that Hinkie, Sr. enlisted in the United States Army in 1953 and was trained as a pole lineman. (Amended Complaint, ¶ 8). In February 1955, Hinkie, Sr. was ordered to Camp Desert Rock, Nevada to participate in nuclear testing programs. (Amended Complaint, ¶ 9). Hinkie, Sr. neither requested nor volunteered to participate in the Desert Rock nuclear testing program. Between February and June of 1955, he participated in 17 or 18 nuclear tests; he was exposed to nuclear radiation from these tests and other sources of radiation at the Nevada test site. (Amended Complaint, ¶¶ 9, 10). Hinkie, Sr.'s duties in the field included laying and retrieving communication wires, operating a switchboard immediately prior to detonations, observing the nuclear explosion, and walking to "Ground 0." He was exposed to ionizing radiation and inhaled radioactive dust. (Amended Complaint, ¶ 15).
Hinkie, Sr. was not informed of the hazards of exposure to ionizing radiation known to the United States. Hinkie, Sr. was given assurances by the United States, acting through military personnel, that his cumulative exposure was carefully monitored *279 by film badges, which were represented as a reliable means of measuring radiation exposure. (Amended Complaint, ¶ 11). Hinkie, Sr. was never given protective clothing to wear in the field. (Amended Complaint, ¶ 12). The United States omitted to read and/or preserve the records from a large number of the film badges worn by Hinkie, Sr. The United States assured the safety of Hinkie, Sr. with a film badge program that it knew or had reason to know was inadequate. (Amended Complaint, ¶ 18).
Prior to November 1978, the United States never gave Hinkie, Sr. any information on his cumulative radiation exposure from the nuclear tests nor has the United States ever informed Hinkie, Sr. of the adverse health effects which were known by the government to be associated with ionizing radiation. (Amended Complaint, ¶ 13). At the time of the nuclear tests in which Hinkie, Sr. participated, the United States knew, or should have known, that exposure to ionizing radiation would have adverse effects on the health of human beings so exposed. One such adverse effect is the production of genetic defects in offspring conceived after such exposure. (Amended Complaint, ¶¶ 16, 17).
Plaintiffs allege these negligent acts caused perturbations in the molecular substance of Hinkie, Sr., that is, breakages in the chromosomes as well as other forms of chromosomal alteration such as inversions, partial displacements, and deletions not amounting to a total breakage of the chromosomes. (Amended Complaint, ¶ 21, ¶ 33(a)). These perturbations in molecular substance of Hinkie, Sr. eventually formed parts of the bodies of Hinkie's deceased son (Timothy) and his son (Paul) that manifested themselves as defects at the time of their births. (Amended Complaint, ¶ 21).
Plaintiffs further allege that by the above-mentioned acts and omissions, the United States negligently caused the minor plaintiff (Paul Hinkie) to suffer from birth defects including Rubenstein-Taybies syndrome, lack of joints in his thumbs, constant uncontrollable twitching of his eyes, severe mental retardation and photophobia. (Amended Complaint, ¶ 45). It is also alleged that as a proximate result of these acts and omissions on the part of the defendant United States, plaintiffs' decedent (Timothy Hinkie), was born on March 29, 1964 with severe and disabling birth defects, including but not limited to the lack of an esophagus and esophageal fistula, which caused him pain, mental anguish and his death on January 7, 1966. (Amended Complaint, ¶ 39). Finally, it is alleged that as a result of the negligent acts and omissions of defendant United States, plaintiff Irene Hinkie suffered three miscarriages and mental anguish because of the congenital defects of her son Paul and death of her son Timothy.
II. DISCUSSION
The facts alleged by plaintiffs Irene, Paul and the estate of Timothy Hinkie, with all inferences taken most favorably to them for purposes of defendant United States' motion to dismiss, state causes of action which are not barred by the FTCA on the ground that their injuries are service related.
At common law the United States was immune from civil tort actions for damages. The FTCA, enacted by Congress in 1946, grants federal district courts exclusive jurisdiction of tort actions commenced against the United States. 28 U.S.C. § 1346.[1] The government's consent to such liability is *280 limited by certain explicit statutory exceptions. 28 U.S.C. § 2680.[2] In addition, the Supreme Court has held that it is implicit that the FTCA does not permit government liability for injuries arising out of or in the course of activity incident to service; Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950) (no recovery under the FTCA for the death of an Army officer caused by fire in the barracks where he was quartered or for death or injury of members of the armed forces from Army medical malpractice). In Feres, the determining factor was the status of the injured party as a member of the armed forces on active duty at the time the cause of action arose.
In Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 669, 97 S.Ct. 2054, 2056, 52 L.Ed.2d 665 (1977), after a National Guardsman was awarded a government pension for injuries received in flight training, he brought an action against the United States and the contractor that manufactured the equipment causing his injuries. The contractor cross-claimed for indemnity from the United States. Summary judgment for the United States was affirmed because the serviceman's claim was barred as incident to military service; therefore, there could be no indemnity with regard to that claim. The Court, reaffirming the Feres doctrine stated, "[i]n Feres v. United States, supra, the court held that an on-duty serviceman who is injured due to the negligence of Government officials may not recover against the United States under the Federal Tort Claims Act."
The claim barred in Stencel was also for injury to an on-duty serviceman. However, the issue before us is the extent to which the Feres doctrine bars claims not of the serviceman himself but of the civilian members of his family.
There have been two lines of cases regarding recovery by members of a serviceman's family since Feres. Members of a serviceman's family have recovered against the United States for injuries caused directly to them, independent of any injury to the serviceman, if they arise from non-combatant activities. Even the serviceman himself may recover consequential damages for such injuries. See, Costley v. United States, 181 F.2d 723 (5th Cir. 1950) (sergeant can maintain FTCA action for injuries to wife resulting from negligence incident to delivery of child in an Army hospital); Grigalauskas v. United States, 103 F.Supp. 543 (D.Mass.1951), aff'd, 195 F.2d 494 (1st Cir. 1952) (sergeant may recover consequential damages for injuries sustained by infant daughter at Army hospital); Fournier v. United States, 220 F.Supp. 752 (D.Miss.1963) (serviceman and daughter recovered for wife's death caused by negligence of government employees at an officers' club); Herring v. United States, 98 F.Supp. 69 (D.Colo.1951) (serviceman's wife may recover for injury as a patient in Army hospital; the status of injured party is determinative); Messer v. United States, 95 F.Supp. 512 (D.Fla.1951) (sergeant on active duty may recover for injury to wife caused by negligence of Army hospital employees); Wilscam v. United States, 76 F.Supp. 581 (D.Hawaii 1948) (Naval officer recovered for death of his minor child caused by negligence of Naval medical corpsman); 31 A.L. R.Fed. 146, 193 (1977).
However, recovery by family members has been barred under the Feres doctrine where the cause of action is ancillary or derivative to the serviceman's action for his own injury. In Feres, two of the three claims barred were wrongful death actions brought by widows of servicemen who died *281 incident to their service.[3] Similarly, actions by family members for alleged injuries suffered themselves by reason of a serviceman's injury, that is, derivative injuries, have been held barred by the Feres doctrine. De Font v. United States, 453 F.2d 1239 (1st Cir. 1972), cert. denied, 407 U.S. 910, 92 S.Ct. 2436, 32 L.Ed.2d 684 (1972) (serviceman's wife's action for mental anguish; child for loss of companionship); Harrison v. United States, 479 F.Supp. 529 (D.Conn.1979), aff'd without opinion, 622 F.2d 573 (2d Cir. 1980), cert. denied, 449 U.S. 828, 101 S.Ct. 93, 66 L.Ed.2d 32 (1980) (serviceman's wife for loss of consortium); Wisniewski v. United States, 416 F.Supp. 599 (E.D.Wis.1976) (marital disharmony). See, In re Agent Orange, 506 F.Supp. 762, 780 (E.D.N.Y.1980).
This case does not fall neatly into either line of cases. It resembles the first line of cases allowing recovery for direct injuries to members of the serviceman's family rather than to the serviceman. Hinkie, Sr. brings no claim against the United States on his own behalf; Hinkie, Sr.'s representative action is a claim for Timothy's death. Paul and Irene claim damages for their own physical injuries. The Hinkies do not claim loss of the services or companionship of Hinkie, Sr. because of an injury to him, nor do they claim a loss because of his injury or death. But in these cases permitting recovery, the serviceman himself had not been directly injured. However, the Hinkies' claims occurred only because of the injury to Hinkie, Sr. The Hinkies' claim is that the chromosomal damage to Hinkie, Sr. caused the injuries to them just as the personal injury to or death of a serviceman gives rise to a cause of action for wrongful death or loss of companionship and consortium. In this respect, it resembles the second line of cases rejecting liability for derivative injuries.
In the following cases, like this case, a direct physical injury to a family member had allegedly been caused by some negligent action or omission of the United States with regard to the serviceman: Harten v. Coons, 502 F.2d 1363 (10th Cir. 1974), cert. denied, 420 U.S. 963, 95 S.Ct. 1354, 43 L.Ed.2d 441 (1975) (wife's action for costs of pregnancy and child raising caused by negligent vasectomy on serviceman); Monaco v. United States, No. SC-79-0859 (N.D.Cal. 1979) on appeal, No. 79-4787 (9th Cir.) (child's action for congenital birth defects caused by serviceman father's exposure to radiation); Jessup v. United States, No. 79-271-TUC-RMB (D.Ariz.1980) (family's action for hepatitis contracted by negligent failure to diagnose serviceman's hepatitis); In re Agent Orange, 506 F.Supp. 762, 781 (E.D.N.Y.1980) (children of veterans claim for genetic injury caused by parents' exposure to Agent Orange).
Recovery by family members was held to be barred by the Feres doctrine in Harten, Monaco, and Agent Orange, supra. The Harten court, applying the "incident to service test," held that the bar to the serviceman's recovery also barred the wife; the wife's claim was not considered independent of the serviceman's.
In both Monaco and Agent Orange the courts considered the claim of the serviceman's children independent but held determinative "whether plaintiff's injuries have as their genesis injuries allegedly sustained incident to the performance of military service." Monaco, Slip Op. at 3; Agent Orange, 506 F.Supp. at 781.
The Jessup court reached a contrary result. Applying the criteria stated by the Supreme Court as the rationale for the Feres doctrine in Stencel, it determined that the reasons underlying the FTCA exception barring servicemen suits were inapplicable to actions by family members for their direct physical injuries.
*282 Under the "genesis incident to service" test enunciated in Monaco and Agent Orange, the chromosome injuries to Hinkie, Sr. bar the family's claims because his injuries are alleged as the cause of their own. However, this oversimplification would avoid the necessary analysis of policies underlying the Feres doctrine which the Supreme Court requires in determining its application to novel cases. Therefore, we reject applying the Feres bar to every action somehow involving an injured serviceman. That result does not follow from the Supreme Court's analysis of Feres in Stencel.
In Stencel, the Court held that a government contractor could not seek indemnity from the United States for damages to a member of the Armed Forces injured in the course of military service. The three factors justifying the Feres doctrine were:
First, the relationship between the Government and members of its Armed Forces is `distinctively federal in character,' ... it would make little sense to have the Government's liability to members of the Armed Services dependent on the fortuity of where the soldier happened to be stationed at the time of the injury. Second, the Veterans' Benefits Act establishes, as a substitute for tort liability, a statutory `no fault' compensation scheme which provides generous pensions to injured servicemen, without regard to any negligence attributable to the Government. A third factor was explicated in United States v. Brown, [348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954)] ... namely `[t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty ....' [citations omitted]. Stencel, 431 U.S. at pp. 671-72, 97 S.Ct. at 2058.
After setting out these three factors the Supreme Court stated,
We must therefore consider the impact of these factors where, as here, the suit against the Government is not brought by the serviceman himself, but by a third party seeking indemnification for any damages it may be required to pay the serviceman. Stencel at 672, 97 S.Ct. at 2058 (emphasis supplied).
Since the Stencel decision it is this analysis, not a bare "incident of service" test, which determines whether there is a cause of action by parties other than the serviceman himself. As acknowledged in Harrison v. United States, 479 F.Supp. 529, 534 (D.Conn.1979), aff'd without opinion, 622 F.2d 573 (2d Cir. 1980), cert. denied, 449 U.S. 828, 101 S.Ct. 93, 66 L.Ed.2d 32 (1980), holding a wife's claim for loss of consortium barred by Feres,
... by focusing on these factors in Stencel, the Supreme Court provides a means of analysis to be employed in deciding whether a party other than a serviceman may recover against the Government for injuries to a serviceman.
See also, Daberkow v. United States, 581 F.2d 785, 787 (9th Cir. 1978) ("[i]n cases decided subsequent to Feres, both the Supreme Court and this Court have looked to factors underlying the Feres decision as the basis for determining, in fact situations not precisely identical with Feres, whether the Feres rule should apply;" suit by widow of serviceman killed while performing duties incident to military service barred); Jessup v. United States, supra.
The first Stencel factor results from the fact that state law determines liability under the FTCA. See, 28 U.S.C. § 1346(b). As the relationship between the Government and its soldiers is "distinctively federal," it is undesirable that governmental liability should depend on the state where the soldier happens to be stationed at the time of the injury.
This factor carries little weight where the plaintiffs are related to the federal government only by the veteran status of the husband or father. At the time of Hinkie Sr.'s active military duty two of the plaintiffs had not been conceived. The government *283 has no more distinctively federal relationship with Irene, Paul or Timothy Hinkie, than with any veteran's family. If the Hinkies were related to a civilian working for the government or for defendant REECO, they would not be barred as members of that civilian's family from stating a cause of action for injuries caused by chromosomal damage to the civilian against the United States under the FTCA. Similarly, if a nuclear testing accident caused personal injuries to civilians, the civilians themselves would have a cause of action under the FTCA. In those cases liability would be determined by state tort law. See, Jessup v. United States, Slip Op. at 2 (local tort law applies to military dependents injured in military hospitals). We see no reason for a different result in this case.
It is not sufficient that these claims were created because of the alleged negligence of the United States towards an active serviceman. For example, if the negligence of an airplane pilot on active duty causes an airplane crash which causes property damages and personal injuries to civilians, an action lies against the United States under the FTCA. The fact that the civilians have claims for damages against the United States does not create a federal relationship as to them. The result should not differ if the independently injured civilians are members of the pilot's family, even if the pilot was a serviceman on active duty. That is the nature of the case presented to us. We decline to bar this claim by reason of a federal relationship where none exists between plaintiffs and the United States. The first Feres factor does not apply to the cause of action asserted by the Hinkies.
The second factor, the availability of the Veterans' Benefits Act which "provides generous pensions to injured servicemen, without regard to any negligence attributable to the Government," Stencel, 431 U.S. at 671, 97 S.Ct. at 2058, as a substitute for tort liability, also carries little weight in the instant circumstances. The basic entitlement, 38 U.S.C. § 331, "for disability resulting from personal injury suffered or disease contracted in line of duty," is payable to "any veteran thus disabled." (Emphasis supplied).
It is unclear whether Hinkie, Sr. could recover for disability on the facts alleged here, as the kind of chromosomal damage complained of may not fall within the basic entitlement of the Act. See, 38 U.S.C. § 331. Additional compensation for dependents of veterans under 38 U.S.C. § 335 would be available to the plaintiffs herein only if Hinkie, Sr. himself could recover and had a disability rated at not less than 50 per centum. See, 38 U.S.C. § 334. Even if these conditions were fulfilled, which appears unlikely, the individual plaintiffs would be receiving nothing for their own physical injuries or for Timothy's death. Rather, they would be recovering only dependents' benefits related to whatever disabling effects Hinkie, Sr. has suffered. Plaintiffs asserted at oral argument that they are not entitled to and have not received any benefits under the Veterans' Benefit Act.[4]
The government argues that in Stencel, the Stencel Aero Engineering Corporation, had no right to veterans' benefits. However, in that case the injured serviceman did receive substantial veterans' benefits as emphasized by the Court in Stencel at 668 and 672, 97 S.Ct. at 2056 and 2058. In Stencel, the Act had provided adequately for the injured serviceman himself, and the Court deemed the Act to set an upper limit of government liability for service-connected injuries. Recovery against the government by the third-party tortfeasor was barred; see, Stencel, at 673, 97 S.Ct. at 2059. A similar result need not obtain in this case where no government liability under the Veterans' Benefits Act to the veteran or his family has been established of record.[5]
*284 In Stencel, the Court also observed, at 674, that, "[s]ince the relationship between the United States and petitioner is based on a commercial contract, there is no basis for a claim of unfairness in this result." Stencel had "sufficient notice so as to take this risk into account in negotiating its contract for the emergency eject system at issue here." Stencel, 431 U.S. at 674, n.8, 97 S.Ct. at 2059, n.8. The plaintiffs here are obviously not in a comparable position. In this context, the Veterans' Benefits Act provides an inadequate rationale for barring the cause of action here asserted.
The third factor considered in Stencel, the effect of the lawsuit upon military discipline, presents a more difficult issue.
Turning to the third factor, it seems quite clear that where the case concerns an injury sustained by a soldier while on duty, the effect of the action upon military discipline is identical whether the suit is brought by the soldier directly or by a third party. The litigation would take virtually the identical form in either case, and at issue would be the degree of fault, if any, on the part of the Government's agents and the effect upon the serviceman's safety. The trial would, in either case, involve second-guessing military orders, and would often require members of the Armed Services to testify in court as to each other's decisions and actions. Stencel, 431 U.S. at 673, 97 S.Ct. at 2059.
In this case the trial would involve testimony of Armed Service members regarding each other's decisions and, perhaps, the "second-guessing" of military orders. However, we do not find that that fact, standing alone, warrants dismissal under Feres or Stencel, since it is difficult to see how this lawsuit would adversely effect military discipline. The injuries claimed were not apparent at the time the military orders were given nor soon thereafter. The plaintiffs' injuries, concededly derived from those to Hinkie, Sr. when in military service, manifested themselves decades after his discharge. The program of which the Teapot Dome tests were a part has long since ended. The undermining of discipline or refusal to follow orders present less of a problem because of the time lapse here involved.
Moreover, adverse effects on military discipline must not flow inevitably from the judicial scrutiny of a military order, for such scrutiny is no less involved in other suits under the FTCA which Congress has not barred. An example would be an action by civilians injured by nuclear testing near their residences.
We are aware of the difficulties of proof facing the plaintiffs. See, Punnett v. Carter, 621 F.2d 578 (3d Cir. 1980), where the Court affirmed a denial of a preliminary injunction "relating to the long range health effects from radiation exposure to all participants in the Nevada testing from 1951 to the present date." Punnett, supra at 580. The Court upheld the lower court's determination that these plaintiffs' probability of success on the merits in establishing causation of genetic defects by nuclear testing did not warrant injunctive relief. But after consideration of the three Stencel factors as they apply to this case, we have determined that the Feres/Stencel doctrine does not mandate dismissal of the plaintiffs' cause of action. We have not decided whether other exceptions to the FTCA, for example, the discretionary function exception,[6] are applicable to the plaintiffs' claims. *285 We hold only that plaintiffs' claims against the United States are not barred by the Feres doctrine.
NOTES
[1] 28 U.S.C. § 1346(b) provides:
(b) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
[2] Congress explicitly excepted certain actions related to the United States military in 28 U.S.C. § 2680(j); "[t]he provisions of this chapter and section 1346(b) of this title shall not apply to
(j) Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war."
This statutory exception is inapplicable here because it is conceded that the incidents complained of were not "combatant activities ... during time of war."
[3] Some courts have dismissed a survivor's wrongful death action in reliance on Feres without discussing whether the action was ancillary or independent in character. See, e. g. Watkins v. United States, 462 F.Supp. 980 (S.D.Ga.1977), aff'd, 587 F.2d 279 (5th Cir. 1979) (per curiam); Knight v. United States, 361 F.Supp. 708 (W.D.Tenn.1972), aff'd without opinion, 480 F.2d 927 (6th Cir. 1973); Coffey v. United States, 324 F.Supp. 1087 (S.D.Cal.1971), aff'd, 455 F.2d 1380 (9th Cir. 1972) (per curiam).
[4] No claim by Hinkie, Sr. or receipt of veterans' benefits appears of record.
[5] In one case applying the Stencel factors to bar liability, the court placed great emphasis on the substantial compensation received by plaintiffs. See, Daberkow v. United States, 581 F.2d 785 (9th Cir. 1978) (widow and child of foreign serviceman compensated under West German law for his death); but see, Parker v. United States, 611 F.2d 1007 (5th Cir. 1980) (acceptance of benefits by serviceman's family does not bar FTCA claim by family).
[6] The full language of the exception, 28 U.S.C. § 2680(a) (1976), is as follows:
Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
For a discussion of the possible applicability of this exception to military claims under the FTCA see NOTE, From Feres to Stencel: Should Military Personnel Have Access to FTCA Recovery? 77 Michigan Law Review 1099 (April 1979).
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154 B.R. 787 (1993)
In re B. TATE OGLE GOLF, INC., consolidated with B. Tate Ogle Development Corporation, Debtor.
Bankruptcy No. 92-00917-BKC-6C1.
United States Bankruptcy Court, M.D. Florida, Orlando Division.
April 14, 1993.
James Foster, Orlando, FL, for debtor.
Peter H. Levitt, Miami, FL, for FDIC.
ORDER DENYING DEBTOR'S MOTION TO EXTEND TIME FOR FILING NOTICE OF APPEAL
C. TIMOTHY CORCORAN, III, Bankruptcy Judge.
This case came on for consideration of the debtor's motion to extend the time for filing a notice of appeal (Document No. 277). In the motion, the debtor seeks an order pursuant to the provisions of F.R.B.P. 8002(c) extending the time to appeal the court's order on the FDIC's entitlement to proof of claim (Document No. 273). As grounds, the debtor alleges that it seeks the extension "to give the debtor's attorneys and principals an opportunity to evaluate fully the appropriateness of an appeal."
A review of the file reveals the following:
The debtor filed a petition under Chapter 11 of the Bankruptcy Code on February 17, 1992.[1] Upon the filing of the bankruptcy petition, the court set a claims bar date of June 15, 1992. The principal secured creditor in the case, the Federal Deposit Insurance Corporation ("FDIC"), failed to file a proof of claim by the claims bar date. The treatment of this secured creditor in a plan therefore immediately became the principal legal issue in the case, and the debtor began a series of maneuvers to deal with this difficult and complicated issue. The debtor first filed a motion to enlarge time for debtor to file a claim on behalf of the FDIC *788 (Document No. 74).[2] In response, the FDIC filed a motion to extend time to file a late proof of claim (Document No. 160) and a motion to allow its motion for relief from stay (Document No. 49) filed before the expiration of the claims bar date to be treated as an informal proof of claim (Document No. 165). The parties filed memoranda in support of and opposition to the two latter motions.
Subsequently, on October 27, 1992, the court conducted a disclosure statement hearing. The parties were still posturing with regard to the FDIC claim issue, and the debtor had made no progress in settling on a strategy and a theory to advance on this issue. At the hearing, it was apparent that a determination of the FDIC's right to file a proof of claim and the nature and extent of any claim allowed was a critical predicate to the ability of the debtor or any party to fashion and confirm a plan of reorganization. Thus, no progress had been made in advancing the case toward confirmation. Notably, the debtor, as the proponent of a plan of reorganization, bears the burden of confirming the plan. 11 U.S.C. § 1129. Accordingly, the court was required to continue indefinitely the disclosure statement hearing and to schedule a case management conference to force the parties to make choices and to determine the priority and timing of the determination of the various issues before the court.
Before the case management conference, the debtor filed a proof of claim on behalf of the FDIC (Document No. 246), which has been designated as claim number 37. The FDIC objected to the form of this proof of claim (Document No. 252) and to the allowance of the claim as filed by the debtor (Document No. 253).
At the case management conference, held on January 7, 1993, the court and the parties agreed that a determination of the FDIC's entitlement to file a proof of claim was the threshold issue that had to be determined on a priority basis before any schedule could be ordered concerning the formation and filing of an amended disclosure statement and an amended plan and the scheduling of hearings on those matters. As a result, the court established a comprehensive briefing schedule on that and other critical issues. This schedule was contained in the case management order (Document No. 257) entered on January 15, 1993.
Pursuant to the schedule in the case management order, the parties filed a stipulation of facts and briefs on both sides of the issue of the FDIC's entitlement to file a claim. After a review of the papers, the court announced its decision in a telephone hearing on March 18, 1993. In alternative holdings, the court granted the FDIC's motion for leave to file a late claim and to allow an informal proof of claim. The court also found that the debtor's proof of claim on behalf of the FDIC was timely filed and that it could not be withdrawn by the debtor, and sustained the FDIC's objection to the form of the proof of claim. The court's oral decision was memorialized in an order entered on March 30, 1993 (Document No. 273). It is this order as to which the debtors seek an extension of time to appeal.
The time in which an appeal must be noticed is governed by F.R.B.P. 8002(a). This rule provides that "[t]he notice of appeal shall be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from." Accordingly, the debtor had up to and including April 9, 1993, to notice an appeal of the March 30, 1993, order. At 3:58 p.m. on April 9, the last day to take an appeal and 32 minutes before the clerk's office was to *789 close for the day, the debtor filed the pending motion for a 20 days extension of time (Document No. 277). The debtor also presented to the clerk a cover letter addressed to the undersigned and a proposed form of order granting the motion. (The court has directed the clerk to file and docket the original letter and proposed form of order.)
The debtor's pending motion relies upon F.R.B.P. 8002(c). This rule provides that "[t]he bankruptcy judge may extend the time for filing the appeal by any party for a period not to exceed 20 days from the expiration of time otherwise prescribed by this rule" provided that the request for the extension is made before the original ten day appeal period expires (emphasis added). The court rejects the notion that the court should automatically grant extensions of the type sought here. The word "may" contained in the first sentence of F.R.B.P. 8002(c) clearly indicates that the court has discretion in passing on such motions. If these extensions were to be automatically granted for the asking, the rule drafters would have used the word "shall." The court, therefore, considers the motion for extension of time in which to notice an appeal in light of the specific circumstances in the case.
The debtor in this case has requested the extension to "evaluate fully the appropriateness of an appeal." F.R.B.P. 8002(a) gives the debtor ten days in which to notice an appeal. The rule, therefore, assumes that ordinarily ten days is sufficient time for a party to made a determination of whether to file an appeal. The debtor has alleged no special circumstances in its motion to justify an extension of this ten day period. There are no allegations, for example, that the debtor's principals are and have been out of town or otherwise unavailable, or that events have otherwise precluded the debtor from considering the matter before. In fact, the motion is notably silent as to any facts that might warrant an extension of time. On this record, the court cannot conclude that more time is either necessary or desirable.
In addition, the debtor has already had substantially more than ten days to evaluate its position. In fact, the court announced its decision during the telephone conference hearing on March 18, 1993, and requested that counsel for the FDIC prepare a proposed form of order memorializing the court's ruling. The order of March 30 is the order submitted by counsel pursuant to that request. Thus, the debtor had some 22 days from the announcement of the court's ruling to the expiration of the ten day appeal period to decide what it wished to do.
Indeed, the debtor has had even more time than that. It has been clear almost from the outset of the case, and certainly from June 15, 1992, the claims bar date, that this dispute was both significant and substantial. All parties, therefore, have had months to determine the impact of both a favorable and an adverse ruling and to decide how they would respond in either eventuality.
The debtor further suggests that "given the relatively early stage of this case, creditors will not be harmed if the debtor is given an extra 20 days to determine whether to file an appeal." The court does not agree. This case is already old by pending Chapter 11 case standards. It was filed 14 months ago. The case has been repeatedly delayed by the debtor's failure to take those steps necessary to put the case in shape for a determination on the merits. The court has so stated on numerous occasions in open court. No meaningful plan can be proposed by anyone because of the many unresolved issues remaining in the case. In fact, a plan of reorganization will hinge on the treatment of the Federal Deposit Insurance Corporation. Determining what kind of claim it has, therefore, is a condition precedent to any meaningful progress in this case. It was for this reason that, after the October, 1992, aborted disclosure statement hearing, the court identified this dispute in the case management order as the threshold issue that must be decided first in this case. The 10 day time limit imposed in F.R.B.P. 8002(a) recognizes the need for speed and expedition in the administration of bankruptcy cases. The underlying matters at issue *790 here are a prime example of that need. Further delay, therefore, is not in the best interests of creditors, the estate, and the administration of this bankruptcy case.
The court further notes that the debtor filed the motion for extension of time 32 minutes before the appeal deadline expired. An earlier filing of the motion would have allowed the court time to consider seasonably the motion before the deadline expired. Moreover, the debtor took no steps to bring the motion for extension of time to the court's attention so that it could be determined before the expiration of the ten day appeals filing deadline. Indeed, the debtor could have made a request for an expedited hearing pursuant to Local Rule 2.03(c) which sets forth the procedure to be employed to obtain an expedited hearing of time critical matters. Instead, the debtor filed its motion for extension of time, with literally minutes to spare, in the apparent belief that the motion would be granted by the court without any consideration or discussion. Such a belief, however, does not discharge a party's obligation to meet deadlines imposed by the court and the rules. Thus, the debtor's filing of the pending motion for this extension 32 minutes before the clerk's office closed on the last day is an unjustified delaying tactic that the court is compelled to reject.
For the foregoing reasons, the court concludes that there is no cause, much less good cause, to justify the extension the debtor seeks. The fact that the debtor filed the motion on the last day so that the court could not rule on the motion before the deadline expired does not require that the court grant the meritless motion either in full or in part. Accordingly, the motion for an extension of time for filing the notice of appeal is denied.
DONE and ORDERED.
NOTES
[1] Actually, two related debtors filed separate cases. By order entered on May 29, 1992, the court procedurally and substantially consolidated the two cases.
[2] This motion was designed to expand the debtor's options in view of the F.R.B.P. 3004 proof of claims filing deadline that would have precluded the debtor from filing a claim on behalf of the FDIC after July 14, 1992. As it turned out, the debtors did not pursue this matter until forced by the court to do so in December, 1992, preferring instead to take no action and thereby maintain the availability of all options. As discussed later in the text, this is precisely the kind of failure to act that has caused the lack of any appreciable progress in this case despite the fact the case is well over a year old and despite the fact that it is the debtor who must move the case toward confirmation.
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14-239-cr
United States v. James Dickerson
In the
United States Court of Appeals
For the Second Circuit
________
August Term, 2014
No. 14-239-cr
UNITED STATES OF AMERICA,
Appellee,
v.
JAYQUIS BROCK, MARK BASKERVILLE, RUSSELL BATTLES, STEPHANIE
D’AGOSTINO, SHERROD DANIELS, LARRY LEVORE, HARRY DIAZ, STEVEN
DICKS, DERRON DOCKERY, DEVANTE FORTUNE, MAURICE HILL,
SHAMAINE HOBBY, EDMUND JACKSON, SR., JAMES JENKINS, MILTON
JOHNSON, TORRENCE JONES, DEMETRIUS LITTLE, KRISTIN LONGOBARDI,
ERIC LUMPKIN, WENDEL MCDUFFIE, RYAN MOORE, JAVON MORNING,
GEMINI NAPOLEON, CHARLES NICHOLS, RAYMOND RICE, CHANEL
SINCLAIR, ROGER SULLIVAN, ELEAZAR THOMPSON, TYLAN THOMPSON,
ALVIN TOWNSEND, RONNIE WASHINGTON, TYRONE WILLIAMS, DARREN
WINFRY, AARON MOORE, MANOKUS FIELDS, BRANDON TOLSON, JOSEPH
JACKSON,
Defendants,
JAMES DICKERSON
Defendant-Appellant.
________
Appeal from the United States District Court
for the District of Connecticut.
No. 3:10-cr-227 (EBB) ¯ Ellen Bree Burns, Judge.
No. 14-239-cr
________
Argued: December 17, 2014
Decided: June 3, 2015
________
Before: WINTER, JACOBS, and PARKER, Circuit Judges.
________
Defendant-Appellant James Dickerson appeals from a
judgment of conviction in the United States District Court for the
District of Connecticut (Ellen Bree Burns, Judge) for conspiracy to
distribute and to possess with intent to distribute crack cocaine, in
violation of 21 U.S.C. §§ 841 and 846, and distribution of crack
cocaine, in violation of 21 U.S.C. § 841. Because we find that there
was insufficient evidence on which a jury could convict Dickerson
on the conspiracy count, we REVERSE the conviction for conspiracy
and REMAND for resentencing on the distribution count alone.
________
JEREMIAH DONOVAN, Old Saybrook, CT, for
Defendant-Appellant James Dickerson.
ROBERT M. SPECTOR (Marc H. Silverman, on the
brief), Assistant United States Attorneys for
Deirdre M. Daly, United States Attorney for the
District of Connecticut, for Appellee.
________
2
No. 14-239-cr
BARRINGTON D. PARKER, Circuit Judge:
In April 2012, James Dickerson was indicted along with thirty-
seven other defendants and charged in two counts – conspiracy to
distribute and to possess with intent to distribute 28 grams or more
of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B),
and 846, and distribution of cocaine base, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(c). Following a four day trial, Dickerson was
convicted on both counts and sentenced to 168 months, to run
concurrently. On appeal, Dickerson challenges his conviction on the
conspiracy, but not the substantive distribution count. As to the
conspiracy conviction, we agree with Dickerson that the evidence
establishes no more than his role as a mere purchaser from the
conspiracy and cannot support an inference that he joined it.
Consequently, we do not address his alternative argument for a new
trial as to that count on the basis that a juror committed misconduct
during deliberations by accessing a dictionary definition of the word
“conspiracy”.
The indictment targeted a drug distribution conspiracy based
in the Newhallville neighborhood on the border of New Haven and
Hamden, Connecticut. Joseph Jackson, the leader of the
organization, employed several lieutenants, including his nephew
Jayquis Brock, to distribute crack cocaine to purchasers. Brock
ultimately pled guilty and testified for the prosecution pursuant to a
cooperation agreement. Brock testified that he typically sold 18
“eight-balls” (each weighing approximately 3.5 grams) of crack
cocaine per day at $140-150 each. Jackson allowed Brock to keep the
money he earned for every ninth eight-ball he sold.
According to Brock, Dickerson was one of his regular buyers,
and had been an existing customer at the time Brock joined Jackson’s
3
No. 14-239-cr
organization in July 2010. Dickerson typically purchased two eight-
balls at a time, on several days each week, and occasionally more
than once per day. Dickerson contacted Brock by calling his
“dispatch” phone, which was a cell phone issued by Jackson to
Brock on which purchasers could contact Brock to set up
transactions. The government obtained warrants to intercept calls on
the dispatch telephone and captured numerous calls between
Dickerson and Brock, as well as several calls between Dickerson and
Jackson. Telephone records introduced at trial showed that
Dickerson contacted Brock or Jackson 129 times between June and
September 2010. Of these contacts, the government introduced 31
recorded calls, all but two of which were between Dickerson and
Brock. On cross-examination, Brock testified that he did not have
resale agreements with his customers and, consequently, did not
know or care what they did with the drugs after he sold them.
Brock further testified that he did not consider Dickerson to be a
member of Jackson’s drug trafficking organization, although he did
consider Dickerson to be a “reliable customer.”
In October 2010, Dickerson was captured on video selling an
eight-ball and eight $20 baggies of crack cocaine to an undercover
officer, which formed the basis for the substantive distribution count
in the indictment. In November 2010, Dickerson was arrested.
Shortly thereafter, he met with a law enforcement agent and his
attorney, and admitted that he purchased crack cocaine from Brock
and others, broke down each eight-ball, and resold it in $20 baggies.
Dickerson’s defense at trial to the conspiracy count was that
he was a mere buyer of drugs and not a participant in the
conspiracy. At the close of the prosecution’s case in chief, Dickerson
moved on this ground for a judgment of acquittal as to the
conspiracy count. Dickerson contended that he never joined the
4
No. 14-239-cr
conspiracy and was only one of its numerous customers,
highlighting the fact that Brock himself testified that he viewed
Dickerson as a customer and not a member of the organization.
The district court denied the motion, concluding that the
government had adduced sufficient evidence that Dickerson was a
member of the conspiracy. The district court held that, although the
“transactions between Dickerson and Brock are by themselves
insufficient to constitute the charged conspiracy . . . . other evidence
presented at trial was sufficient to permit the jury to conclude
beyond a reasonable doubt that Dickerson knew of the Jackson
group’s drug distribution scheme and agreed to join and participate
in it.” JA 111.
Specifically, the district court noted that the government had
proved that Dickerson purchased and resold drugs in wholesale
quantities on a regular basis over a period of at least a month from
Brock and that Dickerson’s post-arrest statements indicated that he
knew Brock worked for Jackson and that the two were moving large
quantities of drugs on a daily basis. These facts, according to the
district court, permitted the jury to conclude that “Dickerson had not
merely engaged in spot transactions with Brock” but that the two
had developed an expectation of future sales such that “each side
had an interest in the other’s future drug-related endeavors – i.e.,
Dickerson’s interest in the continued supply of [crack] by Brock, and
Brock’s interest in Dickerson’s continued demand for them.” JA 113.
This appeal followed.
5
No. 14-239-cr
DISCUSSION
“As a general matter, a defendant challenging the sufficiency
of the evidence bears a heavy burden, as the standard of review is
exceedingly deferential.” United States v. Coplan, 703 F.3d 46, 62 (2d
Cir. 2012) (internal citations and quotation marks omitted).
Specifically, we “must view the evidence in the light most favorable
to the Government, crediting every inference that could have been
drawn in the Government’s favor, and deferring to the jury’s
assessment of witness credibility and its assessment of the weight of
the evidence.” Id. (citing United States v. Chavez, 549 F.3d 119, 124
(2d Cir. 2008)). “Although sufficiency review is de novo, we will
uphold the judgments of conviction if ‘any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt.’” Id. (citing United States v. Yannotti, 541 F.3d 112, 120 (2d Cir.
2008); Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Our precedent is clear that the mere purchase and sale of
drugs does not, without more, amount to a conspiracy to distribute
narcotics. See United States v. Parker, 554 F.3d 230, 234 (2d Cir. 2009).
“[T]he buyer’s agreement to buy from the seller and the seller’s
agreement to sell to the buyer cannot ‘be the conspiracy to
distribute, for it has no separate criminal object.’” Id. at 235 (quoting
United States v. Wexler, 522 F.3d 194, 208 (2d Cir. 2008) (internal
alterations omitted)). We have explained that, although the mere
buyer defense “does not protect either the seller or buyer from a
charge they conspired together to transfer drugs if the evidence
supports a finding that they shared a conspiratorial purpose to
advance other transfers, whether by the seller or by the buyer,” id. at
234, “[e]vidence that a buyer intends to resell the product instead of
personally consuming it does not necessarily establish that the buyer
has joined the seller’s distribution conspiracy,” United States v.
6
No. 14-239-cr
Hawkins, 547 F.3d 66, 74 (2d Cir. 2008). Nor is “contact with drug
traffickers,” standing alone, sufficient “to prove participation in a
conspiracy.” United States v. Gaviria, 740 F.2d 174, 184 (1984).
Although we have “avoided listing factors to guide what is a highly-
specific fact inquiry into whether the circumstances surrounding a
buyer-seller relationship establish an agreement to participate in a
distribution conspiracy,” we have identified certain factors relevant
to the analysis, including “whether there was a prolonged
cooperation between the parties, a level of mutual trust,
standardized dealings, sales on credit [], and the quantity of drugs
involved.” Hawkins, 547 F.3d at 74 (internal citations and quotation
marks omitted).
Here, there is insufficient evidence of a shared conspiratorial
purpose among Jackson, Brock and Dickerson. While Dickerson
frequently bought crack from Brock, he also purchased crack from
others not involved in the Jackson organization. Brock and Jackson
never sold crack to Dickerson on credit, and placed no limitations on
Dickerson’s ability to use or resell the product he purchased. Brock
testified that he did not consider Dickerson to be a member of the
organization and did not know or care what Dickerson did with the
drugs after he purchased them. There was no evidence that
Dickerson shared profits with Brock or any other members of the
organization, that Dickerson had interactions with Jackson or Brock
other than the transactions that made him a customer, or that, apart
from being a customer, he assisted their operation in any capacity.
This evidence is far weaker than the evidence in previous
cases where we affirmed convictions despite a mere buyer defense.
See, e.g., United States v. Rojas, 617 F.3d 669, 672, 675-76 (2d Cir. 2010)
(the seller testified that he had a “longstanding” relationship with
the buyer, provided the buyer with bail money because the buyer
7
No. 14-239-cr
“was moving product” for him, and sold drugs to the buyer on
credit because he knew that the buyer would resell a portion of the
drugs); Parker, 554 F.3d at 239 (unrebutted evidence that a buyer
recruited his roommate to help the selling organization “handle one
of the drug-order phone lines” while himself making deliveries for
the selling group, and that another buyer purchased crack on credit
and facilitated resales of crack in smaller quantities than the selling
organization usually transacted in); Hawkins, 547 F.3d at 75
(testimony that the buyer “repeatedly brought potential customers’
needs” to the seller’s attention, and that he purchased drugs on
credit with the understanding that he would resell the drugs and use
the profits to repay the seller). In each of these cases, significant
indicia of a conspiratorial purpose existed: the defendants purchased
drugs in significant quantities on credit from the selling organization
and took substantial other steps to assist it such as facilitating
resales, supplying bail money and recruiting other customers and
sellers.
The government, however, contends that our precedent
permits juries to infer a conspiratorial agreement between the seller
and the buyer on the basis of the volume and frequency of drug
transactions. See Gov’t Br. 41-46; see also Parker, 554 F.3d at 239 (“All
three appellants purchased with such frequency and such quantity
from the selling group to support a finding that each of them
depended on it as a source of supply and thus had a stake in the
group’s success. . . . ”); Hawkins, 547 F.3d at 77 (“In some cases, a
large drug quantity may, in addition to establishing an intent to
redistribute, support inferences about the relationship between the
participants”).
It is certainly true that the volume and frequency of
transactions between Dickerson and the Jackson organization is
8
No. 14-239-cr
significant, and could have, under certain circumstances permitted
an inference of conspiratorial intent. For example, in a footnote in
Parker, we upheld a conspiracy conviction of a defendant without
evidence that he “furnished . . . additional support to the selling
group” because “his repeated purchases in wholesale quantities
gave him a stake in the success” of the drug selling organization.
554 F.3d at 239 n.6. However, that individual is differently situated
than Dickerson. The trial evidence in Parker established that this
buyer never used crack cocaine and resold all of the drugs that he
purchased from multiple members of the selling organization,
which, in combination with the volume of sales, permitted the
inference that he was closely aligned with the success of the
enterprise. See United States v. Parker, et. al., No. 05-cr-529, Transcript
of Oral Argument on Rule 29 Motion, at 17 (N.D.N.Y. Dec. 8, 2006).
In contrast, Dickerson had no connection to the Jackson enterprise,
other than using Brock as one of the “various” suppliers of crack
cocaine for both Dickerson’s personal use and resale. Further there
was evidence that the Jackson organization as a whole, and Brock
specifically, sold to many different buyers. Brock’s trial testimony
established that Dickerson was one of his forty regular customers,
that Brock had no interest in what Dickerson did with the drugs, and
that he saw Dickerson only as a customer.
Viewing the evidence as a whole, we find the volume and
frequency of these transactions to be insufficient to move the Brock-
Dickerson relationship beyond that of buyer-seller because these
circumstances do not create the inference of mutual dependency we
identified in Parker. If, for example, Dickerson operated a food truck
and purchased fifty loaves of bread at five different supermarkets,
each of which sold bread to fifty different food truck operators on a
daily basis, those purchases and his subsequent resales of the bread
9
No. 14-239-cr
would simply make him a good customer, not a member of any
single supermarket enterprise. Although the volume of purchases is
high, neither the food truck operator nor the supermarket is
dependent on each other. By the same token, a good customer –
even a very good customer – of a drug organization may still be just
a customer, not a co-conspirator, if the evidence cannot support an
inference of mutual dependency or a common stake.
“To sustain a conspiracy conviction, the government must
present some evidence from which it can reasonably be inferred that
the person charged with conspiracy knew of the existence of the
scheme alleged in the indictment and knowingly joined and
participated in it.” United States v. Rodriguez, 392 F.3d 539, 544 (2d
Cir. 2004). We conclude that the evidence was insufficient to permit
any rational juror to infer that Dickerson knowingly joined or
participated in the charged conspiracy.
CONCLUSION
For these reasons, we REVERSE Dickerson’s conviction for
conspiracy to distribute and to possess with intent to distribute.
Because Dickerson’s 168 month sentence was driven largely by the
drug weight charged in the conspiracy, we also VACATE
Dickerson’s sentence and REMAND for resentencing on the
substantive distribution count alone.
10
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Ella the filiaauurt Qteurt of appeals
@aatern Eistritt
DIVISION T W0
PATRICK T. WOODLING, ) ED102584
)
Appellant, ) Appeal from the Circuit Court
) of St. Louis County
v. ) 14SL-CC00951
)
GREGORY POLK and ADRIENNE ) Honorable Barbara W. Waliace
POLK, )
)
Respondents. ) Filed: October 27, 2015
Introduction
Patrick Woodling (Woodling) appeals the trial court’s summary judgment in favor
of Gregory and Adrienne Polk (collectively, the Folks). Woodling sued for declaratory
judgment and permanent injunction regarding a strip of land on the Polks’ property over
which Woodlng claimed he had an easement. Woodling also appeals the trial court’s
dismissal of his trespass claim. We affirm.
Background
In 2004, Post Valley, LLC, d/b/a Merdinian Homes (Merdinian), a developer,
owned two adjacent residential lots, located at 1017 Forest Avenue and 1019 Forest
Avenue in Kirkwood, Missouri. There was one wide driveway serving both properties,
but situated on 1019 Forest’s lot, so Merdinian executed and recorded an “Easement
Deed,” intended to create an easement for “ingress, egress, maintenance, [and] repair” of
the driveway on 1019 Forest “[f]0r the use and benefit of the present and future owners of
1017 Forest.” The Basement Deed listed Merdinian as both the grantor and the grantee.
In 2005, Merdinian began negotiating the sale of 1017 Forest to William and
Eileen Healy (collectively, the Healys). As the Healys considered the sale, they realized
that the driveway serving 1017 Forest was actually situated on the property of 1019
Forest. This was a portion of land addressed by the Basement Deed. The Heain were
concerned about this situation and requested that Merdinian adjust the boundary line
between 1017 Forest and 1019 Forest so that the driveway of 1017 Forest would be
completely situated on 1017 Forest’s lot. Merdinian adjusted the boundary accordingly
(Boundary Adjustment), so that the new boundary line was still within the original wide
driveway, but provided at least one car width fully on 1017 Forest’s property. Merdinian
recorded the Boundary Adjustment on September 28, 2005. The Healys purchased 1017
Forest, as adjusted, from Merdinian on or abOut September 29, 2005.
In 2006, the Polks purchased 1019 Forest from Merdinian. While the Healys and
Polks were neighbors, the Healys used the driveway situated fully on the property of
1017 Forest for access to their property and for parking their vehicles, and they did not
use any portion of the driveway on 1019 Forest.
In 2011, Woodling purchased 1017 Forest from the Healys. From the time
Woodling moved there, he would often use a portion of the 1019 Forest driveway for
ingress and egress, which Woodling claimed was necessary to pull his vehicles in and out
of 1017 Forest. The Polks also claimed Woodling parked cars on the 1019 Forest
driveway, interfering with the Polks’ use of their driveway. Subsequently, the Folks
removed the pavement on a strip of their driveway adjoining the boundary line. The
Polks placed large rocks where the pavement had been, separating the two driveways and
preventing crossover traffic.
Woodling filed the present suit against the Polks raising six claims. As relevant
to this appeai,l in Count I of his petition, Woodling requested a declaratory judgment
finding that the Basement Deed validly created an easement for Woodling’s benefit over
the portion of the driveway on which the Polks removed the pavement. In Count 111,
Woodling requested a permanent injunction ordering the Polks to restore the pavement
they removed and to refrain from interfering with Woodling’s easement rights in the
driveway. In Count V, Woodling requested that the court find the Polks liable for
trespass due to their interference with Woodling’s easement rights.
The trial court granted summary judgment in favor of the Polks on Counts I and
III, holding that the Basement Deed created no easement, because a common owner
cannot create an easement over his or her own property. The trial court also granted the
Polks’ motion to dismiss Count V for failure to state a claim upon which relief could be
granted. This appeal follows.
Discussion
Woodling raises two points on appeal. First, he argues that the trial court erred in
granting summary judgment, because it erroneously concluded as a matter of law that a
developer may not create an easement in his or her own land. Second, Woodling argues
that the trial court erred in dismissing Woodling’s trespass claim because an easement
' The trial court disposed of Counts I, II, III, and V, and found no just reason for delay of an appeal of these
rulings. The trial court stayed Counts IV and VI pending this appeal.
3
exists, and the Polks interfered with it by removing the pavement. Because we find no
easement existed, Point I is dispositive.2
Stan—Wm
Our review of summary judgment is essentially de novo. ITT Commercial Fin.
Corp. v. Mid-Am. Supply Corp, 854 S.W.2d 371, 376 (Mo. banc 1993). We review the
record in the light most favorable to the party against whom summary judgment was
entered, according the non—movant the benefit of all reasonable inferences from the
record. IQ.
Existence of an Easement
The holding underlying the trial court’s summary judgment on both Counts I and
III of Woodling’s petition was that Merdinian’s Easement Deed never created an
easement over 1019 Forest for the benefit of 1017 Forest because an owner may not
create an easement in his or her own property. Our precedent requires we affirm the trial
court’s judgment.
The general principle comes from this Court's decision in Bali v. Gross, citing the
“universal rule” that “a man cannot have an easement over his own land.” 565 S.W.2d
685, 688 (Mo. App. 1978). This principle most often comes into play when the two
properties affected by an easement, the dominant and servient estates, are merged under
common ownership and possession. In such a case, the easement is generally
extinguished. Maune v. Beste, 356 S.W.3d 225, 230 (Mo. App. ED. 2011) (citing
cases).
2 The Polks separately argued regarding Point 11 that even if Woodling had easement rights, trespass does
not lie because an easement is a non-possessory property interest, citing Schrader v. QuikTrip Corp, 292
S.W.3d 453, 458 (M0. App. ED. 2009). Because we find no easement existed, we do not reach this issue.
4
However, few cases discuss the reverse situation, in which a common landowner
attempts to record an easement burdening one portion of his property for the benefit of
another portion, usually in order to sell one of the portions. Courts have likewise found
that no easement is created because an owner cannot grant himself property rights he
already possesses. S_ee, 51g, Bales v. Butts, 274 S.W. 679, 681 (Mo. 1925) (finding
owner's attempt to create easement failed because “[s]o long as these lots belonged to the
same owner, there could be no easement in favor of one lot, or servitude upon the other,
for a man cannot have an easement over his own land”) (internal quotation omitted).
ln 323,1, a party listed as the owner of a five-acre tract of land was actually a straw
party for the defendant in the case, Blanche Gross. 565 S.W.2d at 688. The straw party
attempted to record an easement for the benefit of Gross across the five-acre tract, but
this Court found the easement invalid because the “real owner” of the five-acre tract was
Gross, and an owner cannot create an easement in his or her own property. 151, This
Court reasoned that “[i]n order to create an easement by deed there must be a dominant
93
and servient estate, and ‘they must not be lodged in the same person.’ 15L. (quoting
Marshall v. Callahan, 229 S.W.2d 730, 735 (Mo. App. 1950)). Here, Merdinian
attempted to create an easement by deed when it owned both the purported dominant and
servient estates, which was ineffective as a matter of law.
Woodlng argues that an exception exists for a developer who is preparing
multiple adjoining lots for individual resale. Based on Missouri precedent, there are
essentially two options for a developer who desires to create easements over the land he
or she will eventually subdivide and sell.3
3 Some states have explicitly adopted exceptions for developers to the general rule that an easement cannot
exist over one’s own land. 5;; eg, Allen v. Nickerson, 155 P.3d 595, 598-99 (Colo. App. 2006); Mattos
5
First, like any party creating an easement, a developer can include the easement in
the individual deeds conveying each lot, each at the time title is severed. Because the
dominant and servient estates will not be lodged in the same person at that point, the deed
will suffice to create the easement. Second, more specific to a developer’s
circumstances, he or she can create easements through a subdivision plat, which is a to-
scale map of numbered lots, delineating streets, alleys, common areas, and any portions
of land reserved for public purposes. fig Section 445.010-020.4 As discussed below,
easements contained in subdivision plats are routinely upheld by Missouri courts.
The best practice for developers is essentially to do both of these: (1) initially
create easements in a recorded subdivision plat, and (2) then include identical easement
language in each conveyance deed. This ensures buyers are alerted to the easements and
ensures the easements are effectively created, exactly as intended, upon severance of title.
Though there is no precise specificity requirement regarding the language creating an
easement, it is best to be as specific as possible, which would include a metes and bounds
description where feasible. See, ggm Rosenbloom v. Grossman, 351 S.W.2d 735, 738-39
(Mo. 1961) (quoting 28 C.J.S. Easements § 24 at 677) (“{n]o particular words are
necessary to constitute a grant, and any words which clearly show the intention to give an
easement, which is by law grantable, are sufficient to effect that purpose, provided the
language is certain and definite in its terms”).
v. Seaton, 839 A.2d 553, 555 (RI. 2004); c_f. Michael v. Needham, 384 A.2d 473, 476 (Md. Ct. Special
App. 1978) (describing “quasi—easement” as legal fiction developed to overcome premise that easement
cannot exist over one’s own land; quasi-easement results in implied easement upon division of land).
However, to date, Missouri has not done so either by statute or common law, which our legislature or
Supreme Court could easily do. As it stands now, Missouri recognizes only an easement by necessity: in
order to find an easement upon severance of title that is implied by the actions and intentions of the parties,
a party claiming such easement must also show that the easement is reasonably necessary for the fair
enjoyment of the party’s estate. See Meinhardt v. Luaders, 575 S.W.2d 213, 215 n.2 (M0. App. 1978);
Causey v. Williams, 398 S.W.2d I90, 197 (Mo. App. 1965).
4 All statutory references are to RSMO. (2000), unless otherwise indicated.
6
However, where a plat contains an easement but the description of the easement is
not contained in the conveyance deed, Missouri courts have still upheld the easement if
the deed conveying the lot refers to the plat. & Pomona Mobile Home Park LLC v.
Je_tt, 265 S.W.3d 396, 399 (Mo. App. SD. 2008) (citing Goad v. Bennett, 480 S.W.2d 77,
80 (Mo. App. 1972)) (“when a deed conveying any of the lots makes reference to the
subdivision plat, “[t]he plat is deemed incorporated into the deed, creating an easement
appurtenant which benefits the grantee . . . .”). There is even some precedent for
upholding an easement based on the piat alone, regardless of any mention in the deed.
For example, in Goad v. Bennett, the original owner of a subdivision had recorded a plat
in which she “reserved to herself an easement for utilities over and across all roadways
shown on the plat.” 480 S.W.2d 77, 79 (Mo. App. 1972). This Conn held that “by this
insrrzmienr the original purchaser of plaintiffs’ [lot] was granted an easement . . . ‘running
with the land.’” 11. (emphasis added). However, again, best practice is to include the
easement in both the plat and the deed.
If a situation arises in which a developer attempts to include the easement in both
the subdivision plat and the conveyance deed, but the two descriptions conflict with one
another, the easement language in the conveyance deed controls. gee, Gardner v. Maffitt,
74 S.W.2d 604 (Mo. 1934) (finding purported easement created in plat ineffective and
terms of easement contained in first conveyance deed controlled). This is because an
owner is free to convey property “in any manner fairly agreed upon between [him] and
the party to whom the first conveyance was made,” and no easement is actually created
until title severs between the dominant and servient estates. Gardner, 74 S.W.2d at 607
(“notwithstanding the recorded plat . . . , it cannot be said that there was an effective
grant of such easement or restriction until a severance of title occurred”). Because “[t]he
intention of the parties is the paramount and controlling question,” the wording in the
conveyance deed between the two parties controls. EL
Finally, if a developer does not include easements in the subdivision plat, he or
she can create easements on an individual basis with each lot owner at the time of sale in
the conveyance deeds, or even by contract after sale. _S_e_e_ Rosenbloom, 351 S.W.2d at
738 (“While ordinarily easements are created by grant or prescription, they may be
acquired by agreement”). Such easements will run with the land. id,
Here, Merdinian did not follow any of these procedures for creating an easement.
Woodling argues that the easement is valid because the Basement Deed was recorded and
the conveyance deed to the Folks alerted them that they took 1019 Forest “subject to
existing building lines, easements, conditions, restrictions, zoning regulations, etc., now
of record, if any.” There are three problems with this argument.
First, the Basement Deed was not a subdivision plat. It was rather a iaudowner’s
attempt to create an easement in his own property, which as stated, is insufficient as a
matter of law. Second, while Woodling may argue that the later Boundary Adjustment
was a subdivision plat, it makes no mention of an easement. This in fact may indicate the
Healys did not intend to reserve an easement over 1019 Forest because they determined
the Boundary Adjustment obviated the need for one. Finally, the language in the
conveyance deed itseif, that the Polks took “subject to existing building lines, easements,
conditions, restrictions, zoning regulations, etc., now of record, if any,” was not specific
enough to create any easement. Rather, the easement language must be more certain and
in its terms than this standard form language. & id. at 73 8-39 (easement language must
be “certain and definite in its terms”).
Therefore, Woodling can claim no easement rights to any part of 1019 Forest.
The trial court did not err in granting summary judgment in favor of Woodling on his
claims for declaratory judgment and permanent injunction. Point denied.
Conclusion
Because there is no easement, Woodling’s claims on appeal must fail. We affirm.
Philip M. Hess, P. 1., concurs.
Angela T. Quigless, J ., concurs.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-6983
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARRINGTON LAMONT HARRELL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-90-27, CA-00-1239-1)
Submitted: November 15, 2001 Decided: February 12, 2002
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Carrington Lamont Harrell, Appellant Pro Se. Clifton Thomas
Barrett, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Carrington Lamont Harrell seeks to appeal the district court’s
order denying his motion filed under 18 U.S.C.A. § 3582 (West 2000
& Supp. 2001), which the district court construed as a motion
pursuant to 28 U.S.C.A. § 2255 (West Supp. 2001).* We have
reviewed the record and the district court’s opinion accepting the
recommendation of the magistrate judge and find no reversible
error. Accordingly, we deny Harrell’s motion for appointment of
counsel, deny a certificate of appealability, and dismiss the
appeal on the reasoning of the district court. See United States
v. Harrell, Nos. CR-90-27; CA-00-1239-1 (M.D.N.C. May 7, 2001). 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
*
A panel of this court recently heard argument in United
States v. Emmanuel, No. 00-7578, on the issue of whether a district
court must notify a pro se litigant that it intends to construe a
filing that is not so labeled as a § 2255 motion and afford the
movant the opportunity to withdraw the motion in order to avoid the
restrictions on second or successive motions under § 2255. This
case will not be controlled by the decision in Emmanuel, however,
as Harrell has previously filed a first § 2255 motion and therefore
was not prejudiced by the district court’s failure to provide
notice and an opportunity to withdraw prior to construing his
motion as one filed under § 2255. Harrell’s recourse is a motion
in this court under 28 U.S.C.A. § 2244 (West Supp. 2001), for
authorization to file a successive § 2255 motion.
2
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945 F.2d 402
Mclemorev.Landry
NO. 90-3663
United States Court of Appeals,Fifth Circuit.
SEP 19, 1991
1
Appeal From: M.D.La.
2
AFFIRMED.
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In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-09-00049-CV
_____________________
TRIESTE INVESTMENTS, L.L.P., Appellant
V.
WELDON W. ALDERS, Appellees
On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause No. CV 73473
MEMORANDUM OPINION
The appellant, Trieste Investments, L.L.P., filed a motion to dismiss this appeal. The
motion is voluntarily made by the appellant prior to any decision of this Court. See Tex. R.
App. P. 42.1(a)(1). No other party filed notice of appeal. We grant the motion and dismiss
the appeal.
APPEAL DISMISSED.
____________________________
DAVID GAULTNEY
Justice
Opinion Delivered July 16, 2009
Before McKeithen, C.J., Gaultney and Horton, JJ.
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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
27-AUG-2019
10:48 AM
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAII
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
LEE Y. MYERS,
Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1DTC-17-055308)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Petitioner/Defendant-Appellant Lee Y. Myers’
application for writ of certiorari filed on July 19, 2019, is
hereby rejected.
DATED: Honolulu, Hawaii, August 27, 2019.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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Case: 12-60240 Document: 00512069132 Page: 1 Date Filed: 11/30/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 30, 2012
No. 12-60240
Summary Calendar Lyle W. Cayce
Clerk
QING ZHENG,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 901 380
Before DAVIS, BARKSDALE, and GRAVES, Circuit Judges.
PER CURIAM:*
Qing Zheng, a native and citizen of the Peoples Republic of China,
petitions for review of the Board of Immigration Appeals’ (BIA) denying as
untimely and number-barred her third motion to reopen her removal
proceedings. Zheng contended in that motion: she fled China and entered the
United States illegally because she feared persecution by a police officer with
whom she had ended an intimate relationship; and she is eligible to apply for
asylum because country conditions have changed as a result of her marriage to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-60240 Document: 00512069132 Page: 2 Date Filed: 11/30/2012
No. 12-60240
a native-Chinese Falun Gong practitioner and lawful permanent resident of the
United States, and as a result of her giving birth to a child in the United States.
Motions to reopen are disfavored. Lara v. Trominski, 216 F.3d 487, 496
(5th Cir. 2000). BIA denials of such motions are reviewed under a “highly
deferential abuse-of-discretion standard.” Gomez-Palacios v. Holder, 560 F.3d
354, 358 (5th Cir. 2009). Such denials must be affirmed unless “capricious,
without foundation in the evidence, or otherwise so irrational that [they are]
arbitrary rather than the result of any perceptible rational approach.” Id.
Although Zheng’s motion to reopen would ordinarily be untimely and
number-barred, 8 U.S.C. § 1229a(c)(7)(C)(i) (motions to reopen must be filed
within 90 days of removal order), she moved to reopen to apply for asylum based
on previously unavailable and material evidence of changed country conditions,
8 U.S.C. § 1229a(c)(7)(C)(ii) (no time limit for motion to reopen based on material
and previously unavailable evidence of changed country conditions). We
therefore have jurisdiction to review the denial of her motion. E.g., Panjwani v.
Gonzales, 401 F.3d 626, 632 (5th Cir. 2005) (jurisdiction to review denial of
untimely motions to reopen when based on changed country conditions).
Zheng supported her change-of-country-conditions contention with her
affidavit and an unsworn letter from her father. After considering this evidence,
the BIA held: Zheng’s marriage and the birth of her child constituted changed
personal circumstances, not country conditions; she failed to show previously
unavailable evidence relating to her alleged mistreatment; her affidavit relating
to changed country conditions was not based on personal knowledge and was
speculative; and her father’s statements were unpersuasive because he was an
interested witness, they were vague, speculative, and without foundation, and
they failed to show a reasonable likelihood Zheng would be persecuted upon
returning to China.
2
Case: 12-60240 Document: 00512069132 Page: 3 Date Filed: 11/30/2012
No. 12-60240
Because Zheng fails to show material or previously unavailable evidence
of changed country conditions, she fails to show the BIA abused its discretion in
denying her third motion to reopen. E.g., Panjwani, 401 F.3d at 633.
DENIED.
3
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Dismissed and Memorandum Opinion filed October 9, 2003
Dismissed and Memorandum Opinion filed October 9,
2003.
In The
Fourteenth Court of Appeals
____________
NO. 14-03-00316-CR
____________
VERNON HILL WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause No. 875,224
M
E M O R A N D U M O P I N I O N
This is an attempted appeal from a pre-trial order signed
February 6, 2003, finding appellant is incompetent to stand trial for the
offense of murder. Appellant filed a
notice of appeal on February 27, 2003.
Interlocutory rulings from competency hearings are merely ancillary to
the criminal proceedings and are not final judgments. Morales v. State, 830 S.W.2d 139, 140 (Tex. Crim.
App. 1992) (adopting
court of appeals= opinion).
On September 17, 2003, notification was transmitted to all
parties of the Court=s intent to dismiss the appeal for want of jurisdiction. See Tex.
R. App. P. 42.3(a). Appellant
filed no response.[1]
Accordingly, the appeal is ordered dismissed. All pending motions are denied as moot.
PER CURIAM
Judgment rendered and Opinion
filed October 9, 2003.
Panel consists of Chief Justice
Brister and Justices Anderson and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] An earlier
notice had been sent to appellant=s
previous counsel, Charles Freeman. After
Mr. Freeman=s death, the appeal was abated to allow appellant to
retain new counsel. Appellant=s current counsel filed no response to the notice of
intent to dismiss.
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State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 10, 2016 521172
________________________________
TOWN OF FORT ANN,
Appellant,
v MEMORANDUM AND ORDER
LIBERTY MUTUAL INSURANCE
COMPANY,
Respondent.
________________________________
Calendar Date: January 14, 2016
Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.
__________
Horigan, Horigan & Lombardo, PC, Amsterdam (Peter M.
Califano of counsel), for appellant.
Mauro Lilling Naparty, LLP, Woodbury (Anthony L. DeStefano
of counsel), for respondent.
__________
McCarthy, J.P.
Appeal from an order of the Supreme Court (Krogmann, J.),
entered January 6, 2015 in Washington County, which granted
defendant's motion to dismiss the amended complaint.
The underlying facts related to this litigation are more
fully addressed in previous decisions by this court (Hosmer v
Kubricky Constr. Corp., 88 AD3d 1234 [2011], lv dismissed 19 NY3d
839 [2012]; Town of Fort Ann v Liberty Mut. Ins. Co., 69 AD3d
1261 [2010]; Alaimo v Town of Fort Ann, 63 AD3d 1481 [2009]).
Plaintiff is the owner of a pond within which a dam failed,
causing flooding. Defendant had issued an insurance policy in
relation to construction on that dam. Eventually, after
defendant had exhausted the relevant insurance coverage amount
-2- 521172
settling damages claims of property owners related to the
flooding, plaintiff released defendant from all claims except for
those specified in a complaint that was attached to that
agreement and except for those claims that were the subject of a
motion pending in an Albany County action. That same day,
plaintiff initiated this action by complaint identical to that
attached to the agreement and seeking a declaratory judgment that
it was entitled to coverage and indemnification from defendant
related to the dam's failure. Eventually, however, plaintiff
amended that complaint – so that it no longer was identical to
the one referenced in the release – by adding a cause of action
that defendant acted in bad faith by exhausting the insurance
policy and seeking indemnification beyond the policy limit.
Thereafter, Supreme Court granted defendant's motion to dismiss
the amended complaint. Plaintiff appeals.
We agree with defendant that, even if plaintiff did not
waive its right to add the bad faith cause of action,1 the
previous order and judgment by Supreme Court (O'Connor, J.) in
the Albany County action has a collateral estoppel effect.
"[C]ollateral estoppel precludes a party from relitigating an
issue when it was clearly raised in a prior action . . . and
decided against that party in a final judgment on the merits
after a full and fair opportunity to be heard" (Clark v Farmers
New Century Ins. Co., 117 AD3d 1208, 1209 [2014], lv denied 23
NY3d 991 [2014]; see Conason v Megan Holding, LLC, 25 NY3d 1, 17
[2015]; State of New York v Zurich Am. Ins. Co., 106 AD3d 1222,
1223 [2013]). Accordingly, our review "focus[es] on the
questions of whether there is an identity of issue and whether
plaintiff had a full and fair opportunity to litigate the issue"
(Bartkowski v Friedman, 213 AD2d 873, 875 [1995]; see generally
Matter of Dunn, 24 NY3d 699, 704 [2015]).
Defendant submitted proof that, in the Albany County
action, plaintiff had, among other things, sought indemnification
from defendant for all of plaintiff's costs related to the
1
Plaintiff contends that because the bad faith claim was a
part of the pending motion that was specified in the release, it
did not waive its right to raise that issue in this action.
-3- 521172
flooding, including costs beyond the policy limit. In that
action, Supreme Court (O'Connor, J.) partially granted
defendant's motion for summary judgment, finding that defendant
owed plaintiff no further obligation and specifically rejecting
"plaintiff[']s . . . claim of bad faith" seeking liability by
defendant beyond the insurance policy limit. Plaintiff attempts
to relitigate that identical issue here, after having a full and
fair opportunity to do so previously. Accordingly, defendant
established that collateral estoppel applies (see Bartkowski v
Friedman, 213 AD2d at 875; see generally Montoya v JL Astoria
Sound, Inc., 92 AD3d 736, 738 [2012]).
Garry, Lynch, Devine and Clark, JJ., concur.
ORDERED that the order is affirmed, with costs.
ENTER:
Robert D. Mayberger
Clerk of the Court
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THEATTORNEY GENERAL
OF-TEXAS
PRICE DANIEL
ATTORNEY
GENERAL
ma. John Lairhcn opinioaRO. v-885
Tess8 Liquor Control Board Rer Authority of the Texas
Austini Texas Liqpor eontl-01Board to
refire a~boer lioe~e
applicationvhioh ap-
pear8 from it8 raae to
have beea heam% at a
date 1088 than ftiveday8
rmr the filing of laid
aH&avit by the County
.
YOU! X'OqUO8tfOiT- OpYhiOn pXW8ORt8 th0 fOllOWiilg
qTAO8tiOMt
1. Ray the county judge of a oount7 set for
hearing an appl.taationof a p~8on rppl~i~g for a
be82 license at a arts 1~8 than five clay8from
the date of filing OS said application?
2. If the applicationon it8 face shove
that the ootmtg judge oertlf'ledthe applioation
upon a hearing 8et fira day8 or 1088 fronlthe
date of the filing of the appllaotion, is the Texas
LIQu(prCoatrOl bad authOPi8ed to IWtfU808uoh ap-
plieation?
Artlale 667-6(e),
Veznch~s Penal Cods, pPOViae8S
9he rppllaationof any person desiring to
be liaered to mamfa&xam3, dirbribute,or 8ell
bear 8hs11be ?lled ti dtlpllOate wlth the OOPnty
judge, Vhc 8h811 8Ot 8U for a heariry at L date
mot 1088 than five (5) nor more than ten (10) Ia78
from the filing of 8atW."
- --
Hon. John Lawhon, page 2, (V&8&%)
Artiole 667-6(b), Veron~s Penal Code, provider:
?Jpon the filing of sny appliaationfor
a lloense, the oounty olerk shall give notloe
thereof by posting at the court houcredoor a
written notioe of the filing of such petition,
and the substance thereof, and the date of
hearing upon auoh petition. Any oititen ahall
be permitted to conte8t the facts stated in aaia
petition and the applioant~sright to seoure
lloen8e upon giving secllr1tgfor all 008ts whiah
may be inaurred in suoh oonteet should the ease
be decided in favor of the applioanti pmviaea,
however, no offlam of a oountg or any inoarpor-
atea city or town ahall be required to give bona
for suoh ooata."
The obvious purpose of the above requirement 18 to
give to the publio the right to OOnte8t the llOen8lng of per-
sona applying for the privilege of manufacturing,cliatributing,
or selling beer. The stetutory languege Is mandatory that the
county judge shall eet the issue for hearing at a aate not leaa
than five aaga from filing, This i8 a right oonferred upon the
pub110 and as suah cannot be waived by the county judge, Bur-
thermore, the rule of statutory
is that where 8 statute 18
same must be regarded a8
APP.
In an8wer to que8tion No. 2, Seotion 6(o) of Artlole
667, provides:
"If upon hearing upon the petition of any
applloant for a lloen8e the oountg judge find8
the faot8 8tated therein to be true end ha8 not
other lawful rea8on for denying the applloetlnn,
he 8hall enter an order 80 oertlfylng,and a copy
of said order shall be delfverea to the appli-
oant; applloant shall thereupon preeent the 8ame
to the a88e88Or and OOlleOtOr Of taxes Of the
oounty wherein the applioation is made and 8hall
pay to the a88b88or and oolleotor of taxes the
fee speolflea in this Article for the olasa of
license applied for; the aaeeaaor and collector
of taxes shall thereupon report to the Texas
Liquor Control Board upo&bs:form:.$&aoribeaby
Hon. John Lswhon, page 3 (V-8&)
salbaBoard cerUfyiag that the appliobation for
lieenae has been approved and all required fees
paid, and swh athe~ Znformationa8 may be re-
qu3md by the Bosrd,'end to suoh oe&ifioate
shall be attached a copy of the or4gIual appli-
cation for lieemmo Upon recssfrbg such report
or sertifica%fonfrom th6 a8aemor aasdcollector
of taxes, ft shall be the duty of the Board or
Adm5ni~tratorto Isrue the llmm8e amordLnglyp
fJ1it ir fouud tkmt the applioanb;is mitba to
a lfoen6ep which 1Uenee She11 show the class of
business the applIoant i.sauthorfmd to oouduot,
amount of fee8 pea, a&e, oormat tidress of the
place of buutiess, snb &&te of e;+piration,and
sucshother inforanertfon
aI the Board shall deem
detez7ucki0a
that any sfMxm0nt 00duea In the ap-
plieation therefor 1~4false* untrue or mi2WmdIu4z~
-.
~efupa ofany Ifoemm lee palidto the ccum%y a8ma8or
and 0olLocto~ of tues a% %he tlubsof filing his ap-
plfeatlon." (%~is uAa0a.)
lh the east3of
172 3,~. 213778 (TAX* ~2%
s%a%u%ory procedaupefor ob%afnWg a beer Eicen88 ooau%empla%ed
an app%%aation%o %he coun%y judge a~~3upon his approval 0% the
saae the appliasnt then SWS% apply to the Texas Liquor ContaPsb
Boarad The Court declared tha% the Boaz~dhad %he,powap and
auty to cIe%erminae
$0~ itbselfwhe%he~p0~0nut the permit or If-
cenae shouM be gran%ed. I% was spe~PiYo@il%y explained that
%he fsmle a8t023md by %he oouL?I%y jUdg5 w&M Wb0w0P OF QOa;
the applicant be aeeordad &he privilege of apply&g to the
Board.
IQ the Ught of the abovs au%h&f%y, i% nerressax4%g
fOlxOW8 tha% the par% of the applIca%.lton
prooeaure dialing
with %ha hearing before the aounty judge is designed solely
to govern that heapIng and has no applZcx&tionto later deter-
tiwtion by the Boarda The Board ac%s hdepenCl0ntPy0% the
county juage ati no% aa a reviewing autharfty. 1% must re-
view the proceedingsbefore the 6~un%y jucigeto asaer%aIn
that the ~equiee%e qualU!Iea%ionsl~~18%~ bu% mot to determjrne
whether %he county judge acted erromously, The Issue before
Hon. John LswhonL page 4 W3% 1
the Board fs whether the applicant should be lioenaed, not
whether the county judge erroneously
. . . oohcluded that he 8hjga
be licensed. However* the atatutorg proceaurs requuos tnat
the county judge properly perform his dUtie8, and give to the
public proper notice, Where the county judge fails in thir
respect, the proceedingsbefore him are In effect a nullity
and the Liquor Control Board is without authority to OoMider
the application in the same manner as If no hearlng,hadbeen
held before the county
Article 667-6(a), V,P.Co, makes it mandatory
that a eoun%y judge se% fop hearing the application
for a beer license at a a&t0 not 1e88 th6n five (5)
days from the filing of said appl.ioationlA hear-
ing held by the aounty judge al;a date pPior to the
expfrationof five days from the date of the filing
is a nullit and the Texas Liquor Control Board 18
without authorfty to consider the applloatlon in the
same manner as if no applicationhad been heard by
the county judge. Article 667-6(o), V.P.C.; Texas
Liquor Control Board v* Abogado, 172 S.W. 26 778
(Tex. Clv. App. 1943).
JHR/r%
ATTORNEY GENERAL
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86 Ill. App.2d 403 (1967)
230 N.E.2d 574
Olga Workman, Plaintiff-Appellee,
v.
Dave Goldford, Defendant-Appellant.
Gen. No. 66-56.
Illinois Appellate Court Fifth District.
June 16, 1967.
Modified opinion October 5, 1967.
*404 Wagner, Conner, Ferguson, Bertrand & Baker, of East St. Louis (John B. Gunn, of counsel), for appellant.
Jones, Ottesen & Fleming, of Belleville (Robert A. Hayes and Patrick J. Fleming, of counsel), for appellee.
MORAN, P.J.
This is an appeal from a judgment of the Circuit Court of St. Clair County, Illinois, in favor of the plaintiff in an action for personal injuries.
The evidence indicates that the plaintiff, Olga Workman, slipped and fell as she was leaving the apartment building in which she and her husband were renting an apartment. The plaintiff's complaint alleged that the defendant-lessor negligently failed to keep the common hallway leading to the front door lighted properly and that, as a result of his failure, she fell, sustaining the injuries for which suit was brought. The jury returned a verdict for the plaintiff and answered a special interrogatory, finding that she was free from contributory negligence. The trial court entered a judgment on the verdict after denying the defendant's post-trial motion for a judgment notwithstanding the verdict or for a new trial.
With regard to the liability aspects of this case, the defendant's sole contention is that the plaintiff was contributorily negligent as a matter of law and that the trial court erred in refusing to grant a judgment notwithstanding the verdict. In the alternative, he contends that the trial court erred in not granting a new trial, *405 since there was an unauthorized communication between the bailiff and the jury.
The plaintiff testified that on the evening the accident occurred, she left her apartment to take her dog outside; that the dog went down the stairs ahead of her; that the stairs and the hallway were not lighted; that when she arrived at the bottom of the stairs, she did not see the dog; that she could see the glass front door since there was a gleam from a washhouse at the rear end of the hallway; that she pushed open the front door with both hands; that she could not see anything on the surface of the porch; and that she then stepped out with her right foot, took a step with her left foot, started to slide, and fell.
The defendant argues that the plaintiff knew the stairs and hallway were not lighted and failed to take any light with her; that she knew the porch surface was wet with drizzle and was icy; that she did not hold onto the grab bar on the front door; and that since she had lived in the building for seven months, she should have been thoroughly familiar with the area.
[1, 2] The question of contributory negligence ordinarily and preeminently presents a question of fact. It can become a question of law only when from the undisputed facts, all reasonable minds, in the exercise of fair and honest judgment, would be compelled to reach the conclusion that there was contributory negligence. (Lasko v. Meier, 394 Ill. 71, 67 NE2d 162; Jines v. Greyhound Corp., 33 Ill.2d 83, 210 NE2d 562; Simaitis v. Thrash, 25 Ill. App.2d 340, 166 NE2d 306.) After a review of all the testimony, we do not believe that the plaintiff was guilty of contributory negligence as a matter of law.
Appellant contends that he is entitled to a new trial because of an improper communication between the bailiff and a juror. The testimony of the bailiff, adduced *406 in support of the defendant's post-trial motion, reveals that the members of the jury "had (the bailiff) come up and they said `we have got everything all figured out, the one part is finished, but we are a little confused on the other,' and the foreman did say `come on in, we're all finished'"; that a woman member of the jury then followed him outside and asked something to the effect whether "the jury could sign the special interrogatory `yes' and still give the plaintiff some money?"; and that he then replied, "I don't know, would that make sense?"
Appellant argues that this case is governed by Sommese v. Maling Bros., Inc., 36 Ill.2d 263, 222 NE2d 468, and Swanson v. Chester Johnson Elec. Co., 5 Ill. App.2d 175, 125 NE2d 304. In Sommese plaintiff's attorney in his closing argument advised the jury that a special interrogatory had been "slipped in" by defendant and that the jury should conform its answer to the verdict. In Swanson, the trial judge orally told the jury that the "verdict you reach should be compatible with the interrogatories." We do not believe that the communication complained of in this case, "I don't know, would that make sense?" necessarily has to be equated with a statement telling the jury that their verdict should be compatible with or conform to the interrogatories.
[3-5] The trial judge is afforded discretion in the allowance or refusal of a motion for a new trial and his decision in this regard will not be reversed except for a clear abuse of such discretion. Tihay v. Aurora City Lines, 79 Ill. App.2d 107, 114, 223 NE2d 171. Furthermore, in passing on a motion for a new trial, the trial judge has a greater latitude in passing on questions of fact than on questions of law and a reviewing court will not reverse a ruling on a question of fact unless a clear abuse of discretion is shown. Morella v. Melrose Park Cab Co., 65 Ill. App.2d 175, 181, 182, 212 NE2d 106; Buer v. Hamilton, 48 Ill. App.2d 171, 173, 199 NE2d 256.
*407 [6] The issue in this case is not whether we would set the verdict aside upon the record before us, but rather whether the record shows that the trial judge abused his discretion in not allowing appellant's motion for a new trial. We do not believe that the failure of the trial judge to grant a new trial in this case was a clear abuse of discretion, inasmuch as he could have determined that the bailiff's answer to the juror's question was a noncommittal response which was not calculated to and did not influence the jury. In Loucks v. Pierce, 341 Ill. App. 253, 93 NE2d 372, at 260 the court considered the applicable law to a communication from a bailiff to the jury during their deliberations and cited the following rule:
Many courts, perhaps the majority, take the view that unless communications from the officer to the jury have a manifest tendency to influence the jury improperly against the unsuccessful party, or were such that prejudice resulted to such party, they furnish no ground for a new trial. 39 Am Jur, New Trial, § 104.
For the foregoing reasons, the judgment of the trial court is affirmed.
Judgment affirmed.
EBERSPACHER and GOLDENHERSH, JJ., concur.
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440 Pa. 199 (1970)
Commonwealth
v.
Roundtree, Appellant.
Supreme Court of Pennsylvania.
Submitted January 5, 1970.
October 9, 1970.
*200 *201 Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
I. Leonard Hoffman, for appellant.
Arthur R. Makadon, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
OPINION BY MR. JUSTICE EAGEN, October 9, 1970:
In this appeal, the appellant, Weldon Roundtree, challenges the validity of the judgment and conviction resulting from his general plea of guilty on May 15, 1963,[1] to the charge of murder.
It is urged that the plea was invalid "as not being voluntarily and intelligently made."
While Roundtree speaks in terms of the plea being "involuntary", what is really meant, as our subsequent discussion will manifest, is that the plea was entered *202 unintelligently or unknowingly. Parker v. North Carolina, 397 U.S. 790, 90 S. Ct. 1458 (1970). And, of course, if this is true, the plea and conviction should be set aside because for a plea to be valid, it must not only be the free and voluntary act of the maker, but it must also be intelligently and knowingly entered. Commonwealth v. Cottrell, 433 Pa. 177, 249 A. 2d 294 (1969).
In support of his position, Roundtree asserts two contentions which are more or less related. First, he says that when he plead guilty he thought he was merely admitting he fired the shot which caused the victim's death, and that he would be given the opportunity of showing the trial court that he shot in self-defense and was not criminally responsible. Secondly, he says his testimony at the plea proceedings indicated he acted in self-defense and, therefore, the court erred in not rejecting his guilty plea after hearing this testimony.
We shall explore the latter contention first.
We think it is logical and correct that if a defendant pleads guilty to a criminal charge, and in the next breath contravenes the plea by asserting facts which, if true, would establish that he is not guilty, then his guilty plea is of no effect and should be rejected. For on its face, such a situation would show that the plea was not entered with a complete comprehension of its impact. Commonwealth v. Cavanaugh, 183 Pa. Superior Ct. 417, 133 A. 2d 288 (1957); and United States ex rel. Crosby v. Brierley, 404 F. 2d 790 (3d Cir. 1968). In other words, a defendant should not be allowed to plead "guilty" from one side of his mouth and "not guilty" from the other. And when a plea of guilty is entered, it is not then for the court to determine guilt or innocence. United States ex rel. Crosby v. Brierley, supra. An examination of Roundtree's own testimony *203 during the plea proceedings is, therefore, necessary. And in substance, it is this:[2]
On the day involved, he was drinking in a bar when McKevin Wright made certain observations about a lady friend of Roundtree, which led to some dissension between them. Shortly thereafter, Bobby Delaney, another patron in the bar, told him "you know you don't supposed to be up here" and suddenly hit him in the jaw. Since he didn't wish further trouble, he left the establishment, but Wright, Delaney and others followed him outside. Delaney then challenged him to a fight and, in the physical combat that ensued, Roundtree knocked Delaney down. Wright then secured a banister post from a nearby porch and started hitting Roundtree over the head. Billy Redmond followed suit with something he broke off from a nearby motor vehicle, and, Delaney, regaining his feet, started assaulting him with a "bucket". Roundtree broke away and started to run when he saw a man in the crowd whom he didn't know "going to his belt for something . . . which is shining." He wrested a gun from this man's grasp and ran "about 30 or 40 yards," but his attackers, after pursuing him for "10 or 15 feet," abandoned the chase. Moreover, when Delaney, Wright and the others observed the gun in his hand, they fled from the scene in all directions but Roundtree noticed two re-entering the bar. He then turned around and also re-entered the bar. There he saw Alfred Washington sitting on a stool and when he started to get up, Roundtree "punched him." When Washington straightened up and started towards him, Roundtree fired a shot from the gun, and when Washington kept coming he fired two more shots (two shots entered Washington's body *204 and caused his immediate death). As he started to leave the bar, Roundtree noticed another patron start up from a stool, and thinking he was trying to stop his exit, Roundtree hit this individual in the face with the gun.
If the foregoing testimony of Roundtree established that he shot Washington in self-defense, the killing would be excusable homicide, Roundtree would not be criminally responsible, the guilty plea would be negated and should have been rejected. But this is not the case.
In Commonwealth v. Johnston, 438 Pa. 485, 489, 263 A. 2d 376, 379 (1970), we recently reiterated what a defendant must establish in order to successfully invoke the defense of self-defense. At page 489, we pertinently stated: "The following conditions must be satisfied before one can successfully invoke the defense of self-defense: 17 P.L.E. Homicide §§ 45, 46; 40 C.J.S. Homicide § 114. (1) The slayer must have been free from fault in provoking or continuing the difficulty which resulted in the killing: Commonwealth v. Minoff, 363 Pa. 287, 69 A. 2d 145 (1949). (2) The slayer must have reasonably believed that he was in imminent danger of death, great bodily harm, or some felony, and that there was a necessity to kill in order to save himself therefrom: Commonwealth v. Collazo, 407 Pa. 494, 180 A. 2d 903 (1962); Commonwealth v. Miller, 313 Pa. 567, 170 A. 128 (1934); Commonwealth v. Russogulo, 263 Pa. 93, 106 A. 180 (1919). (3) The slayer must not have violated any duty to retreat or avoid the danger: Commonwealth v. Collazo, supra; Commonwealth v. Johnson, 213 Pa. 432, 62 A. 1064 (1906); Commonwealth v. Breyessee, supra."
Assuming that every word of Roundtree's testimony was true, it is clear that it did not, indeed, could not establish a viable defense of self-defense. Hence, his explanation of the fatal occurrence did not contravene his plea or raise a question of his innocence.
*205 As a corollary to the issue just discussed, it is argued that in view of Roundtree's testimony, the court erred in not determining the degree of guilt to be voluntary manslaughter. Before the degree of guilt could be adjudicated, the true facts had to be found and in so doing, the court had not only the right, but the duty to weigh and consider all of the testimony, that of the Commonwealth as well as the defendant. And when the entire testimony is read in a light most favorable to the Commonwealth, as it must be, it is clear that an adjudication of guilt of murder in the second degree was warranted.
We return now to Roundtree's first contention, i.e., that he didn't fully understand the meaning of his guilty plea. As to this, the burden of proof was upon him,[3] and the court below did not err in concluding that this burden was not met, especially so in view of the testimony of Roundtree's trial counsel at the "PCHA" hearing, which completely refuted his claim in this respect.
Judgment affirmed.
NOTES
[1] The plea was entered in the presence of counsel, and, after an evidentiary hearing, Roundtree was adjudged guilty by the court of murder in the second degree. A prison sentence was imposed, but no appeal from the judgment was then entered. As a result of post-conviction relief proceedings instituted in 1969, Roundtree was permitted to appeal as if the same were timely filed.
[2] While the testimony of the witnesses called by the Commonwealth sharply disputed Roundtree's version of the occurrence, this evidence is not relevant in resolving the issue now under discussion.
[3] See Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A. 2d 196 (1968), and United States ex rel. Grays v. Rundle, 428 F. 2d 1401 (3d Cir. 1970).
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296 So.2d 473 (1974)
TOWN OF PALM BEACH et al., Petitioners,
v.
Jules T. GRADISON, Respondent.
TOWN OF PALM BEACH et al., Petitioners,
v.
Fred GLADSTONE, Respondent.
TOWN OF PALM BEACH et al., Petitioners,
v.
FAIRMONT CONVERTING CO., INC., Respondent.
TOWN OF PALM BEACH et al., Petitioners,
v.
Morris LANSBURGH, Respondent.
TOWN OF PALM BEACH et al., Petitioners,
v.
Perry KAYE, Respondent.
TOWN OF PALM BEACh et al., Petitioners,
v.
Ralph H. SHERE et al., Respondents.
TOWN OF PALM BEACH et al., Petitioners,
v.
Walter PORANSKI et Ux., Respondents.
TOWN OF PALM BEACH et al., Petitioners,
v.
FIRST BANK AND TRUST CO. OF BOCA RATON, Etc., Respondents.
Nos. 44099 to 44106.
Supreme Court of Florida.
May 1, 1974.
Rehearing Denied July 10, 1974.
*474 Chester Bedell and John A. DeVault, III, Bedell, Bedell, Dittmar, Smith & Zehmer, Jacksonville, and Burns, Middleton, Farrell & Faust, Palm Beach, for petitioners.
H.L. Cooper, Jr., O'Connell & Cooper, West Palm Beach, for Jules T. Gradison, Morris Lansburgh, Perry Kaye, Ralph H. Shere and Walter Poranski.
Larry B. Alexander, Jones, Paine & Foster, West Palm Beach, for Fred Gladstone and Fairmont Converting Co., Inc.
Ross, Hardies, O'Keefe, Babcock, McDugald & Parsons, Chicago, Ill., and Fisher, Prior, Pruitt & Schulle, West Palm Beach, for First Bank and Trust Co. of Boca Raton.
ADKINS, Chief Justice.
By petition for writ of certiorari, we have for review the consolidated cases arising out of a decision of the District Court of Appeal, Fourth District (IDS Properties, Inc. v. Town of Palm Beach, 279 So.2d 353), which is accompanied by a certificate of the District Court of Appeal that its decision has passed upon a question of great public interest, to-wit:
"Whether a zoning ordinance adopted by zoning authorities and the Town Council after public hearings is rendered invalid under the § 286.011, F.S. 1971, [F.S.A.], Government in the Sunshine Law, because of the nonpublic activities of a citizen's planning committee which committee was established by the town council and acting on behalf of the council in an advisory capacity participated in the formulation of the zoning plan."
We have jurisdiction. Fla. Stat., art. V, § 3(b)(3), F.S.A.
The Town Council of the Town of Palm Beach, hereinafter referred to as "Town Council," passed a resolution providing that the Council would undertake the updating and revision of the town zoning ordinances. Interviews were held with a planning firm, hereinafter called "Planners," and, at a public meeting, the Town Council authorized a contract with the Planners. A citizens' planning commission was decided upon and chosen by the Town Council at a nonpublic administrative meeting. The nominees were told that the Town Council had nominated each one to serve on the town planning committee for the purpose of guiding the Planners in their efforts to assure that the plan produced would be consistent with the character, image and land-use controls intended by the citizens. Changes in the plan during its formulation were made by the Planners to reflect the decisions of the planning committee.
The planning committee, a lay group of citizens, were not regularly employed personnel of the Town. The members of the committee were not landscape or civil engineers nor expert vocational zoning planners performing their work outside the scope of the sunshine law. Neither were they contractors engaged by the Town for making zoning studies, surveys or plans. To the contrary, they were a buffer lay group of citizens to serve part-time as the alter egos of the Town Councilmen to make tentative decisions guiding the zoning planners and advising the Council as to their ultimate zoning ordinances. In other words, the Council delegated to the committee much of their administrative and legislative decisional zoning formulation *475 authority which is ordinarily exercised by a city-governing body itself and particularly the position of the process where the affected citizens expect to be officially heard. Thus, the nature of the committee and its function reached the status of a board or commission that to act legally must comply with the sunshine law.
The trial court specifically found that the Planning Advisory Committee meetings with the Planners were not open to the public, nor were minutes taken. These meetings were numerous and detailed.
At a joint meeting of the Town Council and the planning committee the role of the committee was explained. The Town Council was of the opinion the committee should work as an "element" of the zoning commission, and further, that the Town Council had the authority to override any changes induced by the zoning commission and "would do so without timidity." This joint meeting was held without notice, without members of the public or press present, and no official minutes were taken or recorded.
Thereafter, the President of the Town Council and various members of the zoning commission met with the town manager and were finally advised as to the operation of the committee. An agenda was prepared for presentation of the tentative comprehensive plan to a meeting of the Town Council. At that meeting the plan was discussed. Further executive sessions of the zoning commission were held.
Thereafter, full public meetings and hearings of the zoning commission and of the Town Council were conducted and proper procedure followed. The comprehensive zoning plan was approved in essentially the same form as that which had been produced by the consultants and the planning advisory committee.
The government in the sunshine law contains the following:
"(1) All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation or any political subdivision, except as otherwise provided in the constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, regulation or formal action shall be considered binding except as taken or made at such meeting." Fla. Stat. § 286.011, F.S.A.
The only question to be determined is whether the citizens planning commission composed of private citizens, which was established by the Town Council and the members thereof appointed by the Town Council, was subject to the government in the sunshine law.
Every meeting of any board, commission, agency or authority of a municipality should be a marketplace of ideas, so that the governmental agency may have sufficient input from the citizens who are going to be affected by the subsequent action of the municipality. The ordinary taxpayer can no longer be led blindly down the path of government, for the news media, by constantly reporting community affairs, has made the taxpayer aware of governmental problems. Government, more so now than ever before, should be responsive to the wishes of the public. These wishes could never be known in nonpublic meetings, and the governmental agencies would be deprived of the benefit of suggestions and ideas which may be advanced by the knowledgeable public.
Also, such open meetings instill confidence in government. The taxpayer deserves an opportunity to express his views and have them considered in the decision-making process.
Those who do not attend public meetings are given ample opportunity to participate in government by securing information of governmental activities from the news media. Responsible reporting of governmental activities results in letters or telephone calls from interested citizens so that governmental officials are given the benefit of *476 both sides of the question. No governmental board is infallible and it is foolish to assume that those who are elected or appointed to office have any superior knowledge concerning any governmental problem. Every person charged with the administration of any governmental activity must rely upon suggestions and ideas advanced by other knowledgeable and interested persons. As more people participate in governmental activities, the decision-making process will be improved.
Few, if any, governmental boards or agencies deliberately attempt to circumvent the government in the sunshine law. We feel that the Town Council of Palm Beach acted in good faith, but any committee established by the Town Council to act in any type of advisory capacity would be subject to the provisions of the government in the sunshine law.
The citizens' planning committee was not an organization formed by any civic group such as a taxpayer's league, better government league, civic association, etc. It was conceived and formed by the Town Council for the purpose of working with the planning consultant so that the plan produced would be consistent with the land-use controls intended by the citizens. The citizens' planning committee was an arm of the Town Council.
The Legislature would have no right to require meetings of civic organizations, unconnected with municipal government, to conform to the government in the sunshine law. However, a subordinate group or committee selected by the governmental authorities should not feel free to meet in private. The preponderant interest of allowing the public to participate in the conception of a proposed zoning ordinance is sufficient to justify the inclusion of this selected subordinate group, within the provisions of the government in the sunshine law.
Cases from other jurisdictions dealing with the scope of similar statutes compel the conclusion that bodies such as the Palm Beach Planning Committee selected by the Town Council are governed by Fla. Stat. § 286.011, F.S.A.
In Raton Public Service Co. v. Hobbes, 76 N.M. 535, 417 P.2d 32 (1966), the Board of Directors of a city-owned electric utility were held to be within the scope of a statute governing "all other governmental boards and commissions."
In Glick v. Trustees of Free Public Library, 2 N.J. 579, 67 A.2d 463 (1949), trustees of the Library were held to be within the purview of a statute requiring the "governing body" to advertise for bids.
In the case of Bogert v. Allentown Housing Authority, 426 Pa. 151, 231 A.2d 147 (1967), the Pennsylvania Supreme Court, interpreting that State's "right to know" statute, stated:
"Within the past several decades we have witnessed the creation of these public bodies called `authorities' which have been granted the power to, and do, perform important governmental functions which vitally affect the public. Unlike other public bodies, the members of the `authorities' are appointed and not elected and are not directly responsible for their actions to the electorate. If the elected members of public bodies are to be subjected to public disclosure of their actions, how much more important that the appointed members of public bodies be required to make such disclosure." (p. 151)
In Beacon Journal Publishing Co. v. City of Akron, 3 Ohio St.2d 191, 209 N.E. 399, 404 (1965), it was held that a city planning commission created by the city charter with "such other powers and duties as the council may confer upon the planning commission," was subject to the open meeting provision of the Akron City Code which applied to "any board or commission ... created by the charter or by action of council."
*477 In Lhormer v. Bowen, 410 Pa. 508, 188 A.2d 747, 749 (1963), a proposed rezoning ordinance was held ineffectual to restrict the issuance of a building permit, one of the reasons being the failure of the planning commission to hold a public hearing on its preliminary report before submitting a final report to the borough council for action, as required by the zoning enabling legislation.
In Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 263 Cal. App.2d 41, 47, 69 Cal. Rptr. 480, 485 (1968), California's Third District Court of Appeal upheld an injunction restraining the Sacramento County Board of Supervisors, and its committees, from holding informal meetings in violation of the Brown (California) Act. It held that there was nothing in the new Brown Act "to demarcate a narrower application than the range of governmental functions performed by the agency." It further held the Act applied not only to "action" but also to "deliberative gatherings ... however confined to investigation and discussion." Noting the widespread evasion of pre-Brown Act open-meeting statutes "through unannounced `sneak' meetings and through indulgence in euphemisms such as executive session, conference, caucus, study or work session, and meeting of the committee of the whole," the court concluded that the statute could be pushed "beyond debatable limits" to block such evasive techniques. The court continued:
"An informal conference or caucus permits crystallization of secret decisions to a point just short of ceremonial acceptance. There is rarely any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors. Only by embracing the collective inquiry and discussion stages, as well as the ultimate step of official action, can an open meeting regulation frustrate these evasive devices. As operative criteria, formality and informality are alien to the law's design, exposing it to the very evasions it was designed to prevent. Construed in the light of the Brown Act's objectives, the term `meeting' extends to informal sessions or conferences of the board members designed for the discussion of public business." (p. 487)
One purpose of the government in the sunshine law was to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance. Rarely could there be any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors. The statute should be construed so as to frustrate all evasive devices. This can be accomplished only by embracing the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and discussion is conducted by any committee or other authority appointed and established by a governmental agency, and relates to any matter on which foreseeable action will be taken.
The principle to be followed is very simple: When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State. See Florida Law Review, Government in the Sunshine by Ruth Mayes Barnes, Vol. XXIII, 361, 365 (Winter 1971).
Mere showing that the government in the sunshine law has been violated constitutes an irreparable public injury so that the ordinance is void ab initio. Times Publishing Co. v. Williams, 222 So.2d 470 (Fla.App.2d 1969). Florida Law Review, Government in the Sunshine by Ruth Mayes Barnes, Vol. XXIII, p. 369 (Winter 1971).
Although a criminal prosecution requires proof of scienter (Board of Public Instruction of Broward County v. Doran, 224 So.2d 693, 699 (Fla. 1969)), an unintended violation of the government in the *478 sunshine law will negate any action taken by the Town Council. Fla. Stat. § 286.011, F.S.A.
The Superior Court of New Jersey in Wolf v. Zoning Board of Adjustment of the Borough of Park Ridge, 79 N.J. Super. 546, 192 A.2d 305 (1963), held that the proper implementation of their "Right to Know Law" requires the court upon proper application to set aside any official action taken without compliance, even in the absence of bad faith, saying:
"The trial judge noted, and the defendant officials stress, that the act states that `official action taken in violation of the requirements of this act shall be voidable [Emphasis theirs.] in a proceeding in the Superior Court,' thereby supposedly indicating a legislative intent that the voiding of such action should rest in the discretion of the judge. The court concluded that since no impropriety or bad faith on the part of the board was indicated, it should exercise its discretion to permit the action to stand. We think the court took too narrow a view of the intent and underlying policy of the statute. The purpose of the act, as reflected in N.J.S.A. 10:4-1, is to implement the declaration therein that it is `the public policy of this State to insure the right of the citizens of this State to attend meetings of public bodies * * * for the protection of the public interest.' In other words, the object of the act is primarily prophylactic, and not necessarily restricted to creation of a remedy for illegalities at particular public meetings from which the public is excluded. Appropriate implementation of that object and policy calls, as a general rule, for the Superior Court upon proper application to set aside any official action, as defined by the act, which is taken without compliance with the prescriptions of the statute, as here. We need not now decide that no discretion is ever to be reserved to the court to save the validity of official action taken in contravention of the statute. That question may be left to await a case where a sufficiently impelling counter-interest may be argued to bespeak sustaining the action impugned. It suffices here to say that mere absence of bad faith or other impropriety on the part of the public body should not ordinarily move the court to stay its hand in voiding official action taken contrary to the statute upon proper application therefor." (Emphasis supplied.) (pp. 308-309)
Fla. Stat. § 286.011(1), F.S.A., specifically provides that "no resolution, rule, regulation or formal action shall be considered binding" where the government in the sunshine law is violated. We follow the reasoning of the New Jersey court in Wolf v. Zoning Board of Adjustment of the Borough of Park Ridge, supra.
Answering the question presented by the District Court of Appeal in the case sub judice, we hold that the zoning ordinance adopted by the zoning authorities and the Town Council after public hearing was rendered invalid because of the non-public activities of the citizens planning committee, which committee was established by the Town Council, active on behalf of the Council in an advisory capacity, and participated in the formulation of the zoning plan. We approve the decision of the District Court of Appeal.
Having answered the certified question, this cause is remanded to the District Court of Appeal for further proceedings in accordance with the views expressed herein.
It is so ordered.
ERVIN, BOYD and McCAIN, JJ., concur.
DEKLE, J., dissents with opinion.
ROBERTS, J., dissents and concurs with DEKLE, J.
DEKLE, Justice (dissenting):
The Town Council, upon determining that an updated zoning plan was advisable for the Town of Palm Beach, employed a *479 professional planning firm for the purpose of preparing such a plan. In addition, the Town Manager named five citizens from a group recommended by council members to serve as guides to the professional consultants in the preparation of the comprehensive zoning plan. The crux of the problem before this Court is that this group, the Advisory Planning Committee, held its meetings without public attendance or involvement.
The plan finally proposed by the consultants was adopted, with some modifications, by the Zoning Commission and Town Council, following public meetings and discussion. The adoption of the plan was accordingly carried out "in the sunshine."
The controlling statutory law in this case is, of course, Fla. Stat. § 286.011 F.S.A., which provides:
"(1) All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation or any political subdivision, except as otherwise provided in the constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, regulation or formal action shall be considered binding except as taken or made at such meeting.
"(2) The minutes of a meeting of any such board or commission of any such state agency or authority shall be promptly recorded and such records shall be open to public inspection... .
"(3) Any person who is a member of a board or commission or of any state agency or authority of any county, municipal corporation or any political subdivision who violates the provisions of this section by attending a meeting not held in accordance with the provisions hereof is guilty of a misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083." (emphasis added)
The role of the Advisory Planning Committee was well defined by the learned trial judge in a memorandum order:
"This was an ad hoc committee of local residents familiar with the character, historical background and desired future development of the Town. It was the committee's function to transmit to the Planner that information and to advise with it so that the eventual plan would be compatible with the known desires of the community. This committee of citizens, while influential in what the Planner ultimately produced, was merely advisory as far as the Planner, the Zoning Commission and the Town Council were concerned. They made no decision which bound either the Zoning Commission or the Town Council. Much of what the Planning Committee did with the planner could have been done by the Town Manager, or some of the Town's staff, or the Planner could have sought out residents on its own initiative for advice and assistance in preparing the plan."
The trial judge concluded that the acts complained of did not fall within the purview of the Sunshine Law.
The district court of appeal reversed the trial court's finding, reasoning that the Town Council should not be able to do by proxy that which it is forbidden to do itself by Fla. Stat. § 286.011, F.S.A., suggesting that the Planning Committee had de facto authority to act on behalf of the Town Council, so that it must stand in the shoes of the Council in regard to the Government in the Sunshine Law. In the words of the district majority opinion:
"Although, admittedly, the zoning plan was `born' when the Town Council (acting in the sunshine) voted upon the ordinance at a public meeting, the `conception', which is an inseparable part of the life-giving process, took place (in the dark) with the appointment of the Citizens' Planning Committee. The zoning ordinance was, therefore, not conceived *480 eo instanti at the public meetings held by the Town Council and Zoning Commission. It was the product of the deliberations and actions of the Citizens' Planning Committee acting as the alter ego of the Town Council; the action of the Citizens' Planning Committee was an indispensable requisite to and integral part of the `official acts' or `formal action' of the Town Council." 279 So.2d 353, 356.
The question presented in the case sub judice is one of first impression in this State. The effect of the "Government in the Sunshine" Law has been considered in the past as it applies to various boards and commissions of elected officials, the terms used in the statute. But it has never before been suggested, by either the Courts or the Legislature, that meetings of all unofficial and purely advisory groups be likewise public and give notice of meetings held and otherwise act to insure that their meetings are "public." The statute simply does not include such persons.
Should the Legislature choose so to extend the Act, then would be the time to so hold, but not by this precipitous judicial extension thereof without the benefit of the majority's own requirement of a "marketplace of ideas" first allowed to be debated by the citizens' elected representatives in the Legislature. Let the same worthy principle be applied in both instances. "Consistency, what a jewel thou art."
The Legislature having chosen not to include such advisory and purely private groups under the mandate of the statute, the Courts are powerless to extend the statute beyond the clear intent of the Legislature. As this Court has stated:
"In construing or interpreting the words of a statute it should be born in mind that the courts have no function of legislation, and seek only to ascertain the will of the Legislature. The courts may not imagine an intent and bend the letter of the act to that intent, much less, says the Maryland court, `can we indulge in the license of striking out and inserting and remodeling with the view of making the letter express an intent which the statute in its native form does not evidence.'" Fine v. Moran, 74 Fla. 417, 77 So. 533, 536 (1917).
Despite the majority's assertion to the contrary, the extension of the statute here asserted would as logically apply also to gatherings of civic groups which meet with elected officials to discuss or recommend suggested legislation, resulting in the invalidation of otherwise quite proper "sunny" subsequent decisions by such officials because in all innocence no notice to the press and the public might have issued for the occasion. Likewise, all organizations dedicated to the swaying of public opinion and the initiation of public action later taken by a public body be it a private group of legislative lobbyists, the League of Women Voters or the editorial board of a civic-minded publication would have to welcome public involvement in their decision-making processes to avoid "tainting" such officials' subsequent decisions in public.
In the most recent pronouncement by this Court on the "Sunshine" issue, it was decreed that a county school board sitting in a quasi-judicial matter is still required to meet in the "Sunshine." Canney v. Board of Public Instruction of Alachua County, 278 So.2d 260 (Fla. 1973). This Court has previously held that executive sessions of school boards (Board of Public Instruction of Broward County v. Doran, 224 So.2d 693 (Fla. 1969)), or city councils (City of Miami Beach v. Berns, 245 So.2d 38 (Fla. 1971)), must be in the "Sunshine," reasoning:
"A secret meeting occurs when public officials meet at a time and place to avoid being seen or heard by the public. When at such meetings officials mentioned in Fla. Stat. § 286.011, F.S.A., *481 transact or agree to transact public business at a future time in a certain manner they violate the government in the sunshine law, regardless of whether the meeting is formal or informal." City of Miami Beach v. Berns, supra, at 41. (Emphasis added).
However, both cases involved meetings of officials mentioned in the statute, to-wit:
"[A]ny board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation or any political subdivision, except as otherwise provided in the constitution." Fla. Stat. § 286.011(1), F.S.A.
Nothing in the statute or in the prior decisions of the courts of this State dictates or even hints that the "Government in the Sunshine" Law is intended to go beyond elected or officially appointed boards. In fact, it is constitutionally questionable in light of the freedoms of speech and peaceable assembly guaranteed by the U.S. Const., Amendment I, and by Fla. Const., art. I, §§ 4, 5, F.S.A., to forbid private citizens to meet and discuss matters of public concern merely because their ideas are to be transmitted to a firm of professional planners and consultants, and because their ideas might be incorporated into a suggested plan which might then pass muster before the public in full hearings, and before two public bodies meeting in the "Sunshine," as occurred sub judice. The Citizens' Planning Committee working with the professional planner here cannot, under any reasonable theory, be equated with such a public "board or commission." These were solely private citizens, unsalaried volunteers.
In my view, the language of the statute mandates that the fact that a purely advisory group of private citizens did not hold public meetings, is not a violation of Fla. Stat. § 286.011, F.S.A., such as to void official action later taken in the "Sunshine" by the Zoning Commission over a period of five days of public hearings and debate and thereafter, by the City Council, after six days of public hearings at which the only decisions were made. The fact that a private advisory group provided a part of the input which resulted in the plan presented to the official bodies for consideration is at best a preliminary planning aid which is entirely subject to the will ("decisions") of the Commission and the Council (official body). It only provided a starting point from which the Commission could start to work and into which the public could inject its contentions and plans to be incorporated or substituted as the public body should decide. The "marketplace of ideas" occurs at that point and total input from the public is therefore not denied.
Where it can be shown that a public body has intentionally, and for the purpose of avoiding the light of public scrutiny, appointed a board of non-elected citizens to determine for the elected board what course should be pursued, and where the actions of the private citizens are in any way binding upon the elected officials, a different situation would be presented. No such evidence or any indication of collusion between the Town Council and the Citizens' Planning Committee has been found in the case sub judice. No intentional or incidental wrongdoing or collusion has been shown. If such collusion and impropriety of purpose had been made to appear, then the hearings of the private committee could be viewed as an alter ego extension of the official board, and thus amenable to the "Sunshine." This is not the case.
So long as the Committee has been advisory only, and the Zoning Commission and Town Council have remained free to view the suggested comprehensive plan as objectively as though it had been prepared solely by the hired consultants, and have made the decisions in the "Sunshine," the requirements of the statute have been met. See Basset v. Braddock, 262 So.2d 425 *482 (Fla. 1972). Accordingly, the question posed by the District Court of Appeal, Fourth District, as stated, should have been answered in the negative.
I therefore most respectfully must dissent.
ROBERTS, J., concurs.
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768 So.2d 1102 (2000)
Robert A. RAHN, Appellant,
v.
Marcia RAHN, Appellee.
No. 2D99-1520.
District Court of Appeal of Florida, Second District.
May 17, 2000.
Rehearing Denied October 10, 2000.
*1103 M. Katherine Ramers of Ramers & Stephens, P.A., Dunedin, for Appellant.
John A. Schaefer, Sharon E. Krick, and Robert Potter, Clearwater, for Appellee.
*1104 PER CURIAM.
Robert A. Rahn, the former husband, appeals the trial court's order denying his supplemental petition for modification of alimony. Because the trial court did not abuse its discretion in determining that the former husband failed to show a change in circumstances sufficient to warrant a modification of alimony, we affirm.
This case involves a twenty-two-year marriage between the former husband and Marcia Rahn, the former wife, which the trial court dissolved in 1990. The trial court's final judgment equitably distributed the parties' assets and liabilities, including awards to the parties of their current vehicles and respective interests in their retirement plans. The judgment also required the former husband to pay $1,200 monthly alimony to the former wife after the former husband satisfied a second mortgage on the marital residence. The former husband subsequently satisfied the mortgage and paid alimony of $1,200 monthly until he exhausted his severance pay in January 1998, six months after he was terminated from his employment.
The former husband is currently fifty-nine years old and holds a bachelor of science degree in electrical engineering and a masters degree in business administration. He worked for the same defense contractor (the employer) as a field engineer or field engineer supervisor for nearly thirty-two years. After twenty-seven years with the employer, he accepted a transfer from Florida to Alabama for one year. One year later, he accepted another transfer, this time to Connecticut. The former husband has since resided nearby in Massachusetts with his second wife. At the time of these transfers, the former husband was given the option of a one-year layoff or the transfer to a new location with no supervisory duties and less pay. His gross pay fluctuated from a high of $88,500 in 1990 to a low of $68,798 in 1996.
In 1997, the employer offered the former husband the option of employment termination with severance pay or a transfer to New York for a job guaranteed only for one year. Because the former husband's second wife, a certified public accountant, earned $65,000 per year in a secure job and both preferred to remain in Massachusetts where the former husband was active in the community, he turned down the job transfer. The former husband subsequently sought local employment by searching newspaper advertisements, registering with employment agencies, and mailing at least sixty resumes to prospective employers. After seven months with no offers, the former husband filed a supplemental petition for modification of alimony. He alleged a substantial change in circumstances consisting of his involuntary termination from employment and his inability to obtain comparable employment. He also alleged that the former wife's need for alimony had decreased. At the hearing on the petition, the former husband testified that because he had no job offers in nine months, he was now willing to move to Kentucky or Pennsylvania to obtain employment, although he preferred to obtain employment near his current residence. However, he limited his job search to jobs which would pay $30,000 or more per year.
The trial court denied the former husband's petition, finding that the former husband's layoff was voluntary and only temporary. Additionally, the trial court found that any decrease in the former wife's need for alimony did not support modification because it was modest and any increase in her income was contemplated at the time of trial. The trial court also found that the former husband had substantial assets from which to pay alimony. It noted that his retirement plan was valued at $330,656 and that he owned four vehicles. The court explained that, although Florida case law holds courts should not consider marital assets in determining alimony in an initial dissolution proceeding or when there has been an *1105 involuntary termination from employment, the same factors do not apply when an obligor voluntarily leaves his employment. In that instance, the trial court determined that it was entitled to look to all of the obligor's assets in determining his ability to pay the alimony. Thus, the court found that the former husband had the ability to pay alimony at the former rate of $1,200 monthly.
On appeal, the former husband argues that the trial court erred in making the following findings to support its denial of his petition for modification: (1) that his loss of employment was neither permanent nor involuntary; (2) that the former wife's decrease in her expenses which resulted from contributions from a companion did not warrant modification; (3) that the former wife's increase in income did not warrant modification; and (4) that the former husband had the ability to pay.
In order to justify a modification of alimony, the moving party must show: (1) a substantial change in circumstances; (2) that the change was not contemplated at the final judgment of dissolution; and (3) that the change is sufficient, material, permanent, and involuntary. See Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992). First, the former husband argues that his loss of employment was permanent and involuntary under the "good faith test." The "good faith test" has been applied to allow for temporary relief from alimony based on a temporary change in circumstances. See Whetstone v. Whetstone, 710 So.2d 749, 750 (Fla. 4th DCA 1998) ("This type of relief differs from a permanent modification, which requires the showing of a permanent change in circumstances."). See also Kinne v. Kinne, 599 So.2d 191 (Fla. 2d DCA 1992); McConnell v. McConnell, 552 So.2d 237 (Fla. 1st DCA 1989). Under the "good faith test," a court will grant a temporary reduction or suspension in alimony when the obligor has suffered a reduction in income without deliberately seeking to avoid paying alimony and is acting in good faith to return his income to its previous level. See Kinne, 599 So.2d at 194; McConnell, 552 So.2d at 239.
The former husband's argument that the trial court erred in failing to apply the "good faith test" in consideration of a permanent modification of alimony is misplaced. There is no evidence that the former husband ever requested a temporary modification of alimony. In fact, the former husband has maintained throughout trial and in the course of this appeal that his loss of employment is permanent in nature. Accordingly, the trial court did not err in failing to apply the "good faith test" in this case.
Furthermore, we cannot say that the trial court abused its discretion in finding that the former husband's loss of employment did not warrant a permanent modification of alimony. The circumstances surrounding the former husband's loss of employment are similar to those in cases involving voluntary retirement. In those cases, although the act of retirement in itself appears to be permanent and voluntary, courts look to whether the voluntary retirement is reasonable in determining whether to permanently modify alimony. See Pimm, 601 So.2d at 537. The reasonableness of the retirement is determined according to the surrounding circumstances, including the age, health, and motivation of the obligor; the obligor's field of employment; the normal age of retirement for those in that field; and the effect on the obligee. Id.
Applying those factors to the instant case, we conclude that the former husband's decision not to accept the job transfer was reasonable. He is a fifty-nine-year-old professional who has already endured two transfers, the first from Florida to Alabama, and the second from Alabama to Connecticut. He testified that he declined a third transfer, this time to New York, because his wife did not want to leave her job again and because of his numerous ties to the community. The transfer would only allow for one more *1106 guaranteed year of employment before he would probably be required to transfer again. Additionally, although the former wife testified that she was unemployed at the time of dissolution, she admitted that she had the ability to return to a teaching job which would pay $35,000 per year. She also testified that she currently had a roommate who was contributing to her expenses. Under such circumstances, we cannot say that refusing such a transfer would be unreasonable.
However, we conclude that the former husband's assertion that his loss of employment is permanent was unreasonable. The former husband holds two college degrees in electrical engineering and has thirty-two years of experience as a defense contractor. He is fifty-nine years old and there was no testimony that his health is suffering. Under these circumstances and in the present job market, the former husband should be able to locate employment somewhere in Connecticut, Massachusetts, Kentucky, or Pennsylvania. Furthermore, there is no reason why the former husband should limit his job search to opportunities with salaries above $30,000 per year. Because the former husband should be able to readily locate employment, the trial court did not err in refusing to permanently modify alimony.
Second, the former husband argues that the former wife's decrease in her expenses which resulted from contributions from a companion supports modification as a substantial change in circumstances. The former husband is correct that the economic impact of cohabitation may be considered in a petition for modification of alimony. See Springstead v. Springstead, 717 So.2d 203, 204 (Fla. 5th DCA 1998); Dibartolomeo v. Dibartolomeo, 679 So.2d 72, 72-73 (Fla. 4th DCA 1996). However, to support a modification of alimony, a change in circumstances must be substantial. See Pimm, 601 So.2d at 536. In this case, the evidence established that the former wife's monthly expenses had been reduced from $2,647 to $2,452, a reduction of only eight percent. Because of the size of the reduction, the trial court did not err in finding that it was not substantial.
Third, the former husband challenges the trial court's finding that the former wife's increase in income did not warrant modification as a substantial change in circumstances not contemplated at the time of dissolution. In this case, the former wife's income as a school teacher increased over eight years from $23,590 with benefits to $35,000 without benefits. We conclude that the trial court's finding that the parties contemplated that the former wife would receive yearly increases for experience and cost of living is supported by the evidence.
Fourth, the former husband argues that the trial court erred by finding that he had the ability to pay based on his retirement plan and ownership of four vehicles. In this case, the trial court did not need to address the former husband's ability to pay because it found that his unemployment did not warrant modification. However, in the event that the former husband successfully moves for modification in the future, we note that the trial court may only consider the former husband's postdissolution contributions to the retirement plan in determining his ability to pay. See Bain v. Bain, 687 So.2d 79, 81 (Fla. 5th DCA 1997). Additionally, the trial court may not consider the vehicle awarded to the former husband during equitable distribution. See Diffenderfer v. Diffenderfer, 491 So.2d 265, 267 (Fla.1986).
Affirmed.
PARKER, A.C.J., and CASANUEVA and SALCINES, JJ., Concur.
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10 Ill.2d 529 (1957)
140 N.E.2d 692
ANGELINE JERZYK, Appellant,
v.
WLADYSLAW MARCINIAK, also known as WALTER MARCINIAK, et al., Appellees.
No. 34204.
Supreme Court of Illinois.
Opinion filed January 24, 1957.
Rehearing denied March 19, 1957.
*530 GEORGE B. COHEN and HELEN IRENE COHEN, both of Chicago, for appellant.
JOSEPH Z. WILLNER, BEN R. NIERENBERG, and THADDEUS W. SWASTEK, all of Chicago, for appellees.
Decree affirmed.
Mr. CHIEF JUSTICE KLINGBIEL delivered the opinion of the court:
Angeline Jerzyk brought suit in the superior court of Cook County to set aside a deed, executed by her deceased mother allegedly as a result of fraud and undue influence. The cause was referred to a master, before whom the plaintiff introduced her evidence. On motion of defendants at the close of plaintiff's case, the master recommended that the cause be dismissed. Plaintiff's exceptions to the report were overruled by the court, and a decree was entered confirming the master's report and dismissing the suit for want of equity. Plaintiff appeals directly to this court, a freehold being involved. She contends the evidence is sufficient to establish a prima facie case for relief.
*531 The record discloses that in 1933 plaintiff's mother, Maryanna, went through a marriage ceremony with defendant Walter Marciniak. She had been married twice previously, the plaintiff being the daughter of her first marriage. She was a Polish woman, unable to read, write, or speak English. In 1947 Maryanna and Walter Marciniak purchased the real estate in question, taking title as tenants in common. They resided in the property thereafter, and the plaintiff occupied the first floor flat in the building. On January 14, 1952, at the request of Marciniak, defendants Frank and Josephine Helminiak came to the Marciniak home, together with an attorney. At that time deeds were prepared and executed converting the title from tenancy in common to joint tenancy. At the same time Mrs. Marciniak executed a will whereby she left substantially all her estate to Walter Marciniak. On April 1952, a joint will was executed by Maryanna and Walter Marciniak, providing that after the survivor's death the property should vest in Frank and Josephine Helminiak as joint tenants. Maryanna died on October 5, 1953. Neither of the wills was probated, but about a month after Maryanna's death, Walter conveyed title to a trust company in trust for his use during his lifetime, with remainder to the Helminiaks.
Viewed in its aspect most favorable to the plaintiff, the evidence further shows that at the time of the marriage ceremony with Maryanna, defendant Walter Marciniak had an existing wife from whom he had not been validly divorced; that defendant Frank Helminiak was his nephew, and that at the time of the January 14 transaction Maryanna was 79 years of age and ill. The lawyer who prepared the deeds placing title in joint tenancy was called as an adverse witness. He testified on cross-examination that he explained the effect of the deeds to the Marciniaks in Polish.
Plaintiff argues that Maryanna joined in placing title in joint tenancy because she believed Walter was her lawful *532 husband, and that his failure to inform her of the invalidity of their marriage constituted fraud. The evidence does not support such an inference. They lived together as husband and wife for 20 years, and there is nothing in the record to warrant the conclusion that the deeds would not have been made had she known their marriage ceremony was invalid. Moreover, since the property was already owned by both as tenants in common, the case is not one of a conveyance without consideration. Under the undisputed facts appearing here, her belief that their marriage was a valid one cannot justify setting aside the deeds. Holmes v. Mims, 1 Ill.2d 274; Brozina v. Wanda, 387 Ill. 46.
It is further argued that the execution of the wills purporting to dispose of the property is evidence that Maryanna did not know the effect of the joint tenancy, and failed to realize what she was doing when the deed was signed; that the failure to probate the will, and the absence of any apparent reason for creating the trust, indicate some kind of guilt; and that the marriage relationship with Walter was one of trust and confidence, creating a presumption of undue influence and fraud on his part. It is evident that none of the matters relied upon affords a justifiable inference of fraud or imposition; nor does the mere relationship of the parties, under the facts shown here, raise a presumption against validity of the transaction. The relevant facts in evidence show simply that she owned property as a tenant in common with a man she had long supposed was her husband, and that at a time when she was ill she joined with him in changing title from a tenancy in common to a joint tenancy. Since he was an equal owner of the property, the transaction was clearly supported by consideration. Even if the conveyance were a gift, the mere fact, alone, that he was purportedly her husband raises no presumption of fraud or undue influence. There is no proof that he was the dominant party, *533 or that she relied upon him in the conduct of her business affairs. While confidential relationships necessarily exist between a husband and wife when they reside together under the ordinary conditions of marriage, nevertheless it cannot be said as a matter of law that he is the dominant and she is the dependent party. Whether or not that be true is a question of fact. Brod v. Brod, 390 Ill. 312; Scully v. Wilhelm, 368 Ill. 573.
Plaintiff urges that since Maryanna was seriously ill, the deed was executed in contemplation of her death and there was no intention that she have a right of survivorship; that the necessary unity of interest was therefore absent, preventing the creation of a joint estate; and that even if a joint tenancy was validly created, it was severed by the execution of the joint will. The contentions cannot be sustained. The deed itself shows their intention to create a joint tenancy with the right of survivorship in each. Its legal effect obviously cannot be overcome by inference or speculation that a contrary intention may have existed, nor can the mere execution of a joint will effect a severance of the joint tenancy. We have considered the arguments of plaintiff and find them to be without sufficient merit to warrant further discussion.
After carefully examining the evidence we conclude it is insufficient to warrant a decree setting aside the deeds. The chancellor was correct in dismissing the suit for want of equity, and his decree will be affirmed
Decree affirmed.
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NO
NO. 12-10-00096-CR
IN
THE COURT OF APPEALS
TWELFTH
COURT OF APPEALS DISTRICT
TYLER, TEXAS
'
IN RE: JIMMY RAY ADAMS,
RELATOR ' ORIGINAL
PROCEEDING
'
MEMORANDUM
OPINION
In
this original proceeding, Jimmy Ray Adams seeks a writ of mandamus requiring
Barbara Duncan, District Clerk of Gregg County, Texas, to provide him a copy of
the written plea admonishments in trial court cause number 19549-B in
accordance with the trial court’s order dated March 6, 2007.
This
court has the authority to issue writs of mandamus against a judge of a
district or county court in its appellate district and all writs necessary to
enforce this court’s jurisdiction. See Tex. Gov’t Code Ann. § 22.221 (Vernon 2004). In order for
this court to issue mandamus against a district clerk, it must be established
that issuance of the writ of mandamus is necessary to enforce its
jurisdiction. See id.; In re Coronado, 980
S.W.2d 691, 692-93 (Tex. App.–San Antonio 1998, orig. proceeding). Here, Adams
seeks the requested document in connection with his postconviction writ of
habeas corpus. This court has no jurisdiction in criminal law matters
pertaining to habeas corpus proceedings seeking relief from final felony
judgments. That jurisdiction lies exclusively with the Texas Court of Criminal
Appeals. Tex. Code Crim. Proc. Ann. art.
11.07 § 3 (Vernon Supp. 2009). Consequently, Adams has not demonstrated that
the exercise of this court’s mandamus authority against the Gregg County
District Clerk is necessary to enforce its jurisdiction. Accordingly, his
petition for writ of mandamus is dismissed.
BRIAN HOYLE__
Justice
Opinion delivered May 12, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and
Hoyle, J.
(DO NOT PUBLISH)
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458 F.2d 160
*Reevesv.Reeves
72-1048
UNITED STATES COURT OF APPEALS Fifth Circuit
May 4, 1972
D.Canal Zone
1
---------------
* Summary Calendar cases; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of
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366 U.S. 418 (1961)
BUSHNELL
v.
ELLIS, CORRECTIONS DIRECTOR.
No. 561.
Supreme Court of United States.
Argued May 2, 1961.
Decided May 22, 1961.
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS.
Percy D. Williams, acting under appointment by the Court, 364 U. S. 917, argued the cause and filed a brief for petitioner.
B. H. Timmins, Jr., Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were Will Wilson, Attorney General, and Linward Shivers, Assistant Attorney General.
PER CURIAM.
The judgment of the Court of Criminal Appeals of Texas is reversed and the cause is remanded to that court with directions to grant petitioner a hearing upon his petition for a writ of habeas corpus. Uveges v. Pennsylvania, 335 U. S. 437; Cash v. Culver, 358 U. S. 633; McNeal v. Culver, 365 U. S. 109.
MR. JUSTICE STEWART took no part in the consideration or decision of this case.
MR. JUSTICE CLARK, with whom MR. JUSTICE FRANKFURTER and MR. JUSTICE HARLAN join, dissenting.
This application for the issuance of a writ of habeas corpus was filed as an original action in the Court of Criminal Appeals of Texas. Neither the record, the briefs, nor argument of counsel indicates that such an action has ever been filed in a District Court of Texas as appears to be required by Texas procedure. See Ex parte Rodriguez, *419 169 Tex. Cr. R. ___, 334 S. W. 2d 294 (1960); Ex parte Fitzpatrick, 167 Tex. Cr. R. 376, 320 S. W. 2d 683 (1959); Ex parte Brooks, 85 Tex. Cr. R. 397, 212 S. W. 956 (1919). The judgment of the Court of Criminal Appeals might, therefore, have been based upon an independent state ground. In this condition of the record, I would affirm the judgment without prejudice to the petitioner's filing in any appropriate Texas District Court an application for a writ of habeas corpus to test out the validity of his detention. See Vernon's Tex. Code Crim. Proc., Art. 119.
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410 Mass. 425 (1991)
573 N.E.2d 490
COMMONWEALTH
vs.
RAYMOND HARMON.
Supreme Judicial Court of Massachusetts, Middlesex.
April 2, 1991.
June 18, 1991.
Present: LIACOS, C.J., ABRAMS, NOLAN, LYNCH, & GREANEY, JJ.
Stanley W. Norkunas for the defendant.
*426 Michael Fabbri, Assistant District Attorney, for the Commonwealth.
ABRAMS, J.
The defendant, Raymond Harmon, was convicted of murder in the first degree and armed robbery in the beating death of Frederick Slavin. On appeal, the defendant claims that the trial judge erred (1) by admitting the testimony of a fellow prison inmate concerning inculpatory statements made by the defendant; (2) by failing to suppress the defendant's statements to police and certain physical evidence; and (3) by denying defense counsel's request to recall two State witnesses. We affirm. The defendant also asks that we exercise our power under G.L.c. 278, § 33E (1988 ed.), to reverse his conviction for murder in the first degree.[1] We conclude that there is no reason to exercise our power under G.L.c. 278, § 33E, in the defendant's favor.
The jury could have found the facts as follows. Frederick Slavin, who was seventy-five years old at the time of his death, worked for a package store in Lowell. He stocked supplies and delivered goods to customers. Slavin also made a practice of cashing checks for friends and customers. It was thus not unusual for Slavin to be carrying several thousand dollars in cash as he made his deliveries. Slavin cashed checks for the defendant on at least two occasions. On the morning of November 14, 1985, the package store received a telephone order for a case of beer to be delivered to the rear door of 241 Pawtucket Street. Slavin left the package store shortly after 1 P.M., and stopped at a bank. He withdrew $8,000, and left the bank with the cash in a brown paper lunch bag. Shortly after 2 P.M., Slavin's body was discovered at the rear of 241 Pawtucket Street. His death was caused by several blows to the head. The paper bag containing $8,000 in cash lay near the body, but Slavin's front pant pockets had been turned inside out and were empty.
At 10:30 on that evening, the defendant was at the apartment of David Mullamphy with John Tarrant, Barbara Peaslee, *427 and Raymond Grenier. Police Inspector Durkin arrived at the apartment with three other police officers. Durkin knocked on the door, and the defendant admitted the officers. He had been drinking, but did not appear intoxicated. Durkin noticed a pair of dungarees draped over a washing machine in the kitchen. The dungarees were wet, and had a brown stain on one leg. The defendant indicated that the pants belonged to him. After a short time, Durkin asked the defendant if he was willing to go to the police station, and the defendant agreed to go. At one point, the defendant began staggering as he walked from the police car to the police station. Durkin told him to "knock it off," and the defendant walked normally the rest of the way to the police station. When they reached the police station, Harmon signed a card acknowledging that he had been given and understood the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). Durkin then questioned the defendant about his movements during the day. Durkin asked if he could retrieve the wet dungarees from the apartment, and the defendant replied, "Go ahead." He signed a consent form authorizing the police to perform a chemical test on the pants. Testing later showed the stain to be blood of the same type as the victim's blood. The defendant signed a second "Miranda" card, and then gave a statement to Durkin. Durkin typed out the statement and the defendant signed it. The defendant left the police station early the next morning.
In May, 1986, the defendant was indicted for the murder of Slavin. At that time, he was serving a sentence at the Massachusetts Correctional Institution, Cedar Junction (Cedar Junction), on an unrelated charge. While at Cedar Junction, the defendant encountered a fellow inmate, Jose Otero, whom he had met during a previous incarceration. The two held several conversations, and the defendant told Otero that he had committed the murder. Otero took some notes on the information revealed by the defendant, and telephoned Durkin to tell him what he had learned. Otero testified for the Commonwealth at trial.
*428 1. Testimony of Jose Otero. Before trial, the defendant moved to suppress Otero's testimony.[2] The motion was denied. On appeal, the defendant claims that admission of Otero's testimony as to their prison conversations violated his State and Federal rights to counsel.
A criminal defendant's right to be represented by counsel may be violated by "indirect and surreptitious" interrogations by government agents as well as overt interrogations by uniformed police officers. Massiah v. United States, 377 U.S. 201, 206 (1964). See Commonwealth v. Rodwell, 394 Mass. 694, 698-699 (1985). Where the government has entered into an arrangement with a prison inmate agreeing to pay him for incriminating evidence elicited from another inmate, an agency relationship may have been established. See United States v. Henry, 447 U.S. 264 (1980). However, an inmate who has not entered into any agreement with the government, and who reports incriminating evidence to police out of conscience or even "an unencouraged hope to curry favor" is not acting as a government agent. Thomas v. Cox, 708 F.2d 132, 136 (4th Cir.), cert. denied, 464 U.S. 918 (1983); United States v. Watson, 894 F.2d 1345, 1348 (D.C. Cir.1990); Lightbourne v. Dugger, 829 F.2d 1012, 1021 (11th Cir.1987), cert. denied, 488 U.S. 934 (1988); United States v. Taylor, 800 F.2d 1012, 1016 (10th Cir.1986), cert. denied, 484 U.S. 838 (1987). See Commonwealth v. Rodwell, supra at 698-699. "An individual's actions will not be attributed to the State if no promises are made for that individual's help and if nothing was offered to or asked of that individual." Commonwealth v. Rancourt, 399 Mass. 269, 274 (1987).
At the suppression hearing, the judge heard testimony from Otero and Durkin, as well as from other witnesses. He issued written findings detailing the facts of the relationship between the defendant and Otero and Durkin. On appeal, we accept those findings of fact absent clear error. Commonwealth *429 v. Yesilciman, 406 Mass. 736, 743 (1990). However, we make an independent determination as to whether Otero was functioning as a government agent by applying constitutional principles to facts. See Commonwealth v. Rancourt, supra at 273-274; Commonwealth v. Haas, 373 Mass. 545, 550 (1977), S.C., 398 Mass. 806 (1986).
The judge's findings are as follows. Otero was in prison at the time of Slavin's murder. Durkin had arrested Otero on the charges that led to his sentence. Durkin also had arrested Otero on at least four other occasions during the previous four years. In May, 1986, Otero was transferred from Cedar Junction to the South Eastern Correctional Center (SECC), a medium security prison. From prison Otero called Durkin collect, two or three times a month. Otero had no visitors at SECC, and regarded Durkin as a "friend and advisor." Durkin kept Otero informed about Otero's brothers and sisters in Lowell. Otero was transferred from SECC back to Cedar Junction because of disciplinary infractions. Otero began working as a cook in the kitchen at Cedar Junction. There he encountered the defendant, an acquaintance from a previous incarceration in Billerica, who was also working in the kitchen. During one of his telephone calls to Durkin, Otero mentioned that he was working with "the guy who killed the old man." Durkin told him to "keep his ears open." After the defendant told Otero about the murder, Otero began to keep notes of his conversations with the defendant. In mid-October, the defendant told Otero that he had killed Slavin by beating him, and by hitting Slavin's head against a rock. Two days later Otero telephoned Durkin and told him that the defendant had revealed the details of the murder. Durkin responded that such knowledge was of no use to him unless Otero was willing to testify to it. Otero said that he needed to think it over. The next day Otero called back and told Durkin that he was willing to testify. Durkin arranged meetings with police and an assistant district attorney to take Otero's statement and retrieve Otero's notes. Immediately after meeting with police, Otero was placed in segregation for his own protection.
*430 Otero testified that Slavin had cashed checks for him, and that "the old man didn't deserve what [the defendant] had done to him." He denied having been offered any promises, inducements, or rewards for his testimony. The assistant district attorney stated that he told Otero that he would request that Otero's parole board hearing be moved up from mid-December to late November.
The facts found by the judge are supported by the evidence at the suppression hearing and at trial. Nothing in these facts lends credence to the defendant's conclusion that Otero was functioning as a government agent. Nothing in the record indicates that Durkin or other officials entered into any agreement with Otero. No money or benefit was promised to Otero, expressly or implicitly, as an inducement or reward for information about the defendant. The only action that can be attributed to the government is Durkin's suggestion that Otero "keep his ears open." Such a suggestion, especially when offered after Otero already had come forward with information, does not suffice to establish an agency relationship. See Lightbourne v. Dugger, supra; Commonwealth v. Rancourt, supra. We conclude, therefore, that Otero was not functioning as a government agent when he spoke with the defendant in prison. The defendant's right to counsel was not violated.[3]
2. The defendant's statements to police. After a hearing, the judge denied the defendant's pretrial motion to suppress the statements he made to police on the night after the killing. The judge adopted the "Statement of Facts" from the Commonwealth's memorandum of law on the motion as his findings of fact. Although we do not recommend this practice, its use does not change our standard of review. Commonwealth v. DeMinico, 408 Mass. 230, 238 (1990). "In reviewing the denial of a motion to suppress, we accept the *431 motion judge's subsidiary findings of fact absent clear error." Commonwealth v. Yesilciman, supra at 743.
The facts as adopted by the judge indicate that, on the night when the defendant made the statements to police, he had been drinking, but was not drunk. He consented to accompany the police officers to the station. He appeared to be aware and in control of himself. At one point, he began stumbling as he walked, and, at other points, he appeared to lose his concentration, but he resumed normal behavior when requested to do so. Police informed him twice of the warnings required by Miranda v. Arizona, supra, on his arrival at the station and again before taking a written statement. On both occasions, the defendant stated that he understood his constitutional rights, and signed a card waiving those rights. The defendant orally consented to the police obtaining his dungarees. Before the police tested the dungarees for blood, they obtained a written consent from the defendant for the blood testing.
On appeal, the defendant suggests that a number of factors combined to render the defendant's statements involuntary. He points to the number of police officers who arrived at the apartment, and the fact that police observed him staggering and losing concentration. He notes that John Tarrant, who was present at the apartment when the police arrived, testified at the suppression hearing that the defendant had been taken forcibly from the apartment, and appeared the next day with a black eye and facial scratches.
After reviewing the evidence, we conclude that the judge did not err in denying the defendant's motion to suppress his statements. Durkin, who was named in the defendant's affidavit accompanying the motion to suppress as the officer who allegedly struck him, testified at the hearing that he did not strike the defendant. Durkin's testimony was supported by State police officer Joseph Flaherty. "The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court." Commonwealth v. Moon, 380 Mass. 751, 756 (1980). "`Where there has been conflicting *432 testimony as to a particular event or series of events, a judge's resolution of such conflicting testimony invariably will be accepted.' Commonwealth v. Spagnolo, 17 Mass. App. Ct. 516, 517-518 (1984)." Commonwealth v. Yesilciman, supra at 743. The judge's ruling shows that he believed the officers' testimony that the defendant was not intoxicated, had not been struck, and was not coerced into making statements by physical force. His conclusions are amply supported by the evidence.
3. The defendant's dungarees. The defendant made a pretrial motion to suppress his blood-stained dungarees which were found in the apartment. The judge denied the motion. On appeal, he simply states that it is "interesting" that, at the suppression hearing, the police did not produce the written consent form authorizing them to obtain the dungarees from the apartment. This is hardly surprising, because Durkin testified at the suppression hearing that he sought and obtained oral consent from the defendant to obtain the dungarees. The defendant signed a consent form authorizing police to test the dungarees for blood, and that form was introduced in evidence at the suppression hearing. There is no basis on this record to suppress the dungarees.
4. Recall of the witnesses. After the Commonwealth rested its case, defense counsel indicated that he intended to recall as defense witnesses Durkin and Tousignant. Both officers had testified for the prosecution, and had been cross-examined. Defense counsel explained to the judge that he had chosen not to pursue certain lines of questioning on cross-examination for strategic reasons, and that he wanted to pursue those lines of inquiry on direct examination. The judge initially refused to allow the defendant to recall the two officers, but later did allow Tousignant to be recalled and questioned on one issue. The defendant contends on appeal that his State and Federal constitutional rights to a fair trial were violated when the judge denied the defendant's request to recall the officers.
"In the trial of cases much must be left to the discretion of the presiding judge as to the order in which the evidence is to *433 be introduced." Commonwealth v. Whooley, 362 Mass. 313, 318 (1972). "Whether or not a witness should be recalled in a criminal case is a matter entrusted to the sound discretion of the trial judge." Commonwealth v. Hicks, 375 Mass. 274, 276 (1978). See Commonwealth v. Shaw, 29 Mass. App. Ct. 39, 42 (1990).
The judge in the present case made it clear from the beginning of the trial that he would exercise his discretion to order the testimony of the witnesses. At a bench conference during the examination of the first witness in the present case, the judge informed both counsel that ordinarily he would limit the examination of witnesses to direct, cross-, and redirect examination. He indicated that he would alter this general rule where new matters arose during cross- or redirect examination. Early in the trial, defense counsel explicitly stated that he understood the judge's policy on recross-examination. During the examination of two prosecution witnesses, he requested an opportunity for recross-examination because new matters had arisen during redirect examination, and the judge allowed him the opportunity to pose further questions.
Defense counsel had a full opportunity to cross-examine both Durkin and Tousignant. He did not indicate to the judge that he wished to reserve some questions for a later time, nor did he list the officers as witnesses he intended to call. Defense counsel had a very precise expectation as to how the witnesses would respond to his proposed questions. His reasons for wishing to pursue certain lines of inquiry on recall rather than on cross-examination were based on his desire to control the order of their testimony, and not on any new information which became available after he finished his cross-examination. The judge carefully inquired as to defense counsel's reasons for wishing to recall the witnesses, and determined that no new information had been discovered after the close of defense counsel's cross-examination. Defense counsel claimed that he needed to recall Durkin in order to explore the relationship between Durkin and Otero as revealed in the pattern of telephone calls from Otero to Durkin. *434 The judge noted that defense counsel had demonstrated at a pretrial motion argument that he knew of the telephone calls and understood their significance. Defense counsel had ample opportunity to use this information at trial by cross-examination of both Durkin and Otero. Despite his knowledge and the opportunity, defense counsel chose not to question Durkin about the telephone calls from Otero. However, during his cross-examination of Otero, defense counsel did explore the subject of the telephone calls from Otero to Durkin. The judge denied the request to recall the witnesses because he concluded that to do so would permit the defense to "highlight" particular portions of the officers' testimony by separating such portions from the bulk of their testimony. In these circumstances, the judge did not abuse his discretion in refusing to allow defense counsel to recall the witnesses. See Commonwealth v. Hicks, supra at 276-277; Commonwealth v. Appleby, 389 Mass. 359, 378, cert. denied, 464 U.S. 941 (1983); Lowenfield v. Phelps, 817 F.2d 285 (5th Cir.), cert. granted in part, 483 U.S. 1005, aff'd, 484 U.S. 231 (1987).
5. Relief pursuant to G.L.c. 278, § 33E. Pursuant to G.L.c. 278, § 33E, we have reviewed the full record of the conviction for murder in the first degree, and conclude that there is no reason for us to enter a verdict of a lesser degree of guilt or to order a new trial.
Judgments affirmed.
NOTES
[1] The defendant makes no separate argument concerning his conviction for armed robbery.
[2] The defendant filed a motion for a pretrial voir dire of Otero's testimony. By agreement, the motion was treated as a motion to suppress.
[3] The defendant does not argue, nor does anything in the record suggest, that his statements to Otero were coerced. Therefore, we have no occasion to consider whether we will follow Arizona v. Fulminante, 111 S.Ct. 1246 (1991).
| {
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37 Cal.Rptr.3d 122 (2005)
134 Cal.App.4th 1440
The PEOPLE, Plaintiff and Respondent,
v.
Allen Keith CHAMPION, Defendant and Appellant.
No. E036279.
Court of Appeal, Fourth District, Division Two.
December 19, 2005.
*123 Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney *124 General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Michael T. Murphy, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.[*] As Modified December 19, 2005.
OPINION
GAUT, J.
1. Introduction
Defendant Allen Keith Champion appeals from a judgment convicting him of 40 counts of lewd and lascivious acts against his daughter and his niece, both of whom were under 14 years of age, in violation of Penal Code sections 288, subdivision (a), and 667.61, subdivision (e)(5). The trial court sentenced defendant to 47 years to life.
On appeal, defendant claims the trial court erred in admitting evidence that he invoked his right to remain silent during a police interrogation and instructing the jury that such evidence could be considered in determining his credibility. We conclude that the prosecutor's reference to defendant's refusal to speak with the police was a fair response to defendant's claim that he was not given the opportunity to tell his side of the story. We also conclude that the court's instruction properly applied Evidence Code section 913 to the circumstances in this case.
The People note that the trial court erred in sentencing defendant under both the determinate and indeterminate sentencing laws. Penal Code section 667.61, subdivision (b), however, requires that the court impose an indeterminate sentence of 15 years to life for each count instead of the determinate sentence.
We affirm defendant's convictions but remand for resentencing.
2. Factual Statement
During their short romantic relationship, defendant and Christy D. had their daughter, C. Before C.'s birth in 1989, Christy moved to Oregon while defendant remained in California. Defendant married Kelly C. shortly after Christy's move. When C. was six years old, she began staying with defendant during her summer vacations, spring vacations, and at Christmas. At age 10, C. began living with defendant on a permanent basis.
When C. was eight, defendant began to touch her inappropriately. He would give C. a back rub and then slide his hand down to her chest and feel her nipples, both over and under her clothing. After C. moved in with defendant permanently, the molestations progressed and occurred more frequently. Defendant would remove C.'s top and fondle and lick her breasts. By the time C. was 11, defendant also would undress her and touch her vagina with his penis, moving up and down against her. Although defendant did not penetrate her with his penis, on a few occasions, he did engage in digital penetration. Also on a few occasions, he put her hand on his penis and moved her hand up and down. The molestations were an everyday occurrence. They occurred in the living room or C.'s bedroom of defendant's trailer home, both at night and during the day. At night, C. often pretended to be asleep.
C. also observed defendant engage in inappropriate conduct with her cousin and best friend, S., who was two years older. According to S.'s initial report, on about 40 occasions, defendant touched her breasts both under and over her clothing. Defendant often came to the girls at night and touched them as they pretended to be asleep.
C. told S.'s mother, Linda L., about the molestations. Linda told other family members and friends, who in turn confronted *125 defendant. There was testimony that, during this family meeting, defendant attempted to characterize his relationship with C. as consensual. There also was testimony that, as C. was questioned and pressured, she eventually said that nothing happened. After the meeting, no action was taken, except that Kelly told C. to keep her doors locked. The molestations ceased for about five months. During this time, C. denied that she was molested when questioned by a social worker and relatives.
S. initially told several people, including the police, that defendant molested her. S. later recanted during interviews with a social worker and an investigator. At the preliminary hearing and at trial, she testified that she had lied about the molestation.
About five months after C.'s initial disclosure, the molestations resumed as before. On one occasion, defendant attempted to insert his penis in C.'s vagina but was unsuccessful.
In about October of 2001, C. again confided in relatives about the molestation. C.'s stepsister eventually informed Kelly that the molestations had resumed. C.'s mother, Christy, also learned about the molestation and drove down from Oregon to pick up her daughter.
The police interviewed C., who was about 12 years old at the time. C. admitted that defendant had molested her since she was eight years old.
Defendant denied molesting both C. and S. Defendant explained that C. had been exposed to her mother's promiscuity and, as a result, behaved inappropriately toward him.
3. Defendant's Prior Statement and Testimony
Defendant claims the trial court erred in allowing the prosecutor to question him concerning his police interrogation and, specifically, his exercise of his right to remain silent. Defendant also claims the court erred in instructing the jury that this evidence could be considered in determining his credibility.
A. Background
During the trial defendant testified that he was never given an opportunity to tell his side of the story. In rebuttal, the prosecution sought to introduce evidence that, during his police interrogation, defendant was given an opportunity to make a statement but he refused. Defendant's trial attorney objected that the prosecutor had no right to comment on defendant's decision to invoke his Miranda rights.[1] The court overruled the objection.
The prosecutor cross-examined defendant on the subject:
"Q.... Mr. Champion, you are willing to lie to this jury in order to get out of this; aren't you?
"A. No.
"Q. Yesterday you actually tried to mislead this jury in order to get them to vote not guilty; didn't you?
"A. No, I did not.
"Q. Well, you recall being asked specifically did anybody ever come to you and say, Okay, tell me your side of the story. [¶] You recall being asked that; don't you?
"A. Yes.
"Q. And your answer was, No, never.
"A. Correct.
*126 "Q. But in fact, you were contacted in October of 2001, by Officer Underwood of the Murrieta Police Department; correct?
"A. Yes.
"Q. And he invited you to come tell you side of the story?
"A. Yes.
"Q. He invited you to make a statement?
"A. Yes.
"Q. So somebody did offer to hear your side of the story.
"A. Yes. They wanted me to speak with them.
"Q. The story that you told us yesterday, that's the first time you've given that story; isn't it?
"A. No.
"Q. First time you've publicly given that story; isn't it?
"A. Yes."
During redirect examination, defendant's attorney clarified with defendant that he was referring to his family members. Defendant's attorney also clarified that, although defendant was given an opportunity to speak to the police, he had the right to remain silent. Defendant explained that he had "been advised not to say anything unless a lawyer is present. Because [the police] could twist what you say around and make it look like you say something you have not said...."
On recross-examination, the prosecutor again questioned defendant concerning his unwillingness to come forward with a statement during his initial incarceration. The prosecutor insisted that defendant admit that he did not volunteer his side of the story even after receiving the assistance of counsel.
After admitting the evidence, the court decided to give the jury a limiting instruction. Although the court initially intended to give the instruction after the prosecution's examination, the court delivered it after the other jury instructions. Defendant's attorney requested that the court also advise the jury that they could not use the evidence to draw an inference as to defendant's credibility as prohibited under Evidence Code section 913. The court decided, however, that the jury should be allowed to use the evidence in determining defendant's credibility.
The court instructed the jury as follows:
"Certain evidence was admitted for a limited purpose. The defendant testified on his direct examination that no one ever gave him a chance to tell his side of the story. On cross-examination, evidence was received in rebuttal tending to show that the defendant was offered a chance to tell his side of the story by the police. On redirect examination by his attorney, that is defendant's attorney, further evidence was received showing that the defendant declined to speak to the police, thereby exercising his constitutional right to remain silent.
"Now, you may consider the evidence that the defendant was offered a chance to tell his side of the story by the police for the limited purpose of showing defendant's credibility. However, since the defendant had a constitutional right to remain silent when contacted by the police, the fact that he exercised that right and declined to speak is not to be held against him in any way, and may not be used to infer whether he's guilty or not guilty.
"Do not consider the evidence of the defendant being offered the chance to tell his side of the story to the police and the fact that he declined to do so for any purpose, except the limited purpose for which it was admitted."
*127 During closing argument, the prosecutor discussed the evidence in challenging defendant's credibility:
"Lies, lies, lies. We're going to talk about one lie, and I'm going to talk about what the law says about men like him who take the stand and lie.
"`Nobody ever gave me an opportunity to tell my side of the story.'" [¶] ... [¶]
"That was a complete falsehood. It was designed to mislead you, because Officer Underwood asked him to speak, offered him an opportunity to explain. Called him on the phone, please come in and tell your side of the story."
The prosecutor continued his argument by discussing defendant's possible motivations for lying. The prosecutor also emphasized that the jury could consider the lie in determining defendant's credibility. Specifically, the prosecutor read the standard instruction on willfully false testimony and invited the jury to reject defendant's testimony altogether. The prosecutor went on to address several other instances of lies and inconsistencies in defendant's testimony.
B. Law and Analysis
Both federal and state courts have held that the prosecution's use of defendant's post-Miranda silence is a violation of federal due process. (Doyle v. Ohio (1976) 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91; Wainwright v. Greenfield (1986) 474 U.S. 284, 295, 106 S.Ct. 634, 88 L.Ed.2d 623; People v. Crandell (1988) 46 Cal.3d 833, 878, 251 Cal.Rptr. 227, 760 P.2d 423.) "Wainwright and Doyle are founded on the notion that it is fundamentally unfair to use post-Miranda silence against the defendant at trial in view of the implicit assurance contained in the Miranda warnings that exercise of the right of silence will not be penalized. [Citation.]" (People v. Coffman (2004) 34 Cal.4th 1, 65, 17 Cal.Rptr.3d 710, 96 P.3d 30, citing Wainwright v. Greenfield, supra, at p. 295, 106 S.Ct. 634.) The prosecutor cannot use defendant's invocation of his right to remain silent or refusal to answer questions as evidence against him. (See Wainwright, supra, at p. 295, 106 S.Ct. 634; Coffman, supra, at p. 65, 17 Cal.Rptr.3d 710, 96 P.3d 30.) Particularly, defendant's silence may not be used to impeach his credibility. (See Jenkins v. Anderson (1980) 447 U.S. 231, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86; People v. Wood (2002) 103 Cal.App.4th 803, 808, 127 Cal.Rptr.2d 132; see also Evid.Code, § 913.)
To establish a violation of due process under Doyle, the defendant must show that the prosecution inappropriately used his postarrest silence for impeachment purposes and the trial court permitted the prosecution to engage in such inquiry or argument. (Greer v. Miller (1987) 483 U.S. 756, 765-766, 107 S.Ct. 3102, 97 L.Ed.2d 618; People v. Evans (1994) 25 Cal.App.4th 358, 368, 31 Cal.Rptr.2d 20.) "The type of permission specified in Greer will usually take the form of overruling a defense objection, thus conveying to the jury the unmistakable impression that what the prosecution is doing is legitimate." (Evans, supra, at p. 368, 31 Cal.Rptr.2d 20.)
An assessment of whether the prosecutor made inappropriate use of defendant's postarrest silence requires consideration of the context of the prosecutor's inquiry or argument. (Greer v. Miller (1987) 483 U.S. 756, 765-766, 107 S.Ct. 3102, 97 L.Ed.2d 618.) A violation of due process does not occur where the prosecutor's reference to defendant's postarrest silence constitutes a fair response to defendant's claim or a fair comment on the evidence. (See United States v. Robinson (1988) 485 U.S. 25, *128 32, 108 S.Ct. 864, 99 L.Ed.2d 23 (involving a claim of error under Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106); Anderson v. Charles (1980) 447 U.S. 404, 408, 100 S.Ct. 2180, 65 L.Ed.2d 222.) "Griffin and Doyle's protection of the right to remain silent is a `shield,' not a `sword' that can be used to `cut off the prosecution's "fair response" to the evidence or argument of the defendant.' [Citation.] Questions or argument suggesting that the defendant did not have a fair opportunity to explain his innocence can open the door to evidence and comment on his silence. [Citation.]" (People v. Lewis (2004) 117 Cal.App.4th 246, 257, 12 Cal.Rptr.3d 1, citing People v. Austin (1994) 23 Cal.App.4th 1596, 1612-1613, 28 Cal.Rptr.2d 885, disapproved on other grounds in People v. Palmer (2001) 24 Cal.4th 856, 861, 867, 103 Cal.Rptr.2d 13, 15 P.3d 234.)
In Austin, after an officer testified that one of the defendants had made an incriminating statement, the defendant's attorney asked the officer if he had given the defendant an opportunity to make a full and complete statement. The officer admitted that he had not. The prosecutor later elicited testimony from the officer that, after advising the defendant of his Miranda rights, he had offered to take the defendant's full statement, but the defendant declined. On appeal, the defendant claimed that the prosecutor's reference to his post-Miranda silence violated his due process rights under Griffin and Doyle.
In addressing the defendant's claim, the court explained: "Griffin and Doyle were cases in which the prosecution sought to take unfair advantage of the defendant's silence.... These cases stand for the principle it is fundamentally unfair for the state to afford defendants the right to remain silent and then use that silence against them. It must be remembered, however, the defendant's right to remain silent is a shield. It cannot be used as a sword to cut off the prosecution's `fair response' to the evidence or argument of the defendant." (Austin, supra, 23 Cal.App.4th at pp. 1611-1612, 28 Cal.Rptr.2d 885, citing United States v. Robinson, supra, 485 U.S. at p. 32, 108 S.Ct. 864; see also People v. Thompson (1986) 183 Cal.App.3d 437, 442, 228 Cal.Rptr. 304.)
Relying on the analysis in Robinson, the court in Austin held that the prosecutor's inquiry did not amount to a due process violation. The court explained that the evidence allowed the prosecution to counter the impression created on cross-examination that the defendant had not been afforded an opportunity to explain the incriminating statement. (Austin, supra, 23 Cal.App.4th at p. 1612, 28 Cal.Rptr.2d 885.) The court made the general observation that, "[t]he Fifth Amendment protects defendant's right to remain silent. It does not protect his effort to exploit his silence by requiring the government also remain silent." (Ibid.) The court specifically noted that, "[t]here was no attempt to suggest defendant's invocation of his right to remain silent was substantive evidence of guilt or to impeach a defense by bringing out Austin's postarrest silence." (Id. at pp. 1612-1613, 28 Cal.Rptr.2d 885.) The court held, therefore, that the prosecution's conduct did not amount to error under Griffin or Doyle. (Id. at p. 1613, 28 Cal.Rptr.2d 885.)
Defendant attempts to distinguish Austin by arguing that the defendant in that case specifically suggested that the police did not give him an opportunity to explain his statement. Defendant argues that, in this case, the prosecution inquiry was not an attempt to put a prior statement in context, but an effort to bring out defendant's postarrest silence. While this is a *129 closer case, the trial court reasonably found that the impression left by defendant's statement that he was never given an opportunity to tell his side of the story was more inclusive than simply a reference to his pretrial discussions with his family.
The Austin court relied on United States v. Robinson, supra, 485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23. In Robinson, the defendant's attorney urged in closing argument that the defendant had not been given the opportunity to explain his side of the story. The prosecutor responded in kind by arguing that the defendant could have taken the stand and explained his story. In addressing the defendant's claim of Griffin error, the court noted that defense counsel's comment was interpreted as meaning that the government had not allowed defendant to explain his side of the story either before or during the trial. (Robinson, supra, at p. 31, 108 S.Ct. 864.) Because the defense comment could have given the jury the false impression that the defendant was not allowed to testify during the trial, the prosecutor's argument constituted a fair response to the defendant's claim. (Id. at p. 32, 108 S.Ct. 864.) The court explained, "[i]n the present case it is evident that the prosecutorial comment did not treat the defendant's silence as substantive evidence of guilt, but instead referred to the possibility of testifying as one of several opportunities which the defendant was afforded, contrary to the statement of his counsel, to explain his side of the case. Where the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant's silence, Griffin holds that the privilege against compulsory self-incrimination is violated. But where as in this case the prosecutor's reference to the defendant's opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege." (Ibid.)
C. Prosecutor's Questions
In this case, defendant's attorney elicited testimony from the witnesses that no one would listen to his side of the story. During his direct examination, defendant also testified that no one gave him the opportunity to give his side of the story. The prosecutor argued that this evidence could have left the jury with the impression that defendant was never given an opportunity to give his side of the story to anyone, including law enforcement. The court agreed with the prosecutor and overruled defendant's objection.
During the prosecutor's initial line of questioning, the prosecutor confronted defendant with the fact that he was given an opportunity to tell his side of the story to Officer Daryl Underwood. The inquiry focused on Underwood's offer to take defendant's statement, not defendant's exercise of his constitutional rights. In other words, the prosecutor sought to rebut defendant's claim that he had not been given an opportunity to tell his side of the story. The prosecutor was not taking unfair advantage of defendant's exercise of his right to remain silent as substantive evidence that he had a guilty conscience or was hiding something. (See People v. Eshelman (1990) 225 Cal.App.3d 1513, 1521, 275 Cal.Rptr. 810.)
On redirect examination, defendant clarified that his prior statements were in reference to his family members, namely, that none of his family members allowed him to explain himself. Defendant also testified that, after his arrest, he was given his Miranda rights and he elected to invoke his rights based on the advice of counsel.
The prosecutor then insisted that defendant could have volunteered his side of the story after being afforded his constitutional *130 rights, particularly, after receiving the assistance of counsel. Defendant admitted that he never came forward with his version of the facts.
Under these circumstances, we conclude that the prosecutor was not taking unfair advantage of defendant's exercise of his constitutional right to remain silent. Instead the prosecutor's inquiry was a fair response to defendant's claim. (See Robinson, supra, 485 U.S. at p. 32, 108 S.Ct. 864; see also Amirault v. Fair (1st Cir. 1992) 968 F.2d 1404, 1406.) Although the prosecutor referred to defendant's exercise of his Miranda rights on recross-examination, defense counsel first mentioned defendant's election to invoke his constitutional rights during his redirect examination. The prosecutor simply responded that, even after invoking his constitutional rights, defendant still could have come forward with his side of the story. The prosecutor deliberately focused his inquiry on rebutting defendant's claim, not exploiting defendant's postarrest silence.
D. Prosecutor's Argument
In addition to challenging the prosecutor's questions, defendant argues that the prosecutor made inappropriate references to his postarrest silence during closing argument. Defendant, however, may have waived this claim by failing to object to the prosecutor's argument. (See People v. Hughes (2002) 27 Cal.4th 287, 372, 116 Cal.Rptr.2d 401, 39 P.3d 432.) It also is questionable whether defendant can establish error under Doyle without demonstrating that the trial court specifically permitted the comments. (See Greer v. Miller, supra, 483 U.S. at pp. 765-766, 107 S.Ct. 3102; People v. Evans, supra, 25 Cal.App.4th at p. 368, 31 Cal.Rptr.2d 20.)
Nevertheless, the record shows that the prosecutor's closing argument also focused on defendant's assertion that he was never given the opportunity to explain himself, rather than defendant's invocation of his constitutional rights. The prosecutor argued that defendant was a liar because the facts refuted his claim that he was not given an opportunity to tell his side of the story. As mentioned above, the prosecutor was not arguing that defendant was a liar simply because he had exercised his right to remain silent and refused to talk to the police. Although the factual distinction is subtle, the difference is considerable for purposes of determining whether there has been a violation of defendant's constitutional rights. (See Robinson, supra, 485 U.S. at p. 32, 108 S.Ct. 864.) In this case, the prosecutor did not take unfair advantage of defendant's postarrest silence. The prosecutor's inquiry and argument instead constituted a fair response to defendant's testimony.
E. Trial Court's Instruction
Defendant claims that the trial court erred in denying defense counsel's request for further instruction based on the language in Evidence Code section 913.
Evidence Code section 913, subdivision (a), prohibits the court and counsel from commenting on a witness's exercise of his privilege not to testify. The statute also prohibits the trier of fact from using the witness's exercise of his privilege to draw an inference as to any matter at issue in the proceeding, including the witness's credibility. (See also People v. Mincey (1992) 2 Cal.4th 408, 441, 6 Cal.Rptr.2d 822, 827 P.2d 388.) Evidence Code section 913, subdivision (b), requires that the court, upon request, give an instruction "that no presumption arises because of the exercise of the privilege and that the jury may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding."
*131 We conclude that the court satisfied this requirement by giving the special instruction. Although the court did not use the exact terms found in Evidence Code section 913, the court tailored the instruction to fit the circumstances of the present case. As consistent with the Robinson case, the court allowed the jury to consider the evidence to rebut his testimony on direct that he had not been given an opportunity to tell his side of the story. Aside from this limited purpose, the evidence of defendant's refusal to answer questions during the police interrogation was not to be "held against him in any way." The court instructed that, because defendant had a constitutional right to remain silent, defendant's exercise of that right could not be used to infer his guilt or innocence.
Although a better instruction would have included an admonition that defendant's exercise of his right to remain silent could not be used to draw any inference as to his credibility, such admonition may have been confusing under the circumstances where the evidence was being admitted for a limited impeachment purpose. Even defendant's attorney later agreed with the prosecutor that, "the jury could consider it with respect to his credibility in light of his previous testimony." The trial court instructed the jury to draw a distinction between using evidence of the police interrogation to rebut defendant's assertion that he had not been able to give his side of the story and using defendant's invocation of his right to remain silent to draw any other inferences in determining his guilt or innocence. Juries are presumed to be able to make fine distinctions concerning the purposes for which evidence is admitted. (See People v. Yeoman (2003) 31 Cal.4th 93, 139, 2 Cal.Rptr.3d 186, 72 P.3d 1166.) While the court's instruction is not the model of clarity, we conclude that it adequately conveyed the limitation provided in Evidence Code section 913 as it applied to the facts in this case.
F. Harmless Error
Even if defendant had established that error resulted from the court's instruction or the prosecutor's questions and comments, we conclude that the error was harmless beyond a reasonable doubt. (See People v. Coffman, supra, 34 Cal.4th at p. 64, 17 Cal.Rptr.3d 710, 96 P.3d 30, citing Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.) Despite some evidence that the children recanted, it is hard to imagine a stronger case of child molestation in the absence of direct physical evidence.
The entire case hinged on the jury's assessment of the witnesses' credibility. During closing argument, the prosecutor argued that C. and S.'s disclosure was believable and that they had no real motivation to lie concerning the molestation. According to the defense theory, C. was infatuated with her father and wanted him to treat her as his wife. C. was jealous of Kelly and wanted her out of the picture. Defendant argued that S. also fabricated her allegations of molestation because she and C. were plotting to force Kelly to leave defendant.
The record, however, fails to support the defense theory. C. waited years before telling anyone that her father molested her. Both of the children did not discuss the molestation with a parent, social worker, or police officer. Their first disclosure was to a close, trusted friend or relative. The record shows that S. did not volunteer this information, but only admitted the molestation when someone asked her about it. Both of the children did not want to draw attention to themselves or tell others about the molestation.
*132 In challenging defendant's credibility, aside from the prosecutor's use of the police interrogation evidence, the prosecutor also discussed at length the various other inconsistencies between defendant's testimony and the testimony of the other witnesses. Contrary to defendant's testimony, the record is replete with evidence from other witnesses corroborating the victim's allegations of molestation.
Witnesses testified concerning defendant's obsession with C. During the family meeting in March of 2001, Kelly's friend, Tammie Stevenson, heard defendant mention the term "blow job," saying that C. "wanted it." Tammie's daughter, Tarrah Stevenson, also heard defendant say that he fell out of love with his wife and fell in love with C. Tarrah testified that defendant had admitted to Kelly that he had engaged in sexual contacts with C.
During a separate confrontation concerning the molestation, Kelly's daughter, Michelle Hammond, yelled at defendant that he was obsessed with his own daughter and that he was in love with her. Michelle testified that defendant nodded his head in agreement and even admitted that he needed counseling.
During a cruise, Tammie and Kelly walked into defendant's room and observed him in bed with C. The two were not sleeping. Although Kelly dismissed the situation, Tammie's initial reaction was, "what in the F is going on here?" According to Tarrah, Kelly later told her that defendant's explanation was that he was having a dream about having sex with C.
According to the witnesses, defendant also exhibited other suspicious and inappropriate behavior. Defendant began listening in on C.'s telephone conversations. Defendant watched pornographic movies with the children. Also, during a family gathering in September of 2001 at Tarrah's house, Tarrah observed defendant standing on a wooden box looking through the bathroom window. Inside the bathroom, C. and another girl were taking a shower.
After weighing the evidence, including denials from defendant and supporting testimony from his wife, Kelly, the jury reached a verdict during the first full day of deliberations. In order to believe defendant's theory, the jury would have had to reject not only the children's allegations of molestation, but also the testimony of several other witnesses. Because these witnesses corroborated the allegations of sexual misconduct, we are convinced that the jury's verdict was based on the strength of the prosecution's case, rather than any inappropriate use of defendant's postarrest silence.
4. Sentencing Error[**]
5. Disposition
The case is remanded for resentencing. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., and KING, J.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for partial publication with the exception of part 4.
[1] Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
[**] See footnote *, ante.
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215 Kan. 573 (1974)
527 P.2d 1333
STATE OF KANSAS, Appellee,
v.
EBEN W. CARPENTER, Appellant.
No. 47,392
Supreme Court of Kansas.
Opinion filed November 2, 1974.
Edwin P. Carpenter, of Turner, Chartered, argued the cause, and Dennis Horner, of Kansas City, was with him on the brief for the appellant.
Gene M. Olander, District Attorney, argued the cause, and Vern Miller, Attorney General, was with him on the brief for the appellee.
The opinion of the court was delivered by
PRAGER, J.:
This is a direct appeal in two criminal cases. In one case the defendant-appellant, Eben W. Carpenter, was charged with first-degree murder and convicted by a jury of second-degree murder under K.S.A. 1971 Supp. 21-3402. In the second case the *574 defendant was tried to the court on an agreed stipulation of facts and was convicted of thirty counts of theft under K.S.A. 1971 Supp. 21-3701. The defendant is the brother of Jan Carpenter who was charged in the same information with first-degree murder and entered a plea of guilty to second-degree murder.
In the murder case the evidence showed that in the early morning hours of July 2, 1972, Willis Upshaw, an employee of C and C Security Agency, owned and operated by Jan Carpenter and Eben W. Carpenter, was discovered brutally murdered at the Lake Sherwood Estates, southwest of Topeka in Shawnee county. Following an extensive investigation, it was found to be a fact that Willis Upshaw was brutally murdered by Donald Brenner, another employee of C and C Security Agency. Donald Brenner was charged with first-degree murder in the same information as Jan and Bill Carpenter. After entering a plea of second-degree murder, he testified on behalf of the state against Eben W. Carpenter. The evidence was undisputed that Brenner actually fired the gun shots which killed Upshaw. He was the only known witness to the killing. There was a dispute in the evidence as to the involvement of the defendant, Eben W. Carpenter, in the murder. The state's evidence, if believed, established the fact that the murder of Willis Upshaw was the result of a plan and conspiracy conceived by Jan and Eben W. Carpenter. Brenner testified that the motive for killing Upshaw was that Upshaw had been talking too much about an insurance fraud scheme which Upshaw, Brenner, the defendant, Eben W. Carpenter, and others had become involved in several months preceding the murder. Brenner also testified that the two Carpenter brothers had taken out a large amount of life insurance on the life of Willis Upshaw and that one of the motives for the killing was to collect the insurance proceeds on the death of Willis Upshaw. It was Brenner's testimony that the murder of Upshaw had been fully discussed and planned in advance. Brenner's testimony, if believed, clearly established that the defendant, Eben W. Carpenter, was guilty of murder in the first-degree as a person who aided or abetted or counseled in the commission of a crime by another person. (K.S.A. 1971 Supp. 21-3205.)
The defense presented evidence which, if believed, would have justified the acquittal of defendant Eben W. Carpenter. The defendant freely admitted his participation in a series of fraudulent transactions in December of 1971, involving the Patrons Mutual *575 Insurance Company of Olathe, Kansas. Eben W. Carpenter denied, however, any involvement in the murder of Willis Upshaw. Jan Carpenter testified that he and Brenner had at one time discussed killing Upshaw but that the plan had later been abandoned. Jan Carpenter fully supported his brother Eben's position that Eben was not involved in Upshaw's murder. These two theories were submitted to the jury and the jury returned a verdict finding Eben W. Carpenter guilty of murder in the second-degree. The defendant has appealed this conviction to this court alleging six points of trial error.
The defendant's first point on appeal is that the trial court erred in failing to declare a mistrial during the impaneling of the jury because of certain remarks made by the prosecutor. The precise language used by the district attorney which was objected to is as follows:
"`Now, I am sure you all are aware of the fact that the law requires that before you can find the defendant guilty, that you must find him guilty beyond a reasonable doubt, and that is the burden of proof that the state must carry. In other words, it is our responsibility to show to you by virtue of the evidence that this defendant is guilty beyond a reasonable doubt, and in doing this, you must listen to all the testimony, weigh the testimony according to the rules that the court will give you in its instructions, and listen to the defendant's testimony and then apply the same tests and rules that the court will instruct you on...."
Following this statement by the prosecutor, defense counsel promptly moved for a mistrial on the grounds that the statements of the county attorney constituted an improper reference to the defendant's testifying and placed upon defendant the obligation to testify, thus emasculating his Fifth Amendment privilege against self-incrimination. The trial court overruled the motion for a mistrial but did admonish the jury to disregard the statement and informed the jury that the defendant had the right either to testify or not to testify in his own behalf and informed the jury about the presumption of innocence. We, of course, recognize the rule which makes constitutionally impermissible comments by the prosecutor on the fact that the accused in a criminal case has failed to testify. (Griffin v. California, 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229.) In Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967), the United States Supreme Court declined to hold that a violation of the Griffin rule is prejudicial per se so as to require reversal as a matter of law. The question to be answered *576 is whether or not there is a reasonable possibility that the comment or error complained of might contribute to the conviction. If the court finds that the constitutional error was harmless beyond a reasonable doubt then there are no grounds for a reversal. In Knowles v. United States, (10th Cir.1955), 224 F.2d 168, it was held that the test to be applied where a prosecutor comments on the defendant's failure to testify is that it is reversible error if the language used was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. If the comment does not have the effect of focusing the attention on the failure of the accused to testify, the error, if any, is corrected by an instruction of the trial court admonishing the jury to disregard it. Most of the cases where the problem of improper comment on the defendant's refusal to testify has arisen have involved comments of prosecutors during closing arguments. In this case the statement made came early in the voir dire examination of the jury prior to the introduction of any testimony. We believe the intent of the prosecutor was to speak in a general way of the defense evidence rather than the defendant's individual testimony. Furthermore it must be noted that the defendant did in fact testify before the jury during the course of the trial. In view of the instruction given by the trial court immediately following the comment, we have concluded that the defendant's Fifth Amendment privilege against self-incrimination has been properly safeguarded and that no harm was done. This conclusion is consistent with our opinion in State v. Phippen, 208 Kan. 962, 494 P.2d 1137, which held that much stronger language of the prosecutor was not prejudicial error.
The second point raised by the defendant is that his Sixth Amendment right to a trial by an impartial jury was violated because two members of defendant's jury had also been on the panel from which a jury was chosen in the abortive trial of his brother, Jan Carpenter. Jan Carpenter entered a plea of guilty to second-degree murder shortly after his jury was impaneled. Defendant Eben W. Carpenter contends that the two jurors were not impartial because they were informed as to the nature of the charge and as to Jan Carpenter's plea of guilty to second-degree murder. These two jurors were challenged for cause by defendant's counsel, which challenges were overruled by the trial court. The defendant's position here is that these two jurors were disqualified as a matter of law under K.S.A. 1971 Supp. 22-3410 which provides in part as follows:
*577 "22-3410. Challenges for cause. (1) Each party may challenge any prospective juror for cause. Challenges for cause shall be tried by the court.
"(2) A juror may be challenged for cause on any of the following grounds:
..............
"(e) He was a juror at a former trial of the same cause."
It is the position of the state that this provision disqualifies a prospective juror for cause only where that person actually served on a jury at a former trial of the same cause and not a person who merely served on the panel of prospective jurors. In our judgment the position taken by the state is correct. The mere fact that a person was on the jury panel in a companion case does not as a matter of law disqualify him from serving at a subsequent trial. Unless a disqualification for cause is mandatory as a matter of law under the statute, it presents an issue of fact to be determined by the trial court and rests within the trial court's sound discretion. The trial court is in a much better position than this court to view the demeanor of the prospective juror and to listen to his answers. (State v. Springer, 172 Kan. 239, 239 P.2d 944.) At the time the jury was being selected in this case the two jurors challenged stated under oath that they could try the case fairly and impartially without prejudice. They further stated that they had no opinion as to the guilt or innocence of the defendant Eben W. Carpenter. These jurors heard no evidence whatsoever as a part of the jury panel in the Jan Carpenter case. In each of the cases relied upon by the defendant the challenged jurors had actually served on the jury and heard testimony in companion cases. Here the challenged jurors did not actually serve on the jury or hear evidence in the case of Jan Carpenter. Furthermore the factual information allegedly known to the challenged jurors prior to their selection as jurors was fully brought forth in the testimony of Jan Carpenter and other witnesses during the trial. It is first the trial court which must be satisfied that the challenged jurors are free from bias and prejudice. The trial court's decision so finding will not be disturbed on appeal unless disqualification appears as a matter of law or abuse of discretion has been shown which we cannot find in this case.
The defendant's third point on this appeal is that the trial court erred in instructing the jury on the offense of second-degree murder. *578 His contention is that under the facts of this case, second-degree murder was not a lesser included offense nor was there any evidence to support the giving of such an instruction. In support of his position counsel for the defendant argues that the undisputed testimony shows that Jan Carpenter and Brenner conspired and planned Upshaw's murder for over a month prior to the killing and that weapons were purchased ahead of time for the commission of the crime. Since the killing was premeditated it was, of necessity, first-degree murder. Hence if the defendant Eben W. Carpenter conspired with Brenner and Jan Carpenter in the murder he must be guilty of murder in the first-degree and not murder in the second degree. Therefore the trial court erred in instructing on the lesser offense of second-degree murder. The record shows and it is not disputed that counsel for the defendant did not object to the court's instruction on the lesser offense of second-degree murder. In the absence of an objection to an instruction in a criminal case we must apply K.S.A. 1971 Supp. 22-3414 (3) which states in part as follows:
"No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous...." (Emphasis supplied.)
The precise point which we must determine is whether or not it was clearly erroneous here to instruct on the lesser offense of murder in the second degree. The issue presented by the defendant here has been raised before and has been determined adversely to the defendant's position. In State v. Yargus, 112 Kan. 450, 211 Pac. 121, the defendant Yargus was charged and tried for committing murder in the first degree by means of poison. She was convicted of second-degree murder and appealed contending that it was prejudicial error because under the evidence she was guilty of first-degree murder or nothing, and that the evidence did not, therefore, sustain a verdict of second-degree murder. In upholding the conviction this court stated in syllabus ¶ 2 as follows:
"A defendant who is convicted of an offense which is less than that charged, but which is necessarily included within it, cannot obtain a reversal on the ground that the evidence showed him to be guilty of the greater offense if any, because the error in that respect is not prejudicial, inasmuch as it benefits instead of injuring him. For this reason one who is prosecuted upon a charge of murder by means of poison and found guilty of murder in the second degree cannot upon appeal effectively complain on the ground that *579 murder committed by the administration of poison is necessarily of the first degree, even assuming that to be the case."
In the opinion the court recognized that the weight of judicial authority is in favor of the rule just stated, however, the court based its conclusion not upon authority but upon the soundness of the principle that the defendant should not be allowed to derive an advantage from an error from which she suffered no injury, but on the contrary derived a benefit. The same rule was applied in State v. Uhls, 121 Kan. 377, 247 Pac. 1050, and in State v. Bigler, 138 Kan. 13, 23 P.2d 598.
There is no question that the rule of Yargus is the majority rule throughout the United States and there are many cases cited from other jurisdictions in an annotation in 102 A.L.R. 1019 where the following statement is made at page 1026:
"While there is some conflict on the question, the rule supported by the weight of authority seems to be that if the evidence demands or warrants a conviction of a higher degree of homicide than that found by the verdict, and there is either no evidence in support of acquittal, or, if there is, it is not sufficient to warrant or require acquittal, or is disbelieved by the jury, the defendant is not entitled to a reversal or a new trial on the ground either that the jury found him guilty of the lower degree of homicide, or that the court instructed on the lower degree of homicide, as to which there was no evidence, the theory being that he is not prejudiced thereby and cannot complain."
Other authorities in support of the principle may be found in 41 C.J.S. Homicide, § 427, at page 294.
In order for the rule to be applicable the lesser offense instructed on must be a lesser included offense under the original charge. In State v. Woods, 214 Kan. 739, 744, 522 P.2d 967, we described a lesser included offense in the following language:
"... If a lesser offense is to be considered a lesser included offense under the law, all elements necessary to prove the lesser offense must be present and be required to establish the elements of the greater offense charged. If each is a separate and distinct offense, requiring proof of an element not necessary in the other, then neither can be a lesser degree of the other offense...."
Second-degree murder is clearly a lesser included offense under first-degree murder since all of the elements of second-degree murder are included in the elements required to establish murder in the first degree.
Counsel for the defendant relies on State v. Diggs, 194 Kan. 812, 402 P.2d 300. In that case the defendant Diggs was charged under K.S.A. 21-407 with manslaughter in the first degree. The information alleged and the evidence showed that the defendant struck *580 several blows with his fist to the face and body of one, Harry Kepner, which caused his death several days later. The trial court instructed the jury on manslaughter in the second degree under K.S.A. 21-411, which defines that offense as the killing of a human being without design to effect death, in the heat of passion, but in a cruel and unusual manner. The case was tried to a jury which found the defendant guilty of manslaughter in the second degree. On appeal this court held that the giving of an instruction on manslaughter in the second degree as defined by K.S.A. 21-411 was clearly erroneous and that the defendant was entitled to a new trial. The rationale of the Diggs opinion is that in order to constitute manslaughter in the second degree under K.S.A. 21-411 there must be evidence to show a refinement or excess of cruelty sufficiently marked to approach barbarity, and to make it especially shocking. The only evidence presented in the case showed that Diggs had beaten the deceased with his fists. Since there was no evidence that the killing was done in a cruel and unusual manner it was held error for the trial court to give an instruction on second-degree manslaughter. In our judgment State v. Diggs, supra, is distinguishable from State v. Yargus, supra, and the other cases which we have cited where an instruction was given on second-degree murder and held to be harmless error. As pointed out above, second-degree murder is a true lesser included offense since each and every element of second-degree murder is included in the elements of first-degree murder which has the additional element of premeditation. Manslaughter in the second degree as defined by K.S.A. 21-411, was not a lesser included offense under a charge of manslaughter in the first degree since the offense of manslaughter second contained an element killing in a cruel and unusual manner which was not an element in the charge of manslaughter in the first degree. Hence the giving of the instruction on manslaughter in the second degree by the trial court in State v. Diggs, supra, was clearly erroneous and a new trial was properly granted. However, under Yargus and the other cases discussed above, the giving of the instruction on second-degree murder in this case cannot be a basis for reversal. We therefore reject the defendant's third point as being without merit. In reaching this conclusion we believe that had the defendant's counsel objected to the instruction at the time of the trial, the trial court might well not have given the instruction. If the instruction had been given over defendant's *581 objection, his argument on this appeal might be more persuasive. Apparently at the time of the trial, defendant's counsel believed that the giving of an instruction on second-degree murder would be beneficial to him. The appellant's counsel apparently did not object to the instruction on second-degree murder as a matter of trial strategy.
As his fourth and fifth points on the appeal the defendant takes the position that the trial court erred in admitting into evidence an autopsy report and the testimony of a medical witness for the reason that the autopsy report was not performed in compliance with the provisions of K.S.A. 19-1030 through 19-1033. He further contends that the court erred in admitting the state's photographs taken at the scene of the crime and at the autopsy. He claims these pictures inflamed the passions and prejudices of the jury and were of no probative value. In regard to the admission of the autopsy report and the testimony of the medical witness, Dr. Eckart, we find no error. It is undisputed that Dr. Kirk Scammon, the deputy district coroner for Shawnee county, viewed the body and he so testified at the trial. Assuming there may have been a technical violation in the fact that the autopsy was performed in Sedgwick county rather than in Shawnee county, there was no showing that the autopsy was not properly done and furthermore the cause of death was not disputed. The killing of Upshaw by Brenner was not a contested issue in the case. In regard to the admission of the photographs of the deceased taken at the scene, we believe that these exhibits were properly admitted in view of the testimony of Donald Brenner, which was somewhat vague as to what took place at the actual time the shooting of Upshaw occurred. Furthermore these photographs were admissible under State v. Campbell, 210 Kan. 265, 500 P.2d 21, where we held that even where the defendant concedes the victim's death and the cause of death, photographs to prove the fact and manner of death and the violent nature of the death and to corroborate the testimony of other witnesses, are relevant and admissible.
As a final point the defendant argues that the verdict of the jury was not supported by the evidence. The defendant argues in his brief that any verdict other than murder in the first degree or not guilty is not supported by the evidence and there was no evidence to justify the verdict of second-degree murder. It is not an uncommon thing for a jury, out of sympathy, or what they conceive to be *582 extenuating circumstances, to find a defendant guilty of a lower degree or grade of offense than that of which the evidence clearly convicts him. The fact that they do so is not grounds for a reversal of the verdict and the judgment entered thereon. (Commonwealth v. Hoffman, 439 Pa. 348, 266 A.2d 726.) Here the jury under the evidence might well have brought in a verdict of guilty of first-degree murder. Bringing in a verdict of murder in the second degree was within the jury's prerogative.
The second case involved on this appeal involves a conviction by the court of thirty counts of theft under K.S.A. 1971 Supp. 21-3701. The state and the defendant stipulated facts which established beyond question that the defendant acting as district supervisor for the Patrons Mutual Insurance Company issued thirty different drafts on the company totaling $15,830. They represented claims paid to individuals who were either fictitious or not in fact involved in automobile accidents. It was stipulated that the thirty claims that were made were fraudulent, fictitious and nonexistent and that the defendant, Eben W. Carpenter, was paid a portion of the proceeds of the checks for his personal use. It is clear to us that the trial court properly found the defendant guilty of the thirty counts of theft contained in the information. We find the evidence sufficient to support the conviction on each of the thirty counts and hence the defendant's only point on appeal is without merit.
For the reasons set forth above the judgments in the two cases consolidated on this appeal are affirmed.
FATZER, C.J.,
dissents, being of the opinion that, under the facts and circumstances of this case, it was reversible error for the district court to give an instruction on the lesser offense of murder in the second degree. The evidence clearly showed the murder committed was in the first degree.
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18-51
Singh v. Barr
BIA
Hom, IJ
A205 071 934
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 22nd day of January, two thousand twenty.
PRESENT:
JOHN M. WALKER, JR.,
DEBRA ANN LIVINGSTON,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
GURPELLT SINGH, AKA GURPREET
SINGH,
Petitioner,
v. 18-51
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Amy N. Gell, New York, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant
Attorney General; Mary Jane
Candaux, Assistant Director;
Matthew Connelly, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Gurpellt Singh, a native and citizen of India,
seeks review of a December 13, 2017 decision of the BIA
affirming a June 28, 2017 decision of an Immigration Judge
(“IJ”) denying Singh’s motion to reopen proceedings and
reissue the IJ’s decision denying Singh’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Singh, No. A 205
071 934 (B.I.A. Dec. 13, 2017), aff’g No. A 205 071 934
(Immig. Ct. N.Y. City June 28, 2017). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We have reviewed both the IJ’s and the BIA’s opinions.
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
Cir. 2006). We review the denial of a motion to reopen and
reissue for abuse of discretion. See Ping Chen v. U.S. Att’y
Gen., 502 F.3d 73, 75 (2d Cir. 2007).
Where, as here, an alien had notice of the proceedings,
2
the agency does not abuse its discretion in denying a motion
to reissue if the agency properly served the order, regardless
of whether the alien actually received it. See id. at 76–77
(“Once the BIA has performed its duty of serving the order,
the time for appeal and motions to reopen begins to run, even
if the order miscarries in the mail or the alien does not
receive it for some other reason that is not the BIA’s
fault.”); see also Xue Hui Lin v. Holder, 380 F. App’x 28, 30
(2d Cir. 2010) (applying the same standard to IJ orders). An
IJ’s decision “shall be served on the parties by first class
mail to the most recent address contained in the Record of
Proceeding or by personal service.” 8 C.F.R. § 1003.37(a).
Service on a party also may be accomplished by service on his
or her attorney. Id. § 1292.5(a).
Singh advances three reasons that the agency may have
abused its discretion in declining to reopen and reissue the
IJ’s decision. Each is unavailing. First, he argues that
the decision was not properly addressed, because, in addition
to the correct firm name and mailing address, it included the
name of attorney Veerat Kalaria. However, “the record shows
that []he did not present . . . [this] argument[] to the BIA,
3
so the BIA can hardly be faulted for failing to address [it].”
Ping Chen, 502 F.3d at 77. Singh asserted in his BIA appeal
that he still had not received the IJ decision (which would
have notified him it was addressed to Kalaria) because “the
Judge’s clerk is away.” Certified Administrative Record at
13. This was the same claim he made more than seven weeks
earlier in the motion to reopen. In any event, Kalaria is
an associate at Gell & Gell, and Singh does not argue that
Kalaria was not involved in his case, nor does he argue that
the letter was misdirected within the law firm.
Second, Singh notes that the decision cover letter
identified him as “Gurpellt” Singh without further stating
that he is also known as “Gurpreet.” But his name was not
part of the address. He does not argue that the firm received
the letter but misunderstood its import because it lacked the
alternate spelling of his name. Nor would such an argument
be reasonable, given that the name Gurpellt was used
throughout the agency proceedings and the letter included
Singh’s alien registration number.
Third, Singh argues that his strong interest in pursuing
his case, coupled with his prompt motion to reopen upon
4
learning of the IJ’s decision, suggests that his attorney
must not have received it. But he did not present any direct
evidence, such as an affidavit from his law firm, asserting
that the decision was not received. And while his interest
in pursuing the case may be evidence that the decision may
not have been mailed properly, it is circumstantial, and the
agency “may reasonably accord less weight to . . . [evidence]
of non-receipt than to its own records establishing that the
[decision] was in fact mailed.” Ping Chen, 502 F.3d at 77.
Accordingly, because the agency did not err in applying
a presumption or declining to credit counsel’s uncorroborated
assertions of non-receipt, it did not abuse its discretion by
denying the motion to reissue. See id. at 75–77. We do not
reach Singh’s arguments regarding his eligibility for relief
from removal because he failed to exhaust those claims by
timely appealing to the BIA. See 8 U.S.C. § 1252(d)(1) (“A
court may review a final order of removal only if . . . the
alien has exhausted all administrative remedies available to
the alien as of right . . . .”); Poole v. Mukasey, 522 F.3d
259, 263 (2d Cir. 2008) (“[T]he INA’s exhaustion requirement
constitutes a clear jurisdictional bar, and admits of no
5
exceptions.” (internal quotation marks and citation
omitted)).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
6
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4705
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON KWANGCHUL SONG,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00349-TDS-1)
Submitted: January 24, 2011 Decided: April 28, 2011
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Anand P. Ramaswamy, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jason Kwangchul Song pleaded guilty, pursuant to a
plea agreement, to making a false statement in an application
for a passport in violation of 18 U.S.C. § 1542 (2006). The
district court sentenced Song to a within-Guidelines term of
twelve months of imprisonment. The district court imposed
Song’s sentence to run consecutively to an undischarged state
sentence Song is presently serving on unrelated convictions.
On appeal, Song’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), in which he states
that he finds no meritorious issues for appeal, but questions
whether it was unreasonable for the district court to sentence
Song consecutively rather than concurrently to his undischarged
state term of imprisonment. Song did not file a supplemental
brief, nor did the Government file a responsive brief.
We conclude that Song is not entitled to relief. To
the extent that he challenges the district court’s decision to
sentence him consecutively to his undischarged state sentence
rather than concurrently, we review a district court’s
imposition of a sentence under a deferential abuse-of-discretion
standard. See Gall v. United States, 552 U.S. 38, 51 (2007).
The district court acted within its discretion and provided a
sound explanation for its decision to reject Song’s request for
a concurrent term of imprisonment at sentencing. The record
2
does not support a finding that the district court’s sentence
was unreasonable in this regard.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Song’s conviction and sentence. This court
requires that counsel inform Song, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Song requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Song.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
3
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Opinion filed September 4, 2008
Opinion filed September 4,
2008
In The
Eleventh
Court of Appeals
__________
No. 11-06-00309-CR
__________
NATHANIEL HAWKINS JR., Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 241st District Court
Smith County, Texas
Trial Court Cause No. 241-1420-05
O
P I N I O N
The
jury convicted Nathaniel Hawkins Jr. of the offense of aggravated sexual
assault. The jury also made an affirmative finding regarding a deadly weapon
allegation and assessed Hawkins=s
punishment at confinement for life. We affirm.
On
appeal, Hawkins maintains in his first issue that the trial court erred when it
denied his motion for mistrial made after a juror informed the trial court that
the juror had just learned (from the testimony) that a hammer and mask had been
found behind his house during the investigation of this offense. In his second
and final issue on appeal, Hawkins claims that his trial counsel afforded
ineffective assistance of counsel in some fourteen named instances. The State
has chosen not to favor us with a brief and has, therefore, confessed error.
We are required, however, to make an independent examination of the merits of
the issues presented for review. We are limited in that examination to the
arguments advanced in the trial court. Saldano v. State, 70 S.W.3d 873,
884 (Tex. Crim. App. 2002); Isham v. State, No. 11-06-00311-CR, 2008 WL
2246657 (Tex. App.CEastland
May 28, 2008, pet. filed).
There
is no attack on the legal or factual sufficiency of the evidence. However, we
believe that a brief summary of the evidence is necessary.
The
testimony shows that, within less than one hour after the twenty-year-old
victim had opened her place of employment at 8:00 a.m. for the day=s business, she was
threatened and sexually assaulted, both orally and vaginally, and that police
officers had Hawkins in custody for committing the crimes. The victim called
9-1-1 and reported the crime at 8:34 a.m.; Hawkins was arrested at 8:43 a.m. while
the victim was still talking to the 9-1-1 officer. Hawkins was arrested in
close proximity to the place where the assault took place and was wearing the
same clothing that the victim said that he was wearing at the time of the
attack. The police found a hammer and a black nylon stocking in close
proximity to the place of the attack and the place where the police arrested
Hawkins. The victim had reported that her assailant was wearing black hosiery
over his face and had a hammer with which he threatened her as he made her go
into a storage room, remove all of her clothing, and forced her on her knees as
he penetrated her first orally and then vaginally. Hawkins threatened to kill
her if she told. He also told her to act like she liked it. The victim testified
that, when Hawkins heard the sound of an ice machine dumping ice, he must have
thought that someone was coming in. The victim escaped to a bathroom, and
Hawkins left.
The
victim positively identified Hawkins as the man who threatened and sexually
assaulted her. Various types of materials and substances for DNA testing were
gathered from the victim as well as from Hawkins by police and by a sexual
assault nurse examiner. This DNA testing positively connected Hawkins to the
sexual assault.
After
a lunch break, the trial court=s
bailiff informed the judge that one of the jurors had something that he needed
to tell him. The trial court instructed the bailiff to tell the juror to put
what he wanted to say in writing. The juror wrote a note to the trial court
that read:
Dear
Judge, I live at 201 North Hearon. I didn=t
know that Whitehouse police found a hammer and mask at my address until this
morning in your courtroom. Nobody talked to me at any time this past year
about it. Thanks.
Maintaining
that, because the juror would have personal knowledge of the facts of the case,
Hawkins=s attorney
moved for a mistrial. The trial court overruled the motion. On appeal,
Hawkins argues that he was denied a fair and impartial jury as Aguaranteed by the Sixth
Amendment of the United States Constitution, as well as Article I, '10 of the Texas
Constitution,@ and
that Tex. Code Crim. Proc. Ann. art.
35.16(a)(6) (Vernon 2006) provides that a person is subject to a challenge for
cause if he is a witness in the case.
When
a trial court denies a motion for mistrial, we review that denial for an abuse
of discretion. See Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim.
App. 2004). Only highly prejudicial and incurable errors will necessitate a
mistrial. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App.
2003).
While
one is entitled to challenge a potential juror for cause if that person is a
witness in a case, such a person is not disqualified to serve as a juror. See
Tex. Gov=t Code Ann. ' 62.102 (Vernon
Supp. 2007). One of the cases upon which Hawkins relies is Petrey v. State,
258 S.W.2d 808 (Tex. Crim. App. 1953). There, Lemke was a compurgator on a
change of venue affidavit. He was also a witness at the hearing on the motion
for change of venue. He had talked to the defendant after the charges of rape
had been filed against the defendant. Lemke had also contributed money to help
pay for the defendant=s
attorney=s fees. The
trial court granted the state=s
challenge for cause against Lemke. The Court of Criminal Appeals found no
error. Hawkins, 258 S.W.2d at 809.
Another
case upon which Hawkins relies is Rubenstein v. State, 407 S.W.2d 793
(Tex. Crim. App. 1966). Rubenstein is the AJack Ruby@
case (shooting of Lee Harvey Oswald). There, service of witnesses as jurors is
discussed in a concurring opinion where it was recognized that ten persons on
the jury had actually seen the shooting on television.
Wyle
v. State, 777 S.W.2d 709 (Tex. Crim. App. 1989), is another case upon which
Hawkins relies. In Wyle, the defendant was charged with capital
murder. Potential Juror Shotwell had been called to the scene of the crime by
someone in the sheriff=s
office. As the director of the only funeral home in the county, Shotwell was
obliged to remove the body. He was at the scene for a couple of hours and saw
the body of the victim as well as the blood at the scene. Shotwell visited with
the officers while at the scene of the crime because he knew all of those who
were investigating the crime. He also transported the body to the medical
examiner=s office.
Shotwell had also directed the funeral services for the victim. He was a
witness at a hearing to transfer venue of the case. The trial court overruled
appellant=s challenge
for cause. Wyle, 777 S.W.2d at 711-12. The Court of Criminal Appeals
held that the trial court erred when it overruled the challenge because it
should have been apparent that Shotwell was a witness in the case.
The
case before us is distinguishable from those relied upon by Hawkins. In those
cases, the record contained evidence that clearly showed that the potential
jurors were witnesses. Here, the juror did not even know that the hammer and
the black hosiery had been found behind his house until the officer testified
that the items had been found there. Further, there is nothing in the record
beyond mere conjecture as to what the juror knew about the case, if anything.
The
final case upon which Hawkins relies in support of this issue is Reyes v.
State, 30 S.W.3d 409 (Tex. Crim. App. 2000). Reyes dealt with the
issue of completion of a trial with eleven jurors when one juror became
disabled after the trial had started. See Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 2007). The case involved
a juror=s mental
condition or emotional state. No such evidence is presented here.
Hawkins
has not shown that the trial court abused its discretion when it denied the
motion for mistrial. We overrule the first issue on appeal.
Hawkins
asserts in some fourteen instances that he received ineffective assistance from
his trial counsel. In order to prevail on a claim of ineffective assistance of
counsel, an appellant must establish that his lawyer=s performance fell below an objective standard
of reasonableness and that there is a Areasonable
probability@ the
result of the proceeding would have been different but for counsel=s deficient performance. Strickland
v. Washington, 466 U.S. 668, 693-94 (1984); Mallet v. State,
65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001). A reasonable probability is a
probability sufficient to undermine confidence in the outcome of the trial. Hernandez
v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). The purpose of this
two-pronged test is to judge whether counsel=s
conduct so compromised the proper functioning of the adversarial process that
the trial cannot be said to have produced a reliable result. Thompson v.
State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999).
The
review of defense counsel=s
representation is highly deferential and presumes that counsel=s actions fell within a
wide range of reasonable professional assistance. Tong v. State, 25
S.W.3d 707, 712 (Tex. Crim. App. 2000). An appellant must overcome the presumption
that, under the circumstances, the challenged action might be considered sound
trial strategy. Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App.
1994); Hayden v. State, 155 S.W.3d 640, 648 (Tex. App.CEastland 2005, pet. ref=d). To overcome the
presumption of reasonable professional assistance, Aany allegation of ineffectiveness must be
firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness.@
Thompson, 9 S.W.3d at 814 (quoting McFarland v. State, 928 S.W.2d
482, 500 (Tex. Crim. App. 1996)).
Generally,
the record on appeal will not be sufficient to show that trial counsel=s representation was so
lacking as to overcome the presumption of reasonable conduct. Bone v. State,
77 S.W.3d 828, 833 (Tex. Crim. App. 2002). We do not inquire into trial
strategy unless no plausible basis exists for trial counsel=s actions. Johnson v.
State, 614 S.W.2d 148, 152 (Tex. Crim. App. 1981). When the record
contains no evidence of the reasoning behind trial counsel=s actions, we cannot
conclude that counsel=s
performance was deficient. Jackson, 877 S.W.2d at 771.
Hawkins
first assails his trial counsel=s
conduct in that she did not object when the State read the indictment during
its voir dire examination of the jury panel. Hawkins relies upon Tex. Code Crim. Proc. Ann. art. 26.11
(Vernon 1989), art. 36.01 (Vernon 2007) for the proposition that these are the
only provisions that allow for the reading of the indictment. We hold that
neither prohibits the reading of the indictment. Rather, Article 26.11
provides for one step in the arraignment process, and Article 36.01 simply
provides for the order of a trial. Neither contain a prohibition against the
reading of the indictment as a part of the voir dire process (except that prior
convictions used for enhancement are not to be read until the punishment phase
of the trial). See Article 36.01(a)(1). Hawkins has not established
that his trial counsel provided ineffective assistance to him when she did not
object to the prosecutor=s
reading of the indictment during voir dire examination of the jury panel.
Hawkins
next complains that his trial counsel was ineffective when she failed to object
to a Acommitment
question@ asked by the
prosecutor during voir dire. The question was: A[W]ho
here thinks DNA is reliable?@
The question was almost immediately changed to: AWho
here thinks DNA is unreliable?@
It is impermissible to attempt to bind or to commit a prospective juror to a
verdict based upon a hypothetical set of facts. Standefer v. State, 59
S.W.3d 177, 179 (Tex. Crim. App. 2001). A commitment question is one by which
a prospective juror commits to resolve, or to refrain from resolving, Aan issue a certain way
after learning a particular fact.@
Id. The question must first seek a commitment from the prospective
juror. The question asked by the prosecutor in this case did not seek a
commitment in that the prospective jurors were not being asked to bind
themselves Ato a
verdict based on a hypothetical set of facts.@
See id. Hawkins=s
trial counsel did not have a valid objection to the questions asked. Hawkins
has failed to establish that he was afforded ineffective assistance by his
trial counsel when she did not object to those questions.
Hawkins
apparently takes exception to the fact that his trial counsel did not file a Daubert[1]
motion regarding the testimony of Jody Hrabal, the State=s DNA expert, and the
testimony of a forensic chemist called by the State to testify regarding
casting of shoe prints found near the scene of the crime. Hawkins does not
tell us what information would have been uncovered by filing such a motion or
what the effect of such a motion might have been. Further, Hawkins does not
provide us with any evidence of the reasoning behind trial counsel=s conduct. Absent such, we
cannot conclude that trial counsel=s
performance was deficient. Isham, 2008 WL 2246657. Conjecture will
not overcome the presumption that trial counsel=s
conduct was reasonable. Counsel and the trial court held a bench conference
during which the court mentioned that trial counsel already had all of the DNA
expert=s materials.
Hawkins has not met his burden to show that his attorney rendered ineffective
assistance of counsel when she did not file a Daubert motion with regard
to these two witnesses.
The
State did not designate as a witness the forensic chemist who testified
regarding the shoe prints. Trial counsel did not object. Trial counsel did
not object under Tex. R. Evid.
702, either. Hawkins takes issue with both failures. Again, we have not been
presented with anything to show what would have been discovered, or what object
would have been achieved, by making these objections. Hawkins has not met his
burden to overcome the presumption that trial counsel=s representation was reasonable.
Hawkins
asserts that his trial counsel also offered him less than effective assistance
when she did not object to a portion of Hrabal=s
testimony. Hrabal testified that she was a forensic DNA analyst supervisor.
An analyst under her supervision performed DNA testing of a shirt Hawkins was
wearing at the time of the assault; the results of that testing revealed a
perfect mixture of Hawkins=s
DNA and the victim=s.
Hawkins claims that his trial counsel failed to provide him with effective
assistance when she did not object when the State did not lay a proper
predicate, she did not make a hearsay objection, she did not assert his right
to confrontation, and she did not make an effort Aunder
standards reflected in Cole vs. State, 839 S.W.2d 798 (Tex. Crim. App.
1990) and U.S. vs. Oates, 560 F.2d 45 (2nd Cir. 1977), as to the evidence
not fitting within or into any exception to the hearsay rule, and in fact, in
the trial of this cause, no proper predicate was laid.@ Hawkins has not pointed out in what
particulars the State failed to lay a proper predicate, how the testimony did
not fit into any exception to the hearsay rule, and exactly what Aefforts@ trial counsel failed to
make under generalized Astandards@ referred to by Hawkins.
Again, Hawkins makes broad, general statements and does not refer us to
evidence by which he overcomes the presumption that his trial counsel rendered
reasonably effective assistance to him. These alleged failures have not been
shown to have resulted in rendition of ineffective assistance to Hawkins.
Hawkins
next makes two general claims aimed at his trial counsel=s failure to call the DNA expert which had
been appointed to perform tests on behalf of Hawkins. It has not been shown to
what that expert would have testified. There is nothing in this record or in
Hawkins=s argument to
overcome the presumption that trial counsel rendered Hawkins reasonable
professional assistance in this regard.
Hawkins
faults his trial counsel for not filing a motion to suppress. He then makes
the comment Aalthough
there were discussions with regard to the extensive media coverage of this
crime had early in the trial of this cause.@
Hawkins has waived any error under this part of his presentation. Tex. R. App. P. 38.1(h). The same is
true of Hawkins=s
general statement, without more, that charge errors were made. Id.
Next,
Hawkins assails his trial attorney for not cross-examining the victim. It
seems that his main argument is related to identification: that the victim was
able to identify him because she was still talking to the 9-1-1 operator when
she was told by the operator that AI
think they have him.@
Hawkins has not presented us with anything to rebut the presumption that the
decision not to cross-examine the victim was sound trial strategy. Therefore,
Hawkins has not overcome the presumption that trial counsel=s decision not to
cross-examine the victim resulted in his receiving ineffective assistance of
counsel.
Hawkins
claims that his trial counsel should have called character witnesses. Again,
we are not provided with any evidence that such testimony does or does not
exist or with what that evidence would have been if offered. Hawkins has not
been shown that trial counsel was ineffective for failing to present character
evidence.
Hawkins
further attacks the representation afforded him because of trial counsel=s failure to object to the
State=s argument in
which it called Hawkins a coward. The argument was not objectionable because
it was proper as a reasonable deduction from the evidence. The Fort Worth
Court of Appeals, in holding that an argument that the appellant there was Athe biggest coward that
walks the face of the earth,@
has recognized that Texas courts have upheld arguments calling a defendant an
animal, a fool, vicious, a liar, a dog, a cold‑blooded killer, a jerk, a
troublemaker, and a one‑man crime wave and contending that a defendant Ahas no conscience, no
heart, no recognition of right or wrong [and is] perched on the rim of hell,
looking deep into it@
as reasonable deductions from the evidence in light of the facts of each case. Kennedy
v. State, 193 S.W.3d 645, 657 (Tex. App.CFort
Worth 2006, pet. ref=d)
(citing Belton v. State, 900 S.W.2d 886, 898 (Tex. App.C El Paso 1995, pet. ref=d); Vitiello v. State,
848 S.W.2d 885, 888 (Tex. App.CHouston
[14th Dist.] 1993, pet. ref=d);
Ledesma v. State, 828 S.W.2d 560, 563 (Tex. App.CEl Paso 1992, no pet.); Adams v.
State, 813 S.W.2d 698, 700‑01 (Tex. App.CHouston [1st Dist.] 1991, pet. ref=d); Garza v. State,
783 S.W.2d 796, 800 (Tex. App.CSan
Antonio 1990, no pet.); Varvaro v. State, 772 S.W.2d 140, 144 (Tex. App.CTyler 1988, pet. ref=d); Cates v. State, 752
S.W.2d 175, 177 (Tex. App.CDallas
1988, no pet.)). Hawkins has not shown that his trial counsel rendered
ineffective assistance when she did not object to the State calling him a
coward.
Hawkins
asserts that his trial counsel was ineffective because she failed to object
when the prosecutor made the statement: ADid
you see her [the victim] get cross-examined on one inconsistency? No.@ He also argues that the
prosecutor=s argument
that ADNA can set you
free@ was improper.
Hawkins=s claim that
these arguments are improper comments on his failure to offer evidence to
contest that he committed this crime is incorrect; they are reasonable
deductions from the evidence. Hawkins has failed to show that trial counsel=s legal assistance to him
was ineffective for failure to object to these two comments by the prosecutor.
Hawkins
refers to various places in the record where he claims his trial counsel=s failure to object to
improper arguments resulted in his being accorded ineffective assistance of
counsel. We have reviewed each of these general comments and the record to
which reference is made and cannot match the objection with the content of the
record. For instance, we are referred to Volume No. Five, pages 155-156
in connection with a claim that the argument constituted a comment on Hawkins=s failure to testify.
There is no comment on Hawkins=s
failure to testify in that portion of the record. The prosecutor makes
reference to a statement made by trial counsel during her opening statement
when she told the jurors to be sure to listen to what they did not hear. The
prosecutor then argues that what trial counsel was trying to do was to send
them Ato the jury room
with the unsubstantiated idea that there is something that you should have
heard but didn=t.@ This is not a comment on
Hawkins=s failure to
testify. Hawkins has not shown that trial counsel rendered ineffective
assistance when she did not object to it. The same is true as to Hawkins=s claims that the
prosecutor improperly argued that Hawkins did not offer any evidence to contest
his commission of the crime, that he expressed no remorse, and that he had no
consideration for the victim. Further, the issues regarding remorse and
consideration for the victim are logical deductions from the evidence. See
Kennedy, 193 S.W.3d at 657. Hawkins has not shown that he received
ineffective assistance of counsel in connection with these issues.
Hawkins
maintains that his trial counsel should have objected to improper jury argument
during the punishment phase of the trial. Although Hawkins directs us to two
pages of the reporter=s
record, he does not tell us specifically what part of those two pages are the
object of his claim that the argument was an improper appeal to community
expectations. We have reviewed the argument on those two pages of the record
and find that the prosecutor did not engage in improper jury argument. He
asked the jury to let people know that, if a person committed this type of
crime in Smith County, A[y]ou=re going to get life.@ He asked them to send a
message to people like Hawkins, and he also asked them to assess punishment at
life. In Goocher v. State, 633 S.W.2d 860, 864 (Tex. Crim. App. 1982),
the prosecutor argued, AI
am asking you to enforce it. I=m
asking you to do what needs to be done to send these type of people a message
to tell them we=re not
tolerating this type of behavior in our county.@
The court held that this argument was proper because it was not Aan unsworn assertion by the
prosecutor, as to the expectations or demands of the community for a particular
result.@ Goocher,
633 S.W.2d at 864-65. An argument is a proper plea for law enforcement if it
asks the jury to be the voice of the community, instead of asking it to lend
its ear to the community. Cortez v. State, 683 S.W.2d 419, 421 (Tex.
Crim. App. 1984). Because here, the argument was not an appeal based upon
unproven sentiments of the community, the argument was proper. Hawkins has not
met his burden to show that he was afforded ineffective assistance of counsel
for failure of his trial counsel to object to this argument.
Hawkins
also complains that his trial counsel was ineffective when she failed to object
when the trial court entered its judgment that a deadly weapon was used in the
commission of the offense when that issue was not submitted to the jury. To
the contrary, the jury found that Hawkins was guilty of aggravated sexual
assault as charged in the indictment. If an indictment alleges that the
offense was committed by using a deadly weapon, then a jury makes an
affirmative finding when it finds that the defendant is found guilty Aas charged in the
indictment.@ Polk
v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985). That is the case
here, and Hawkins has not shown that his trial counsel afforded him ineffective
assistance in this regard.
Trial
counsel waived argument in the guilt/innocence phase of this trial. Hawkins
claims that shows that his trial counsel did not know the law because she
apparently thought, mistakenly, that the State could not then argue further
because there was nothing for it to rebut. Assuming that there was such a
mistake by trial counsel, in view of the overwhelming evidence of guilt in this
case, Hawkins still has not satisfied the second prong of the Strickland test:
that there is a reasonable probability that the result of the proceeding would
have been different but for counsel=s
alleged deficient performance. See Strickland, 466 U.S. at 693-94.
The
record reflects that Hawkins was ably represented by his trial counsel. She
properly participated in pretrial discovery, engaged in voir dire of the jury
panel, and made many successful challenges for cause. She made appropriate
objections during the trial and conducted cross-examination as was
appropriate. Trial counsel was presented with evidence that showed that the
victim was sexually assaulted and that a deadly weapon was used during the
assault. Appellant was located in the near vicinity of the place where the
victim was assaulted, and he was wearing clothing that was described by the
victim. A hammer and black hosiery was used during the commission of the
crime, and the place where Hawkins was arrested was in the near vicinity of the
place where those items were found. Lab results conclusively proved that the
victim=s DNA was
located on pieces of Hawkins=s
shirt and underclothing. Hawkins has not met his burden to show, upon this
record, that trial counsel ineffectively represented him.
With
the possible exception of the matter involving waiver of jury argument, Hawkins
has not shown that trial counsel=s
performance fell below an objective standard of reasonableness. On the issue
of waiver of jury argument, Hawkins has not shown that there is a reasonable
probability that the result of the proceeding would have been different but for
counsel=s deficient
performance. Id. All of Hawkins=s
complaints regarding ineffective assistance of counsel have been considered,
and each is overruled.
We
affirm the judgment of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE
September 4,
2008
Publish. See
Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
| {
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} |
207 F.Supp. 718 (1962)
SHOPPERS FAIR OF ARKANSAS, INC., et al., Plaintiffs,
v.
The SANDERS COMPANY, Inc., Defendant.
No. 1616.
United States District Court W. D. Arkansas, Fort Smith Division.
August 17, 1962.
*719 Cole, Friedman & Deitz, New York City, Warner, Warner & Ragon, Fort Smith, Ark., for plaintiffs.
Bryan & Fitzhugh, Fort Smith, Ark., for defendant.
JOHN E. MILLER, Chief Judge.
STATEMENT
The above named plaintiffs filed their original complaint on October 25, 1961, in which they alleged that the acts of defendant, d/b/a "IGA Shoppers Fair," in Fort Smith, Arkansas, since its commencement in June 1961, constitute unfair competition with plaintiffs and an infringement of the rights of plaintiffs; that as a result of the sale operations and advertising of the plaintiffs and affiliates in states bordering Arkansas, the trade name and style, "Shoppers Fair," and distinctive means of plaintiffs' merchandising have developed and now have a secondary and distinctive trade name meaning to the public, and have come to and now do mean and stand for the stores, products and business operations of plaintiffs to the general public and to the general merchandising business throughout the United States; that the acts of the defendant impose a likelihood of injury to the business reputation of the plaintiffs, and that the distinctive quality of the trade marks, trade names, labels and forms of advertising of the plaintiffs would be diluted; that the plaintiffs intend to expand their line of business into the State of Arkansas and that the acts of the defendant are calculated to avail defendant of plaintiffs' valuable good will and are calculated to deceive and confuse the general public as to the source of goods purchased by them, so that the public is likely to believe that the goods of the defendant are goods of the plaintiffs, or that the plaintiffs are in some way connected with or in some way sponsors of defendant.
The defendant filed its answer on November 17, 1961, in which it denied the allegations of the complaint and specifically alleged that it commenced business as a retail grocery in Fort Smith under the name "IGA Shoppers Fair," at a time prior to incorporation of plaintiffs' Shoppers Fair of Arkansas, Inc., under the laws of the State of Delaware, or its qualification to do business in Arkansas; that the defendant operates a retail grocery store in which approximately 95 *720 percent of its sales in dollar volume are of groceries; that the defendant has not been in competition with any of the plaintiffs or their affiliates at any time or any place in that only 6 percent of defendant's sales are of wearing apparel, hardware, household appliances, sporting goods, cosmetics, etc., which are the line of goods sold by the plaintiffs or their affiliates; that the plaintiffs and affiliates have carried on none of their merchandising operations in the Fort Smith trade territory in particular, whereas the defendant's retail grocery operation has been carried on exclusively in Fort Smith.
Defendant further alleges that the words "IGA Shoppers Fair" have acquired a secondary meaning in the Fort Smith trade territory by means of advertising over radio and TV broadcasting stations and the newspapers, and in this manner has acquired valuable good will throughout the Fort Smith trade territory; that the words "Shoppers Fair" constitute a common name which the defendant had a right to appropriate in operation of its retail grocery store by using the trade name "IGA Shoppers Fair"; that the names "IGA Shoppers Fair" and "Shoppers Fair" are so dissimilar that no injury will result to the plaintiffs or affiliates by the defendant's use of its trade name, and that defendant commenced operations under the name "IGA Shoppers Fair" in good faith without prior knowledge of the use of the trade name "Shoppers Fair" by plaintiffs or affiliates.
On December 14, 1961, plaintiffs filed an amendment to their original complaint, in which they admitted that the plaintiff, Shoppers Fair of Arkansas, Inc., is a corporation organized under the laws of the State of Delaware, and maintains its principal offices in said state, that said plaintiff, Shoppers Fair of Arkansas, Inc., does no business in the State of Arkansas and does not maintain a place of business in the State of Arkansas at the present time.
On April 14, 1962, the plaintiffs filed a second amended complaint in which they reaffirmed and restated all allegations contained in the original complaint, and added as party plaintiffs the following:
Shoppers Fair of Baltimore, Inc.,
Shoppers Fair of Syracuse, Inc.,
Shoppers Fair of Rochester, Inc.,
Shoppers Fair of Evansville, Inc.,
Shoppers Fair of Indianapolis, Inc.,
Shoppers Fair of Detroit, Inc.,
Shoppers Fair of Akron, Inc.,
Shoppers Fair of Connecticut, Inc.,
Shoppers Fair of Flint, Inc.,
Shoppers Fair of Gary, Inc.,
Shoppers Fair of Columbus, Inc.,
Shoppers Fair of Dayton, Inc.,
Shoppers Fair of Saginaw, Inc.,
Shoppers Fair of South Bend, Inc.,
Shoppers Fair of West Vale, Inc.,
Shoppers Fair of Cleveland, Inc.,
Shoppers Fair of Wilmington, Inc.,
Shoppers Fair of East Detroit, Inc.,
Shoppers Fair of Livonia, Inc.,
Shoppers Fair of Pensacola, Inc.,
Shoppers Fair of Canton, Inc.,
Shoppers Fair of Down River, Inc.,
Shoppers Fair of Greece, Inc.,
Shoppers Fair of Speedway, Inc.,
Shoppers Fair of Battle Creek, Inc.,
Shoppers Fair of Jackson, Inc.,
Shoppers Fair of Lansing, Inc., and
Mangel Stores Corporation.
The plaintiffs further alleged that all of the plaintiffs including the additional ones are corporations organized and existing under the laws of the State of Delaware and constitute the affiliated corporations referred to in the original complaint, and that Mangel Stores, Inc., is the parent corporation and is the owner of all outstanding common stock of each of the co-plaintiffs.
On May 21, 1962, the defendant filed its answer to the amended complaint, in which it reaffirmed and restated all the allegations and statements set forth in its original answer as to each added plaintiff set forth in the amended complaint.
The case was tried to the court on May 22 and 23, 1962, and at the conclusion of the presentation of the testimony, it was *721 taken under advisement by the court subject to submission by the parties of briefs in support of their respective contentions. The briefs have been received, and the court, having considered the pleadings, the testimony adduced at the trial, the exhibits and briefs of counsel, now makes and files herein its Findings of Fact and Conclusions of Law, separately stated.
FINDINGS OF FACT
1.
The plaintiff, Mangel Stores, Inc., is a corporation incorporated under the laws of the State of Delaware with its principal office and place of business in New York City, New York.
2.
The plaintiff, Shoppers Fair of Arkansas, Inc., is a corporation incorporated under the laws of the State of Delaware. On the 11th day of August, 1961, it filed its application with the Secretary of State of Arkansas for authority to do business in Arkansas. However, Shoppers Fair of Arkansas, Inc., does no business in the State of Arkansas and does not maintain a place of business in the State of Arkansas, but it has designated an agent for service of process, which agent is a resident of Little Rock, Arkansas.
3.
The remaining co-plaintiffs are corporations incorporated under the laws of the State of Delaware with their principal offices and places of business in states other than the State of Arkansas.
4.
The defendant is a corporation incorporated under the laws of the State of Arkansas with its principal office and place of business in the City of Fort Smith, Arkansas.
5.
The amount in controversy in this cause exceeds the sum of $10,000.00, exclusive of interest and costs.
6.
The plaintiff, Mangel Stores, Inc., hereinafter called Mangel, was incorporated in 1929 and has been in continuous operation since that date. Prior to 1956 Mangel was the parent corporation of a chain of downtown retail department stores with department stores downtown in the larger cities in several states. These department stores operated in a conventional manner to the extent that sales people were employed to wait on customers and sell items in each individual department.
Later in 1955 Mangel became aware of a falling-off of business in its downtown department stores, and its officers sought a new means of merchandising its usual department store items. At that time Mangel became interested in developing another method of merchandising retail items, which consists of a self-service discount type of operation similar to the operation of supermarkets located in suburban shopping centers. The virtue of this new operation was that it would allow the plaintiff to continue to sell high-quality national brands of merchandise at discount prices by eliminating the need of sales people along with increasing the volume of sales characteristic of supermarket types of operations.
Mangel adopted the name "Shoppers Fair," which was to be applied to each of these new supermarket-type department stores because it considered the name to be an apt description of this form of retail merchandising. Since it contemplated more than one of this type department store, it distinguished each Shoppers Fair corporation by adding its geographical location either by designation of the city or the state in which it was to carry on its operations. Although Mangel did not register this particular trade name, it investigated the possibility of prior appropriation, and did not find there had been any prior users of the trade name "Shoppers Fair."
The first of the new enterprises, designated "Shoppers Fair of Bridgeport, Inc.," commenced operations early in 1956, and since that date Mangel has *722 caused to be incorporated an increasing number of Shoppers Fair discount department stores in various states throughout eastern, southern, southwestern and midwestern United States. This adopted method of retail merchandising has proven so successful that Mangel has been disposing of its conventional downtown department stores at every opportunity, and in the last two or three years has put into operation nine or ten new Shoppers Fair discount department stores each year.
7.
Each of the co-plaintiffs, the various Shoppers Fair discount department stores with the exception of Shoppers Fair of Arkansas, Inc., which has not commenced to do business in Arkansas, is actively engaged as a discount department store, the essence of which operations is uniformity. This results from the fact that each of these co-plaintiffs, including Shoppers Fair of Arkansas, Inc., is a wholly owned subsidiary of Mangel, the parent corporation and owner of all outstanding common stock of each of the co-plaintiffs.
Since Shoppers Fair of Tulsa, Inc., is located the shortest distance from Fort Smith (138 miles), and since the only evidence and testimony introduced that pertained to the operations of a Shoppers Fair store in particular was based on the operations of the Shoppers Fair of Tulsa, this court assumes that these operations represent a typical method of the operation of the other Shoppers Fair stores, aside from any special facts existing in the Tulsa trade area itself.
The Shoppers Fair of Tulsa, Inc., hereinafter called Tulsa, commenced its operations on September 29, 1960, at its present location in the Nathan Hale Shopping Center in Tulsa. There are a number of other retail establishments located in this same shopping center, all of which are considered by the plaintiff to be noncompetitive. Such establishments include, but are not confined to, a grocery supermarket, florist, pharmacy, hardware store, appliance dealer and shoe repair.
Tulsa's line of goods sold by the various departments consists of what is known as "hard" and "soft" goods, i. e., ready-to-wear clothing, cosmetics, appliances, hardware and a number of other nonperishable items. Shopping carts are made available for the use of customers while serving themselves, and most of the employees, other than the manager and his office staff, are engaged either in stocking the counters or shelves, or in checking out the customers after they have completed their shopping.
The name "Shoppers Fair" figures prominently in the store's operations. Although it appears on very few items of merchandise offered for sale, it does appear on the smock-like uniforms worn by the employees, on all of the price tags, on banners and signs posted throughout the interior of the store, and on paper bags and other wrappings of the packages. In these instances the name "Shoppers Fair" appears in light-colored letters on a dark oval background. The above device is in two forms. The first has no other lettering other than "Shoppers Fair." The other form has the words "Shoppers Fair" in large letters and above them appears the following in smaller letters: "Complete discount department store," and under the words "Shoppers Fair" appears the following in smaller letters: "Everything for the family and home." The same device appears in the newspaper ads, on the store's stationery, and on boxes and tape used in mailing. The store building proper is designated as "Shoppers Fair," which words consist of large free-standing letters. Also, in the parking lot in front of the building the words "Shoppers Fair" appear on a pylon-type of sign.
Since it commenced operations in 1960 the plaintiff has carried on an extensive campaign of advertising by use of the following media: both of the Tulsa newspapers, the Tulsa radio stations, both Tulsa TV stations, billboards on roads leading to and from downtown Tulsa, and by the use of direct mailing to Tulsa residents of sale notices. Tulsa has ordered no advertising through the *723 Fort Smith newspapers, radio stations, or the one Fort Smith TV station.
The trade area of the City of Tulsa, named the "Magic Empire," is stated by Tulsa businessmen to extend out to approximately a 150-mile radius, which would include eastern Oklahoma and western Arkansas. However, this trade area does not apply to Tulsa's line of business, which attracts the great majority of its customers from the metropolitan and suburban areas of the city proper. There have been only isolated instances, in which a customer has been asked to identify himself in connection with check cashing, by which Tulsa has ascertained that a customer is from eastern Oklahoma or western Arkansas.
8.
The defendant was incorporated in 1961 and began doing business under the trade name of "IGA Shoppers Fair" on June 8, 1961, in Fort Smith, Arkansas, as a grocery supermarket. The initials "IGA" stand for Independent Grocers Alliance, of which the defendant is a member. Under the terms of its written agreement with IGA, defendant has agreed to buy its merchandise from a central warehouse set up by the IGA and to use its initials in designating the name of its retail store. IGA on its part permits the defendant to purchase its grocery items at a reduced price made possible by volume buying, and it services defendant's accounts and assists in setting up the store and maintaining its operation. Approximately 95 percent of the goods sold by the defendant consists of fresh fruits, milk products, canned vegetables, frozen vegetables, cereals, dried fruits, fresh vegetables, frozen fruits, canned fruits, meats, spices, dried vegetables, bread, pastries, milk, eggs and flour. Most of these items sold are national brands and IGA brands, and are competitively priced. The remaining 5 percent of the items sold consist of cosmetics and various small items for the home.
Prior to and at the time the defendant was ready to open its new grocery supermarket for business, it had not selected a suitable name. The President of the defendant, Mr. Bob Sanders, wanted to use the name "Shopper" or "Shoppers" in the new name but could not think of a suitable combination of words. The new store building, which had been painted in bright colors and had been gaily decorated for the opening, attracted much attention from various passers-by, one of whom suggested to Mr. Sanders that the store was decorated "just like a fair." Upon hearing this comment, Mr. Sanders combined the words "Shoppers" and "Fair" and decided on the name "Shoppers Fair," by which name, preceded by the initials "IGA", the store has been identified since its opening. At the time he named the store Mr. Sanders had never heard of the name "Shoppers Fair" either in Tulsa or anywhere else. Approximately two weeks after the defendant's opening as "IGA Shoppers Fair," Mr. Sanders was informed of Tulsa's existence, and it was not until he received a certified letter from the plaintiffs' attorneys, dated August 15, 1961, that he became aware of plaintiffs' extensive use of the trade name "Shoppers Fair" in trade areas other than that of Tulsa. In compliance with his agreement with IGA, those initials precede the name "Shoppers Fair" at all times and in every transaction and connection in which the store's name is used. The IGA products that the store sells bear no other name than the initials "IGA", such products being sold in all IGA stores irrespective of the store's local designation.
The IGA Shoppers Fair is the only business activity of the defendant, and that activity is confined to that of a grocery supermarket, which depends upon self-service by the customers and large volume sales for its income and is typical of any other grocery supermarket-type of operation.
The defendant has confined its daily advertising coverage to Fort Smith newspapers, radio stations, and Fort Smith's only TV station. The area of coverage of these advertising media roughly corresponds to what is known as the Fort *724 Smith trade area, which area covers between 10 and 14 counties in western Arkansas and eastern Oklahoma within a 50-60 mile radius, and is considered to be an isolated trade area among advertising and mercantile circles. In his testimony, Mr. Paul Latture, President of the Fort Smith Chamber of Commerce, characterized the Fort Smith trade area as an "isolated market." When asked the meaning of this term and its origin, Mr. Latture stated that such a term means that a given trade area is independent, i. e., it has all the services from its own advertising media; that it enjoys its own social, agricultural, and economic activities; and that all of the above services and activities can be found within this territory. With respect to Fort Smith, Mr. Latture stated that within the city limits, "we have all the services that are necessary for human beings to live." The vast majority of defendant's customers reside in the Fort Smith area proper.
9.
There have been very few incidents of confusion between the discount department store operation known as "Shoppers Fair of Tulsa, Inc.," and the grocery supermarket operation known as "IGA Shoppers Fair." In November 1961 an invoice for chocolates from the Rockwood Chocolate Company of Brooklyn, New York, to IGA Shoppers Fair was billed to Mangel as the parent corporation of the several Shoppers Fair discount department stores, which misunderstanding was cleared up when Mangel refused to pay same and returned the bill to the candy company, which then proceeded to correctly bill IGA Shoppers Fair for the shipment of candy. Salesmen for various suppliers from time to time have asked the personnel of Shoppers Fair of Tulsa, Inc., whether they have a branch in Fort Smith. In these cases their misapprehension was corrected by personnel of plaintiff, and there has been no record of any sales made or lost because of such mistake. Some customers have asked the same question of sales persons, but there, too, their mistakes have been pointed out and there is no record of any purchases having been made based on such mistakes. Within the last few months the Shoppers Fair discount department stores have begun to stock such items with the trademark "Shoppers Fair" as regular coffee, instant coffee, liquid detergent, all-purpose cleaner, floor wax, regular cleaner and floor cleanser. Milk and tea bags of the same trademark are programmed to be sold in the near future.
10.
The only indication of actual competition between the defendant and Tulsa appears to occur in those food and non-food items which both parties sell in their retail stores. Such items will include coffee, various cleansers, and cosmetics and toiletries, as well as minor household items. However, the overlap appears to occur mainly in those non-food items which the defendant stocks in order to supply any needs of the "impulse" grocery buyer, and in the case of Tulsa any food items that it stocked appear to cater to the same impulses of its customers. In other words, the overlap occurs in more or less subsidiary items carried by each party, Tulsa being primarily engaged in the selling of hard and soft nonperishable goods, and the defendant being engaged in the selling of various food items.
There is no indication that either party has lost business because of the other party's merchandising operations, nor does it appear that either party has traded upon or benefited from the other party's trade name.
11.
In keeping with its program of expansion, Mangel has incorporated "Shoppers Fair of Arkansas, Inc.," with an end in view of locating a store either in Little Rock or Fort Smith, and Mangel, through its officers, has conducted a thorough investigation of each location. At each location there are many factors to be taken into consideration, the most important of which consist of the situation of the store proper, leasing arrangements *725 that are available and potentialities of the trade area in general. At this time there is no indication as to whether Mangel has chosen either or both Little Rock or Fort Smith as a proposed location for a Shoppers Fair discount department store, and furthermore there is no indication as to the date that such choice will be made, or if made, when it will be acted upon.
DISCUSSION
The court's jurisdiction is based on diversity of citizenship and amount involved. The claim of plaintiffs is based upon the alleged infringement of a common-law trade name and not a federally registered trade name, and the court must follow the conflict of laws rule prevailing in the state in which it sits. Therefore, the whole substantive law of Arkansas is the applicable law. Klaxon Co. v. Stentor Electric Mfg. Co., (1941) 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; and Addressograph-Multigraph Corp. v. American Expansion Bolt & Mfg. Co., (7 Cir. 1941) 124 F.2d 706.
Since the plaintiffs conduct their operations in the State of Oklahoma and other states and the defendant conducts its operations in the State of Arkansas, the court is required to determine which law, under the Arkansas rules of conflict of laws, would govern the present case. In 148 A.L.R., page 142, this problem is taken up, and the editors of the annotation conclude that the rule that issues of substantive law in an action for unfair competition are governed by the law of the place of wrong requires a definition of what constitutes the place of wrong. In the situation before the court the question then arises whether the place of wrong is (1) the place where the plaintiffs conduct their business, or (2) the place where the defendant conducts its business and from which it sells its goods, or (3) the place where the defendant's goods are actually delivered to the purchaser who is allegedly deceived as to their origin. There have been no Arkansas cases or cases from any other jurisdiction which directly answer this question. However, in Leflar, The Law of the Conflict of Laws, (1959) Sec. 111, p. 210, it is stated:
"* * * The orthodox rule, with torts as with crimes, is that when an act operates across a state line its legal character is determined by the law of the place where it first takes harmful effect or produces the result complained of."
Taking these rules into consideration and the fact that the defendant conducts its business in Arkansas and its goods are actually delivered to the purchasers who are allegedly deceived in Arkansas, therefore the first harmful effect has occurred in Arkansas. Then it is apparent that under the Arkansas conflict of laws rules, the Arkansas substantive law governing unfair competition would apply to the instant case.
It has often been held that Arkansas law is in accord with the general law governing unfair competition, and a recent statement to this effect was made in the case of Liberty Mutual Ins. Co. v. Liberty Ins. Co. of Texas, (E.D.Ark. 1960) 185 F.Supp. 895, at page 903:
"To the extent that the rights of the parties to this action may be governed by Arkansas law, it may be said that the Arkansas law of trade-marks, trade names, and unfair competition appears to be orthodox and in accord with the general principles heretofore stated. See Liberty Cash Groceries, Inc. v. Adkins, 190 Ark. 911, 82 S.W.2d 28; Fine v. Lockwood, 179 Ark. 222, 14 S.W.2d 1109; Beneficial Loan Corporation v. Personal Loan & Finance Corporation, supra [D.C.], 100 F.Supp. [838], at page 845."
A preliminary contention of the plaintiffs is that the defendant, being a corporation, has no legal right to carry on its business under an assumed name, to-wit: "IGA Shoppers Fair." Actually this contention is not material at this stage of the proceedings since it was not pleaded in the complaint nor was any evidence introduced to support it. Ark. *726 Stat.Ann., Sec. 70-401 (1957 Repl.), which prohibits any person from conducting business under an assumed name unless duly registered, does not apply to any domestic or foreign corporation lawfully doing business in the state. Ark. Stat.Ann., Sec. 70-404 (1957 Repl.).
The main issue in the case is whether the defendant is guilty of unfair competition by means of trade name infringement. In answering this question the court must resolve the subsidiary issues of (1) whether the trade names involved in the present action have acquired a secondary meaning in the Fort Smith trade area; and (2) whether confusion exists at present or is likely to arise in the future in the mind of the ordinary purchaser which would result in one party gaining an unfair advantage over the other.
Although neither side has registered the trade name "Shoppers Fair," all contend that the name has acquired a secondary meaning in the Fort Smith trade area which entitles each of them to protection from infringement by the other, which amounts to unfair competition. This court and many other courts have had occasion to put the concept of unfair competition by means of trade infringement, as well as the subsidiary concept of secondary meaning which a trade name must acquire in order to be protected in the first place, in their proper relationship, as well as to give consideration to the public policy on which such actions as the present one are based. In King Pharr Canning Operations v. Pharr Canning Company, 85 F.Supp. 150, at page 153 (W.D.Ark.1949), this court stated:
"The law of trade-marks is ordinarily inseparably connected with the law of unfair competition, with the former being but a part of the broader field of the latter. Thus, even though a mark has not been registered or is incapable of becoming a valid trade-mark, because it may not be exclusively appropriated by any one person, still, in a proper case, one may be protected under the law of unfair competition from the acts of another in passing off the latter's goods or business for the goods or business of the former. The protection, of course, runs to the business man or merchant injured and to the public, the protection of the public from such deceitful practices being of primary consideration. Too, there is the underlying principle of promoting honesty and fair dealing. See: Nims, Unfair Competition and Trade-Marks, Volume 1, Chapter 11, page 36, for a discussion of the basis of the action for unfair competition."
Several decisions on this subject deal in matters involving trade-marks of goods rather than in trade names as are involved in the present case. The case of American Steel Foundries v. Robertson, 269 U.S. 372, at page 380, 46 S.Ct. 160, at page 162, 70 L.Ed. 317 (1926), clears up any confusion as to the difference between a trade-mark and a trade name, in which the court stated:
"Whether the name of a corporation is to be regarded as a trade-mark, a trade name, or both, is not entirely clear under the decisions. To some extent the two terms overlap, but there is a difference more or less definitely recognized, which is, that, generally speaking, the former is applicable to the vendible commodity to which it is affixed, the latter to a business and its good will. See Ball v. Broadway Bazaar, 194 N.Y. 429, 434-435, [87 N.E. 674]. A corporate name seems to fall more appropriately into the latter class. But the precise difference is not often material, since the law affords protection against its appropriation in either view upon the same fundamental principles."
The two essential elements of an unfair competition action based on trade-name infringement were stated in the case of McGraw-Hill Publishing Co. v. American Aviation Associates, 73 App. D.C. 131, 117 F.2d 293, at page 296 (D.C. *727 Cir.1940), in which the court made this statement:
"* * * Unfair competition in the trade name field is not concerned with intent or plan; it is enough if the acts of the defendant in light of the plaintiff's reputation result in an unfair benefit to the former. To constitute unfair competition in respect to a trade name, two elements must be present. The name must have acquired a secondary meaning or significance that identifies the plaintiff; the defendant must have unfairly used the name or a simulation of it against the plaintiff."
The concept of secondary meaning has been defined recently in the case of Liberty Mutual Ins. Co. v. Liberty Ins. Co. of Texas, 185 F.Supp. 895, at page 903 (E.D.Ark.1960), in which the court stated:
"There are certain names, marks, and symbols which in their primary sense are merely generic or descriptive and do not ordinarily indicate the origin of goods or services. Such names, marks, or symbols, when used in their primary sense, cannot form the subject matter of a trade or service mark. However, a name, mark, or symbol by long and exclusive use and advertising by one person in the sale of his goods and services may become so associated in the public mind with such goods or services that it serves to identify them and distinguish them from the goods or services of others. When such an association exists, the name, mark, or symbol is said to have acquired a `secondary meaning' in which the original user has a property right which equity will protect against unfair appropriation by a competitor. Armstrong Paint & Varnish Works v. Nu-Enamel Corporation [305 U.S. 315, 59 S.Ct. 191, 83 L.Ed. 195], supra; Katz Drug Co. v. Katz, 8 Cir., 188 F.2d 696; Beneficial Industrial Loan Corporation v. Kline, 8 Cir., 132 F.2d 520; Beneficial Loan Corporation v. Personal Loan & Finance Corporation, D.C.Ark., 100 F.Supp. 838; 87 C.J. S., [Trade-Marks, Trade-Names and Unfair Competition] supra, § 90. A trade-mark or a trade name may have acquired a secondary meaning in one locality but lack such a meaning in another. Schwartz v. Television Center, 89 U.S.App.D.C. 30, 189 F.2d 691; Beneficial Industrial Loan Corporation v. Allenstein, 5 Cir., 173 F.2d 38; Griesedieck Western Brewery Co. v. Peoples Brewing Co., 8 Cir., 149 F.2d 1019. Whether in a given case a name, mark, or symbol has acquired a secondary meaning is a mixed question of law and fact `with the factual aspects predominating.' Beneficial Loan Corporation v. Personal Loan & Finance Corporation, supra, 100 F.Supp. at page 846."
Under the above definition plaintiffs contend that the name "Shoppers Fair" has become universally associated with its discount retail operations in the sale of hard and soft goods as carried on in Tulsa and in trade areas located in other states. By the same token the defendant contends that the name "Shoppers Fair" preceded by the initials "IGA" conveys only one meaning in the Fort Smith trade area, and that is the defendant's operation of the retail grocery supermarket.
This court, having carefully considered all of the facts and the applicable law, is of the opinion that insofar as the plaintiff, "Shoppers Fair of Tulsa, Inc.," and other plaintiffs are concerned, their trade name of "Shoppers Fair" has acquired a secondary meaning limited to the Tulsa trade area and other trade areas, which areas do not include Fort Smith. As for the defendant, the name of its supermarket, "IGA Shoppers Fair," has acquired a secondary meaning in the Fort Smith trade area only. As for the plaintiff, "Shoppers Fair of Arkansas, Inc.," since it has not commenced operation at all, its name has no secondary meaning in any trade area of the State of Arkansas. As stated by the *728 court in the case of Beneficial Loan Corp. v. Personal Loan & Finance Corp., (E.D. Ark.1951) 100 F.Supp. 838, at page 848:
"* * * The fact that a trade mark or trade name may have acquired a secondary meaning in one locality does not mean that it has acquired such meaning in an entirely different trade area where the public is unfamiliar with such name or mark. Liberty Cash Groceries, Inc. v. Adkins [190 Ark. 911, 82 S.W.2d 28], supra; Fine v. Lockwood [179 Ark. 222, 14 S.W.2d 1109], supra; Katz Drug Co. v. Katz, both decisions, supra; Griesedieck Western Brewery Co. v. Peoples Brewing Co., 8 Cir., 149 F.2d 1019, 1022; Beneficial Industrial Loan Corporation v. Allenstein, 5 Cir., 173 F.2d 38; Schwartz v. Television Center, [89 U.S.App.D.C. 30] D.C.Cir., 189 F.2d 691, 692. In the case last cited the Court quoted with approval from Nims, `Unfair Competition,' 3d Ed., Section 37, where it is said: `Secondary meaning is association, nothing more. It exists only in the minds of those of the public who have seen or known or have heard of a brand of goods by some name or sign and have associated the two in their minds.'"
The association in the public mind in each of the above trade areas has been confined to the secondary meaning of the dominant trade name in the respective trade area, and there has been no overlapping of one secondary meaning into another trade area to any noticeable extent.
In this connection plaintiffs contend that due to the large number of their sister stores, which surround the State of Arkansas, the secondary meaning of the name "Shoppers Fair" has all but pervaded the atmosphere of the whole State of Arkansas, and the Fort Smith trade area particularly, and since the property right of the prior appropriator or user in the name follows the business, defendant has no right to continue to use the same name in the conduct of its retail operations in the Fort Smith trade area. This reasoning is without merit and carries little weight, for as the court said in the case of Katz Drug Co. v. Katz, (E.D.Mo.1950) 89 F.Supp. 528, at page 536:
"Plaintiff, in support of its argument, emphasizes the fact that it operates a system of chain stores. `It makes no difference that the first user of a trade name operates his own business through multiple units located in different parts of the state. The right of a chain store operator is no different than that of others. (Citations.)' Direct Service Oil [Co.] v. Honzay, 1941, 211 Minn. 361, 2 N.W.2d 434, 437, 148 A.L.R. 1."
The Eighth Circuit Court of Appeals in its opinion affirming the same case stated in 188 F.2d 696, at page 699, as follows:
"It appeared to the trial court that although the cases of Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713, United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 39 S.Ct. 48, 63 L.Ed. 141, and Sweet Sixteen Co. v. Sweet `16' Shop, 8 Cir., 15 F.2d 920, do not present the particular state of facts found to exist in this case, they do furnish a guide to the law to be applied. They settle in this circuit that there is no such thing as property in a trade-mark except as a right appurtenant to an established business or trade with which the mark is employed and that as stated by the trial court, `An injunction [to protect exclusive enjoyment of trade name] must be limited in regard to territory.' See Cook Chemical Co. v. Cook Paint & Varnish Co., 8 Cir., 185 F.2d 365.
* * * * * *
"The appellant's contention that because its trade name has had secondary meaning in Kansas City, Missouri, it should be held to have the same meaning throughout the state of Missouri and therefore in the St. Louis area, appears to be *729 without merit. It is in conflict with the concept of property in a trade name being exclusively a right appurtenant to an established business or trade with which the mark is employed. The exception appears to be the cases that rest on state statutes conferring state-wide protection. See e. g. ABC Stores, Inc. v. T. S. Richey & Co., Tex.Com.App., 280 S. W. 177."
The plaintiffs further contend that their trade name is "coined" and "fanciful", and therefore under the rule in the case of Stork Restaurant v. Sahati, (9 Cir. 1948) 166 F.2d 348, it is entitled to a higher degree of protection. This court does not agree that under the present facts plaintiffs' name is so unique as to deserve extra protection. Since it has not attained the status of a technical name, plaintiffs must rely on the doctrine of secondary meaning in order to gain protection, and in this respect any peculiar characteristic of the name in question is but one of many factors to be taken into consideration. In the case of Landers, Frary & Clark v. Universal Cooler Corp., (2 Cir. 1936) 85 F.2d 46, at page 48, Judge Learned Hand aptly evaluated the possibility of degrees of secondary meaning as follows:
"* * * It is quite true that, just as a coined word is easier to protect than a word of common speech upon goods on which the owner has used it, so it is easier to prevent its use upon other kinds of goods. The proprietary connotation, `secondary meaning,' of a word of common speech is harder to create and easier to lose, and its fringe or penumbra does not usually extend so far as that of a coined word. But that is matter of proof and of that alone; if the owner can in fact show that the fringe does extend to other goods there is no reason why his interest should not be recognized. His interest is exactly the same as though the mark were a coined word (his reputation and his chance to extend his sales); and while the plagiarist has a better excuse because the law recognizes that all have an interest in the free use of the language, the conflict is between the same interests as when the owner seeks to protect the name upon goods which he has sold. It would therefore be wrong to make any absolute distinction between coined, and colloquial, names. Nor do such cases as Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713, and United Drug Co. v. [Theodore] Rectanus Co., 248 U. S. 90, 39 S.Ct. 48, 63 L.Ed. 141, offer any difficulty."
Therefore to the extent that the doctrine of secondary meaning is applicable to the instant case, it is the opinion of the court that the trade name "Shoppers Fair" as used by any of the plaintiffs as discount department stores does not extend beyond the boundaries of any of their respective trade areas, and in no case has their use of the name "Shoppers Fair" extended to any part of the State of Arkansas. Specifically this applies to the plaintiff "Shoppers Fair of Tulsa, Inc.," with reference to the Fort Smith trade area in western Arkansas. As for the defendant, its use of the trade name "IGA Shoppers Fair" has acquired a secondary meaning in the Fort Smith trade area as a grocery supermarket, but it is limited to this particular trade area.
Since the element of secondary meaning applies to the use of "Shoppers Fair" as a trade name by the plaintiffs and the defendant in their respective spheres of operation, the court must determine whether the defendant is guilty of unfair competition by the present use of the name "IGA Shoppers Fair" and whether its further use will result in unfair competition.
The doctrine of unfair competition with respect to infringement on a trade name was recently defined in the case of Liberty Mutual Ins. Co. v. Liberty Ins. Co. of Texas, 185 F.Supp. at page 903, supra, as follows:
"In a case of this kind `unfair competition' may be defined, in general, *730 as a course of dealing which leads, or is likely to lead, the public into believing that the goods or services of one supplier are those of another. 87 C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 13, and cases there cited. While it has been held that a charge of unfair competition cannot be sustained absent proof of subjective fraudulent intent on the part of the defendant, the rule now seems to be that `proof of a fraudulent intent is not required where the necessary and probable tendency of defendant's conduct is to deceive the public, and pass off his goods or business as and for that of plaintiff, especially where only preventive relief against continuance of the wrong is sought or granted.' 87 C. J.S., supra, § 93, pages 334-335. And in Armstrong Paint & Varnish Works v. Nu-Enamel Corporation, supra, 305 U.S. at page 325, 59 S.Ct. at page 196, it was said that the facts supporting a suit for infringement of a trade-mark and one for unfair competition are substantially the same."
This court has had occasion to define unfair competition by appropriation of another's trade name in advertisements in the case of Heuer v. Parkhill, (W.D. Ark.1953) 114 F.Supp. 665, at page 670:
"The following quotations illustrate the law relating to the copying of advertising matter by competitors:
"`The general rule is that the appropriation of another's advertising matter or method is not of itself unfair competition, although it may become such where it induces or may induce the public to suppose that in dealing with the appropriator they are dealing with or obtaining the product or services of the originator * * *'. 52 Am.Jur., Trademarks, Tradenames, and Trade Practices, Section 116, Page 595.
"`Unfair competition begins where imitation results in the deception of the customers of the party complaining.' International Heating Co. v. Oliver Oil Gas Burner & Machine Co., 8 Cir., 288 F. 708, 711, 30 A.L.R. 611.
"`At 26 R.C.L. 875 it is stated: "Unfair competition ordinarily consists in the simulation by one person for the purpose of deceiving the public, of the name, symbols, or devices employed by a business rival, or the substitution of the goods or wares of one person for those of another, thus falsely inducing the purchase of his wares and thereby obtaining for himself the benefits properly belonging to his competitor."' Esskay Art Galleries v. Gibbs, 205 Ark. 1157, 1162, 172 S. W.2d 924, 926."
See, Southwest Industrial Products, Inc. v. Ezee Stone Cutter Mfg. Co., (W.D. Ark.1957) 157 F.Supp. 208, aff'd 8 Cir., 262 F.2d 183.
In actions similar to the instant one the general rule was that the prior appropriation of the trade name was protected so long as there was direct competition from any other would-be appropriator. This rule was stated by the Eighth Circuit in the case of Sweet Sixteen Co. v. Sweet "16" Shop, (8 Cir. 1926) 15 F. 2d 920, at page 923:
"Confessedly, then, the general rule is that, while the first appropriator and user of a trade-mark owns such mark and is entitled to protection by the courts in the use thereof, against subsequent users on the same class of goods, such protection will not be afforded as against a subsequent user and appropriator, who in good faith adopts and uses the mark in territory into which the goods of the first appropriator have not penetrated and have not been used or sold. Hanover Milling Co. v. Metcalf, supra; United Drug Co. v. Theodore Rectanus Co., suppra."
However, the trend is away from this strict requirement of direct competition, and the Eighth Circuit Court of Appeals *731 has had occasion in two contemporaneous cases to express this modern trend. In the case of General Finance Loan Co. v. General Loan Co., 163 F.2d 709, at page 711, the court made the following statement:
"It is true that under the early English and American cases absence of direct competition in the same identical field of business was a good defense to a charge of unfair competition. But in this country that rule has been progressively relaxed in many jurisdictions in suits to enjoin unfair competition. 52 Am.Jur., Trademarks, Tradenames, Etc., §§ 97, 142; Lady Esther, Ltd., v. Lady Esther Corset Shoppe, Inc., 317 Ill.App. 451, 46 N.E.2d 165, 148 A.L.R. 6; Aunt Jemima Mills Co. v. Rigney & Co., 2 Cir., 247 F. 407, L.RA.1918C, 1039; British-American Tobacco Co., Ltd. v. British-American Cigar Stores Co., 2 Cir., 211 F. 933, Ann.Cas.1915B, 363."
The same court in the case of Hanson v. Triangle Publications, 163 F.2d 74, at page 78, then stated the present law on this subject:
"* * * Under present general law, the use of another's mark or name, even in a noncompetitive field, where the object of the user is to trade on the other's reputation and good will, or where that necessarily will be the result, may constitute unfair competition. See e.g. Yale Electric Corporation v. Robertson, 2 Cir., 26 F.2d 972, 974; Del Monte Special Food Co. v. California Packing Corporation, 9 Cir., 34 F.2d 774; Atlas Diesel Engine Corp. v. Atlas Diesel School, D.C., E.D.Mo., 60 F.Supp. 429. This inherently would seem to imply though the cases are not unanimous in their theory such a reputation and good will in the circumstances as to make it likely that the public will be confused or deceived by the particular use."
Returning to the General Finance Loan Co., 163 F.2d at page 712, supra, the court considered what it described as "the ultimate question" of the effect of confusion on the general public:
"* * * The ultimate question is not, therefore, whether the evidence shows actual confusion but whether confusion is likely to result in the use of similar corporate names of parties engaged in kindred businesses in the same territory, or whether the names of the defendants are so distinguished from that of the plaintiff as to prevent any probable confusion. Furniture Hospital v. Dorfman, 179 Mo.App. 302, 166 S.W. 861, 863. The question of confusion is one of fact, but it is not incumbent upon the plaintiff to allege and prove actual confusion or deception, but only such similarity of names with other facts and circumstances as to show that confusion may result. Supreme Lodge of World, Loyal Order of Moose v. Paramount Progressive Order of Moose, 224 Mo.App. 276, 26 S.W.2d 826; Mary Muffet, Inc., v. Smelansky, Mo.App., 158 S.W.2d 168."
Thus, under the present general rule the criteria of confusing the public mind has been carried to the extent of eliminating the necessity of direct competition not only in a geographical sense but also in the same class goods. This rule was stated in Brown & Bigelow v. B · B Pen Co., (8 Cir. 1951) 191 F.2d 939, at page 944:
"* * * But when considering the question whether or not confusion will be caused in the minds of purchasers as to the origin of products, the existence or absence of competition does not rule out consideration of the fact that the parties are engaged in business with different classes of trade. In Cook Chemical Co. v. Cook Paint & Varnish Co., supra, the court recognized and gave consideration to the fact that the parties were not selling the same product, but the court found in that case that there was nevertheless confusion in the minds of the public *732 and a mistaken belief that Cook Chemical's products emanated from the Cook Paint & Varnish Company."
In spite of the judicial trend which acknowledges that actual competition is not the sole criteria of unfair competition, and that the latter may result from the dilution of business good will in ways not connected directly with the possible loss of a sale through deception or confusion as established in the case of Stork Restaurant v. Sahati, supra; yet in cases where there is an absence of market competition or confusion of source, the courts have placed considerable weight on the factor of complete absence of any competition at all. Fairway Foods v. Fairway Markets, (9 Cir. 1955) 227 F.2d 193. In the case of Sunbeam Furniture Corp. v. Sunbeam Corp., (9 Cir. 1951) 191 F.2d 141, the court stated as follows beginning at page 144:
"The California corporation also claims that the trial court erred in issuing its injunction against its use of the name `Sunbeam Furniture Corp.' As to this aspect of the case, the evidence reveals neither market competition nor confusion of source. The business to which the word `Sunbeam' is applied as a mark is entirely different from that of the Illinois corporation. It is true that actual competition, while an important factor to consider, is not a necessity to the granting of relief. Del Monte Special Food Co. v. California Packing Corp., 9 Cir., 1929, 34 F.2d 774; Stork Restaurant v. Sahati, 9 Cir., 1948, 166 F.2d 348; Safeway Stores, Inc., v. Dunnell, 9 Cir., 1949, 172 F.2d 649, certiorari denied, 337 U.S. 907, 69 S.Ct. 1049, 93 L.Ed. 1719; Lane Bryant Inc., v. Maternity Lane, Limited, of California, 9 Cir., 1949, 173 F.2d 559. Nevertheless, where market competition is absent, it is a corollary that the likelihood of confusion in the mind of the buyer decreases."
In the instant case the evidence does not establish direct market competition between the parties either geographically or by similarity of goods sold. Each party is situated in a different and distinct trade area and is engaged in high volume sales of low-cost merchandise, of which there is not more than a 5 to 6 percent overlap in similarity of the goods sold.
Thus, in the absence of competition plaintiff must establish confusion of source which includes dilution of the senior appropriator's trade name by a knowing junior appropriator.
The doctrine of confusing similarity and its factors, upon which an action for unfair competition based on trade-name infringement lies, is stated in the recent case of Standard Oil Co. v. Standard Oil Co., (10 Cir. 1958) 252 F.2d 65, beginning at page 72:
"* * * There is confusing similarity `if prospective purchasers are likely to regard it [the offending designation] as indicating the source identified by the trade-mark or trade-name.' Factors bearing on the question of confusing similarity as stated in Restatement of the Law, Torts, vol. 3, sec. 729, pp. 592-593, were listed with approval by this court in Avrick v. Rockmont Envelope Co., 10 Cir., 155 F.2d 568, 572. So far as pertinent these factors are:
"(1) Degree of similarity in appearance, sound and meaning;
"(2) Intent of the defendants in adopting and using the term * *; and
"(3) The degree of care likely to be exercised by purchasers.
* * * * * *
"While in some cases, particularly those involving labels, the question of confusing similarity may be determined by visual observation of the words, signs, or symbols involved, the test is not solely such a `juxtaposition comparison.' The setting in which the designations are used must be considered. As said in Avrick, *733 supra, 155 F.2d at pages 572-573:
"`It is the total effect produced by the designation in the mind of the ordinary purchaser, exercising due care in the market place.'"
* * * * * *
"Infringement is not to be determined on the basis of the words or symbols themselves to the exclusion of other considerations. It is not necessary for similarity to go only to the eye or the ear for there to be infringement. The use of a designation which causes confusion because it conveys the same idea, or stimulates the same mental reaction, or has the same meaning is enjoined on the same basis as where the similarity goes to the eye or the ear. Confusion of origin of goods may be caused alone by confusing similarity in the meaning of the designations employed. The whole background of the case must be considered."
As stated above, the first factor is degree of similarity of the trade names in question. As for the similarity of meaning, this court has stated already that the name "Shoppers Fair" in the Tulsa trade area has a secondary meaning distinct from the name "IGA Shoppers Fair" as used in the Fort Smith trade area both among retail customers and trades people. Of course, the names have a similar sound, but the initials "IGA" are sufficiently distinct to set apart the defendant's trade name from that of the plaintiff.
As to appearance, this court has found that the trade name of each party is depicted in a different manner, the most important of which is that the defendant's name is preceded by the initials "IGA". Plaintiffs contend the addition of these initials to a common trade name is not significant, but in the case of Daggett & Ramsdell, Inc. v. I. Posner, Inc. (C.C.P.A.1960) 277 F.2d 952, at page 954, the court stated the rule as follows:
"On several other occasions various courts have disregarded the surname in a trademark because it was determined that the rest of the mark was dominant. See California Prune & Apricot Growers Association v. Dobry Flour Mills, Inc., 101 F.2d 838, 26 CCPA 910; Ambassador East, Inc. v. Orsatti, Inc., 3 Cir., 1958, 257 F.2d 79; Miles Shoes, Inc. v. R. H. Macy & Co., Inc., 2 Cir., 1952, 199 F.2d 602. On the other hand, in a number of instances the surname has been found to be the dominant part of the mark, or at least significant (and perhaps no less dominant than the rest of it), and has, accordingly, been considered by the courts in determining the issue of the likelihood of confusion. Yard-Man, Inc. v. Savage Arms Corp., 220 F.2d 782, 42 CCPA 862; Best & Co. v. Miller, 2 Cir., 1948, 167 F.2d 374; New Yorker Hotel Corporation v. Pusateri, D.C.W.D. Mo.1949, 87 F.Supp. 294. Thus, it is apparent that a surname can be a significant or co-equal portion of a trademark and must not always be totally disregarded in deciding a question of confusing similarity."
This court is of the opinion that the presence of the initials "IGA," as a "surname" or "family" name denoting a "family" of grocery supermarkets, is significant in the present case not only because its distinctive appearance sets apart defendant's trade name of "Shoppers Fair" from the same trade name used by the plaintiffs, but the "IGA" itself has a secondary meaning in the trade areas of Tulsa and Fort Smith as well as in several other trade areas in Arkansas, Missouri and Oklahoma as an independent grocery supermarket chain. Thus, any use of the distinctive initials "IGA" by any merchant in the above trade areas, regardless of the name that follows, would designate him as a retail grocery supermarket proprietor, who is a member of the Independent Grocers Alliance.
The second factor bearing on the factor of confusing similarity is that of intent of the defendant in adopting and using the name "Shoppers Fair." A recent *734 statement of the liability of a knowing junior user is stated in the case of Pike v. Ruby Foo's Den, Inc., (1956) 98 U.S. App.D.C. 126, 232 F.2d 683, at page 686 as follows:
"The Federal cases are virtually unanimous against a knowing junior user. See, for example, Food Fair Stores, Inc., v. Food Fair, Inc., 1 Cir., 1949, 177 F.2d 177; Stork Restaurant, Inc., v. Sahati, 9 Cir., 1948, 166 F.2d 348; White Tower System, Inc., v. White Castle System, 6 Cir., 1937, 90 F.2d 67; Buckspan v. Hudson's Bay Co., 5 Cir., 1927, 22 F.2d 721, certiorari denied, 1928, 276 U. S. 628, 48 S.Ct. 321, 72 L.Ed. 739; Sweet Sixteen Co. v. Sweet `16' Shop, Inc., 8 Cir., 1926, 15 F.2d 920. Although all of these cases involve at least minor contacts by the senior user with the locale in which the junior user is doing business, so that knowing junior use is not the sole factor present, at least one commentator has concluded that `the presence of notice is the determinative factor, usually sufficient in itself to bar the second user's claim.' Developments in the Law Trade Marks and Unfair Competition, 68 Harv.L.Rev. 814, 858 (1955). The only Federal case we have found which seems to point in the opposite direction is Lerner Stores Corp. v. Lerner, 9 Cir., 1947, 162 F.2d 160, but in that case the trade name was the personal name of the junior user and he went to considerable pains to distinguish his enterprise from that of the senior user."
See, Faciane, d/b/a White Kitchen, v. Starner, (5 Cir. 1956), 230 F.2d 732.
The plaintiffs contend that not only did the defendant know of its prior use of the name "Shoppers Fair" when it opened its Fort Smith supermarket but the defendant continued to use the same name in order to fraudulently gain business for its grocery operations by trading on a nationally known name. The cases relied on by the plaintiffs are mostly cases in which the court found an express fraudulent intent or, at best, a weak excuse for the appropriation of a senior user's trade name. Lincoln Restaurant Corp. v. Wolfies Restaurant, Inc. (2 Cir. 1961) 291 F.2d 302; Ambassador East, Inc. v. Orsatti, Inc. (3 Cir. 1958) 257 F.2d 79; Stork Restaurant v. Sahati, supra; Sweet Sixteen Co. v. Sweet "16" Shop, supra. Courts are quick to grant relief in cases of fraud or bad faith, even though the businesses of the litigants are not in competition. 52 Am.Jur., Trademarks, Tradenames, etc., Sec. 101. One of the reasons is well expressed in A.L.I. Restatement of Torts, Vol. III, p. 595:
"But if he adopts his designation with the intent of deriving benefit from the reputation of the trademark or trade name, his intent may be sufficient to justify the inference that there is confusing similarity. Since he was and is intimately concerned with the probable reaction in the market, his judgment manifested prior to the controversy, is highly persuasive. His denial that his conduct was likely to achieve the result intended by him will ordinarily carry little weight."
Plaintiffs argue that the court must find fraud or deceit on the part of the defendant because at the time of the establishment of the defendant's business either it or the representatives of the Independent Grocers Alliance had knowledge of the plaintiffs' business and use of their trade name in Tulsa, if not in the other trade areas as well. A careful consideration of the record and exhibits leaves this court in no doubt that by the preponderance of the evidence there was no fraud nor deceit by the defendant in the continuation of its business nor in its original establishment. There is no evidence that indicates that the defendant knew that the name "Shoppers Fair" was used by the plaintiffs in Tulsa and appeared on some of the products sold, but even if the evidence indicated otherwise it would be fair for the defendant to have inferred from such notice that the plaintiff did not have an exclusive right to such use as against a *735 noncompeting business where there was no likelihood of confusion as to source and in the absence of an intent to benefit from the reputation of good will of the plaintiff. El Chico, Inc. v. El Chico Cafe, (5 Cir. 1954) 214 F.2d 721.
The third factor is based upon the degree of care likely to be exercised by the ordinary prudent purchaser. Plaintiffs contend that due to their retail operations in many states, as well as their extensive advertising program and partial similarity of goods sold, that customer confusion has resulted even though the customer is one possessing ordinary discrimination. The effect of extensive advertising on customer confusion is analyzed in the case of Fairway Foods, Inc. v. Fairway Markets, Inc., supra, 227 F.2d at page 196 as follows:
"It is not a convincing argument that because radio advertising and newspaper advertising are not physically contained within state lines, someone in the territory wherein plaintiff sells groceries might be induced thereby to buy some groceries from defendant or that such person might in so doing mistakenly think he was buying of plaintiff or buying plaintiff's goods."
Plaintiffs have not shown actual customer confusion outside of a few isolated instances, and the case of American Automobile Ins. Co. v. American Auto Club, (9 Cir. 1950) 184 F.2d 407, at page 410, states the applicable rule as follows:
"If no likelihood of deception appears the plaintiffs cannot prevail even though the absence of competition be treated as no objection. As `probable confusion cannot be shown by pointing out that at some place, at some time, some one made a false identification', so the possibility that in rare and isolated instances relatively few persons may carelessly mistake the source does not warrant relief."
Therefore, the court is of the opinion that there has been no confusing similarity by the defendant's use of the trade name "IGA Shoppers Fair" in the Fort Smith trade area.
However, plaintiff contends that it is entitled to injunctive relief because there is the likelihood of future confusing similarity for two reasons: (1) plaintiff has expanded its line of goods to include some food and grocery items as heretofore listed, and (2) plaintiff intends to expand its discount department store operation into Arkansas at either Little Rock or Fort Smith.
In the case of S. C. Johnson & Son, Inc. v. Johnson, (2 Cir. 1940) 116 F.2d 427, at page 429, Judge Learned Hand lays down the ground rules for the expansion of a prior user of a trade name into sales of a different line of goods:
"Obviously the plaintiff cannot stand upon the usual grievance in such cases; i. e. that the defendant is diverting its customers. * * * Therefore it invokes the doctrine that when a good will is established under the owner's name, given or assumed, he may protect it, not only against the competition of those who invade his market, but also against those who use the name to sell goods near enough alike to confuse his customers. We have often so decided, and it is not necessary to do more than refer to our last discussion. Emerson Electric Mfg. Co. v. Emerson Radio & Phonograph Corp., [D. C.] 105 F.2d 908. Since in such a situation the injured party has not lost any sales, the courts have based his right upon two other interests: first, his reputation with his customers; second, his possible wish to expand his business into the disputed market. The first of these is real enough, even when the newcomer has as yet done nothing to tarnish the reputation of the first user. Nobody willingly allows another to masquerade as himself; it is always troublesome, and generally impossible, to follow the business practices of such a competitor closely enough to be sure that they are not damaging, and the harm is frequently done *736 before it can be prevented. Yet even as to this interest we should not forget that, so long as the newcomer has not in fact misconducted himself, the injury is prospective and contingent, and very different from taking away the first user's customers. The second interest is frequently less palpable. It is true that a merchant who has sold one kind of goods, sometimes finds himself driven to add other `lines' in order to hold or develop his existing market; in such cases he has a legitimate present interest in preserving his identity in the ancillary market, which he cannot do, if others make his name equivocal there. But if the new goods have no such relation to the old, and if the first user's interest in maintaining the significance of his name when applied to the new goods is nothing more than the desire to post the new market as a possible preserve which he may later choose to exploit, it is hard to see any basis for its protection. The public may be deceived, but he has no claim to be its vicarious champion; his remedy must be limited to his injury and by hypothesis he has none. There is always the danger that we may be merely granting a monopoly, based upon the notion that by advertising one can obtain some `property' in a name. We are nearly sure to go astray in any phase of the whole subject, as soon as we lose sight of the underlying principle that the wrong involved is diverting trade from the first user by misleading customers who mean to deal with him. Unless therefore he can show that, in order to hold or develop his present business, he must preserve his identity in the disputed market, he cannot rely upon the second of the two interests at stake. We discussed this in Emerson Electric Mfg. Co. v. Emerson Radio & Phonograph Corp., supra (105 F.2d 908) but the decision did not depend upon it. It follows from what we have said that the newcomer will be subject to stricter limitations upon the use of his name when he is competing in the first user's own market, than if, as here, he has been the first to enter a new, though closely related, market."
The rule governing protection of a trade name on the basis of natural expansion is stated as follows in the case of Katz Drug Co. v. Katz, 89 F.Supp. 528, beginning at page 534:
"A number of cases have been cited by plaintiff's counsel in support of the field of natural expansion theory. It is readily seen that these cases do not require the plaintiff to show competition or loss of trade in order to obtain injunctive relief; but it is also apparent that in these cases there was present a showing of one of the following facts: either (1) that the junior appropriator adopted the senior user's mark with a `design inimical to the interests' of the latter, that is, adopted it in bad faith; or (2) that the senior user, at the time of the adoption of the mark by the junior user and in the territory in which the junior user employed the mark, had something variously denominated by different courts as `secondary meaning', `good-will', or `reputation'.
* * * * * *
"* * * In adopting a trade name or trade-mark, how far must the adopter look to see if a similar mark is in use? If a similar mark is in use, and it is wholly unknown in the area in which the so-called adopter wishes to use it, there is nothing to put him on notice. If the adopter in such a case wishes to open a retail drugstore in St. Louis, must he search Kansas City? Chicago? Des Moines? Denver? It seems unnecessary."
A recent statement applies the good faith of the junior user as a standard in the case of Food Fair Stores, Inc. v. Lakeland Grocery Corp., (4 Cir. 1962) *737 301 F.2d 156, beginning at page 162 as follows:
"The existence or non-existence of good faith on the part of the second user of the trade name is a powerful factor in determining whether the name is entitled to protection in an area to which the business it identifies has not actually extended. Indeed, it is pointed out in Nims on Unfair Competition and Trademarks, Section 218b, page 649, that to some extent the emphasis of the inquiry has been shifted in determining whether a trademark or trade name is entitled to extra-territorial protection, so that in some cases much more stress is placed upon the question of good faith and much less on the extent to which the name is known in a given area. See Pike v. Ruby Foo's Den, 98 U. S.App.D.C. 126, 232 F.2d 683; Lincoln Restaurant Corp. v. Wolfies Restaurant, Inc., supra; Safeway Stores, Inc. v. Sklar, E.D.Pa., 75 F. Supp. 98; Adam Hat Stores v. Scherper, E.D.Wis., 45 F.Supp. 804; Ammon & Person v. Narragansett Dairy Co., 1 Cir., 262 F. 880; Maison Prunier v. Prunier's Restaurant & Cafe, Inc., 159 Misc. 551, 288 N. Y.S. 529."
As stated above, this court has found no evidence of bad faith or fraudulent intent on the part of the defendant in the choice of and continued use of its trade name "IGA Shoppers Fair." Thus, under the rule set forth it is not liable to be enjoined from further use of its trade name.
In conclusion, the plaintiffs have sought injunctive relief on the basis that (1) there is confusing similarity by means of defendant's present scope of operation under the trade name of "IGA Shoppers Fair," and (2) if not at present, there is the likelihood of customer confusion due to the plaintiffs' plans for expansion both as to the variety of goods sold and the contemplated entry of the plaintiff, Shoppers Fair of Arkansas, Inc., into either the Little Rock or Fort Smith trade areas. This court is of the opinion that under the rule of law heretofore set out that there is no confusing similarity in the retail operations of the parties at present, and as to the possibility of future expansion, there are no present grounds to support an injunction against the defendant. However, this does not preclude the plaintiffs from injunctive relief at such time as their plans for expansion become a reality and they can show positive damages due to unfair competition arising out of defendant's operations in the Fort Smith trade area as "IGA Shoppers Fair." In the case of Food Fair Stores v. Food Fair, (1 Cir. 1949) 177 F.2d 177, in which there were cross appeals from a final decree enjoining the defendant from using the words "Food Fair" in its business unless such words were prefaced by a descriptive word or words, the court stated, beginning at page 185, as follows:
"Traditionally `The essence of equity jurisdiction has been the power of the Chancellor [i. e. the trial court] to do equity and to mould each decree to the necessities of the particular case.' Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S. Ct. 587, 592, 88 L.Ed. 754. Hence as an appellate tribunal we are loath to interfere with the scope of the injunctive relief afforded. Nor do we feel inclined to do so for the reason that at the moment the parties are not in direct competition and such relatively minor confusion as now exists, it seems to us, can be obviated by the expedients required by the decree as it stands. Perhaps this may not always be so. Should the plaintiff expand its chain into Massachusetts and the parties come into direct competition, then it may be that the relief granted would not give the plaintiff adequate protection. But it will be time enough to consider this question when it arises, for the parties are not irrevocably bound by the decree as it stands. If circumstances change the court below is open to the plaintiff to seek *738 modification of the present decree under the principle enunciated in United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999, in which Mr. Justice Cardozo, speaking for the court, said that even when power to modify a decree of injunction has not been reserved therein, that power nevertheless exists `by force of principles inherent in the jurisdiction of the chancery. A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need', and then, after citing cases, continued: `The distinction is between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative * * * a court does not abdicate its power to revoke or modify its mandate, if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.' See also S. C. Johnson & Son v. Johnson, 2 Cir., 175 F.2d 176, 177."
A similar statement appears in the case of Fairway Foods v. Fairway Markets, supra, 227 F.2d at page 198 as follows:
"There remains for disposition on this appeal, the injunction which enjoins plaintiff from using the word `Fairway' in the territory now occupied by defendant, should plaintiff at some time in the future act upon its asserted intention of extending its business into such territory. Government by injunction is never favored, and the discretion of the chancellor in favor of granting the writ is withheld except to prevent impending injury or wrong, and is not granted upon indefiniteness and remote possibilities. No present impending injury can be found in this case. It may well be that if and when plaintiff acts to carry out its expressed intention to expand into the territory presently occupied by defendant, the facts will be sufficiently different from those of the instant case as to commerce and otherwise, and as to the validity of the claimed trade-mark, as to present additional and different issues."
See, Katz Drug Co. v. Katz, 188 F.2d at page 700; American Automobile Ins. Co. v. American Auto Club, supra, 184 F.2d at page 410; and Save-A-Stop, Inc. v. Sav-A-Stop, Inc., 230 Ark. 319, 322 S.W.2d 454 (1959).
CONCLUSIONS OF LAW
1.
The court has jursidiction of the parties to and the subject matter of this cause of action.
2.
The defendant, Sanders Company, Inc., has a legal right to conduct its retail supermarket operations under the name of "IGA Shoppers Fair."
3.
In view of the law and facts heretofore stated, it is clear that the defendant in commencing operation of a retail grocery supermarket without prior notice under the trade name "IGA Shoppers Fair" in Fort Smith, Arkansas, at a date subsequent to plaintiffs' commencement of operations as a retail discount department store under the trade name "Shoppers Fair" in Tulsa, Oklahoma, was not guilty of unfair competition, and the plaintiffs are not entitled to an injunction against defendant's use of the above trade name.
4.
In view of the law and facts heretofore stated, it is clear that the plaintiffs in planning to expand their operations into Arkansas under the trade name "Shoppers Fair of Arkansas, Inc.," and to increase their variety of merchandise to include food and grocery items are not entitled to an injunction at the present time on the basis of unfair competition *739 by defendant's prior use of the trade name "IGA Shoppers Fair" in the State of Arkansas in general and in the Fort Smith trade area in particular.
Therefore, a judgment dismissing plaintiffs' complaint is being entered today.
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424 So.2d 1371 (1982)
Eddie Lee WILLIAMS
v.
STATE of Alabama.
6 Div. 759.
Court of Criminal Appeals of Alabama.
October 12, 1982.
As Corrected on Denial of Rehearing November 23, 1982.
Certiorari Denied January 21, 1983
*1372 Powell Lipscomb of Lipscomb & Lipscomb, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., and Jeanne Weston, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 82-203.
TYSON, Judge.
Eddie Lee Williams was indicted for the intentional killing of Tommy Square in violation of § 13A-6-2, Code of Alabama 1975. The jury found the appellant "guilty of manslaughter as charged in the indictment." Following a habitual offender hearing, appellant was sentenced to 15 years' imprisonment.
On February 11, 1981, Pauline Oden took her sister, Sharon Williams, to the income tax office in Bessemer. While they were there, Sharon's husband, the appellant in this case, came into the office. The appellant began to protest the fact that Ms. Williams wished to file a single return. Ms. Margaret Johnson of the income tax service informed the appellant that if his wife wished to file single, he could do nothing about it.
Ms. Oden and Williams left the office shortly to return to their mother's home. While stopped at a traffic light, the appellant pulled beside them and shouted obscenities at Ms. Oden. When Ms. Oden arrived at her home, she told her boyfriend, Tommy Square, what had happened at the traffic light. Later that night, Mr. Square telephoned the appellant.
The next morning, Mr. Square and Ms. Oden were working in their home. Ms. Violet Square, Mr. Square's mother, told them to go to the front door because someone was parked in the street blowing their horn. When Ms. Oden and Mr. Square went to the front door, they saw the appellant in his car parked in front of their house. Mr. Square asked the appellant what he wanted, to which the appellant replied, "Man, I don't appreciate you calling my house last night telling me what I said about that bitch of yours." Ms. Oden asked Mr. Square not to argue with the appellant and Mr. Square pushed her back into the house. At this point, Ms. Oden went to the kitchen to turn off the stove. While she was there, she heard two shots. She ran to see what happened and when she reached the front of the house, Ms. Square told her Tommy had been shot. As Ms. Oden walked outside, she saw the appellant's car speed away. She saw Mr. Square bleeding and called the police and ambulance. One of their neighbors, Clarice Cooper, looked out her window when she heard the shots and saw appellant's car driving away.
Tommy Square was taken to the hospital where he died six days later. The cause of death was determined to be a gunshot wound to the abdomen.
The appellant admitted shooting Mr. Square but stated he did not shoot him intentionally. While the two were arguing at the car, Mr. Square grabbed the appellant with one hand and reached behind himself with the other. The appellant stated he did not see a weapon but became scared, and picked up a gun which was lying on the front seat beside him. He claimed he shot *1373 the gun in self-defense, and did not mean to hit Mr. Square.
I
The appellant contends the trial court committed reversible error by refusing appellant's requested charge number 25. It is unnecessary for this court to review the merits of the appellant's contention on this issue because of his failure to reserve any exception to the trial court's decision to refuse the charge at the trial court level. The "automatic exception" rule no longer applies to criminal cases in Alabama. Gullatt v. State, 409 So.2d 466 (Ala.Cr.App., 1981), Allen v. State, 414 So.2d 989 (Ala.Cr.App., 1981), affirmed, Ex Parte Allen, 414 So.2d 993 (Ala., 1982).
Moreover, the trial court properly refused to give appellant's requested charge because the word care was misspelled therein, so that it appeared as case in the phrase "standard of care." Kuhlow v. State, 397 So.2d 165 (Ala.Cr.App., 1980), writ quashed, 397 So.2d 169 (Ala.1981), Akers v. State, 399 So.2d 929 (Ala.Cr.App., 1981). See also Payne v. State, 419 So.2d 286 (Ala.Cr.App. 1982).
II
The appellant contends the trial court committed reversible error by improperly admitting testimony as to statements made by Ms. Violet Square to the state's witness, Ms. Pauline Oden. Ms. Oden testified that Ms. Square said immediately after the two shots, "Mickey, he done shot Tommy." We find no merit to the appellant's contention. The testimony was hearsay, but it clearly falls within the spontaneous exclamation or res gestae exception to the hearsay rule. This subject is covered extensively in Gamble, McElroy's Alabama Evidence § 265.01 (3rd ed. 1977):
"Generally, a person's statement concerning a startling occurrence, made while he is perceiving the occurrence, or soon after his perception thereof, and while he is under the stress of a nervous excitement created by such perception, is admissible as tending to prove the truth of the matter asserted. A statement of this kind is frequently referred to as a spontaneous exclamation or excited utterance and is an exception to the hearsay rule.
"The statement must be the apparently spontaneous product of that occurrence, operating upon the visual, auditory, or other perceptive sense of the speaker. The declaration must be instinctive rather than deliberative. In short, it must be the reflex product of the immediate sensual impressions, unaided by retrospective mental action."
Harville v. State, 386 So.2d 776 (Ala.Cr. App., 1980), Bass v. State, 375 So.2d 540 (Ala.Cr.App., 1979).
It, of course, is a startling occurrence to see anyone shot, but such is a far more shocking event where the victim is one's son. Ms. Square's statement was a spontaneous response to the act she had just witnessed, and falls within the recognized spontaneous exclamation exception to the hearsay rule.
Furthermore, the rationale of such spontaneous exclamation exception is not limited to statements of the victim or the defendant but extends to bystanders as well. Harville, supra, Bass, supra.
Moreover, a trial judge is given reasonable discretion to determine the question of the spontaneity of a statement, especially in close cases. We therefore conclude that the trial judge exercised his discretion properly, when he admitted the testimony. Lastly, the appellant could not have been harmed by this testimony since he admitted shooting the deceased. Bass, supra.
III
The appellant's final contention is that the trial court committed reversible error *1374 by improperly excluding certain testimony of Ms. Pauline Oden on cross-examination. The appellant claims the trial court unduly restricted his right to cross-examine Ms. Oden. "The latitude and extent of crossexamination is a matter within the sound discretion of the trial court and if the trial court determines that a question, or course of questions, is irrelevant to a material issue in such case, this court will not reverse that determination unless the record reveals a clear abuse of such discretion." Weaver v. State, 407 So.2d 568 (Ala.Cr.App., 1981), Renfroe v. State, 382 So.2d 627 (Ala.Cr. App., 1980), writ denied, 382 So.2d 632 (Ala. 1980), Daniels v. State, 375 So.2d 523 (Ala. Cr.App., 1979). We have carefully reviewed this record and find no abuse of discretion by the trial court in this regard.
Therefore, the judgment of the trial court is hereby affirmed.
AFFIRMED.
All the Judges concur.
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7 Md. App. 264 (1969)
254 A.2d 715
JAKE GLOVER FOWLER
v.
STATE OF MARYLAND.
No. 393, September Term, 1968.
Court of Special Appeals of Maryland.
Decided June 19, 1969.
The cause was submitted to MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
John D. Hackett for appellant.
Thomas N. Biddison, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and Barry S. Frame, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
MURPHY, C.J., delivered the opinion of the Court.
Appellant was found guilty by a jury in the Criminal *266 Court of Baltimore under two separate indictments charging assault upon James Williard on February 24, 1968. Sentenced by the court to two concurrent five-year terms under the jurisdiction of the Department of Correction, he contends on this appeal that the court erred when it instructed the jury that it could consider his past criminal record in determining his guilt of the offenses charged.
There was evidence adduced at the trial showing that appellant and Williard engaged in an altercation on February 24, 1968, during which appellant struck Williard twice with an iron pipe. Appellant testified on his own behalf and admitted that he struck Williard. He claimed, however, that he was defending himself when he struck Williard. On cross-examination, appellant admitted to an extensive past criminal record.
In its advisory instructions to the jury, the court stated:
"You are permitted to draw from the facts you find to be proved such reasonable inferences as seem justified in the light of your own experience, and in that regard you may consider the past record of the Defendant, but only as it applies to the evidence in this case as to his guilt or innocence."
At the conclusion of the court's charge, appellant's counsel, out of the presence of the jury, stated:
"In your instruction I think there should be an instruction to the Jury not to consider the criminal record in determining...."
The court responded as follows:
"I did say it. Haven't even touched on it. If you want me to say it again, I'll say it again."
It is elementary that in a criminal case, where the defendant is a witness in his own behalf, he thereby puts *267 his character in issue and may be asked on cross-examination if he has been convicted of a crime. Huber v. State, 2 Md. App. 245. Such evidence of prior conviction is admissible only for the purposes of impeachment and not to prove a fact in issue unless relevant to that issue and not collateral thereto. Johnson v. State, 4 Md. App. 648. In other words, proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses, even though of the same nature as the one charged, is incompetent and inadmissible for the purpose of showing commission of the particular crime charged. Wethington v. State, 3 Md. App. 237. The rule is not without exceptions, however, so that the prior conviction may be shown when it tends to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of a crime on trial. Gordon v. State, 5 Md. App. 291.
We think it clear from the record that the State's only purpose in introducing the prior convictions was to impeach appellant's credibility as a witness. Equally clear is the fact that on the record in this case the convictions would not have been admissible for any other purpose. While appellant's trial counsel[1] did not make proper objection to the court's instructions that the jury could consider appellant's past criminal record in determining his guilt of the current offenses, we are permitted by Maryland Rule 756g to "take cognizance of and correct any plain error in the instructions, material to the rights of the accused," even though there was no objection to the instructions. See Parker v. State, 4 Md. App. 62. We think it proper to invoke the Rule in this case a case involving, in large part, the victim's word of what occurred against that of the appellant. In so concluding to reverse the judgments of conviction, we note that the State has *268 made no claim that the transcript of the court's advisory instructions was in error, nor did it file a motion to correct the record. Under these circumstances, we must accept the record as it appears.
Judgments reversed. Case remanded for a new trial.
NOTES
[1] Not the same counsel as represents appellant on this appeal.
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459 F.Supp.2d 338 (2006)
In re CIGNA CORP. SECURITIES LITIGATION.
Civil Action No. 02-8088.
United States District Court, E.D. Pennsylvania.
August 18, 2006.
*339 Carole A. Broderick, Berger & Montague, P.C., Philadelphia, PA, for Pennsylvania State Employees Retirement System.
Alexander R. Sussman, David M. Morris, Fried Frank Harris Shriver & Jacobson LLP, New York City, John G. Harkins, Jr., Harkins Cunningham, Philadelphia, PA, for Cigna Corp., H. Edward Hanway and James G. Stewart.
Robert L. Ebby, Hangley Aronchick Segal and Pudlin, Philadelphia, PA, for Hewitt Associates LLC.
MEMORANDUM REGARDING ECONOMIC LOSS
BAYLSON, District Judge.
Defendants in this class action securities fraud case assert that the Lead Plaintiff, Pennsylvania Employees Retirement System ("SERS") will be unable to prove economic loss and loss causation, and have filed a Motion for Summary Judgment seeking to dismiss SERS's claims on that ground. In a nutshell, the facts show that SERS purchased, through investment advisors, large quantities of CIGNA common stock both before and during the alleged class damage period[1] (November 1, 2001 to October 24, 2002, inclusive), but also sold larger quantities of CIGNA stock, as the price was rising, during the damage period. Overall, comparing all CIGNA stock owned by SERS at the beginning of the class period and the sales made during the class period to the diminution in value which CIGNA stock suffered as a result of the decline in price as of the end of the damage period, SERS gained more than it lost. Thus, in purely economic terms and from a cumulative point of view, SERS did not suffer a loss on its investment in CIGNA stock. Defendants ask the Court to accept this simple concept and rule, as a matter of law, that SERS must be dismissed as a plaintiff in this case because it cannot recover damages.
*340 The Court finds that, in the absence of an authoritative appellate precedent supporting Defendants position, existing principles of law for calculating damages in securities cases, as well as the fundamental Seventh Amendment constitutional right to have a jury determine damages, foreclose the possibility of summary judgment. However, because Defendants' contentions are grounded in a theory which a jury might find persuasive, the Court's ruling is without prejudice to further exploration of the parties' contentions at trial.
I. Background
This case has a long and complicated background which need not be repeated here. See In re Cigna Securities Litigation, 2005 WL 3536212 (E.D.Pa. Dec. 23, 2005). The Court will, however, briefly review the procedural history leading to the instant motion.
On July 29, 2005, SERS filed a Motion to Amend its Complaint and, on August 12, 2005, Defendants filed a Cross-Motion to Dismiss all of SERS's claims for lack of economic loss and loss causation, based primarily on the recent United States Supreme Court decision in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005). Following argument, the Court issued an Order on November 23, 2005 in which it: (1) allowed the Complaint to be amended to add paragraphs 247-250, which assert allegations under the category of "loss causation"; (2) agreed to consider the pending Defendants' Motion to Dismiss as a motion under F.R. Civ. P. 12(b)(6) to dismiss paragraphs 247-250; and (3) allowed the parties to file additional briefing on the issue of loss causation.
Concerning the Motion to Dismiss, Defendants acknowledged that, comparing specific CIGNA stock trades by SERS, there were some instances in which SERS sold some shares at prices lower than the price at which it bought the same shares. Defendants contended, however, that on an overall or cumulative basis i.e., for all transactions during the damage period SERS did not have a net loss in its trading in CIGNA stock, and thus, under Dura Pharmaceuticals, SERS could not sufficiently plead economic loss and loss causation. Stated slightly differently, Defendants asserted that, as a matter of common sense and realistic economic impact, the Court must look at the Lead Plaintiffs overall economic standing as of the end of the class period, rather than at particular, isolated individual transactions that occurred during the class period, to determine if there is a demonstrated economic loss.
Dura Pharmaceuticals specifically held that the fundamental requirements of the Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u-4(b) ("PSLRA"), included pleading "economic loss, 15 U.S.C. § 78u-4(b)(4); and 'loss causation,' i.e., a causal connection between the material misrepresentation and the loss." 125 S.Ct. at 1631 (emphasis in original). The Supreme Court held an inflated purchase price "will not itself constitute or proximately cause the relevant economic loss," and explained that "any logical link between the inflated share purchase price and any later economic loss is not invariably strong. Shares are normally purchased with an eye toward a later sale. But if, say, the purchaser sells the shares quickly before the relevant truth begins to leak out, the misrepresentation will not have led to any loss." Id. at 1631.
After noting that there were substantial issues of fact raised by the parties, this Court stated that "although Dura Pharmaceuticals contains language that supports the Defendants' interpretation of the requirement of economic loss in the PSLRA, the Defendants' legal position as applied to the facts of this case may require *341 an extension of Dura Pharmaceuticals that is not required by either Supreme Court or Third Circuit precedent." December 23, 2005 Mem. at 27. Accordingly, the Court concluded that, because the issues of economic loss and loss causation were so fundamental to the situation of SERS as the Lead Plaintiff, the Court would deny Defendants' Motion to Dismiss without prejudice and allow for expedited discovery and expert reports on that issue, after which either or both parties could bring a dispositive motion.[2]
Plaintiff filed the Revised Consolidated Amended Class Action Complaint on January 9, 2005 (Doc. No. 138). On February 7, 2006, CIGNA brought its second Motion to Dismiss. In an opinion dated March 24, 2006, the Court granted the motion in part and denied the motion in part. The Court directed SERS to file a new Revised Consolidated Amended Class Action Complaint ("the Complaint"), making the deletions specified in the Court's March 24 Memorandum and not making any additions. SERS filed the Complaint on March 30, 2006.[3] Merits discovery has generally concluded as of August 18, 2006.
II. Summary of Relevant Facts, Expert Reports, and the Parties' Briefing
A. SERS's Trading in CIGNA Stock
The following background information is essentially undisputed. SERS managed its domestic equities portfolio by using twenty-three external investment managers. Each investment manager was charged with investing the funds allocated to it in accordance with parameters established by agreement with SERS, including performance measures appropriate to the investment manager. During the class period, SERS had positions in CIGNA shares in six different investment advisor accounts: Iridian, First Quadrant, Standish Mellon, Twin Capital, Martingale, and J.P. Morgan. Several of the investment managers (First Quadrant, Indian, and Martingale) engaged in only long transactions, one (Standish Mellon) engaged in only short selling, and the others had both long and short transactions. At any given time during the class period, as reflected by transaction records, one or more of the investment managers might be buying CIGNA stock, while others were selling, selling short, or purchasing to cover short sales. See Defs' and Pl's Statements of Disputed and Undisputed Facts at ¶¶ 12-28.
While there are some disputes about SERS's trading in CIGNA stock, many of those disputes are based upon the intermingling of factual contentions and legal arguments. One important dispute is over how to value SERS's CIGNA stock purchased before the start of the class period. *342 The Court recognizes that there do remain some purely factual disputes about SERS's trading in CIGNA stock; however, both financial records and statements of the parties make it possible for the Court to make two basic factual determinations for the purposes of deciding this motion.
The first determination is that SERS sold more CIGNA stock during the class period than it bought during the class period. Much of the stock sold was owned at the beginning of the class period. Relevant financial records establish that SERS sold a total of 189,200 shares of CIGNA stock during the class period but purchased only 36,800 CIGNA shares during the same period. In total, therefore, during the class period, SERS sold 152,400 more shares than it purchased.[4]See, inter alia, Defs' Mot. for Summ. J., Ex. 2 (SERS Transaction Report produced by Mark McGrath); id. at Ex. 3 (Certification of Harold Dunbar, former Chief Counsel of SERS); Declaration of Dr. Bruce Stangle at ¶ 7 and Ex. 1; Pl's Resp. Ex. A (Supplemental Declaration of Todd Albaugh). And, as noted above, SERS profited from those sales.
The second determination is that SERS has specifically identified 5,000 shares of Cigna stock purchased in its First Quadrant account during the class period and still held at the end of the class period. Defendants do not dispute the purchase but the record is not clear as to whether these shares are included in the Defendants' 36,800 number of shares purchased. In addition, SERS opened a 3,900 CIGNA share short position in its Standish Mellon account during the class period and maintained this short position until after the end of the class period. Therefore, at the very least, SERS had a net long position of 1,100 CIGNA shares purchased during the class period and held at the end of the class period. Accordingly, it is a correct statement that SERS held CIGNA shares on the close of the class period, on October 24, 2002, which SERS purchased during the class period. See, inter alia, Declaration of Dr. Scott Hakala at ¶ 36; Declaration of Dr. Steven Feinstein at ¶¶ 1-2; Deposition of Dr. John Peavy at 92-93, 95-96; Deposition of Dr. Bruce Stangle at 69-70; Pl's Resp., Ex. A (Supplemental Declaration of Todd Albaugh).
B. Expert Declarations
SERS and CIGNA have each offered the opinions of two experts. SERS has submitted declarations made by Drs. Scott Hakala and Steven Feinstein, and CIGNA has submitted declarations made by Drs. John Peavy and Bruce Stangle. As a threshold matter, the Court notes that three of the four experts (all but Dr. Feinstein) have admittedly employed, adopted, or recommended economic models that would not necessarily be relevant for the purpose of proving the amount of damages in securities cases. Nonetheless, as a prelude to the legal analysis, the Court will review, in summary fashion, the substance of the expert declarations.
1. Dr. Scott Hakala (Plaintiff's Expert)
Dr. Hakala posits that, after the drop of CIGNA's share price following relevant disclosures, SERS realized both an investment loss and an economic/inflationary loss associated with positions (purchases and short sales) it established during the class *343 period.[5] Hakala Dec. at ¶ 10, 14-28. Dr. Hakala suggests that economic loss is a damage measure that is "well recognized and has been consistently applied by experts in securities litigation." Id. at ¶ 12 n. 6. He further notes his opinion that investment gains and losses on trades during the class period can not necessarily be correlated with economic gains and losses. Id. at ¶ 23-28.
Dr. Hakala explains that in order to determine realized economic loss, trades must be matched. Id. at ¶ 10, 29-30. Matching means that one should ideally match specific sales with specific purchases in an economically consistent manner. Dr. Hakala opines that the matching of purchases and sales is properly done only by account, rather than across the entire investment portfolio (i.e., netting all accounts) because SERS's accounts were segregated and separately managed. Id. at ¶ 36. Furthermore, Dr. Hakala suggests that, for purposes of that matching, LIFO, last-in-first-out,[6] is not the appropriate accounting method; rather, the appropriate method is either FIFO, first-in-first-out,[7] or specific identification ("specific ID"), which more accurately reflect "economic substance."[8]Id. at ¶ 30-35. Indeed, Dr. Hakala found that FIFO is the preferred method of matching for the purposes of proof of claim in securities litigation. Id. at ¶ 35.
Applying these principles, in this case Dr. Hakala concludes that SERS's purchases and sales of CIGNA shares, in segregated accounts managed by separate managers, should not be co-mingled and must be matched only within individual accounts. After so matching, Dr. Hakala concludes that SERS realized both an investment and economic loss in particular accounts. Id. at ¶ 36.
2. Dr. John Peavy (Defendants' Expert)
Dr. Peavy discusses modern portfolio theory ("MPT"), which emphasizes that an investor should focus on an entire portfolio instead of any individual security.[9] Peavy Dec. at ¶ 16. According to MPT, an important means to control portfolio risk is diversification, whereby investments are made in a wide variety of assets so that exposure to the risk of any particular security is limited. Id. at ¶ 17. Thus, in effect, MPT evaluates a security's "diversification effect" on a portfolio. Id. SERS employs MPT and the associated diversification *344 mandate in the investment management of its assets. Id. at ¶ 18.
Dr. Peavy suggests that given the fact that SERS focuses its entire portfolio on controlling risk, relies largely on allocating assets among asset classes to generate returns, and employs external investment managers to manage its assets, it would be unusual for SERS to focus attention on a single security. Id. at ¶ 19-23. In the "unusual case" that SERS were to direct attention to a single security, such as CIGNA stock, Dr. Peavy posits that SERS would do so "at the aggregate level, that is, observing the aggregate amount of security holdings across all investment managers." Id. at ¶ 23. Moreover, Dr. Peavy contends that "it would be contrary to MPT and accepted investment practice to disaggregate holdings in a particular security in order to consider the gains/losses produced by a specific manager(s) while at the same time excluding the gains/losses incurred by another manager(s)."[10]Id.
Based on these principles, Dr. Peavy contends that Dr. Hakala uses improper methodology to estimate SERS's economic losses. First, Dr. Peavy opines that Dr. Hakala's methodology of matching trades within separate accounts is inconsistent with market portfolio theory and the fair market value accounting treatment described above. Id. at ¶ 42-45. Next, Dr. Peavy contends that Dr. Hakala's discussion of FIFO, LIFO, and cost accounting is irrelevant because the "accounting standards that apply to physical inventories do not govern the accounting treatment for equity investments such as CIGNA stock." Id. at ¶ 47. He states that "[e]quity investments are governed by GAAP and FASB standards that do not use inventory costing methods such as FIFO, LIFO or average cost." Id. Finally, Dr. Peavy concludes that by applying FIFO and average cost methodologies to trading activity in CIGNA stock during the class period, Dr. Hakala improperly included unrealized losses from periods prior to the beginning of the class period in his calculations, as the prices presented by Dr. Hakala appear to be calculated as some type of average cost for CIGNA stock holdings in the respective accounts. Id. at ¶ 48-49. Dr. Peavy argues, however, fag the closing market price of CIGNA stock on November 1, 2001 must be used to calculate gains under fair market value accounting because it is the only price that allows SERS to determine the market value of its CIGNA stock at the beginning of the class period.[11]Id.
Dr. Peavy suggests that the differences between Dr. Hakala's estimated average cost of CIGNA stock for each manager's holdings and the actual closing market price on November 1, 2001 are unrealized losses from time periods prior to the class period. Id. at ¶ 49. However, fair market value accounting restricts the recognition of losses to the reporting (i.e., class) period. As a result, Dr. Peavy concludes that Dr. Hakala's inclusion of prior unrealized *345 losses substantially overstates the amount of estimated losses in the class period.[12]Id. at ¶ 50-52. To the contrary, Dr. Peavy opines that, by applying fair market value principles and methodology, it is possible to conclude that SERS actually had an investment gain in CIGNA stock transactions during the class period of approximately $1.9 million dollars. Id at ¶ 51, 56.
3. Dr. Bruce Stangle (Defendants' Expert)
Dr. Stangle begins his analysis by positing that SERS was overwhelmingly a net seller of CIGNA shares during the class period. Stangle Dec. at ¶ 6-7. This is important, he suggests, because SERS alleges that shares were overvalued (i.e., inflated) during the class period. That fact is critical, according to Dr. Stangle, because if a shareholder sells shares during the class period that were purchased before the class period when there was no inflation, the shareholder benefits by the amount of inflation at the time of the sale. Id. However, if a person purchases and then sells shares and the amount of inflation remains constant, there is no economic loss. Id.
Dr. Stangle concludes that SERS sold a total of 189,200 shares and purchased only 36,800 shares during the class period a ratio of more than five to one. Id. at ¶ 7. Therefore, SERS sold 152,400 more shares than it purchased. Based on these numbers, Dr. Stangle opines that it is "highly unlikely that, overall, SERS suffered any economic loss from its trading in CIGNA stock." Id. at ¶ 8. More specifically, Dr. Stangle concludes that there is no economic loss to SERS because "sales at inflated prices more than cancel out any possible loss from purchases at inflated prices during the class period." Id. at ¶ 9.
Dr. Stangle also contends that Dr. Hakala wrongly concluded that SERS was a net purchaser at all times during the class period for several reasons, including that Dr. Hakala's conclusions are not supported by facts concerning the trading in individual accounts; Dr. Hakala's estimated losses are fundamentally flawed and/or meaningless due to use of an improper methodology; and Dr. Hakala grossly overstates SERS's purported losses by his use of FIFO accounting to match purchases and sales of stock. Id. at ¶ 11-32. Dr. Stangle recommends use of LIFO accounting over use of FIFO accounting; however, he mainly advocates for use of fair market value accounting, which applied here, he concludes, demonstrates an investment gain of nearly two million dollars on SERS's investments in CIGNA. Id. at ¶ 33-35.
4. Dr. Steven Feinstein (Plaintiffs Expert)
Dr. Feinstein agrees with Dr. Hakala that it is necessary to match buy and sell trades in particular, individual accounts. Feinstein Dec. at ¶ 21-22. After doing so, Dr. Feinstein opines that SERS suffered an economic loss on shares of CIGNA stock purchased during the class period and held until after the end of the class period specifically, the shares held in the First Quadrant account.[13]Id at ¶ 12-15. He finds this to be true even taking into account gains on the short position opened in the Standish Mellon account during the class period and covered after the class *346 period. Id. at ¶ 15. He asserts no other CIGNA shares were bought by SERS during the class period and held until afterwards. Id. at ¶ 14.[14]
Next, Dr. Feinstein posits that fair market value accounting, recommended by Drs. Peavy and Stangle, incorporates assumptions and methodologies that are inconsistent with computing damages in 10b-5/PSLRA securities litigation. Id. at ¶ 35-42. He opines that fair market value accounting requires that stock holdings be valued at the beginning and end of a class period using market prices; however he asserts the PSLRA explicitly prohibits the valuation of the remaining stock holdings at the end of the class period using the current market value.[15]Id. at ¶ 38. Second, he suggests that fair market value accounting blends together shares purchased prior to the class period with shares purchased during the class period; however, shares purchased prior to the class period are not the subject of the 10b-5 action. Id. at ¶ 39. Indeed, he contends that if the profit or loss on the shares purchased before the class period was not caused by the relevant misstatements, then it is irrelevant and must be excluded however, fair market value accounting incorporates rather than excludes such profit or loss. Id. at ¶ 40.
Stated succinctly, Dr. Feinstein concludes that, as a result of using an inappropriate methodology, the investment gain arrived at by Drs. Peavy and Stangle is not relevant for the computation of economic loss and damages for three main reasons: (a) it includes shares purchased outside of the class period[16]; (b) it does not represent true economic loss because it does not take into account the change in price inflation caused by CIGNA's alleged misrepresentations; and (c) it does not use actual purchase prices.[17]Id., passim.
Rather than employ fair market value accounting, Dr. Feinstein agrees with Dr. Hakala that use of FIFO accounting is appropriate, and he suggests that FIFO is the most commonly used accounting method in securities cases. Id. at ¶ 24. Indeed, Dr. Feinstein takes issue with Drs. Peavy and Stangle's criticism of FIFO, asserting that it is "simply not true that FIFO is biased and always produces a greater loss." Id. at ¶ 27. Furthermore, Dr. Feinstein agrees with Dr. Hakala's use of cost basis methodology to establish the beginning value of the CIGNA shares in SERS's portfolio (again, rather than fair market value principles). Id. at ¶ 49-58. Dr. Feinstein contends that the criticism of. Drs. Peavy and Stangle of Dr. Hakala's use of cost basis methodology "relies on a blind assumption that losses incurred prior to the class period were not caused by the *347 alleged misrepresentations" because Drs. Peavy and Stangle conducted no loss causation analysis and offered no evidence whatsoever that the misrepresentations did not cause losses (either realized or unrealized) prior to the class period. Id at ¶ 54-58.
Finally, Dr. Feinstein takes strong issue with Dr. Peavy's advocacy for the application of MPT, asserting that Dr. Peavy's "logic is flawed and conclusion is wrong." Id. at ¶ 60. Dr. Feinstein argues that fraud that causes a loss to any single position in the portfolio necessarily reduces the aggregate performance of the portfolio, results in dollar losses, and causes diminution of the wealth of the investor. Id. As such, while diversification may mitigate the impact of investment losses on the welfare of the investor, dollar losses by fraud "are not erased by diversification and do hurt." Id. at ¶ 61. In short, Dr. Feinstein concludes that, even under MPT, an investment loss in any single position unequivocally brings down the return of the entire diversified portfolio by a measurable amount i.e., "the investment loss suffered on an individual security, even within a diversified portfolio, is very real." Id. at ¶ 64.
C. Parties' Contentions Concerning Economic Loss
Defendants contend that, for purposes of determining whether a party has suffered an economic loss, all of SERS's transactions in CIGNA stock during the class period (i.e., across all investment manager accounts) must be considered in the aggregate. Stated differently, Defendants argue that SERS defies the concept of economic loss by making a claim based on a loss in one investment manager account while, overall, SERS achieved a gain in the aggregate of its CIGNA stock transactions during the class period. Defendants maintain that treating the CIGNA shares that SERS held in different investment accounts separately, rather than as a cohesive whole is contrary to MPT, which governs the way SERS treats its own investments. Defendants posit that if transactions in CIGNA shares are not aggregated across accounts, then SERS has achieved what amounts to an insurance policy with respect to any investment manager account that registers a loss.
Defendants further contend that, when all of SERS's transactions in CIGNA stock are aggregated, SERS incurred no economic loss because it was overwhelmingly a net seller of CIGNA stock during the class period in which the price was rising. In doing so, Defendants adopt and employ much of the opinions of Drs. Peavy and Stangle regarding (1) criticism of Dr. Hakala's methodology and conclusions and (2) application of MPT methodologies and fair market value accounting principles.[18] Even assuming that the price of CIGNA's common stock was indeed artificially inflated during the class period, Defendants assert that, when analyzed with the proper methodology and under the correct accounting principles, the only possible conclusion is that SERS made more money on each share sold than it would have made absent the inflation, and, as a result, it actually benefited from the inflation rather than suffered a loss. Defendants conclude, therefore, that SERS cannot demonstrate an economic loss that qualifies it to assert a securities claim.
In response, SERS contends that Defendants have not met their burden to show that SERS has no evidence that it suffered economic loss, and, indeed, that SERS has *348 shown that there are genuine issues of fact regarding the amount of its economic loss and damages which must be decided by the trier of fact. SERS maintains that these disputed issues include (1) the amount of inflation in CIGNA's stock price during the class period caused by Defendants' fraud, (2) the amount of inflation in CIGNA's stock price that was removed by the October 24, 2002 press release that ended the class period, and (3) whether there were any partially corrective events prior to October 24, 2002 which would result in additional inflationary/economic loss.[19]
SERS asserts that Defendants and Defendants' experts have only addressed investment loss, which is different from economic loss and damages under the federal securities laws.[20] Moreover, SERS argues that Defendants' entire argument about SERS's purported investment gain depends on the use of methodologies and an accounting method (i.e., MPT, fair market value accounting, and AIMR-PPS) which are normally used for a different purpose than calculating gain or loss on a particular stock and have never been used to calculate either investment or economic loss in federal securities litigation. SERS further contends that Defendants' offset theory (i.e., netting across investment manager accounts) has been "uniformly rejected by Courts in this District and elsewhere, has never been accepted by any court and is contrary to well-established law and the [PSLRA]." Pl's Resp. Br. at 5 (citing Argent Classic' Convertible Arbitrage Fund, L.P. v. Rite Aid Corp., 315 F.Supp.2d 666, 680-82 (E.D.Pa.2004)).
Finally, SERS contends that to grant Defendants' motion, the Court would have to disregard facts of record and depart from well-established legal principles. For example, SERS argues that the Court would have to: (1) disregard the fact that SERS purchased 5,000 shares of CIGNA stock in its First Quadrant account during the period, and which it held at the end of the class period, and had a net long position in CIGNA stock at the end of the class period; (2) find that, contrary to caselaw, gains and losses which are not proximately caused by Defendants' conduct are relevant to and should be counted in determining economic loss and damages under the federal securities laws; (3) find that, contrary to caselaw, economic gains can be used to offset or "cancel out" economic losses; (4) disregard the uniform conclusions of both parties' experts that the quantification of economic loss cannot be determined without event studies which determine the amount of inflation due to Defendants' conduct on each day of the class period; and (5) make unnecessary decisions about issues relating to the calculation of investment loss (which SERS maintains is not relevant to economic loss and damages), such as whether FIFO or LIFO should be used, whether fair market value accounting should be used, and whether receipt of dividends should offset an investment loss.
*349 III. Discussion
A. Pre-Dura Pharmaceuticals Law Concerning Economic Loss and Damages
In a fraud on the market case, a plaintiff must show that, as a result of alleged misrepresentations and in reliance on an honest market, the plaintiff purchased shares which, when the alleged fraud was revealed, were worth less than the plaintiff had paid for those same shares. See, e.g., Basic Inc. v. Levinson, 485 U.S. 224, 241-42, 108 S.Ct. 978, 99 L.Ed.2d 194. To do so, a plaintiff, under § 10(b) and Rule 1Ob-5[21], must prove, inter alia, economic loss and loss causation. More specifically, a plaintiff must prove (1) that he or she suffered an actual economic loss and (2) that the alleged misrepresentations proximately caused the decline in the security's value. Semerenko v. Cendant Corp., 223 F.3d 165, 184 (3d Cir. 2000).
Regarding loss causation, a plaintiff must prove that there is a sufficient causal nexus between the loss and the alleged misrepresentation. Id; see also, e.g., In re Royal Dutch/Shell Transp. Sec. Litig., 2005 U.S. Dist. LEXIS 32190 (D.N.J. Dec. 12, 2005). In a fraud on the market case, a plaintiff may establish the element of loss causation by showing (1) that he or she purchased a security at a market price that was artificially inflated due to a fraudulent misrepresentation, and (2) that the stock price "dropped in response to disclosure of the alleged misrepresentation." Semerenko, 223 F.3d at 184-86.[22]
The concept of economic loss and damages is somewhat more complicated. The Supreme Court has noted that courts have generally applied an out-of-pocket measure of damages i.e., the difference between the fair value of what the plaintiff received and the fair value of what the plaintiff would have received had there been no fraudulent conduct in Section 10(b) cases involving fraud by a seller of securities. See Randall v. Loftsgaarden, 478 U.S. 647, 662, 106 S.Ct. 3143, 92 L.Ed.2d 525 (1986); Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 155, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972). As such, the Third Circuit generally *350 considers the difference between the purchase price and the "true value" of a security at the time of the purchase to be the proper measure of economic loss and of damages that reflect the loss proximately caused by fraud. Semerenko, 223 F.3d at 184-86. See also Sowell v. Butcher & Singer, Inc., 926 F.2d 289, 297 (3d Cir. 1991). Therefore an investor's proximate "economic loss" is the actual amount that is attributable to the unrecovered inflation in the purchase price. See Green v. Occidental Petroleum Corp., 541 F.2d 1335, 1345 (9th Cir.1976) (Sneed, J., concurring). In addition, the artificial inflation must actually be "lost" due to the alleged fraud where the value of the security does not actually decline as a result of an alleged misrepresentation, it cannot be said that there is in fact an economic loss attributable to that misrepresentation.[23]Semerenko, 223 F.3d at 184-85.
Rule 10b-5 and the PSLRA do not endorse any economic theory or methodology that should be used to quantify/demonstrate economic loss. Prior to the Dura Pharmaceuticals decision, some lower courts, albeit in widely varying contexts, adopted a "transaction-based" methodology to calculate economic loss and damages rather than a "cumulative" approach that aggregates transactions (i.e., "off-sets" gains and losses stemming from different transactions). A transaction-based methodology treats each transaction separately and therefore "allows claims for unprofitable transactions . . . without offsetting the recoverable loss with gains from profitable transactions." Argent, 315 F.Supp.2d at 680. These decisions have refused to allow alleged gains to cancel out purported losses, and they have rejected arguments that a plaintiff who was a "net seller" and made money during the class period could not proceed with claims under federal securities laws. See, e.g., Nesbit v. McNeil, 896 F.2d 380, 386 (9th Cir.1990), abrogated on other grounds, Lampf, Pleva, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991) (affirming a lower court's refusal to permit an offset of trading gains against losses on plaintiff's investments in a "churning" case, and stating that denying defendants an offset for portfolio gains "serves to forward the deterrent policies which underlie the federal securities laws"); Davis v. Merrill Lynch, Pierce, Fenner & Smith, 906 F.2d 1206, 1218 (8th Cir.1990) (rejecting the argument that because a churned account recognized a "cumulative net profit," no actual damages were sustained, and refusing to allow offset for profits in calculating damages); Plumbers & Pipefitters Local 572 Pension Fund v. Cisco Sys., Inc., 2004 U.S. Dist. LEXIS 27008 at *10 (N.D.Cal.2004) (rejecting as "premature and unpersuasive at the class certification stage" the argument that certain plaintiffs were not appropriate class representatives because they made money during the class period and were "net sellers"); In re Blech, Sec. Litig., 2003 U.S. Dist. LEXIS 4650 at *72 (S.D.N.Y.2003) (in calculating damages, "[d]efendants are not entitled to an offset, factoring in any gains made by" in and out traders who sod their shares prior to the end of the class period); Burke v. Ruttenberg, 102 F.Supp.2d 1280, 1302 n. 32 (N.D.Ala.2000) (holding that the plaintiffs "alleged gains during the early period of his trading cannot be offset against his purported losses"); Kane v. Shearson Loeb Rhoades, Inc., 1989 U.S. Dist. LEXIS 19022 at *15-23 (S.D.Fla. *351 1989) (stating that "[s]uch an aggregation method for the calculation of out of pocket damages in a securities action undermines one of the principal goals of both federal and state securities laws: deterring fraud," and concluding that the proper damage methodology "should have been to treat each transaction separately rather than to have aggregated them"); In re Clinton Oil Co. Sec. Litig., 1977 U.S. Dist. LEXIS 16787 at *5 (D.Kan.1977) (holding that "profit/loss margins on sales of shares obtained in separate and independent purchase transactions should not be offset for the purpose of reaching a net figure").
In many of these decisions, a frequently cited justification for adopting a transaction-based methodology is that aggregation (i.e., offsetting) undermines a major goal of the securities laws namely, deterrence of fraud.
As noted above, the transaction-based methodology was endorsed by Judge Dalzell, in Argent, who reasoned that "[n]either the statute nor the Rule authorize any sort of aggregation of purchases or sales that could sanction the cumulative approach [to determine plaintiffs damages]." Argent, 315 F.Supp.2d at 681. After noting, as an example, that "[a plaintiff] is entitled to recover his $50 loss on January 15 because that loss was attributable to his purchase and sale of 50 identifiable shares," Judge Dalzell squarely concluded that "[i]t would be inequitable to deprive [a plaintiff] of any recovery because his purchase and sale of different shares happened to be profitable." Id.[24]
Argent is arguably consistent with Judge Sneed's well-publicized analysis of recovery under the out-of-pocket measure of damages in his concurring opinion in Green v. Occidental Petroleum Corporation, 541 F.2d 1335, 1346 (9th Cir.1976) (Sneed, J., concurring), holding that a wrongdoer should not be permitted to satisfy its obligation to compensate purchasers for losses "by appropriating a portion of each purchaser's investment gain." Indeed, Judge Sneed concluded that the consequence of doing so would be "denying any recovery so long as a purchaser's selling price exceeded the purchase price. To permit such an appropriation by a wrongdoer is no more just than to charge the wrongdoer with investment losses not proximately caused by his misrepresentations." Id. (cited with approval by the Third Circuit in Semerenko, 223 F.3d at 185). See also In re Clearly Canadian Sec. Litig., 966 F.Supp. 930 (N.D.Cal.1997) (Judge Vaughn Walker's exposition of what is sometimes called the "Sneed/Walker" approach).
Defendant cites, however, to several decisions of record in which courts have criticized the results of a transaction-based methodology. In In re Comdisco Securities Litigation, 150 F.Supp.2d 943 (N.D.Ill. 2001) a case in which SERS was also the plaintiff and Dr. Hakala was also plaintiffs expert the District Court rejected SERS application to be lead plaintiff, and in support of this conclusion found that SERS's transaction-based loss calculation was "only a mirage created by [SERS's] adoption of a FIFO . . . approach to its dealings in the stock" because its "class period sales at inflated prices caused it to derive *352 unwitting benefits rather than true losses." Id. at 945. Likewise, the Court in Arenson v. Broadcom Corp., 2004 WL 3253646 (C.D.Cal.2004), in granting summary judgment against a number of individual plaintiffs, held that those plaintiffs could not establish losses because they profited from the alleged fraud by selling their shares of stock at an artificially inflated price. The court, citing to a Ninth Circuit decision from 1987, rejected FIFO methodology as a matter of law, and held that "where a plaintiff engages in multiple purchases and sales during the period in which the stock is inflated, the proper damages methodology is to take all the inflation losses resulting from all purchases at the inflated price and reduce this amount by all the inflation gain resulting from all sales at the inflated price." Id. (citing Wool v. Tandem Computers Inc., 818 F.2d 1433, 1437 & n. 4 (9th Cir.1987)).
The Court also notes Judge Scheindlin's recent opinion in In re eSpeed, Inc. Sec. Litig., 232 F.R.D. 95, 101 (S.D.N.Y.2005). In that case, the Court was selecting among various entities who were competing to be appointed lead Plaintiff. The Court rejected one in favor of another because it found that one party's "losses due to the [defendant's] alleged fraud were actually somewhat cushioned by the sales made when [defendant's] stock price was high, sales that are not taken into account" by the plaintiff's use of a "first-in-first-out" method of accounting. Id. at 101. After reviewing many cases discussing LIPO and FIFO damage calculations, and selecting the other party to be Lead Plaintiff, the Court noted that it did so in part because the party used LIFO and "offset[] `gains' that were attained through the sale of stock during the class period." Id. at 102. In doing so, the Court noted that offsetting gains and losses is a "better measurement of the true damages sustained by the plaintiffs." Id. See also, e.g., In re Goodyear Tire & Rubber Co. Sec. Litig., 2004 WL 3314943, *4 (N.D.Ohio 2004) (finding the LIFO method preferable to the FIFO method); In re AOL Time Warner, 2006 WL 903236 (S.D.N.Y.2006) (discussing FIFO and LIFO in context of allocation of settlement).
The Third Circuit has not had occasion to consider the issue. This Court has fundamental concerns arise about adopting any specific theory as a matter of law when deciding a motion for summary judgment. Indeed, Defendants' authorities are not fully on point to the facts of this case. For example, the Comdisco Court aggregated all sales during the class period but deducted only the cost of shares bought during the class period (i.e., it included the profit from sales purchased before the class period but not the corresponding cost). Comdisco, 150 F.Supp.2d at 944-46. Some cases rule that only transactions during the class period are relevant. See In re Schering-Plough Corp. Sec. Litig., 2003 U.S. Dist. LEXIS 26297 at *26 (D.N.J. Oct. 10, 2003) ("FSBA's Section 19(b) claim is based on losses that resulted from purchases of Schering Plough stock made during the class period. Any capital gains made with respect to the sale of shares purchased before the class period are irrelevant."); The Comdisco and In re eSpeed decisions interpret the term "largest financial interest" in the context of the choice of a lead plaintiff, and some authority suggests that "financial interest" in that context is not synonymous with damages. See, e.g., In re Ribozyme Pharm., Inc. Sec. Litig., 192 F.R.D. 656, 659-60 (D.Colo. 2000). Finally, and perhaps most importantly, in Comdisco and eSpeed there was no evidence as there is in the instant case of a specific number of shares in a specific account bought during the class period at specific Sprices and held in that account when the price of the stock *353 dropped due to alleged fraud. As discussed supra, Argent clearly suggests that the instant plaintiff has a right to recover the loss on those shares.
B. The Impact of Dura Pharmaceuticals
Did Dura Pharmaceuticals implicitly endorse any specific theory or methodology for the quantification of economic loss? The Supreme Court reiterated that the securities laws seek to maintain public confidence in the marketplace, and they do so by deterring fraud, in part, through the availability of private fraud actions. However, the Court warned that the statutes make these actions available not to provide investors with broad insurance against market losses, but only to protect them against those actual economic losses that misrepresentations actually cause. As noted above, Dura Pharmaceuticals only rejected the Ninth Circuit's position that, for pleading purposes, a plaintiff need only establish that "the price on the date of the purchase was inflated because of the misrepresentation." Id at 1631 (quoting Broudo v. Dura Pharmaceuticals, Inc., 339 F.3d 933, 938 (9th Cir.2003)) (emphasis added by the Supreme Court). The Court held instead that an inflated purchase price does not, by itself, constitute or proximately cause the relevant economic loss.
To date, no Court of Appeals has ruled on the impact of Dura Pharmaceuticals on the establishment of economic loss and damages for purposes of proof at trial. Nor has any court granted summary judgment on similar facts as here.[25]
Although decided after Dura Pharmaceuticals, in the context of deciding a class certification motion, In re Sepracor Inc. Securities Litigation, 233 F.R.D. 52 (D.Mass.2005) rejected Defendants argument that the plaintiffs profits from other transactions during the class period should be offset against the plaintiffs losses at the end of the class period when the fraud was revealed.[26] Judge Lasker adopted the reasoning of Argent, but did not cite Dura Pharmaceuticals.[27]
Due to the procedural posture of the case i.e., a Rule 12(b)(6) motion Dura Pharmaceuticals was focused merely on the sufficiency of the plaintiffs initial pleadings, and does not address methodologies for quantifying economic loss. The parties' extensive briefing in the Supreme Court included specific discussion of Judge Sneed's out-of-pocket approach to damages (as set forth in Green, discussed supra). However the Supreme Court did not even mention that topic in the Dura Pharmaceuticals opinion.
*354 It is difficult to conclude that Dura Pharmaceuticals stands for an endorsement of any particular economic loss/damage principles of law. See, e.g., Bloomenthal and Wolff, Securities and Federal Corporation, § 16:110-11 (2d ed.2006) (discussing the impact of Dura Pharmaceuticals on determining damages). Dura Pharmaceuticals explicitly stated that it "need not, and d[id] not, consider other proximate cause or loss-related issues." 125 S.Ct. at 1634.[28] The closest the Court came to the issue before this Court was its statement that private actions under the securities laws are designed to protect investors against economic losses that misrepresentations "actually cause." Id. As such, there is nothing in Dura Pharmaceuticals that explicitly holds that (a) an investor who suffers damages from specifically identified transactions cannot recover losses from those transactions, or (b) that investor's other trading in the company's stock is relevant to a claim for damages based on the isolated transactions.
For these reasons, and after a careful examination of the law as discussed supra, this Court is inclined to conclude, at this point in time and unless the Third Circuit holds to the contrary, that Dura Pharmaceuticals has not changed existing law concerning the measurement of economic loss and damages in securities cases, and has not rejected the economic theory proffered by Plaintiffs.
The Court has carefully reviewed the expert declarations in this case. Defendant's experts urge the court to measure economic loss by implementing economic models based on an investment theory i.e., to analyze SERS's economic loss under the rubric of MPT, fair market value accounting, AIMR-PPS, and related principles and methodologies. Doing so, the Defendants' experts maintain, would require the netting of profits and losses during the class period and would essentially obligate the Court to conclude that SERS suffered no economic loss or damages. However, as the experts concede, investment theory has little relevance to the calculation of damages. In addition, Defendants' theory uses sales of stock purchased prior to the damage period, which is highly questionable. The Court does not find any persuasive authority that would justify adopting, as a matter of law, as part of an analysis under Dura Pharmaceuticals, in the context of summary judgment, either an economic theory that was contrary to well-supported damage calculation cases in fraud on the market cases, or a causation analysis that was not based on established case law related to securities jurisprudence.
Rather, the Court finds that there is a significant amount of authority which would allow a jury to apply a transaction-based methodology, if based on adequate evidence, to calculate economic loss and damages, rather than requiring the jury to apply a cumulative approach that aggregates transactions and off-sets gains and losses stemming from different transactions. The specific calculation of damages in this case should be resolved based on a trial record, rather than at the summary judgment stage. The Court will not reject the vitality of transaction-based methodologies on these facts on a motion for summary judgment.
Although, as noted in the opening paragraph of this Memorandum, from a cumulative point of view (considering SERS's overall transactions in CIGNA stock), SERS did not suffer an economic loss on *355 its investment in CIGNA stock, the precedents do not translate that obvious conclusion into summary judgment in favor of CIGNA. If SERS's purchases of CIGNA stock had occurred entirely within the class period, Defendants' contention about economic loss would be more compelling. Granting summary judgment in favor of Defendants would adopt an economic theory that has support in a few cases and economic literature, but should not be established as a binding principle of law in this case. The Court reserves any final decision about Defendants' contentions until after a record has been made at a trial, where all of the evidence relevant on SERS purchases can be presented and subjected to cross-examination.
SERS is entitled to develop, before a jury at trial, the background of the investments made in CIGNA stock on behalf of SERS. It appears that the investment managers, rather than SERS itself, made all of the decisions.[29] The great majority of CIGNA stock sold by SERS during the class period was purchased before the class period. Assuming the facts of these purchases are admissible into evidence at trial, there is an open question as to what instruction should the jury be given about the relevance of these purchases namely, how the Court should instruct the jury to consider the gains made by SERS on its sales of CIGNA stock during the class period, on those shares purchased before the class period. Although the experts disagree on whether it is appropriate to use FIFO or LIFO, there is no appellate ruling that a judge must charge a jury that one of these is proper to the exclusion of the other. If the jury is charged on and accepts SERS's transaction-based theory, the issue of FIFO or LIFO may not be relevant.[30]
*356 The Court notes that, in view of the fact that SERS, although seeking to continue its Lead Plaintiff status, is no longer seeking to act as a class representative, and in view of the Court's simultaneous filing with this Memorandum and Order, an Order allowing Plaintiffs MPERS and Miami Employees to maintain this case as a class action and serve as class representatives, granting Defendants' motion for summary judgment against SERS would do nothing to advance the termination of this litigation. Rather, the fact that there are now two class representatives as to which there does not appear to be any dispute about economic loss makes the disposition of this motion, although important to SERS, not necessarily otherwise relevant to the ultimate outcome of this case. Since the case will be tried on a class basis, SERS's purchases and sales of CIGNA stock will not have any significant impact on the CIGNA's liability.[31]
Finally, granting summary judgment on the present record would deprive the Plaintiffs of their constitutional right under the Seventh Amendment to have a jury decide all issues concerning the award of damages. As the Court said in Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998).
". . . `the common law rule as it existed at the time of the adopting of the Constitution' was that `in cases where the amount of damages was uncertain [,] their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it.'" Id. at 353, 118 S.Ct. 1279 (quoting Dimick v. Schiedt, 293 U.S. 474, 480, 55 S.Ct. 296, 298, 79 L.Ed. 603 (1935)).
In Dimick v. Schiedt, a personal injury negligence action, the Court also said: "Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in American history and jurisprudence that any seeming curtailment of right to jury trial should be scrutinized with the utmost care."
See also, e.g., Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931) (noting, in an antitrust case, the importance of having a jury determine issues relating to damages).
Before concluding, the Court also notes that there are disputes of material fact surrounding both the amount of inflation attributable to the alleged fraud and the effect of "corrective events" on the price of CIGNA stock. The experts disagree, for example, as to whether the alleged fraud was the sole cause of the inflation, and as to the impact of a "partially corrective event" prior to the generally accepted corrective event on October 24. These facts are clearly material to the determination of the extent of SERS's economic loss, and the existence and complexity of these disputes (including the absence of any conclusive time studies by either party) suggest to the Court that the task *357 of determining the precise measure of economic loss and damages here is best assigned to the factfinder at trial.
IV. Conclusion
For all the reasons explained at length herein, the Court finds that (1) Dura Pharmaceuticals does not compel a fundamental change in the way this Court should analyze proof of economic loss; (2) at this time it is not be appropriate to adopt the investment model advanced by Defendants to measure economic loss under the federal securities laws; (3) one of several methods used by courts prior to Dura Pharmaceuticals to analyze and quantify economic loss and damages is a transaction-based methodology; (4) applying that methodology, SERS has a viable claim for economic loss based on particular shares held at the end of the class period; and (5) there are disputes of material fact related to economic loss and damages that make summary judgment particularly inappropriate; and (6) a jury should be permitted to make relevant factual determinations for the purposes of calculating damages.[32] In the absence of more defined jurisprudence on the impact of Dura Pharmaceuticals, the Court finds that Dura Pharmaceuticals does not require dismissal of SERS at this point in time. Accordingly, the Court will deny the Motion for Summary Judgment Based on Lack of Economic Loss without prejudice.
An appropriate Order follows.
ORDER
AND NOW, this day of August, 2005, after careful review of arguments presented to the Court by both parties during oral argument and in numerous, detailed pleadings, it is hereby ORDERED that Defendants' Motion for Summary Judgment Based on Lack of Economic Loss (Doc. No. 182) is DENIED without prejudice.
NOTES
[1] The "damage period" or "class period" in a securities fraud case is generally the period of time during which plaintiffs allege that the stock price of the defendant corporation was inflated due to fraudulent statements made by company management, and ends when corrective statements are made (usually accompanied by a drop in price). The importance of this concept is discussed below.
[2] Following on the heels of the December 23 Memorandum, the Court, on December 30, 2005, entered a revised pretrial scheduling order, which directed SERS to file an amended complaint, and also dictated that Defendants' dispositive motion on the grounds of failure to demonstrate economic loss, if any, was to be filed by March 31, 2006. The Order also stated that discovery on the issue of economic loss would close on March 21, 2005, and that SERS was required to serve expert reports on the issues of economic loss by February 21, 2006, while Defendants were to do so by March 10, 2006.
[3] On March 30, 2006, the Court also granted SERS's Motion to allow two other putative class members, the Miami General Employees' Sanitation Employees Retirement Trust ("Miami Employees") and the Public Employees' Retirement System in Mississippi ("MPERS"), to intervene as additional proposed class representatives. SERS no longer seeks to represent the class. Defendants challenge SERS's status as Lead Plaintiff if it does not seek to represent the class.
[4] What portion of the CIGNA shares sold during the class period were purchased before the class period, as opposed to during the class period, is in some dispute. However, that dispute does not change the fact that, when viewing purchases and sales of CIGNA stock during the class period, SERS sold far more shares than it purchased.
[5] Dr. Hakala defines investment loss as what occurs "when an investor purchases a share and later sells that share for less than the purchase price." He defines an economic/inflationary loss as what occurs when "a shareholder purchases shares at an inflated price and then sells (or hold those shares after the class period) at a less inflated price." In the case of short sales, the order of transactions is reversed but the principle is the same. Hakala Dec. at ¶ 12-13.
For purposes of this Memorandum, the Court uses the term "economic loss" instead of "economic/inflationary loss."
[6] LIFO matches the sale of a share of stock to the price paid for the newest share in inventory.
[7] FIFO matches the sale of a share of stock to the price paid for the oldest share remaining in inventory.
[8] FIFO is the default method for matching purchases and sales of a security for tax purposes absent an explicit choice otherwise (see IRS Publication 550). Specific ID is usually employed for investment company accounting.
[9] Because investment returns on different assets are not perfectly correlated with each other, under MPT the risk level of an investment is judged by looking at the combined expected return and risk profile of a portfolio, not according to the individual characteristics of a security included in the portfolio. Peavy Dec. at ¶ 22.
[10] Applying MPT, Dr. Peavy opines that the key performance measurement statistic of "total rate of return," based on a security's market value (not cost basis or book value), is the most appropriate measure of a security's investment performance. Indeed, internally, SERS and its auditors use these particular metrics (pursuant, in part, to the Financial Accounting Standards Board's Generally Accepted Accounting Principles ("GAAP")). Peavy Dec. at ¶ 25-29.
[11] To illustrate, Dr. Hakala's Exhibit B lists the "Actual Price" for CIGNA stock on November 1, 2001 at $101.2252 per share in the Iridian account, at $89.288 per share in the First Quadrant account, and at $79.6865 per share in the Standish Mellon account. However, the closing market price for CIGNA stock on November 1, 2001 was $71.61.
[12] Dr. Peavy also suggests that Dr. Hakala's decision to ignore cash dividend payments made by CIGNA throughout the class period contributes to an improperly understated total rate of return.
[13] Dr. Feinstein's conclusion is the same irrespective of whether FIFO or LIFO accounting is used.
[14] Defendants do not specifically dispute this assertion.
[15] Rather, the PSLRA dictates use of the 90-day rule, which assigns a value to remaining shares based on the average price of the stock over the 90 days subsequent to the disclosures " ending the class period. 15 U.S.C. § 78u-4(e); Feinstein Dec. at 38; Stanglc Dec. at ¶ 28 n. 47.
[16] This is improper, according to Dr. Feinstein, for two reasons. First, it is based on the "unfounded" assumption that losses and gains must be netted, and, second, it assumes that there was no inflation in the CIGNA share price prior to the class period (an assumption which Dr. Feinstein believes to be "likely false"). Feinstein Dec. at ¶ 17-22.
[17] Dr. Feinstein also contends that the portfolio accounting methodology known as the AIMR Performance Presentation Standards ("AIMR-PPS"), also recommended by Drs. Peavy and Stangle, is a inappropriate methodology for computing damages, as they do not compute dollar profit or loss for any portfolio or any position. Feinstein Dec. at ¶ 43-48, 68.
[18] Citing to the opinions of Drs. Peavy and Stangle, Defendants conclude that "Dr. Hakala's approach makes no sense . . ." See Defs' Br. at 13-16.
[19] The Court notes that in addition to the October 24, 2002 statements that end the damage period, SERS also relies on an October 4, 2002 "partially-corrective event" (i.e., the release of the Solomon Report), which allegedly caused a decline of approximately $9.00 in the price of CIGNA stock in one day.
[20] Indeed, SERS argues that even if Defendants were correct on every issue they raise relating to investment loss/gain, none of those issues would be relevant to or determinative of the fact or amount of SERS's inflationary/economic loss. SERS asserts that that these issues are essentially red herrings which distract from the relevant issue the existence of SERS's inflationary/economic loss on shares held at the end of the class period.
[21] Section 10(b) of the Securities Exchange Act of 1934 forbids (1) the "use or employ[ment] . . . of any . . . deceptive device," (2) "in connection with the purchase or sale of any security," and (3) "in contravention of" Securities and Exchange Commission "rules and regulations." 15 U.S.C. § 78j(b). Securities and Exchange Commission Rule 10b-5 forbids, among other things, the making of any "untrue statement of material fact" or the omission of any material fact "necessary in order to make the statements made . . . not misleading." 17 C.F.R. 240. 10b-5 (2004). The Supreme Court has implied from these statutes and Rule a private damages action, which resembles, but is not identical to, common-law tort actions for deceit and misrepresentation. See, e.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 196, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 744, 95 S.Ct. 1917, 44 L.Ed.2d 539, (1975). Congress has imposed statutory requirements on that private action. See, e.g., 15 U.S.C. § 78u-4(b)(4); Dura Pharmaceuticals, 125 S.Ct. at 1631.
[22] Courts have recently held that a plaintiff must explicitly show that the market reacted negatively to either a corrective event or disclosure or a materialization of a concealed risk. See, e.g., Lentell v. Merrill Lynch & Co., 396 F.3d 161, 173-75 (2d Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 421, 163 L.Ed.2d 321 (2005); In re Tellium, Inc. Sec. Litig., 2005 WL 2090254 at 53 (D.N.J. Aug. 265, 2005) (holding that a plaintiff must allege a corrective disclosure or some other corrective event). See also In re Compuware Sec. Litig., 386 F. Supp.2 d 913, 920 (E.D.Mich.2005) (applying Dura Pharmaceuticals and holding that a plaintiff that sold its shares before the "truth" was revealed could not establish loss causation).
[23] In the absence of a correction in the market price, the cost of the alleged misrepresentation is still incorporated into the value of the security and may be recovered at any time simply by reselling the security at the inflated price.
[24] The Court notes that Argent involved a slightly different scenario than the case sub judice. In Argent, the issue was whether transactions occurring after the damage period on which the plaintiff made money should be netted against transactions during the damage period on which it lost money. Here, the issue is whether transactions that resulted in gains and losses, where some of the purchases were prior to the damage period, but purchases and sale occurring during the class period, should be netted.
[25] Judge Pisano recently concluded in In re Royal Dutch/Shell Transport Securities Litigation, 2005 U.S. Dist. LEXIS 32190 (D.N.J. Dec. 12, 2005), that Dura Pharmaceuticals is consistent with the Third Circuit's existing precedent for pleading economic loss and loss causation. Although Royal Dutch involved a motion to dismiss and was therefore decided at the pleadings stage, the Court nonetheless notes Judge Pisano's well-reasoned conclusion that "the standard for pleading economic loss and loss causation in the Third Circuit . . . was not undermined by Dura." It was not necessary for Judge Pisano to reach the further question of whether Dura Pharmaceuticals, although not changing the standards for pleading, might have some impact on proof/measurement of economic loss for the purposes of summary judgment.
[26] See Exhibit A to SERS's Post-Argument Memorandum dated November 29, 2005 (Doc. No. 119).
[27] The Court notes that, as Argent, Sepracor involved a slightly different scenario than the case sub judice. In Sepracor, the issue was whether profitable transactions in one type of security (i.e., stocks) should be offset against profitable transactions in another security (i.e., bonds), where both sets of transactions occurred during the class period.
[28] See Defs' Resp. to SERS's Post-Argument Mem. at 5 ("[T]he Supreme Court in Dura rejected the adequacy of an averment that a loss occurred at the time of the purchase if the purchase price was inflated, and did not address the situation here. . . . ").
[29] Although this motion did not require the parties to detail evidence as to the reasons why SERS purchased CIGNA stock, it appears fairly undisputed from the evidence so far submitted, (the Court realizes there may be other evidence) that SERS itself had little or no input into the purchase of CIGNA stock on its behalf by the various investment managers which it employed.
The origin of the securities laws was, of course, in the 1930's depression era, when Congress determined that individual investors needed protection against fraud. Prior to the PSLRA, the great majority of securities fraud suits were brought on behalf of individual investors who had purchased a particular stock, and alleged that its price was inflated because of fraud. With the advent of the PSLRA, the lead plaintiffs in securities fraud cases now tend to be larger purchasers, and in many instances, retirement funds or other public entities, such as pension funds, as is SERS, where purchasing decisions are made by investment managers using sophisticated computer programs, rather than by the owner of the stock.
These observations may be totally irrelevant under the fraud-on-the-market concept, and they do not impact this ruling on economic loss in the context of summary judgment.
[30] Applying a transaction-based methodology, as most clearly enunciated in the declaration of Dr. Feinstein, at the end of the class period SERS had suffered a loss on 5,000 shares purchased during the class period and held in the First Quadrant account on October 24, 2002. Taking into account the 3,900 share short position SERS held in the Standish Mellon account, SERS was, at the very least, long in 1,100 shares it had purchased during the damage period. The fact that SERS was a net seller (including shares purchased prior to the damage period), is not of particular relevance to whether SERS suffered a loss on these specific shares. As mentioned supra, "[a plaintiff] is entitled to recover his $50 loss on January 15 because that loss was attributable to his purchase and sale of 50 identifiable shares," and "[i]t would be inequitable to deprive [a plaintiff] of any recovery because his purchase and sale of different shares happened to be profitable." Argent, 315 F.Supp.2d at 681. If CIGNA committed fraud on the market, nothing in the law compels this Court at this stage to allow CIGNA to satisfy its obligation to compensate SERS for losses by appropriating a portion of SERS's investment gain. Given the policy behind the securities laws (namely, deterring fraud), dismissal of SERS at this stage is not appropriate in the face of the specific shares on which SERS alleges it suffered a loss due to CIGNA's fraud.
[31] It is, of course, possible that as part of the trial the Court would submit special interrogatories to the jury to determine whether SERS suffered economic loss. Although doing so would surely be determinative of whether SERS is entitled to damages, it would have arguably little impact on the conduct of the liability aspects of the trial, or on the theory of damages presented by the class representatives on behalf of the class.
The Court notes that there may be other members of the class with CIGNA purchases and sales similar to SERS. Although neither party has suggested SERS as a representative of a subclass of such CIGNA shareholders, this concept deserves consideration.
[32] The Court notes in passing that while out-of-pocket loss is the ordinary standard in a 10b-5 suit, damages can, at the discretion of the judge, be measured in several ways, including, in appropriate circumstances, "benefit of the bargain," rescission, or consequential damages. Randall, 478 U.S. at 662, 106 S.Ct. 3143 (citing Blackie v. Barrack, 524 F.2d 891, 909 (9th Cir.1975)); Sowell, 926 F.2d at 297 (3d Cir.1991); Edward J. DeBartolo Corp. v. Coopers & Lybrand, 928 F.Supp. 557, 567 (W.D.Pa.1996). Without taking any position on the availability of any such alternative damage measures to SERS, the Court notes that if SERS did have some right to rescission or consequential damages, for example, rather than to pure out-of-pocket damages, there does not appear to be anything in Dura Pharmaceuticals or in the literature that would bar such recovery even though SERS did not have a net economic loss in its CIGNA transactions.
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-8-2007
Aruanno v. Cape May Cty Jail
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-1395
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 02-1395
__________
JOSEPH ARUANNO,
Appellant
v.
CAPE MAY COUNTY JAIL;
CAPE MAY SHERIFFS OFFICE;
C. BROWN, OFFICER; COTA, OFFICER
__________
On Appeal from the United States District Court
for the District OF New Jersey
(D.C. Civil No. 99-cv-02869)
District Judge: Honorable Stephen M. Orlofsky
Magistrate Judge: Honorable Joel B. Rosen
__________
Argued on January 9, 2007
Before: SLOVITER and RENDELL , Circuit Judges,
and RUFE,* District Judge.
(Filed March 8, 2007)
__________
OPINION OF THE COURT
__________
__________________
* Honorable Cynthia M. Rufe, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
Louis K. Fisher [ARGUED]
Jones Day
51 Louisiana Avenue, N.W.
Washington, DC 20001
Counsel for Appellant,
Joseph Aruanno
Susanna J. Morris [ARGUED]
Budd, Larner, Gross, Rosenbaum,
Greenberg & Sade
1939 Route 70 East, Suite 100
Cherry Hill, NJ 08003
Counsel for Appellees,
Cape May County Jail;
Cape May Sheriffs Office;
C. Brown, Officer; Cota, Officer
OPINION OF THE COURT
RENDELL, Circuit Judge.
Joseph Aruanno appeals from the District Court’s dismissal of his lawsuit filed
under 42 U.S.C. § 1983 for failure to state a claim pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Appellant’s claim asserts Eighth Amendment
violations by New Jersey corrections officers at the Cape May County Jail, including
2
numerous physical assaults by the officers, denial of proper medical treatment, and the
placement of Aruanno in small cells with highly dangerous and diseased inmates, several
of whom attacked Aruanno and one of whom committed suicide in the cell they shared.
Aruanno also claims that the Magistrate Judge in charge of non-dispositive
motions in his case abused his discretion in refusing to appoint counsel on Aruanno’s
behalf in view of the fact that Aruanno suffers from mental problems that impair his
ability to prosecute his case.
For the reasons set forth below, we will reverse the dismissal and the denial of the
request for the appointment of counsel and remand to the District Court for further
proceedings in accordance with this opinion.
FACTUAL AND PROCEDURAL HISTORY
Aruanno was convicted of one count of sexual assault in 1998 and was sentenced
to ten years’ imprisonment. He was incarcerated primarily at Cape May County Jail,
beginning in December 1996 (after he was arrested and charged) and continuing until
March 11, 1999. In 1997 and 1998, Aruanno was involved in two altercations with
fellow inmates, one of which led to his receiving three stitches.
Aruanno filed a lawsuit in the Superior Court of New Jersey, Law Division,
Special Civil Part, Cape May County, against defendants Cape May County Jail, Cape
May County Sheriff’s Department, and the County of Cape May, alleging that he had told
the jail staff he was being threatened and that their willful disregard of his safety put him
3
in grave danger. He alleged that the staff’s negligence and carelessness led to physical
and mental injuries on his part. The defendants answered the complaint and filed a
motion for summary judgment, which was granted in January 1999 based on defendants’
absolute immunity.
In June 1999, Aruanno filed a complaint in the United States District Court for the
District of New Jersey. He brought suit under 42 U.S.C. § 1983, alleging, inter alia, that
corrections officers had violated his constitutional rights by assaulting him and knowingly
placing him with dangerous, mentally unstable inmates. He also alleged that he was
denied proper medical treatment when he arrived at prison with fractured ribs and was
forced to sleep on the floor in that condition. Also, “[t]he average wait to see the doctor
was one week and the answer to everything was an aspirin.” App. 37. The named
defendants in the suit were Cape May County Jail, Cape May County Sheriff’s Office,
Officer C. Brown, and Officer Cota.
After he filed his suit in the District Court, Aruanno filed several motions for
appointment of counsel. These motions came before a Magistrate Judge assigned to
manage all non-dispositive matters and matters relating to discovery. The bases for
Aruanno’s motions were that he had not been able to obtain an attorney, that he had no
litigation experience, and that he suffered from severe psychological problems.
Aruanno submitted medical reports from 1997 and 1999, the latter of which set
forth the clinical psychologist’s conclusion that Aruanno had “multiple psychological
4
problems,” App. 150, and that it was “clear that Mr. Aruanno is presenting with severe
psychological pathology, related both to depression and paranoid delusional material.”
App. 152. Defendants presented excerpts from Aruanno’s correctional file which did not
indicate that Aruanno had been harmed during his time at Cape May any more than
requiring stitches on one occasion after a fight with another inmate. Aruanno was never
permitted to see his file, and the Defendants provided no affidavit to support their
attorney’s statement that they denied that Aruanno was beaten by the staff.
In a letter opinion and order entered on April 25, 2000, the Magistrate Judge
denied the request for counsel, concluding that Aruanno’s claims did not appear to have
“substantial merit” and that Aruanno was capable of managing his lawsuit. The
Magistrate Judge mentioned the 1997 medical report but not the more recent 1999 report.
After issuing his decision, the Magistrate Judge appeared to offer conflicting and
contradictory instructions to Aruanno. Aruanno wrote to him objecting to the order
denying appointed counsel, including his objection to the omission of mention of the
more recent 1999 medical report. The Magistrate Judge replied that “[i]f you feel that my
decision was in error, you may file a motion for reargument under Local Civil Rule 7.1.”
App. 171.
Aruanno wrote back, requesting that his prior submission be treated as such a
motion. This request was docketed on May 8, 2000, but the Magistrate Judge did not
respond. Three months later Aruanno wrote to the Magistrate Judge about his motion, to
5
which the Magistrate Judge responded: “you asked me about the status of a motion for
reargument and a request for a stay. The court presently has no motions pending in your
case.” App. 179. Aruanno wrote back once again, reminding the Magistrate Judge about
his objections to the order denying appointment of counsel, and asking “What should I do
now?” App. 180. The Magistrate Judge did not respond.
The County Defendants filed a motion to dismiss the suit pursuant to Rule 12(b)(6)
on December 20, 1999. In response, Aruanno filed a motion for appointment of counsel
which included arguments why he believed the motion to dismiss should not be granted.
On December 18, 2000, the District Court granted the motion to dismiss, without
prejudice and without explanation. However, the order stated that there were indications
that Aruanno had been moved within the prison system during the pendency of the
motion, and that if he could demonstrate he had not received the motion to dismiss the
matter could be reopened.
Aruanno filed a motion to reopen, stating that he did not know if he had received
the motion because he had been in “isolation” for much of the time: “to be honest with
you I do not have a clue as to what is going on. I have been moved to a psychiatric unit
and have recently been on suicide watch. I am on medication and sleep all the time.”
App. 182.
On January 10, 2002, the District Court issued its Opinion and Order, finding that
Aruanno had in fact received the motion and dismissing Aruanno’s complaint with
6
prejudice based on Rule 12(b)(6) of the Federal Rules of Civil Procedure. Aruanno filed
a timely notice of appeal on February 1, 2002.
DISCUSSION
A. 12(b)(6) Dismissal
The order granting the Rule 12(b)(6) motion to dismiss is reviewed de novo. In re
Adams Golf, Inc. Secs. Litig., 381 F.3d 267, 273 (3d Cir. 2004) (“This Court reviews Rule
12(b)(6) dismissals de novo, accepting all well-pleaded allegations as true and drawing all
reasonable inferences in favor of plaintiffs.”). The denials of the motions for
appointment of counsel are reviewed for abuse of discretion. Tabron v. Grace, 6 F.3d
147 (3d Cir. 1993).
We conclude that the decisions by the Magistrate Judge and the District Court
were both flawed. With respect to the District Court’s 12(b)(6) dismissal, the dismissal
lacked any reasoning, and the immediate reference to the fact that no response was
received from Aruanno indicates that the District Court may have believed that the
absence of a response to a 12(b)(6) motion meant that the motion was conceded and
therefore should be granted. Our precedent states clearly that this is not the case. See
Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991) (“The fact is that if a motion
to dismiss is granted solely because it has not been opposed, the case is simply not being
dismissed because the complaint has failed to state a claim upon which relief may be
granted. Rather, it is dismissed as a sanction for failure to comply with the local court
7
rule.”).
We cautioned in Stackhouse that we were not “suggest[ing] that the district court
may never rely on the local rule to treat a motion to dismiss as unopposed and subject to a
dismissal without a merits analysis. There may be some cases where the failure of a party
to oppose a motion will indicate that the motion is in fact not opposed, particularly if the
party is represented by an attorney and in that situation the rule may be appropriately
invoked. Nor do we suggest that if a party fails to comply with the rule after a specific
direction to comply from the court, the rule cannot be invoked.” Id.
In this case, no local rule was mentioned, Aruanno was not represented by an
attorney, and he was not specifically directed to comply with a local rule. When Aruanno
replied to the District Court that he was not sure if he had received the motion to dismiss
in light of circumstances relating to his medical condition, he did not concede the motion
or indicate it was unopposed. Given this, the District Court should have proceeded to
conduct a merits analysis. Instead, it dismissed the complaint with prejudice. Thus, the
District Court appears not to have employed the proper 12(b)(6) inquiry.
Moreover, even if the District Court’s order resulted from an examination of the
merits, we would have little difficulty finding we must reverse the District Court.
Aruanno’s § 1983 suit challenged the actions taken by Cape May corrections officials and
sets forth a claim under the Eighth Amendment of “unnecessary and wanton infliction of
pain,” Ingraham, v. Wright, 430 U.S. 650, 670 (1977), via his allegations of excessive
8
force, inhumane integration with dangerous prisoners, and the absence of proper medical
care.
The standard of review for Rule 12(b)(6) orders is a generous one, and the
standard is even more forgiving when a pro se plaintiff is involved. Dluhos v. Strasberg,
321 F.3d 365 (3d Cir. 2003). Aruanno’s allegations state a claim for which relief can be
granted, “accepting all well-pleaded allegations as true and drawing all reasonable
inferences in favor of plaintiffs.” In re Adams Golf, Inc. Secs. Litig., 381 F.3d 267, 273
(3d Cir. 2004).1
B. Denial of Appointed Counsel
We review the denial of appointed counsel for abuse of discretion. Tabron v.
Grace, 6 F.3d 147 (3d Cir. 1993) (“[B]ecause 28 U.S.C. § 1915(d) gives the district
1
Defendants raise the argument that dismissal was appropriate given the effect of
Aruanno’s state-court proceedings, which were terminated by summary judgment before
his federal claim was filed. Arguing under New Jersey’s “entire controversy doctrine,” a
relative of res judicata, Defendants assert that the fact that the state proceedings involved
the same allegations means that the § 1983 claim is barred as a 12(b)(6) matter. This is
incorrect. See Rycoline Prods. v. C & W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997)
(“We held in Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978), that if
a statute of limitations ‘bar is not apparent on the face of the complaint, then it may not
afford the basis for a dismissal of the complaint under Rule 12(b)(6).’ This holding
applies not only to a statute of limitations defense, but also to any affirmative defense
raised pursuant to Rule 8(c), including res judicata and the Entire Controversy
Doctrine.”). Thus, the affirmative defense put forward by Defendants cannot be the basis
for a 12(b)(6) dismissal, because it was not evident from the face of the complaint. Nor is
it at all clear that, even if this doctrine applied, it would be applicable in Aruanno’s case,
because the Defendants concede that Defendant Officer Cota was not a party to the state-
court action. Respondent’s Br. 19 n.2.
9
courts broad discretion to appoint counsel, the courts of appeals should reverse that
exercise of discretion only where the party seeking appointment has shown that the
district court’s decision not to appoint counsel was clearly an abuse of discretion . . . .”).
The Magistrate Judge correctly cited Tabron v. Grace, which sets forth the factors
to be taken into consideration in determining whether the appointment of counsel is
warranted. These factors include whether the suit has “arguable merit;” the plaintiff’s
ability to present his case; and the plaintiff’s “education, literacy, prior work experience,
and prior litigation experience.” Tabron, 6 F.3d at 156. The “court must also consider
the difficulty of the particular legal issues,” assess “the degree to which factual
investigation will be required and the ability of the indigent plaintiff to pursue such
investigation” and “the extent to which prisoners and others suffering confinement may
face problems in pursuing their claims.” Id. Finally, “where the claims are likely to
require extensive discovery and compliance with complex discovery rules, appointment
of counsel may be warranted,” and “when a case is likely to turn on credibility
determinations, appointment of counsel may be justified.” Id.
The Magistrate Judge misapplied these factors to the facts before him. In
weighing each of the factors, the Magistrate Judge erred by giving insufficient
consideration to the uncontroverted medical reports describing Aruanno’s condition and
10
to the overall difficulty Aruanno faced in bringing his suit.2 The Magistrate Judge
neglected to mention the most recent medical report describing Aruanno’s condition,
instead referring exclusively to an earlier report analyzing Aruanno’s competency to stand
trial. The Magistrate Judge then compounded that error by drawing erroneous
conclusions from the competency report. “[Aruanno] was found to be aware of the nature
and consequences of the charges against him. It was also found that [Aruanno] could
adequately participate in the defense of his criminal case. This diagnosis confirms that
the plaintiff is capable of defending his pending civil rights case.” App. 21. That
framing of the Tabron test flatly distorted it; a defendant’s competency to stand trial does
not equate to his being able to manage a civil suit. Moreover, the Magistrate Judge failed
to consider that this type of suit, a § 1983 suit against prison officials, would include
credibility and discovery issues and would be appropriate for the appointment of counsel
under our caselaw.
We have said that “[i]f it appears that an indigent plaintiff with a claim of arguable
merit is incapable of presenting his or her case, serious consideration should be given to
appointing counsel, and if such a plaintiff’s claim is truly substantial, counsel should
ordinarily be appointed.” Tabron, 6 F.3d at 156 (citation omitted). In this case,
2
There is a question as to whether the Magistrate Judge misapplied the “arguable merit”
factor insofar as he deemed the claims to lack “substantial merit.” App. 15. Even if this
was merely a slip of the pen, the factor was misapplied because the claims do possess
arguable merit.
11
Aruanno’s claim has arguable merit and his medical condition rendered him incapable of
prosecuting his case. The denial of the request was tainted by an unduly restrictive
application of Tabron to the facts at hand, and we conclude that the denial of the request
for appointment of counsel was an abuse of discretion. Accordingly we will reverse the
order and require that counsel be appointed.
CONCLUSION
In light of the foregoing, the Order of the District Court entered on January 10,
2002, denying the motion to reopen and dismissing the action with prejudice will be
REVERSED. The case will be REMANDED to the District Court with direction to
appoint counsel for appellant and for further proceedings consistent with the Opinion of
this Court.
__________________
12
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181 N.W.2d 107 (1970)
John WILLIAMS, Appellant,
Auto-Owners Insurance Company, Interpleaded Additional Party Plaintiff, Respondent,
v.
Owen W. HOLM, Defendant.
No. 42275.
Supreme Court of Minnesota.
October 30, 1970.
*108 Lamb & Schaefer, Moorhead, for appellant.
Padden, Dickel, Johannson & Wall, Crookston, for respondent.
OPINION
KELLY, Justice.
Appeal by John Williams from a judgment of the district court awarding money on deposit with its clerk of court to the Auto-Owners Insurance Company.
The sole issue before this court is whether an employer-insurer that pays additional benefits and additional medical expenses as a result of the aggravation of an employee's compensable work-connected injury caused by the malpractice of a physician in treating the original injury is entitled to subrogation for such additional payments where the employee recovers money by settlement of an action seeking damages because of the doctor's malpractice.
In June 1967, Williams sustained an on-the-job injury and sought medical assistance from the only doctor in town, who referred him to a physician in a nearby city. Through negligence of the latter physician, the injury was aggravated and the insurance company paid additional benefits to Williams and also paid additional medical bills. Williams and the insurance company, as an interpleaded party plaintiff, brought a malpractice action against the doctor which was settled for the sum of $45,000. The insurance company and Williams agreed that the sum of $4,358.05 was the amount of additional benefits and medical expenses attributable to the malpractice and deposited this sum with the clerk of district court subject to that court's order.
This court considered the same issue in McGough v. McCarthy Improvement Co., 206 Minn. 1, 287 N.W. 857, and affirmed the order of the Industrial Commission which denied subrogation to the compensation carrier under facts on all fours with the instant case with the exception that in McGough the employer made the choice of doctor rather than the employee, a circumstance we find of no significance.
This court again considered the same issue in Thibault v. Bostrom, 270 Minn. 511, 134 N.W.2d 308, where an employer's compensation carrier, Liberty Mutual Insurance Co., paid benefits to Thibault for injuries he sustained in an automobile accident occurring when he was returning from medical treatment for a compensable job-connected injury previously suffered by him. When Thibault brought an action for his personal injuries arising out of the automobile accident against Bostrom, Liberty Mutual moved the district court for leave to intervene as an interested party entitled to subrogation. The district court denied the motion but on appeal we reversed, stating (270 Minn. 515, 134 N.W.2d 312):
"It is our conclusion that the employer-insurer has a legitimate interest in the third-party action presently pending and that the decision of the district court, in so far as it is based on the conception that the employer-insurer is without rights of subrogation in circumstances such as these, must be and is reversed."
The applicable provision of our Workmen's Compensation Act in force during all relevant times in the McGough case, Mason St.1927, § 4291(2), provided:
"Where an injury * * * is caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, * * * legal proceedings may be taken by the employee * * * and [if] a judgment is obtained and paid or settlement is made with such other party either with or without suit, the employer shall be entitled to deduct from the compensation payable by him, the amount actually received by such employee * * * after deducting *109 costs, reasonable attorney's fees and reasonable expenses incurred by such employee * * * in making such collection or enforcing such liability; * * *." (Italics supplied.)
At the time of Thibault's original compensable injury, Minn.St.1949, § 176.06, subd. 2, was in effect and was substantially the same as the statute in force at the time of the McGough case. This law was amended so that at the time Thibault suffered additional injuries in the automobile accident (April 1960), Minn.St. 176.061, subd. 5, was the relevant statute and in it the words "which created" were substituted for the words "also creating." The pertinent provision of this law in effect at the time the Thibault case was decided is the statutory law now applicable to the instant case.
The Workmen's Compensation Act makes no distinction between the tort of malpractice and any other tort in allowing subrogation to a compensation carrier who is required by law to pay benefits and medical expenses to and for an employee who has received an aggravation of an old injury or additional injury under the circumstances present in the instant case or those present in Thibault. Nor do we see any reason for distinguishing this case from Thibault.
Consequently, we overrule the McGough case and join the majority, if not all, of the courts in the United States, in holding that there is a right of subrogation under statutes and fact situations similar to the applicable statute and facts in this case.[1] To rule otherwise would be inequitable and would permit double recovery by the employee.
The judgment of the district court awarding the sum of $4,358.05 to the Auto-Owners Insurance Company and requiring the company to pay a pro rata share of Williams' attorneys' fees and expenses incurred in the malpractice case, all as more particularly set forth in the judgment, be and hereby is affirmed.
Affirmed.
NOTES
[1] 2 Larson, Workmen's Compensation Law, § 72.60.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 26 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 98-5144
v. (N.D. Oklahoma)
GUESSINIA VERNERS aka Guessinia (D.C. No. CV-97-1126-C)
Holland,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Guessinia Verners seeks a certificate of appealability (COA) in order to
appeal the district court’s denial of her 28 U.S.C. § 2255 motion to vacate, set
aside or correct her sentence. Because Verners has failed to make a “substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny
her request for a COA and dismiss the appeal.
Following a jury trial, Verners and her codefendant/son were convicted of
possession of cocaine base with intent to distribute, maintaining an establishment
for manufacturing drugs, and aiding and abetting each other in the commission of
those crimes, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 856(a)(1), and
18 U.S.C. § 2. Verners was sentenced to 151 months’ imprisonment. On direct
appeal we reversed all her convictions except the conviction for aiding and
abetting her son’s distribution offense. United States v. Verners, 53 F.3d 291
(10th Cir. 1995). After remand, she was resentenced to 120 months’
imprisonment. We affirmed that sentence in United States v. Verners, 103 F.3d
108 (10th Cir. 1996). Verners then brought the present § 2255 motion, claiming
that her counsel did not properly advise her regarding the factors involved in his
recommendation to move for a mistrial following the removal and replacement of
one of the jurors. 1
Verners’ codefendant/son brought a similar motion based on the alleged
1
jury contamination, and he also sought to appeal the district court’s denial. We
(continued...)
-2-
According to the record, shortly after the jury retired with instructions to
begin its deliberations, the court received a note from the jury foreman. The note
stated as follows: “Before deliberations start [Juror] Burden wishes to be excused
due to relatively close neighborhood proximity and the fact that he recognizes the
defendants.” R. Tab 146, Ex. C at 421. The court informed both defense counsel
about the note, and each spoke with his client about the situation. Id., Ex. C at
422-23. After their consultations, each counsel indicated his client’s preference:
Ms. Verners had no objection to excusing Mr. Burden. However, her son
objected to excusing Mr. Burden. 2 Id., Ex. C at 423. The court then privately
interviewed Mr. Burden, who indicated that he recognized Verners from a
neighborhood store, and he claimed that his impartiality would be affected
because of fear for his family. Id., Ex. C at 426-27. Next, the court met with the
attorneys and played them the tape of the interview. Both attorneys expressed
concern that Mr. Burden might have communicated his fear to the remaining
jurors, and that the jury might therefore be contaminated. Id., Ex. C at 428. The
1
(...continued)
have filed our Order and Judgment in that matter simultaneously with our
decision in this matter. See United States v. Verners, No. 98-5044, slip op. (10th
Cir. May 26, 1999). Because the factual circumstances and legal analysis is
generally the same on this issue, the two decisions employ several identical
passages.
2
Mr. Burden was the only African-American on the jury, and the Verners
are African-American. R. Tab 146, Ex. C at 427-28.
-3-
court conducted another private interview in which Mr. Burden indicated that he
had told the other jurors about his fear. Id., Ex. C at 431.
The record reveals that both attorneys advised the court that they believed it
to be in the best interests of their clients to move for a mistrial. However, they
asked to confer with their clients regarding the matter. Id., Ex. C at 432.
Obviously, the record does not contain any transcript of the actual attorney client
conferences, but immediately following the conferences, Verners’ counsel
represented that he had fully explained the problem to her: 3
Judge, I have also communicated the fact that Mr. Burden has
communicated his fear to the rest of the jurors about continuing his
service, and I have expressed to her my concern that that might have
contaminated the jury and affected in a negative way their
deliberation process regarding her aspect of the trial. She initially
indicated that she would do what I wanted her to do, if I thought a
mistrial was something that we should do, okay. She then went and
conferred in the Marshal’s Office with her son and she came out with
a different attitude, that she didn’t want to delay this process any
further, that she wanted to proceed to a verdict, and whatever was
going to be done was going to be done.
....
I have advised her that I thought it was best that we move for a
mistrial, but she instructed me not to.
Id., Ex. C at 434.
3
Verners was not present when counsel made this representation to the
court.
-4-
After hearing a similar representation from codefendant’s counsel, the court
removed the juror and replaced him with an alternate. Then, in open court, with
Verners present, the court inquired of the jury whether
anything occurred . . . that might in any way affect your ability to be
impartial jurors in your deliberations in this case? In other words,
has anything occurred that might—any information conveyed to you
that might affect your deliberative processes? Any of you have
anything at all? Nothing has occurred?
Now, from the time you left this courtroom after the Court
instructed you to start your deliberations until this time, nothing has
occurred that in any way would affect your deliberations; is that
correct?
Id., Ex. C at 439. Thereafter, at the request of both defense attorneys, the court
specifically questioned both defendants as to their desire to continue with trial.
Both indicated that they wished to proceed with trial, and that they did not wish
their attorneys to move for a mistrial. Id. at 441.
Verners now claims that her attorney never informed her that Mr. Burden
was fearful for his family, and that Mr. Burden had relayed his fears to the
remaining the jurors. She claims that the failure to properly inform her
constituted ineffectiveness. 4 Moreover, she claims that the failure to seek a
4
Verners does not claim that her counsel failed to recommend a mistrial
motion. Rather, Verners argues that her decision not to follow counsel’s advice,
which she characterizes as a “waiver” of the mistrial motion, was not knowing,
intelligent, and voluntary, and she cites Moore v. Michigan, 355 U.S. 155, 161
(1957) (holding that the waiver of counsel must be knowing, intelligent, and
(continued...)
-5-
proper corrective instruction constituted ineffectiveness. She also claims that
appellate counsel was ineffective for failing to raise these issues on direct appeal.
Finally, Verners contends that the district court erred by failing to hold an
evidentiary hearing where she could have testified that her counsel “only told
Appellant that Mr. Burden was afraid and that was the extent of counsel’s
information to Appellant.” 5 Appellant’s Br. at 10.
To establish a claim of ineffective assistance of counsel, Verners must
show (1) that counsel committed errors so serious that she did not receive the
counsel guaranteed by the Sixth Amendment, and (2) that counsel’s performance
was so deficient that she did not receive a fair trial. See Strickland v.
4
(...continued)
voluntary). We do not interpret Moore to apply to an otherwise competent
defendant’s choice not to follow her counsel’s clear advice, and Verners cites no
authority in support of such an extension.
Moreover, Verners’ conclusory claims are somewhat contradictory.
Although her initial complaint is that she was not fully informed, she also
complains that she was unequipped to properly interpret the information, and that
her counsel should not have allowed her son to influence her decision.
Appellant’s Br. at 18.
5
We note that an affidavit filed by Verners’ codefendant/son in a related
appeal indicates that, when he and his mother spoke at the time the juror was
removed, his mother stated that she did not remember seeing the juror around the
neighborhood, and she also asked her son if his counsel had told him that the
juror was “scared.” See United States v. Verners, No. 98-5044, Appellant’s Br.
Ex. 5, Ex. 5 at 31-32. This recitation, which demonstrates Ms. Verners’
appreciation of the fact that the juror claimed to live in her neighborhood,
contradicts Ms. Verner’s assertion of a more limited understanding.
-6-
Washington, 466 U.S. 668, 687 (1984). Under the first prong of this standard,
“[j]udicial scrutiny of counsel’s performance must be highly deferential,” and the
court must avoid the “distorting effects of hindsight.” Id. at 689. Under the
prejudice prong of the Strickland test, a defendant must establish that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694.
Additionally, a § 2255 petitioner has a right to an evidentiary hearing
“[u]nless the motion and the files and records of the case conclusively show that
the prisoner is entitled to no relief.” 28 U.S.C. § 2255. We review the district
court’s denial of an evidentiary hearing for abuse of discretion. See United States
v. Whalen, 976 F.2d 1346, 1348 (10th Cir. 1992).
In this case, the record conclusively shows that, at the time of the
complained-of events, Verners’ counsel made statements to the court which
indicated that he had fully advised his client, and the court clearly found those
representations to be true. Moreover, under the circumstances, the court’s
examination of the remaining jurors was sufficient to cure any potential for error
which might have been caused by the dismissed juror’s communications. Further,
in light of her representation in court that she did not wish a mistrial, Verners has
made no showing of prejudice, nor has she made any showing that a new trial
-7-
would have obtained any different result. Accordingly, the court did not abuse its
discretion when it refused to grant Verners an evidentiary hearing.
Finally, Verners complains that her appellate counsel was ineffective for
failing to raise, on direct appeal, the above issues related to ineffectiveness of
trial counsel. However, as the district court correctly observed, Verners failed to
demonstrate ineffectiveness of trial counsel, and therefore, appellate counsel
could not have been ineffective for failing to raise a meritless claim.
Furthermore, we have previously noted that claims of ineffective assistance of
counsel “should be brought in collateral proceedings, not on direct appeal. Such
claims brought on direct appeal are presumptively dismissible, and virtually all
will be dismissed.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.
1995). Accordingly, appellate counsel could not have been ineffective for failing
to raise the issue in direct appeal.
Because Verners has failed to make “a substantial showing of the denial of
a constitutional right,” 28 U.S.C. § 2253(c)(2), we DENY her application for
COA and DISMISS her appeal.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-8-
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168 F.3d 1077
UNITED STATES of America, Appellee,v.Stephen A. BOYD, Appellant.
No. 98-3214WM.
United States Court of Appeals,Eighth Circuit.
Submitted Feb. 9, 1999.Decided Feb. 18, 1999.
Linda L. Sybrant, Asst. U.S. Attorney, Kansas City, MO, argued, for appellee.
Lance D. Sandage, Independence, MO, argued, for appellant.
Before FAGG and HANSEN, Circuit Judges, and ROSENBAUM,* District Judge.
PER CURIAM.
1
Stephen A. Boyd and two other men robbed a credit union in Independence, Missouri. A jury convicted Boyd of conspiracy to commit bank robbery, armed bank robbery, and using a firearm in a crime of violence. The district court sentenced Boyd to 117 months in prison. Boyd appeals, and we affirm.
2
Initially, Boyd contends the district court improperly permitted the Government to use a peremptory challenge to strike an African-American juror on the basis of race. See Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We disagree. The Government struck the juror because he had relatives who had served or were serving jail sentences and because the juror was restless, impatient, and appeared unwilling "to participate in the [trial] in a fair way." These are valid, race-neutral reasons for the juror's dismissal. See United States v. Wiggins, 104 F.3d 174, 176 (8th Cir.1997) (incarceration of a close family member); United States v. Todd, 963 F.2d 207, 211 (8th Cir.1992) (impatience). Thus, the district court did not commit clear error in denying Boyd's claim. See Wiggins, 104 F.3d at 176. We do not reach Boyd's related contention that the Government allowed a similarly situated white person to remain on the jury because Boyd raises the argument for the first time on appeal, and even if we considered the contention, it is unsupported by the record.
3
Boyd's remaining arguments merit little discussion. First, the record contains ample evidence on which the jury reasonably could have found Boyd guilty of the charges. See United States v. Sutton, 41 F.3d 1257, 1260-61 (8th Cir.1994). Boyd's coconspirators implicated Boyd in the crimes and testified he participated in the credit union robbery with a gun. Also, a credit union teller and a credit union customer identified Boyd as the robber and both stated Boyd pulled the gun from his pocket and pointed it at the teller. Next, we reject Boyd's claim the district court erroneously enhanced his sentence because he obstructed justice by presenting alibi testimony. The district court correctly added two levels to Boyd's sentence for perjured testimony that he was elsewhere at the time of the robbery. See United States v. Brekke, 152 F.3d 1042, 1047 (8th Cir.1998); U.S. Sentencing Guidelines Manual § 3C1.1 (1997). Finally, Boyd contends the district court improperly admitted coconspirator testimony exchanged for the Government's promise of reduced sentences. Again, Boyd raises this argument first time on appeal, and even if the issue was properly before us, Boyd's reliance on the vacated decision of a Tenth Circuit panel in United States v. Singleton, 144 F.3d 1343 (10th Cir.1998), is misplaced. Contrary to Boyd's view, we agree with that Circuit's recent en banc decision in United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999), holding that the federal anti-gratuity statute does not apply to a prosecutor's promises of leniency to cooperating witnesses in exchange for their truthful testimony.
4
We affirm Boyd's convictions and sentence.
*
The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota, sitting by designation
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FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
May 8, 2019
In the Court of Appeals of Georgia
A19A0406. ELROD v. RELIANCE DEVELOPMENT COMPANY,
LLC.
BROWN, Judge.
Reliance Development Company, LLC filed an action to quiet title against
James T. Elrod, Jr. and Bank of America. Elrod appeals the trial court’s entry of
default judgment against him, arguing that (1) service by publication was not proper
in this case; (2) the trial court erred in permitting Bank of America and Reliance to
enter a consent judgment which entered final judgment against him; and (3) the trial
court erred in granting Elrod’s appeal in forma pauperis, but stipulating that his
appeal was limited to the appeal of the default judgment entered against him. For the
reasons explained below, we vacate both the default judgment and the consent
judgment, and remand the case.
The instant appeal stems from the sale of certain real property at 1175 Windsor
Parkway NE, Atlanta, Georgia, 30319 (“the Property”), and the subsequent dispute
over title to the Property. The record shows that Elrod bought the Property in 2005.
In 2008, Elrod refinanced the loan he had obtained to finance his purchase of the
Property,1 by obtaining another loan from Primary Capital Advisors LC (“PCA”). To
secure repayment of the second loan, Elrod conveyed the Property to Mortgage
Electronic Registration Systems, Inc. (“MERS”), as nominee for PCA via a security
deed. MERS transferred the security deed to BAC Home Loans Servicing, LP FKA
Countrywide Home Loans Servicing LP (“BAC”) via an assignment in 2011. Elrod
defaulted under the terms of the security deed, and on July 7, 2015, Bank of America,
as successor by merger to BAC, conducted a non-judicial foreclosure sale of the
Property at which Bank of America was the highest bidder. Bank of America then
executed a deed under power, conveying the Property to itself.
1
Reliance alleges that Elrod obtained a loan from First Franklin to finance the
purchase of the Property, and that in order to secure repayment of the loan, Elrod
executed a security deed in favor of First Franklin. However, there are no documents
in the record purporting to show this.
2
Elrod has since filed multiple lawsuits related to the security deed and
subsequent foreclosure.2 Elrod also filed a 78-page “Affidavit Regarding Claim of
Lien Equitable Notice and Affidavit” in the real estate records related to the Property
on April 6, 2016. On May 4, 2016, Reliance purchased the Property from Bank of
America via limited warranty deed. On June 9, 2016, the day before the warranty
deed was recorded, a “Corrective Warranty Deed” purporting to convey the Property
from Bank of America to Elrod was recorded in the Fulton County Deed Book. The
Corrective Warranty Deed stated that it was given in exchange for no consideration.
On April 11, 2017, Reliance filed its “Complaint for Declaratory Judgment,
Petition to Remove Cloud from Title, Equitable Relief, Breach of Warranty of Title,
and Attorneys’ Fees” in Fulton County Superior Court against Bank of America and
Elrod. Reliance sought a declaration that it is the owner of the Property in fee simple
and that Elrod has no right of title or possession to the Property. Reliance alleged that
2
In 2010, Elrod filed a complaint in the United States District Court for the
Northern District of Georgia against BAC, PCA, and others in relation to the security
deed. He voluntarily dismissed the action. In 2015, Elrod filed another complaint
related to the security deed in the United States District Court for the Northern
District of Georgia against Bank of America. The district court dismissed Elrod’s
complaint for failure to state a claim. In 2017, Elrod filed a third complaint related to
the security deed in the United States District Court for the Northern District of
Georgia against PCA, Bank of America, Reliance, and various others, including a
Fulton County magistrate judge. Elrod voluntarily dismissed the complaint.
3
the corrective warranty deed filed was fraudulent and that Elrod had forged the
signatures.
On May 2, 2017, a sheriff from Fulton County unsuccessfully attempted to
serve Elrod at the address of record he had provided during the pendency of the
federal action he filed in 2017. The entry of service states that a “diligent search [was]
made and defendant Elrod James T., Jr. [was] not to be found in the jurisdiction of
this Court. Address in DeKalb Co.” On July 5, 2017, a sheriff from DeKalb County
unsuccessfully attempted to serve Elrod at the same address. The entry of service
states that a “[d]iligent search [was] made and defendant [was] not to be found in the
jurisdiction of this Court. [U]nable to make contact after several attempts.”
On August 11, 2017, Reliance filed a motion to serve Elrod by publication
pursuant to OCGA § 9-11-4 (f) (1) (B). In its motion, Reliance alleged that it had
conducted Internet searches in an attempt to locate Elrod. Additionally, Reliance
alleged that in its extensive correspondence with Elrod, he had only given one
address, which was not a physical address, but a Post Office box, and that this same
address was listed as his address of record during the 2017 federal action. Reliance
attached an affidavit of its attorney who averred that he had “caused to be requested
the Sheriff of Fulton County to locate and serve James T. Elrod, Jr. at the Property
4
[1175 Windsor Parkway NE, Atlanta, Fulton County, Georgia, 30319] to no avail.”
No entry of service was attached to the motion showing that the sheriff had attempted
service on Elrod at the Property. The trial court granted Reliance’s motion for service
by publication on August 18, 2017.
On October 16, 2017, Elrod filed a “Special Appearance Motion to Dismiss,”
in which he alleged that he learned of Reliance’s action “while doing background
work on an unrelated case.” He further alleged the following: that Reliance had not
attempted to serve him; that he could have been served “at the UPS Store, where [his]
mail is delivered, much like a Post Office Box”; that service was not attempted at his
known residence, the Property listed in Reliance’s complaint; and that if Reliance had
made a diligent search, it would have properly served him at the address for the
Property. Elrod attached a copy of his Georgia driver’s license, showing his address
as the Property address.
In its response to Elrod’s motion, Reliance alleged that there was a delay in
obtaining the Notice of Service by Publication from the clerk of court and having it
run in the legal organ in accordance with Georgia law.3 As a result, Reliance had
3
The trial court order granting service by publication was signed and filed on
August 18, 2017. The notice for service by publication is dated September 7, 2017.
The fourth and final publication occurred on November 1, 2017, more than 60 days
5
withdrawn the prior affidavit of its attorney and filed a new affidavit, along with the
affidavit of a private process server retained to attempt service on Elrod at the
Property. In his affidavit attached to Reliance’s response, the process server averred
that the following occurred on November 16, 2017:
Upon arrival I knocked on the door and observed a white male
inside the location getting up from a seated position and pe[e]king at me
from across the room then slowly walking across the room to the right
of the front door. It appeared that the unidentified male was trying to
move slowly so that I would not see him through the glass door. I then
knocked on the door again and rang the doorbell. A moment or two later
I observed the same male subject peeking out from the right side of the
room and looking at me. I then walked to the right side of the residence,
which is almost entirely made of windows, hoping to see the subject and
get his attention but observed no one. I then returned to the front door
and again knocked and rang the doorbell but did not receive a response.
I continued to knock and ring the doorbell over the next ten minutes or
so but never observed the male or anyone else.
The process server also averred that he attempted service again on November 17,
2017, but no one answered the door. Reliance then filed a renewed and amended
after the trial court’s order granting publication. Accordingly, the publication did not
comply with OCGA § 9-11-4 (f) (1) (C).
6
motion for service by publication, which the trial court granted on December 5, 2017.
Service by publication was subsequently effected.4
On February 2, 2018, Elrod filed a notice of special appearance in which he
objected to service by publication.5 He also pointed out that the trial court had yet to
rule on his prior Motion to Dismiss, filed October 16, 2017. Elrod alleged that
Reliance had never attempted to personally serve him, but that he had learned that the
trial court granted Reliance’s amended motion for service by publication while “in
the Fulton County Courthouse for an unrelated matter.” He also alleged that the
process server’s affidavit was “less than truthful,” and implied that the notary’s
signature on the affidavit was forged based on hearsay.
Reliance filed a motion for default judgment as to Elrod on February 22, 2018,
alleging that Elrod had failed to file or serve an answer to the complaint within 60
days of the date of the order granting service by publication and that 15 days had
passed since the date of default. Elrod filed a response in opposition to Reliance’s
4
The notice of service by publication was dated December 7, 2017, by the
clerk. The notice was published on December 15, 2017, December 22, 2017,
December 29, 2017, and January 5, 2018, in the Daily Report.
5
Elrod also asked the trial court to strike the process server’s affidavit as well
as the affidavit of Reliance’s attorney, to set aside Reliance’s amended motion for
service by publication, and to dismiss Reliance’s complaint.
7
motion for default and requested that the trial court set aside any default. On May 25,
2018, the trial court entered a “Consent Judgment and Final Order as to Bank of
America, N.A.,” in which the court declared Reliance the sole owner of the Property.
On June 7, 2018, the trial court entered an order of default judgment against Elrod.
1. Elrod argues that the trial court erred in granting his appeal in forma
pauperis, but stipulating that the appeal was limited to appeal of the default judgment
entered against him. Elrod fails to support this enumeration of error with any
argument, citation of authority, or record citations, and it is therefore deemed
abandoned. See Court of Appeals Rule 25 (c) (2). See also Bennett v. Quick, 305 Ga.
App. 415, 416-417 (699 SE2d 539) (2010). Nonetheless, we do not read the trial
court’s order as limiting our authority to consider any argument properly raised with
regard to the consent judgment.
2. In related enumerations of error, Elrod contends that service by publication
was not proper in this case. We agree.
“Factual disputes regarding service are to be resolved by the trial court, and the
court’s findings will be upheld if there is any evidence to support them.” (Citation
and punctuation omitted.) Styles v. Spyke Ten, LLC, 342 Ga. App. 122 (802 SE2d
369) (2017). Here, Reliance proffered evidence suggesting that Elrod was evading
8
personal service and, thus, the trial court did not err in granting Reliance’s motion for
service by publication pursuant to OCGA § 9-11-4 (f) (1) (A).6 However, “[OCGA
§ 9-11-4 (f) (1) (C)] requires the clerk of court to mail a copy of the order for service
by publication, notice of publication, and the complaint to [Elrod]’s last known
address and to certify such action on the complaint filed in the case.” (Emphasis
omitted.) Vasile v. Addo, 341 Ga. App. 236, 241 (2) (800 SE2d 1) (2017). Elrod
averred that he never received these documents from the clerk of court, and the record
contains no evidence of the clerk’s certification or even evidence that Reliance’s
attorney directed the clerk of court to mail the documents to Elrod’s alleged address.
6
Elrod also argues that Reliance has failed to follow Rule 4 (m) of the Federal
Rules of Civil Procedure, which states that
[i]f a defendant is not served within 90 days after the complaint is filed,
the court—on motion or on its own after notice to the plaintiff—must
dismiss the action without prejudice against that defendant or order that
service be made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for service for an
appropriate period.
Fed. R. Civil P. 4 (m). However, this a Federal Rule of Civil Procedure, which does
not apply to actions filed in courts of the State of Georgia.
9
Reliance argues that we must presume that the clerk here complied with OCGA
§ 9-11-4 (f) (1) (C) because “there is a general presumption that public officials
perform all of their duties as required by law.” This Court rejected the same argument
made by the plaintiff in Vasile:
[The plaintiff] offers no proof that the clerk mailed the documents and
instead argues that clerks and deputy clerks of court are public officers
who are presumed to discharge their duties properly. In the cases upon
which [the plaintiff] relies in support of this argument, however, the
documents at issue were certified by and on file with the respective
clerks of court and neither address the requirements for service by
publication. See Taylor v. Young, 253 Ga. App. 585, 586 (1) (b) (560
SE2d 40) (2002) (addressing validity of order appointing probate court
clerk as hearing officer); Oller v. State, 187 Ga. App. 818, 820 (2) (371
SE2d 455) (1988) (holding sufficient proof of prior conviction based
upon authenticated records “certified as a true and correct copy of the
original ‘indictment, plea and sentence’”). Additionally, in both cases,
it was noted that the authenticated records of the office of the clerk of
court are presumed to speak the truth. Taylor, supra; Oller, supra. In this
case, there is a complete absence in the record of any entry by the clerk
of court showing that the documents were mailed.
341 Ga. App. at 241 (2). Similarly, here, there is a complete absence in the record of
any entry by the clerk of court showing that the documents were mailed to Elrod.
“[O]ur Supreme Court has held that service must be made as provided by the Code
10
section, and ‘substantial compliance’ in matters involving service of process is
insufficient.” (Footnote omitted.) Hutcheson v. Elizabeth Brennan Antiques &
Interiors, Inc., 317 Ga. App. 123, 127 (1) (730 SE2d 514) (2012). Indeed, “there is
no authority to dispense with the clear requirements of the Code section merely
because the defendant may otherwise obtain knowledge of the filing of the action.”
(Footnote and punctuation omitted.) Id. Accordingly, the trial court lacked personal
jurisdiction over Elrod, and we must vacate the trial court’s order entering default
judgment against him. See Vasile, 341 Ga. App. at 242 (2), 244 (3) (partially
reversing trial court’s denial of motion to set aside default judgment where no
evidence in record showed clerk of court had mailed documents to defendant);
Hutcheson, 317 Ga. App. at 127-128 (1) (while trial court did not err in granting the
motion for service by publication based on evidence defendant evaded personal
service, service by publication did not comply with statute because clerk of court
conceded she did not mail the documents); Focus Healthcare Med. Ctr., Inc. v.
O’Neal, 253 Ga. App. 298, 299 (558 SE2d 818) (2002) (“When there has been no
actual service, the judgment can successfully be collaterally attacked for lack of
personal jurisdiction as void, because there has been no ‘real’ default for failure to
answer a complaint that was never served. . . .”).
11
3. Elrod argues that the trial court erred in entering the consent judgment as to
Bank of America because it is a final judgment in the case, affecting his rights to the
Property, to which he did not consent.7 We agree.
The consent judgment here declares that Reliance is the sole owner of the
Property in fee simple. It also declares the “Forged Deed” and Elrod’s affidavit
recorded in the records for the Property “a cloud upon [Reliance]’s title” and proceeds
to cancel them. Finally, the consent judgment declares that Reliance is entitled to
possession of the Property and that Elrod has no right to possession of the Property.
Thus, it is clear that the consent judgment entered into by Bank of America and
Reliance, and not consented to by Elrod, affects Elrod’s rights to the Property. In spite
of this, Reliance argues that Elrod lacks standing to challenge the consent judgment
because he is not a party to it. It defies logic to state that a person is bound by the
terms of an agreement to which he has not agreed, but may not challenge the
agreement because he is not a party to it. Accordingly, the consent judgment is
7
On June 21, 2017, Reliance moved for default judgment as to Bank of
America. Nothing in the record shows that default judgment was actually entered
against Bank of America. Counsel for Bank of America filed an entry of appearance
in the case on May 23, 2018, two days prior to the entry of the consent judgment.
12
vacated to the extent it purports to enter final judgment binding on Elrod.8 See Wilson
v. Norfolk S. Corp., 200 Ga. App. 523, 527 (5) (a) (2) (409 SE2d 84) (1991) (because
appellant was not a party to the consent judgment entered in related case and had not
consented to it, the consent judgment and the determination therein that the settlement
was “just and fair” was not binding upon appellant). See also Container Corp. of
America v. Charlton County, 259 Ga. 389, 391 (1) (383 SE2d 105) (1989).
4. Elrod contends that the trial court erred by finding — with no hearing or
evidence — that the Corrective Warranty Deed purporting to convey the Property
from Bank of America to Elrod was forged. We disagree.
[A] consent judgment differs from a judgment rendered on the merits in
that it results from an affirmative act of the parties rather than the
considered judgment of the court following litigation of the issues. A
consent judgment is one entered into by stipulation of the parties with
the intention of resolving a dispute, and generally is brought to the court
by the parties so that it may be entered by the court, thereby
compromising and settling an action.
8
We note that Reliance and Bank of America never filed a motion for consent
judgment, nor was a hearing held at any point in this case. The consent judgment
abruptly appears in the record, signed by the trial court.
13
Brown & Williamson Tobacco Corp. v. Gault, 280 Ga. 420, 423 (3) (627 SE2d 549)
(2006). A consent judgment resolves the issues by agreement of the parties and
obviates the necessity of proof of the agreed-upon facts or resolution thereof by a
jury. Trust Co. of New Jersey v. Atlanta Aluminum Co., 149 Ga. App. 605, 610 (3)
(255 SE2d 82) (1979). See also Estes v. Estes, 192 Ga. 94, 96-97 (14 SE2d 681)
(1941). Thus, to the extent the trial court entered the consent judgment without
requiring proof of facts therein, it was not error. But, given our holding in Division
3, this argument is moot.
5. For the reasons discussed above, we vacate the default judgment entered
against Elrod, vacate the consent judgment between Bank of America and Reliance,
and remand the case for further proceedings. Our decision in this appeal is not based
on the underlying merits of the case. Reliance may still effect service by publication
on Elrod pursuant to OCGA § 9-11-4 (f) (1), Bank of America may still offer sworn
evidence that it did not execute or file the allegedly forged corrective deed, and
Reliance may still obtain a default judgment against Elrod assuming the prerequisites
are met. But all of these things must be done in accordance with the law and the
procedures set forth therein.
Judgments vacated and case remanded. Barnes, P. J., and Mercier, J., concur.
14
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110 Cal.App.2d 98 (1952)
Estate of ANDREW T. JENKINS, Deceased. MINNIE B. JENKINS, Appellant,
v.
E. LLEWELLYN OVERHOLT, Respondent.
Civ. No. 18652.
California Court of Appeals. Second Dist., Div. One.
Mar. 27, 1952.
Edward S. Cooper for Appellant.
H. Melvin Swift, Jr., for Respondent.
DRAPEAU, J.
By petition the surviving widow of Andrew T. Jenkins, deceased, sought an order setting apart a parcel of alleged community property as a homestead for her use. The executor of decedent's last will filed objections on the ground that said parcel of real estate was the separate property of decedent and not community property, as alleged.
The court found that the realty was the separate property of decedent and that no homestead was selected during his lifetime, and ordered that said parcel be set aside for the use of the widow for a limited period, to wit: for the remainder of her life subject to the terms of the will and the widow's election to take her community interest in the estate against the terms of the will. The widow appeals.
It is here urged that the evidence is insufficient to support the order. This for the reasons that property acquired during marriage is presumed to be community property (Civ. Code, 164) and that respondent objector did not sustain the burden of proof necessary to rebut that presumption.
[1-3] The law with respect to this problem was pointed out by this court in Estate of Trelut, 26 Cal.App.2d 717, 723 [80 P.2d 147], as follows:
"The sufficiency of the evidence is generally a matter for the trial court or jury, and the findings or verdict will not be lightly set aside. Following the general rule, a finding of the trial court that property is either separate or community in character is binding and conclusive upon the appellate court, if it is supported by sufficient evidence, or if it is based on conflicting evidence or upon evidence that is subject to different inferences. (3 Cal.Jur.Supp. 573.) Further, a finding against a presumption is binding upon the appellate court (Estate of Cronvall, 220 Cal. 503 [31 P.2d 372]), unless the evidence to rebut it is so weak and improbable that the finding is without substantial support. (Olson v. Cornwell, 134 Cal.App. 419 [25 P.2d 879].) It is finally in each case a question of fact for the court or jury to determine whether the evidence is sufficient to overcome the presumption. The rule has been expressed as follows: 'If, upon an analysis of evidence of substantial character, in the light of established rules, the mind of the trial judge, exercising reasonable discrimination, is satisfied that the naked presumption in favor of community property has been outweighed, then the findings *100 of the trial court must prevail.' (3 Cal.Jur.Supp. 575, citing Estate of Tompkins, 123 Cal.App. 670 [11 P.2d 886].) The presumption in favor of community property is disputable and may be controverted by evidence 'even by an inference tending to prove the contrary intention'. (Estate of Bryant, 3 Cal.2d 58, 68 [43 P.2d 529].)"
In support of the community character of the realty here in controversy it was established that decedent and appellant had been married for over 60 years and that such realty was acquired during the marriage relation.
[4a] On the other hand there was testimony to the effect that at the time the parties were married in Pennsylvania, decedent owned a house. Later he inherited $10,000 from his father. This inheritance was kept in bonds. Decedent practiced law in Philadelphia, and in 1921, when he was around 60 years of age, he brought his family to Los Angeles. He rented desk space in respondent's law office for about 20 years, but was inactive in the practice of law. At first the family lived in a house on Trinity Street. This stood of record in decedent's name alone. Later they lived in a rented house on Cambridge. They were being evicted from this place and bought the house here in controversy. The purchase price was $12,000 cash. This money was derived from the sale of bonds. Two of these were dated in 1897 and 1902, respectively; others were United States Treasury bonds of 1941, 1943 and 1944. All of them stood in decedent's name alone, as did the safe deposit box where they were kept. This box also contained securities standing in the name of appellant, but none standing in the names of both.
The deed to the house ran to decedent as his sole and separate property. By his will of 1946, decedent declared that the property disposed of thereby was his sole and separate property and was derived from property acquired either before his marriage or before he came to California.
[5] There is no evidence of the extent of decedent's earnings after he came to California. However, the presumption is that any such earnings were used for family expenses. (Estate of Ades, 81 Cal.App.2d 334, 338 [184 P.2d 1].)
[4b] Clearly the evidence is sufficient to overcome the presumption in favor of community property and to sustain the trial court's finding that the realty here in question was the separate property of decedent husband.
For the reasons stated, the order appealed from is affirmed.
White, P. J., and Doran, J., concurred.
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Order filed November 26, 2013
In The
Court of Appeals
For The
First District of Texas
___________
NO. 01-13-00207-CR
____________
HELTON BARAHONA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 1346283
ORDER
This court has determined, pursuant to Texas Rule of Appellate Procedure
34.5(f) and 34.6(g)(2), that it must inspect the original of the Pre-Sentence
Investigation report.
The clerk of the 228th District Court is directed to deliver to the Clerk of this
court the original of the Pre-Sentence Investigation report, on or before December
5, 2013. The Clerk of this court is directed to receive, maintain, and keep safe this
original exhibit; to deliver it to the justices of this court for their inspection; and,
upon completion of inspection, to return the original of the Pre-Sentence
Investigation report, to the clerk of the 228th District Court.
PER CURIAM
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320 F.2d 914
J. F. MALONE et al.v.FIREMAN'S FUND INSURANCE COMPANY.
No. 7241.
United States Court of Appeals Tenth Circuit.
March 25, 1963.
Appeal from the United States District Court for the District of Colorado.
Duane L. Barnard, Granby, Colo., and John B. Barnard, Jr., Denver, Colo., for appellants.
H. Gayle Weller and John R. Hickisch, Denver, Colo., for appellee.
Before MURRAH, Chief Judge, and SETH, Circuit Judge.
PER CURIAM.
1
Appeal dismissed March 25, 1963, on joint motion of the parties.
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M.D. Appeal Dkt.
38 MAP 2019
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
JOSEPH M. MASSI, SR., : No. 528 MAL 2018
:
Petitioner :
: Petition for Allowance of Appeal from
: the Order of the Commonwealth Court
v. :
:
:
CITY OF CHESTER AGGREGATED :
PENSION BOARD AND CITY OF :
CHESTER, :
:
Respondents :
ORDER
PER CURIAM
AND NOW, this 16th day of April, 2019, the Petition for Allowance of Appeal is
GRANTED. The issues, as stated by petitioner are:
(1) May a municipal employer infringe upon the vested right of a city employee
by imposing restrictions not specifically contained in its disability ordinance
or its agreed-upon collective bargaining agreement?
(2) May a police officer rely upon the terms of a collective bargaining agreement
which sets forth no deadlines for claiming a disability pension in making
such application after his technical date of retirement?
(3) Absent language to the contrary, does a police officer vest in entitlement to
a disability pension on the date of his injury, and, absent language to the
contrary, should the time of confirmation of the disability, and not the date
of application, be determinative of a disability pension eligibility?
(4) Does a police officer who has retired forfeit the ability to seek the protection
of his collective bargaining agreement, and cease to be considered as a
police officer once his retirement has taken effect?
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Order Michigan Supreme Court
Lansing, Michigan
June 23, 2009 Marilyn Kelly,
Chief Justice
138483 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
PEOPLE OF THE STATE OF MICHIGAN, Diane M. Hathaway,
Plaintiff-Appellee, Justices
v SC: 138483
COA: 289574
Genesee CC: 94-051282-FC
EDDIE LEE THOMPSON,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the March 5, 2009 order
of the Court of Appeals is considered, and it is DENIED, because we are not persuaded
that the question 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.
June 23, 2009 _________________________________________
l0615 Clerk
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J-S68025-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KYLIL MYATT
Appellant No. 3568 EDA 2013
Appeal from the PCRA Order November 13, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002114-2008
BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 14, 2014
Kylil Myatt appeals from an order dated November 13, 2013 dismissing
his petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §
9541, et seq., without a hearing. We affirm.
A jury found Myatt guilty of second degree murder1, robbery2 and
conspiracy3. The trial court sentenced him to life imprisonment for second
degree murder with concurrent terms of 10-20 years’ imprisonment for
robbery and conspiracy, respectively. This Court affirmed Myatt’s judgment
of sentence, and the Supreme Court denied his petition for allowance of
appeal.
____________________________________________
1
18 Pa.C.S. § 2502.
2
18 Pa.C.S. § 3701.
3
18 Pa.C.S. § 903.
J-S68025-14
Myatt filed a timely PCRA petition. The trial court appointed counsel,
who filed a Finley/Turner letter4 explaining that there were no meritorious
issues and requesting leave to withdraw as counsel. On September 16,
2013, the trial court issued a notice of intent to dismiss the PCRA petition
without a hearing in twenty days. On November 13, 2013, the trial court
entered an order dismissing the PCRA petition and granting counsel leave to
withdraw. Thereafter, Myatt proceeded pro se.
On December 10, 2013, Myatt filed a timely notice of appeal to this
Court. Both Myatt and the trial court complied with Pa.R.A.P. 1925.
The trial court accurately summarized the evidence adduced during
trial as follows:
The salient findings are that Myatt gave a statement
to Gregory Gross, a civilian, that he had witnessed
the shooting of Troy Moore. Id. at 85. Mr. Gross
called a friend of his, Philadelphia Police Officer Tony
Jones, who arrived in full uniform. Id. Myatt told
Officer Jones that he, his cousin Khalil Myatt a/k/a
Yanni, and James Felder a/k/a Sonny had planned to
rob the decedent and that Yanni had done the
shooting. N.T. MOTION (1/6/09) at 86. At this time,
Myatt was standing outside, was not in police
custody, and was not forced in any way to give a
statement. Id. Thereafter, Myatt was taken to the
police homicide unit where he was given his Miranda
rights, an opportunity to use the restroom, eat,
drink, and produced a signed six-page statement. Id.
at 87-88.
____________________________________________
4
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988).
-2-
J-S68025-14
The testimony at trial was that on September 25,
2007 at approximately 1:00 a.m., Sonny and Yanni
approached Myatt and asked him to take a walk with
them. N.T. TRIAL (1/7/09) at 84. Shortly thereafter,
Myatt, Sonny, and Yanni approached the home of
Troy Moore (‘Moore’) at 6013 Baltimore Ave.
Philadelphia, PA. Id. at 85. After a couple of minutes,
Moore rode up on his motorcycle and Yanni pulled
out a gun and starting shooting at Moore. Id. As
soon as the shooting started, everyone fled in
separate directions. Id. Nothing was taken from the
victim. Id. Asa Webster, a neighbor, heard the
gunshots and ran to assist Moore until the police
arrived. Id. at 60-62. Police officers arrived at 2:07
a.m. and found Moore lying on the ground suffering
from multiple gunshot wounds. N.T. TRIAL (1/7/09)
at 57. He was taken to University Hospital where he
later died. Id. The police secured the area and found
seven .357 caliber cartridge casings, which were
analyzed by a ballistics expert and found to exhibit
similar firing characteristics. Id. at 37-43.
According to Myatt's confession, he knew Yanni and
Sonny were planning to rob Moore. N.T. TRIAL
(1/7/09) at 85. About a week earlier, Yanni and
Sonny were joking about robbing Moore, but Myatt
did not take them seriously because they were
intoxicated at the time. Id. at 86-87. As they
approached Moore's home, Myatt beg[a]n to suspect
the robbery was about to take place. Id. at 86. Myatt
thought about the conversation Yanni and Sonny had
earlier about Moore and knew the robbery was about
to take place. Id. at 87. Myatt stated in his
confession, ‘when we stopped at Troy's house, I
knew that it was going to be a robbery.’ Id. at 86.
Dr. Gregory McDonald performed Moore's autopsy,
which confirmed that he had died on October 8,
2007 at 3:15 a.m. due to complications from four
bullets recovered from Moore's abdomen. N.T. TRIAL
(1/7/09) at 12-15. His cause of death was multiple
gunshot wounds and the manner was ruled
homicide. Id. at 15.
-3-
J-S68025-14
Trial Court Opinion, pp. 3-4.
Myatt raises the following issues in his Pa.R.A.P. 1925(b) statement:
1. The trial court erred by allowing photographs to
come into evidence when the prosecution witness did
not know the source.
2. Trial counsel was ineffective for not requesting a
jury instruction per Pa.R.Crim.P. 647(a) or objecting
per Rule 647(b) when definitions for critical legal
terms were never given.
3. Trial counsel was ineffective by not calling a
reciprocal expert ballistics witness to testify.
4. Trial counsel was ineffective for allowing a
testimonial statement into evidence without
confrontation of the person who made the
statement. A statement originally made by P.O.
Clyde Frasier was presented by Louis Grandizio.
5. Trial counsel was ineffective for not compelling the
Court to provide all transcripts in accordance with
Pa.R.A.P 1922.
6. Trial counsel was ineffective for not demanding
that the trial court comply with 1931(b). The court
reporter failed in his/her duty to lodge a correctable
set of transcripts with the Clerk of Courts.
7. The trial court erred by not allowing eyewitnesses
to testify at trial about events surrounding this case.
8. Trial and appellate counsel's many errors should
be considered cumulatively.
9. Trial and appellate counsel provided ineffective
assistance of counsel in violation of the United States
and Pennsylvania Constitutions.
10. Trial counsel was ineffective for not requesting a
bill of particulars pursuant to Pa.R.Crim.P. 572.
-4-
J-S68025-14
11. Trial counsel was ineffective for not filing a
motion for discovery pursuant to Pa.R.Crim.P. 573.
12. Trial counsel was ineffective for overstepping his
authority by agreeing to stipulations at trial.
We will re-order discussion of these issues for ease of disposition.
We first address Myatt’s argument that the trial court erred by
allowing unauthenticated photographs into evidence depicting him on the
night of his arrest5. Myatt waived this claim by failing to raise it in his PCRA
petition. See, e.g., Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa.
2004) (claim not raised in a PCRA petition cannot be raised for the first time
on appeal); Commonwealth v. Albrecht, 720 A.2d 693, 706 (Pa. 1998)
("[defendant's] claims were not raised in the amended PCRA petition, and
are therefore waived" on appeal).
Even if Myatt preserved this issue for appeal, it lacks merit. The
Commonwealth properly introduced the photographs pursuant to a
stipulation by and between counsel. Even if counsel had not agreed to such
a stipulation, the Commonwealth presented sufficient evidence to establish
the photographs’ authenticity. To introduce a photograph at trial, the
proponent must demonstrate that the photograph "is what it purports to be."
Commonwealth v. Koch, 39 A.3d 996, 1002 (Pa. Super. 2011). A
photograph may be authenticated where a witness who is "familiar with the
____________________________________________
5
Pa.R.A.P. 1925(b) statement, Issue 1; Brief For Appellant, p. 5.
-5-
J-S68025-14
items photographed" testifies "that they are accurately depicted therein."
Commonwealth v. Wiltrout, 457 A.2d 520, 523 (Pa. Super. 1983); accord
Pa.R.E. 901(b)(1).
Here, the Commonwealth introduced photographs depicting Myatt at
police headquarters on the day that he gave his statement. N.T. 1/7/09, pp.
103-06. In order to authentic those photographs, the Commonwealth
presented Detective Joseph Bamberski, who had interviewed defendant and
taken his statement only hours before defendant was photographed. When
asked whether the photographs "fairly and accurately depict[ed]" defendant
on the night he gave his statement, Detective Bamberski stated: "Yes." N.T.
1/7/09, p. 93. The fact that he was not "sure" specifically who took the
photographs, more than one year after the incident, goes to the weight of
his testimony, not the admissibility of the photographs, and is therefore
irrelevant to defendant's claim. N.T. 1/7/09, p. 104. Accordingly, the trial
court properly permitted the Commonwealth to introduce the photographs,
because Detective Bamberski's testimony was sufficient to establish their
authenticity. Commonwealth v. Nauman, 498 A.2d 913, 914 (Pa. Super.
1985) (court properly admitted victim’s photograph where Commonwealth
presented evidence that her appearance in the photograph "was the same as
it was on the day" of the crime); see also Commonwealth v. Reid, 811
A.2d 530, 552 (Pa. 2002) (Commonwealth adequately authenticated
-6-
J-S68025-14
photograph through witness’ testimony that it depicted the gun she had
identified to police).
In a related argument6, Myatt contends that trial counsel was
ineffective for stipulating to the admission of the photographs. To prove
ineffective assistance of counsel under the PCRA, the petitioner must prove
that: (1) the underlying issue is of arguable merit; (2) counsel's actions
lacked an objective reasonable basis; and (3) the petitioner suffered
prejudice by counsel's act or omission. Commonwealth v. Koehler, 36
A.3d 121, 132 (Pa. 2012). For a claim to have arguable merit, a petitioner
must prove "that the underlying legal claim has arguable merit."
Commonwealth v. Steele, 961 A.2d 786, 821 (Pa. 2008). With regard to
prejudice, the petitioner must demonstrate that “there is a reasonable
probability that, but for counsel's error or omission, the result of the
proceeding would have been different." Koehler, 36 A.2d at 132. The
failure to prove any prong of this test causes the entire ineffective assistance
claim to fail. Id. at 132. Furthermore, counsel is presumed to be effective;
the petitioner has the burden of proving otherwise. Commonwealth v.
Jones, 942 A.2d 903, 906 (Pa. Super. 2008).
____________________________________________
6
Pa.R.A.P. 1925(b) statement, Issue 12; Brief For Appellant, p. 5.
-7-
J-S68025-14
Here, as discussed above, the evidence demonstrates that the
photographs were properly authenticated. Thus, Myatt’s claim of
ineffectiveness lacks arguable merit.
Defendant next argues that counsel was ineffective for not asking the
trial court to define the terms "intentionally" and "knowingly" for the jury7.
This claim lacks arguable merit. A trial court has broad discretion in
phrasing its jury instructions "so long as the law is clearly, adequately, and
accurately set forth." Commonwealth v. Rizzuto, 777 A.2d 1069, 1088
(Pa. 2001), abrogated on other grounds, Commonwealth v. Freeman,
827 A.2d 385 (Pa. 2003). When considering a challenge to the propriety of
a jury instruction, an appellate court reviews the instruction in its entirety
and "not simply isolated portions." Commonwealth v. Charleston, 94 A.3d
1012, 1021 (Pa. Super. 2014).
The trial court’s reference to “intent” was proper. The court stated
that first degree murder requires “intent to kill” but then explained that
Myatt was not charged with first degree murder. N.T. 1/7/09, p. 7. The
court did not define intent further because it would have been improper to
do so. Myatt was only charged with second and third degree murder,
neither of which requires specific intent to kill. The court only made passing
____________________________________________
7
Pa.R.A.P. 1925(b) statement, Issue 2; Brief For Appellant, p. 5.
-8-
J-S68025-14
mention of first degree murder and intent to demonstrate what was not at
issue in this case.
The court’s reference to “knowingly’”, which occurred during the
court’s charge on third degree murder, was proper as well. Third-degree
murder occurs when a person commits a killing which is neither intentional
nor committed during the perpetration of a felony, but contains the requisite
malice. Commonwealth v. Morris, 958 A.2d 569, 576 (Pa. Super. 2008).
“Malice is not merely ill will but, rather, wickedness of disposition, hardness
of heart, recklessness of consequences, and a mind regardless of social
duty.” Id. To prove malice, “it must be shown that the defendant
consciously disregarded an unjustified and extremely high risk that his
actions might cause death or serious bodily harm.” Commonwealth v.
Kling, 731 A.2d 145, 148 (Pa. Super. 1999). The trial court gave the
following instruction for third degree murder:
Killing is with malice if the perpetrator's actions show
that his wanton or willful disregard of an unjustified
or extremely high risk that his conduct would result
in death or serious bodily injury to another. In this
form of malice, the Commonwealth need not prove
that the perpetrator specifically intended to kill
another. The Commonwealth must prove, however,
that he took action while consciously, that is,
knowingly disregarding the most high risk he was
creating and that by his disregard of that risk, he
demonstrated his extreme indifference to the value
of human life.
-9-
J-S68025-14
N.T. 1/9/09, pp. 8, 13-14. The court equated “knowingly” with
“consciously”, a term frequently employed in judicial definitions of malice,
Kling, supra, and the court properly used “consciously” to convey the
essence of malice, i.e., conscious disregard of an extreme risk that the
actions in question might cause death or serious bodily harm. Thus, the use
of “knowingly” does not provide Myatt with any basis for relief.
Commonwealth v. Fisher, 813 A.2d 761, 770 (Pa. 2002) (counsel not
ineffective for failing to object to jury instruction that clearly and accurately
stated the law).
Myatt next argues that trial counsel was ineffective for not presenting
a reciprocal ballistics expert to discredit the testimony of the
Commonwealth’s ballistics expert, Officer Louis Grandizio8. The trial court
properly rejected this claim because Myatt failed to show that such a witness
existed or that he was prejudiced by the witness' absence.
To prevail on a claim that counsel failed to obtain an expert, "the
defendant must articulate what evidence was available and identify the
witness who was willing to offer such evidence." Commonwealth v.
Bryant, 855 A.2d 726, 745 (Pa. 2004); Commonwealth v. Luster, 71
A.3d 1029, 1047 (Pa. Super. 2013). The defendant must also demonstrate
that the witness' proposed testimony "was necessary in order to avoid
____________________________________________
8
Pa.R.A.P. 1925(b) statement, Issue 3; Brief For Appellant, p. 6.
- 10 -
J-S68025-14
prejudice" to him. Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa.
2012). Here, defendant failed to even identify his expert witness or provide
an affidavit that this expert was available to testify on his behalf. This,
alone, is fatal to his claim. Without evidence of an available witness, the
PCRA court had no reason to believe that any expert would have testified in
the manner that defendant wishes. Commonwealth v. Keaton, 45 A.3d
1050, 1071 (Pa. 2012) (rejecting bald assertion that counsel should have
hired an expert witness); Luster, supra, 71 A.3d at 1047 (counsel not
ineffective for not presenting expert witness where Luster "failed to identify
any forensics expert who would have provided [the desired] testimony").
Even if an expert witness existed, Myatt failed to prove that his proposed
testimony would have helped his case. According to Myatt, a ballistics
expert could have testified to an alternative method for determining a
bullet's caliber, "which may have revealed" that the bullets recovered from
the crime scene were fired from more than one gun. PCRA Petition, p. 6.
However, the identity of the shooter was not at issue in this case, for as the
PCRA court explained, Myatt could have "just as easily been present at the
scene while two people shot and killed the victim." Trial Court Opinion, p.
10.
Furthermore, Myatt fails to establish prejudice, since his PCRA petition
merely asserts in boilerplate fashion that expert testimony "could have
changed the outcome of the trial.” Commonwealth v. Paddy, 15 A.3d
- 11 -
J-S68025-14
431, 444 (Pa. 2011) (boilerplate allegations and bald assertions of prejudice
cannot satisfy petitioner's burden).
Finally, even if Myatt had discredited Officer Grandizio's testimony, the
verdict would have remained the same because the evidence against Myatt
was overwhelming. The victim obviously died due to gunshot wounds and
not of natural causes. Myatt confessed that he attempted to rob the victim,
and that his co-conspirator shot and killed the victim during the robbery.
Myatt also admitted that he and his cohorts had been planning the robbery
for two weeks. After telling the victim's family, Myatt repeated his
confession to Officer Anthony Jones and gave a signed statement to police.
N.T. 1/6/09, pp. 137-45, 166-77, 206-13; N.T. 1/7/09, pp. 82-91. See
Commonwealth v. Philistin, 53 A.3d 1, 32 (Pa. 2012) (rejecting
ineffectiveness claim where defendant could not prove that jury would have
acquitted him, where evidence against him was overwhelming).
Next, Myatt argues that counsel was ineffective for permitting Officer
Grandizio to testify to a property receipt prepared by Officer Clyde Frasier in
violation of the Confrontation Clause9. Myatt waived this claim by failing to
discuss in his brief why counsel's actions lacked a reasonable basis or how
he suffered prejudice from this alleged error. Commonwealth v. Rykard,
____________________________________________
9
Pa.R.A.P. 1925(b) Statement, Issue 4; Brief For Appellant, pp. 6-7.
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55 A.3d 1177, 1190 (Pa. Super. 2012) (appellant waived issue by neglecting
to present appropriate argument and citation on appeal).
In any event, this claim lacks arguable merit. The Confrontation
Clause entitles a defendant to confront witnesses who testify against him.
Commonwealth v. Yohe, 79 A.3d 520, 531 (Pa. 2013). An out-of-court
statement may nevertheless be admitted where the declarant is unavailable
or the defendant had a prior opportunity to cross-examine him.
Commonwealth v. Mollett, 5 A.3d 291, 307 (Pa. Super. 2010).
There was no Confrontation Clause error here because Officer Frasier
in fact testified at trial about the location and collection of the ballistics
evidence. He explained that he recovered seven fired cartridge casings from
the crime scene and had documented that information on a property receipt.
N.T. 1/7/09, pp. 19-34. Since Myatt had ample opportunity to cross-
examine Officer Frasier regarding that property receipt, no basis existed for
a Confrontation Clause objection. Commonwealth v. Fears, 86 A.3d 795,
804 (Pa.2014) ("counsel cannot be deemed ineffective for failing to raise a
meritless claim"); see also Crawford v. Washington, 541 U.S. 36, 60
(2004) ("when the declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the use of his prior
testimonial statements").
Myatt next argues that trial counsel was ineffective for failing to
compel the court reporter to file all transcripts or to ensure that the reporter
- 13 -
J-S68025-14
properly prepared them10. Myatt is incorrect. The court reporter provided
the transcript to defense counsel, Trial Court opinion, p. 11, and the trial
court cited to the transcript in its opinion. Myatt also seems to argue that
the trial court failed to ensure that the transcript was accurate. We find no
prejudice, since Myatt fails to pinpoint a single error in the transcript or any
harm resulting therefrom.
Myatt contends that the trial court erred by not permitting alleged
eyewitnesses Latoya Brown and Rolanda Danyelle Tucker to testify at trial 11.
Brief for Appellant, p. 10. Myatt waived this claim by failing to present it in
his PCRA petition. Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa.
2004) (claim not raised in PCRA petition cannot be raised for the first time
on appeal). Moreover, this claim lacks merit. Myatt contends that these
eyewitnesses exonerate him because they failed to identify him as a
perpetrator. As explained above, however, Myatt twice admitted to
participating in the robbery, once to the victim’s family and again to police in
a signed statement. Given his damning confessions, the eyewitnesses’
failure to identify him is of no moment.
Myatt contends that trial counsel was ineffective for failing to request a
bill of particulars12 or seek discovery13. These claims lack arguable merit.
____________________________________________
10
Pa.R.A.P. 1925(b) Statement, Issues 5-6; Brief For Appellant, p. 7.
11
Pa.R.A.P. 1925(b) Statement, Issue 7; Brief For Appellant, p. 10.
12
Pa.R.A.P. 1925(b) Statement, Issue 10; Brief For Appellant, p. 8.
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J-S68025-14
"The purpose of a bill of particulars is to give notice to the defendant
of the nature of offenses charged so that he may prepare a proper defense
and avoid surprise." Commonwealth v. Judd, 897 A.2d 1224, 1230 (Pa.
Super. 2006). To request a bill of particulars, a defendant must specify the
information sought and explain why it is being requested. Pa.R.Crim.P. 572.
Myatt fails to specify what information counsel should have requested
in the bill of particulars, how this information would have assisted his
defense, or how the absence of this information prejudiced him. Nor does
Myatt explain what discovery counsel should have demanded or how the
absence of discovery prejudiced him. Courts do not presume prejudice from
the absence of discovery. Commonwealth v. Manhart, 503 A.2d 986, 990
(Pa. Super. 1986) (defendant must show prejudice arising from counsel’s
failure to request discovery).
Finally, Myatt argues that the cumulative effect of the foregoing errors
entitles him to relief14 and adds a boilerplate claim of global ineffective
assistance15. Since we conclude that there were no errors, these claims fail.
Order denying PCRA relief affirmed.
_______________________
(Footnote Continued)
13
Pa.R.A.P. 1925(b) Statement, Issue 11; Brief For Appellant, p. 9.
14
Pa.R.A.P. 1925(b) Statement, Issue 8; Brief For Appellant, p. 8.
15
Pa.R.A.P. 1925(b) Statement, Issue 9; Brief For Appellant, p. 8.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2014
- 16 -
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