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967 F.2d 1508
UNITED STATES of America, Plaintiff-Appellee,v.Fernando NINO, Gabriel Nino, Najah Dawood Konja, IssamHermiz, Hector Alvarez, Basil Mezy, Defendants-Appellants.
No. 90-3622.
United States Court of Appeals,Eleventh Circuit.
Aug. 6, 1992.
Arthur S. Corrales, Tampa, Fla., for Fernando Nino.
Ronald J. Marzullo, St. Petersburg, Fla., for Gabriel Nino.
Richard M. Lustig, Birmingham, Ala., for Konja.
N.C. Deday LaRene, Detroit, Mich., for Hermiz.
David K. Weisbrod, Tampa, Fla., for Alvarez.
Manuel A. Machin, Tampa, Fla., for Mezy.
Joseph Ruddy, Asst. U.S. Atty., Karla Spaulding, Asst. U.S. Atty., Tampa, Fla., for U.S.
Appeal from the United States District Court for the Middle District of Florida.
Before FAY and EDMONDSON, Circuit Judges, and ATKINS*, Senior District Judge.
EDMONDSON, Circuit Judge:
1
A jury in the Middle District of Florida convicted Fernando Nino, Gabriel Nino, Najah Dawood Konja, Issam Hermiz, Hector Alvarez, and Basil Mezy of one count of conspiracy to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846, three counts of interstate travel with the intent to promote and facilitate the conspiracy in violation of 18 U.S.C. §§ 1952(a)(3) and (2), and four counts of cocaine distribution in violation of 21 U.S.C. § 843. We AFFIRM their convictions and sentences.
Facts
2
Defendants Konja, Hermiz, and Mezy were members of a group that wanted to establish a drug trafficking trade in Detroit.1 They negotiated with Alvarez in Tampa, Florida to start a cocaine business.2 Alvarez' son-in-law, Fernando Nino, had access to large quantities of cocaine via Queens, New York, and Nino's brother, Gabriel, agreed to help transport the cocaine to Detroit.
3
From September 1988 to January 1989, the Ninos made several trips to Detroit. The business temporarily came to a halt on February 9, 1989, when the Ninos were arrested in Los Angeles, California by the Drug Enforcement Administration ("DEA") for a cocaine delivery the Ninos made from a Los Angeles warehouse to a confidential informant for distribution in the Los Angeles area. The Ninos were indicted in the Central District of California for conspiracy to possess with intent to distribute cocaine. The brothers pled guilty and were incarcerated.
4
In the meantime, Anthony Montello, a government witness, taped several telephone conversations disclosing Alvarez, Konja, and Hermiz's interest in finding a new source of cocaine. When the group was unable to come up with a supplier, an undercover agent set up a reverse sting operation which ultimately led to the arrest of Konja, Hermiz, and Mezy. Alvarez was arrested in Florida two months later.
5
Both Gabriel and Fernando Nino filed pretrial motions to dismiss the conspiracy count based on double jeopardy grounds; both motions were denied. After the trial the Ninos filed a motion for a transcript of trial testimony to supplement their motions to dismiss. This motion was granted, but their later supplemental motions to dismiss and motions for evidentiary hearing on the double jeopardy issue were denied.
6
On appeal, defendants raise many issues regarding their convictions and sentences, but we find only two issues merit discussion: the Ninos' double jeopardy claim and Konja's challenge to his sentencing enhancement for firearm possession.3
The Ninos' Double Jeopardy Claim
7
The Ninos argue that their prosecution in Florida is based on the same conspiracy to which they pled guilty in California and therefore violates the double jeopardy clause.4 In pretrial double jeopardy proceedings, defendants have the burden of establishing a prima facie nonfrivolous double jeopardy claim, United States v. Stricklin, 591 F.2d 1112, 1117-18 (5th Cir.1979);5 if they make the necessary showing, the burden of persuasion shifts to the government to show by a preponderance of the evidence that the indictments actually charge separate crimes. United States v. Loyd, 743 F.2d 1555, 1562-63 (11th Cir.1984).
8
Because the district court proceeded to trial in this case, ... we have the record of the second trial to help us determine whether the indictments involved different conspiracies. The court might first consider the pretrial record alone, and then, if it determined that the government was entitled to prevail on the pretrial motion, consider the trial record to determine if the appellant was actually tried for the same offense.
9
United States v. Kalish, 690 F.2d 1144, 1147 (5th Cir.1982). We think the government in this case met its pretrial burden of proving that the indictments concerned different conspiracies; the trial record and result confirms that conclusion.
10
Because "[t]he gist of the crime of conspiracy ... is the agreement ... to commit one or more unlawful acts," United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 763, 102 L.Ed.2d 927 (1989) (citation omitted), the government had to show more than one agreement. The following factors determine if more than one agreement exists:
11
(1) time, (2) persons acting as co-conspirators, (3) the statutory offenses charged in the indictments, (4) the overt acts charged by the government or any other description of the offense charged which indicates the nature and scope of the activity which the government sought to punish in each case, and (5) places where the events alleged as part of the conspiracy took place.
12
United States v. Benefield, 874 F.2d 1503, 1506 (11th Cir.1989) (quoting United States v. Marable, 578 F.2d 151, 154 (5th Cir.1978)).
13
That the Ninos pled guilty to the California conspiracy charge makes it "particularly difficult, because of the absence of a trial record in the first case, to determine whether the conspiracies arose from one unlawful agreement or two." See Benefield, 874 F.2d at 1506. So, for a pretrial double jeopardy analysis, the district court is permitted to look beyond the indictment to extrinsic evidence to decide whether double jeopardy exists. Id. An examination of the government's proffer may, at that point, be sufficient to establish that two separate crimes are charged, id., and that is what occurred in this case. The government provided for the district court both Florida and California indictments, as well as telephone transcripts and affidavits. See infra. An examination of the government's proffer using the Marable analysis compels us to agree with the district court's pretrial conclusion that the two indictments refer to two separate agreements.
Time
14
The California indictment involves behavior beginning on an unknown date and continuing to on or about February 9, 1989. The overt acts alleged in that indictment specify only two dates: February 8-9, 1989. The Florida indictment involves behavior on or about spring 1987 to on or about June 23, 1989. Although the time frames for the two conspiracies overlap, this factor is not conclusive; the remaining factors, with the exception of the statutory offense comparison,6 militate in favor of finding separate conspiracies.
Co-conspirators
15
Fernando Nino and Gabriel Nino are the only conspirators indicted in both California7 and Florida.8 The Ninos' commonality to both indictments is, by itself, insufficient to show a single conspiracy. See Kotteakos v. United States, 328 U.S. 750, 754-55, 66 S.Ct. 1239, 1242-43, 90 L.Ed. 1557 (1946) (participation of single common actor in what are allegedly two sets of conspiratorial activities fails to establish existence of single conspiracy); United States v. Peyro, 786 F.2d 826, 829 (8th Cir.1986) (single conspiracy is unproved by mere overlap of personnel or knowledge of another's illegal conduct). In addition, transcripts of tape-recorded telephone calls between other members of the Detroit conspiracy show that these conspirators were confused and uncertain as to why the Ninos were in California at the time of their arrest. This confusion suggests the Ninos were involved in conduct not part of this conspiracy. See First Supp. Record on Appeal, Vol. 1, Exhibits 4 & 5.
Statutory Offenses/Overt Acts
16
The statutory offenses are identical: violation of 21 U.S.C. § 846, contrary to 21 U.S.C. 841(a)(1). But it is possible to have two different conspiracies to commit exactly the same kind of crime. United States v. Robinson, 774 F.2d 261, 275 (8th Cir.1985) (quoting United States v. Thomas, 759 F.2d 659, 666 (8th Cir.1985)). The stipulated facts filed when the Ninos pled guilty to the California indictment detail nine overt acts that took place over a two-day period. These acts constituted a single delivery of cocaine by the Ninos from a Los Angeles warehouse to a confidential informant for distribution in Los Angeles. In contrast, the Florida indictment broadly charges conspiracy and cocaine distribution activities.
Places
17
The California indictment refers only to activities in California. The Florida indictment includes activities in Queens, New York, Chicago, Illinois, Detroit, Michigan, and Tampa, Florida, but makes no reference whatsoever to California. Likewise, law enforcement investigations were geographically--and factually--independent: the affidavit of FBI agent Manuel Perez, who investigated the Florida/Detroit conspiracy, states that before the Ninos' arrest, Perez had no knowledge of a DEA investigation targeting the Ninos in California in February 1989.
18
Applying the Marable factors to the information available to the district court pretrial convinces us that the Florida and California indictments allege two separate and distinct conspiracies. In Benefield, we wrote:
19
While the Galveston Indictment appears to involve only the discrete sale of 761 pounds of marijuana by two undercover DEA agents to defendant Benefield through two individuals named Gassoway and Blitz, if that purchase of contraband by Benefield was designed and intended to be sent ... for distribution in Georgia, the Galveston conspiracy would simply be a small portion of the broadly charged Atlanta conspiracy, and the Atlanta conspiracy, as charged, would therefore be barred by the command of double jeopardy. If, on the other hand, the 761 pounds was intended for a different distributee or purchaser, perhaps at a different location, then the Atlanta charge would not be barred by the Galveston plea and sentence, for a defendant may be involved in more than one conspiracy during the same period of time.
20
Benefield, 874 F.2d at 1508 (emphasis added).9 In the present case, the government's proffer sufficiently proved that the Ninos' February 1989 delivery in California was intended for a different buyer in a different location from that expected or agreed to by the Detroit conspirators. See also Sturman, 679 F.2d at 843 (acquittal under Ohio indictment charging violation of federal obscenity laws did not preclude prosecution under Florida indictment charging same offense during different time where no evidence linked Ohio defendants to Florida and only two of seven Ohio defendants named in Florida indictment); United States v. Henry, 661 F.2d 894, 89697 (5th Cir.1981)10 (although periods overlapped and both conspiracies involved distribution of cocaine, acquittal on one indictment did not bar prosecution on remaining indictment where one conspiracy centered in Detroit with some overt acts in Atlanta and Tampa, and other conspiracy involved acts in Dallas and Atlanta; evidence showed only one person common to both conspiracies, notwithstanding that some persons implicated in one or both conspiracies were business acquaintances; and evidence failed to show cooperation between two groups).
21
Our conclusion is bolstered by the trial in this case, where the evidence likewise comports with a showing of more than one agreement under Marable.11 Cf. Kalish, 690 F.2d at 1147 (government did not meet pretrial burden of proving indictments concerned separate conspiracies and trial record confirms that conclusion). The Ninos argued at trial that they had already been punished for their role in the conspiracy.12 And the jury was instructed on the difference between single and multiple conspiracies. Inherent in the jury's verdict that the Ninos were guilty is the conclusion--beyond a reasonable doubt--not only that the Ninos were participants in the Florida/Detroit drug activities, but also that the brothers had not yet been prosecuted or punished for these activities. The government's pretrial showing, trial evidence, and trial result persuade us that the Ninos were not subjected to double jeopardy.
22
Konja's Sentencing Enhancement for Firearm Possession
23
The district court enhanced Konja's base offense level by two levels for firearm possession during the commission of the offense. Konja himself possessed no firearms; evidence at trial showed Konja's presence at drug negotiations when Harry Kalasho, the leader of the conspiracy, possessed a firearm in Detroit; and Askar, an unindicted co-conspirator, possessed several weapons in Tampa.
24
In United States v. Otero, 890 F.2d 366 (11th Cir.1989) (per curiam), this court decided that Sentencing Guideline § 2D1.1(b)(1) permits sentence enhancement based on firearm possession by a co-conspirator when three requirements are satisfied: (1) the possessor must be charged as a co-conspirator; (2) the co-conspirator must be found to have possessed the firearm in furtherance of the conspiracy; and (3) the defendant who is to receive the enhanced sentence must have been a member of the conspiracy at the time of the firearm possession. Id. at 367. Konja argues his enhancement was improper because neither Kalasho nor Askar were charged co-conspirators.13 We disagree.
25
At the outset, we note that nowhere in the Otero opinion is it said that enhancement is allowable only if the three conditions set out in the opinion are met. The Otero court faced a case in which certain facts existed and held that, given the facts before the court, enhancement was permitted by the guidelines. The words of Otero, like the words of every judicial opinion, must be read in the context of the particular facts of the case. "[G]eneral expressions, in every opinion are to be taken in connection with the case in which those expressions are used ..." Cohens v. Virginia, 19 U.S. 264, 399, 5 L.Ed. 257 (1821) (Marshall, C.J.).14
26
The Otero reasoning avoids artificial sentence enhancement for firearm possession when the weapon is actually or constructively possessed by a person outside the conspiracy (for example, an undercover agent, confidential informant, or other non-conspirator). See also United States v. Missick, 875 F.2d 1294, 1301-02 (7th Cir.1989) (reversing weapon-possession enhancement where firearms were possessed only by recipients of cocaine and recipients were not charged as co-conspirators). Such a rule is necessary because firearm possession by those who are in contact with--but not members of--a drug-trafficking conspiracy is not an act in furtherance of the conspiracy. See Pinkerton, 328 U.S. at 647, 66 S.Ct. at 1184 (conspirator's overt act must be in furtherance of conspiracy for purposes of co-conspirator liability for substantive offense); U.S.S.G. § 1B1.3, commentary n. 1 (where conduct is neither within scope of defendant's agreement nor reasonably foreseeable in connection with criminal activity defendant agreed to jointly undertake, conduct not included in establishing offense level).
27
In this case, Kalasho died before the conspiracy ended, and Askar cooperated with the government in exchange for immunity. But these events in no way negate their participation in the conspiracy or their use of firearms to further the group's mission. Given Otero 's facts, Otero 's holding remains good law in this circuit; but the rules of co-conspirator liability as explained in Pinkerton and the Sentencing Guidelines do not require that the firearm possessor be a charged co-conspirator when that co-conspirator dies or is otherwise unavailable for indictment. To the extent, if any, the Otero opinion's words--as distinguished from the Otero decision--suggest otherwise, those words are dicta and are not the law.
28
The district court in this case found both Kalasho and Askar were co-conspirators who possessed firearms in furtherance of the conspiracy at a time when Konja was a member of the conspiracy.15 Given the deference due district courts' factual determinations for sentencing purposes, we cannot say these findings are clearly erroneous. We therefore AFFIRM the district court's decision to enhance Konja's base offense level for firearm possession.
ATKINS, District Judge, dissenting:
29
While I concur in the balance of the majority opinion, I respectfully dissent from the majority's conclusion that the district court correctly enhanced defendant Konja's base offense level for firearm possession.
30
Under the Sentencing Guidelines, "[i]f a firearm or other dangerous weapon was possessed during the commission of the offense, increase [the offense level] by 2 levels." U.S.S.G. § 2D1.1(b). In this Circuit, sentence enhancement for a co-conspirator's possession of firearms is proper if three conditions are met:
31
first, the possessor must be charged as a co-conspirator; second, the co-conspirator must be found to have been possessing the firearm in furtherance of the conspiracy; and third, the defendant who is to receive the enhanced sentence must have been a member of the conspiracy at the time of the firearms possession.
32
United States v. Otero, 890 F.2d 366, 367 (11th Cir.1989) (per curiam) (citing United States v. Missick, 875 F.2d 1294, 1301-02 (7th Cir.1989)); see also United States v. Martinez, 924 F.2d 209, 210 (11th Cir.1991) (reiterating Otero test), cert. denied, Duarte v. United States, --- U.S. ----, 112 S.Ct. 203, 116 L.Ed.2d 163 (1991).
33
In this case, the actual possessors of the firearms, Kalasho and Askar, were not charged as co-conspirators. Arguably, they could qualify as "those persons known and unknown to the Grand Jury" who participated in the conspiracy. However, this argument was rejected in United States v. Missick, a Seventh Circuit case cited favorably in Otero, where the court held that a firearm sentence enhancement may not be based on possession by a person who has not been named in the indictment. Missick, 875 F.2d at 1301-02. This is so even if the indictment charges "persons known and unknown" in the conspiracy. Id. Because Kalasho and Askar were not charged in the indictment, I believe that the district court erred in departing from the sentencing guidelines.
34
The majority's broad reading of Otero in the present case is contrary to the Sentencing Commission's intent that courts impose sentences based on charged conduct as opposed to actual conduct. In explaining why it chose a "charged offense" system, the Sentencing Commission stated that it found "no practical way to reconcile the need for a fair adjudicatory procedure with the need for a speedy sentencing process given the potential existence of hosts of adjudicated 'real harm' facts in many typical cases." U.S.S.G., Ch. 1, Part A, § 4(a). The Missick court explained that the Sentencing Commission
35
sought to devise a "charge offense" system, where defendants are sentenced on the basis of conduct charged and convicted, rather than a "real offense" system where the defendant may be sentenced on the actual conduct independently of whether the conduct constituted elements of the charged offense. Sentencing Guidelines, Chap. One, Part A, § 4(a), at 1.5 (1987). However, the Guidelines retain some real offense attributes, including the specific offense characteristics which allow the district court to reduce or elevate the offense level based on individual characteristics of the defendant, such as possession of a dangerous weapon.
36
Here, the specific offense characteristic of possession of a firearm by Missick was not present to justify elevating the offense level ... and Missick was not charged as a co-conspirator with the individuals who were charged with possession of firearms. Therefore, sentencing the defendant for firearm possession is clearly inconsistent with the Sentencing Commission's intent to impose sentence based on the charged offense only.
37
875 F.2d at 1302. Similarly, sentencing Konja for firearm possession is inconsistent with the Sentencing Commission's intent to impose a sentence based on the charged offense. Like Missick, Konja did not possess a firearm nor was he charged as a co-conspirator with the individuals who possessed the firearms.
38
In light of the Sentencing Commission's intent that sentences be based on charged conduct, I do not believe that the language of Otero, that "the possessor [of the firearm] must be charged as a co-conspirator," should be dismissed as mere dicta. Otero, 890 F.2d at 367 (emphasis added). Therefore, I respectfully DISSENT.
*
Honorable C. Clyde Atkins, Senior United States District Judge for the Southern District of Florida, sitting by designation
1
Others indicted were Ead Ballo, Heriberto Otalvaro, and Victor Trevino Pulido. Khairi ("Harry") Kalasho was the group's leader until his death in March 1989. Salwan Askar, a cooperating witness for the government, admitted under oath that he had also been a conspirator
2
An attempt in spring 1987 failed; the group made more successful arrangements in spring 1988
3
We affirm without discussion the district court's decisions on (1) the sufficiency of evidence to convict Mezy and the Ninos; (2) the denial of the requested buyer-seller instruction; (3) the admission of evidence of the reverse sting transaction; (4) the admission of lay witness testimony regarding tape-recorded conversations; (5) the alleged variance between the conspiracy charged and evidence introduced at trial; (6) Mezy's role in the offense; (7) Alvarez' role in the offense; (8) Alvarez' acceptance of responsibility; (9) Konja's role in the offense; and (10) the Ninos' consecutive sentences
4
The Double Jeopardy Clause provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const., amend. V. The heart of this clause is the prohibition against multiple prosecutions for the same offense. Jeffers v. United States, 432 U.S. 137, 150, 97 S.Ct. 2207, 2216, 53 L.Ed.2d 168 (1977)
5
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc ), this court adopted as precedent decisions of the former Fifth Circuit Court of Appeals decided before October 1981
6
Identity of the statutory offense is the least important of the Marable factors. United States v. Sturman, 679 F.2d 840, 843 (11th Cir.1982)
7
The Ninos are listed as Fernando Andrade and Gabriel Andrade in the California indictment
8
The California indictment charges Fernando Andrade, Gabriel Andrade, William Arias, and Erwin Gonzalez. The Florida indictment charges Fernando Nino, Gabriel Nino, Heriberto Otalvaro, Hector Alvarez, Victor Trevino, Najah Dawood Konja, Ead Ballo, Issam Hermiz, and Basil Mezy
9
The Benefield court remanded for an evidentiary hearing because of an overlap in time, defendant's offenses and similarity in geographic reach of the crimes alleged. The Benefield case had come to us before trial
10
In Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir.1982), this court adopted as precedent all decisions of Unit B of the former Fifth Circuit Court of Appeals
11
We disagree with the Ninos' assertion that the trial testimony of Anthony Montello and Salwan Askar necessarily supports their double jeopardy claim. Anthony Montello testified that he brokered sales of cocaine with Fernando Nino to Detroit, New York/New Jersey and Los Angeles; and Salwan Askar testified that on one occasion in Detroit he received cocaine from Nino agents from Orange County, California; and Los Angeles DEA agent Donald Torres testified that a confidential informant in Los Angeles told the DEA that Nino had five offices, including Los Angeles, Miami, New York, Chicago and Detroit. At most, this testimony might show that Fernando Nino was delivering cocaine from Los Angeles to other cities; it does not prove that Nino's connections in California were shared by the rest of the Detroit conspiracy
12
In his closing statement, Fernando Nino's counsel argued that instead of one overreaching conspiracy, the Florida indictment charged the activities of three conspiracies: (1) the conspiracy in the spring of 1987, when the Detroit and Florida group was unable to come up with a source of cocaine and/or there was a problem with the price of cocaine; (2) the conspiracy beginning in the spring of 1988, allegedly involving Nino's dealings in Los Angeles, and a plan between Fernando and Harry Kalasho to supply cocaine from Los Angeles to Detroit, ending with Nino's arrest and Kalasho's death; and (3) the conspiracy from February 9, 1989 to the arrest of the Detroit group later that summer. Nino's counsel did not expressly argue double jeopardy in his closing, but suggested that Fernando Nino had already been prosecuted and punished for his role in the second conspiracy
13
That the last two Otero conditions were met in this case is undisputed
14
It seems worthwhile to quote Chief Justice Marshall more fully on precedent and legal authority; the Chief Justice, incidentally, was writing in Cohens to explain the inapplicability of his own opinion in Marbury v. Madison, 5 U.S. 137, 2 L.Ed. 60 (1803):
It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used.... The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.
Cohens, 19 U.S. at 399.
15
Konja's claim that he was unaware of Askar and Kalasho's firearm possession does not preclude enhancement. See United States v. Martinez, 924 F.2d 209, 210 and n. 1 (11th Cir.1991) (enhancement sustained despite defendant's alleged lack of knowledge of co-conspirator's firearm possession if possession "reasonably foresee[able] as a necessary or natural consequence of the unlawful agreement") (quoting Pinkerton v. United States, 328 U.S. 640, 648, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946))
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53 B.R. 952 (1985)
In re Daniel H. OVERMYER, Debtor.
The FIRST NATIONAL BANK OF BOSTON and D.H. Overmyer Telecasting Company, Inc., Plaintiffs-Movants,
v.
Daniel H. OVERMYER, Defendant-Respondent.
Bankruptcy No. 82B20329, No. 83 Adv. 6041.
United States Bankruptcy Court, S.D. New York.
October 25, 1985.
*953 Reich and Reich, White Plains, N.Y., for Daniel H. Overmyer.
Weil, Gotshal & Manges, New York City, for The First Nat. Bank of Boston.
Parks, Eisele, Bates & Wilsman, Cleveland, Ohio, for D.H. Overmyer Telecasting Co., Inc.
Harvey S. Barr, Spring Valley, N.Y., Trustee.
DECISION ON MOTION FOR AN ORDER AMENDING ORDER DATED JULY 25, 1985 and DECISION DATED JUNE 19, 1985
HOWARD SCHWARTZBERG, Bankruptcy Judge.
A Chapter 7 debtor, Daniel H. Overmyer, has moved to amend this court's decision dated June 19, 1985 and related order dated July 25, 1985 (the "decision and order"), which granted partial summary judgment against him with respect to the complaint filed by The First National Bank of Boston ("FNBB") and D.H. Overmyer Telecasting Co., Inc. ("Telecasting"). In First National Bank of Boston and D.H. Overmyer Telecasting Co., Inc. v. Daniel H. Overmyer (In re Overmyer), 52 B.R. 111 (Bankr.S.D.N.Y.1985), this court held that the debtor's obligations to FNBB and Telecasting were nondischargeable pursuant to 11 U.S.C. § 523(a)(4) and (6) because the debtor was collaterally estopped from contesting the findings of fact in two earlier decisions in the Bankruptcy Courts in the Northern District of Ohio and in the Southern District of New York.
FNBB has also moved to amend the court's decision and order so as to apply the doctrine of collateral estoppel to counts 18 and 20 of the previously filed amended complaint which seeks a determination that the debtor's obligations were nondischargeable because of fraud or defalcation in a fiduciary capacity and embezzlement as proscribed under 11 U.S.C. § 523(a)(4). FNBB states in its moving papers that this court granted partial summary judgment "but only to the extent of $18,111,997.59 plus interest from May 28, 1982, and . . . denied the remainder of the Motion with regard to the FNBB claim."
The debtor's motion, originally filed on August 5, 1985, and which was adjourned from time to time until it was heard on October 11, 1985, also requests this court to stay execution of its order dated July 25, 1985 pending a determination of this motion and his appeal of the July 25, 1985 order.
*954 On August 5, 1985, the debtor filed a notice of appeal with respect to this court's order dated July 25, 1985, granting partial summary judgment to FNBB to the extent of $18,111,997.59 plus interest and $3,557,008.14 plus interest to Telecasting.
DISCUSSION
Pursuant to 28 U.S.C. § 158(a), the district courts of the United States are invested with jurisdiction to hear appeals of the orders of bankruptcy judges. Bankruptcy Rule 8001(a) prescribes that an appeal from an order of a bankruptcy judge to a district court shall be taken by filing a notice of appeal with the clerk of the bankruptcy court within the time allowed by Bankruptcy Rule 8002.
In this case, the debtor filed a timely notice of appeal on August 5, 1985. The filing of the notice of appeal would normally divest this court of jurisdiction to proceed with respect to the matters raised by such appeal. Bialac v. Harsh Investment Corporation (In re Bialac), 694 F.2d 625 (9th Cir.1982); Crateo Inc. v. Intermark, Inc., (In re Crateo), 536 F.2d 862, 869 (9th Cir.1976) cert. denied 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed.2d 180 (1976); Matter of Eddis, 37 B.R. 217 (E.D.Pa.1984); Urban Development Limited, Inc. v. Hernando New York Associates (In re Urban Development Limited, Inc.), 42 B.R. 741 (Bankr.M. D.Fla.1984); In re Form-Eze Systems, Inc., 25 B.R. 590 (Bankr.N.M.1982). The debtor argues that the bankruptcy court has a wide latitude to reconsider and amend its prior decision, so long as the case is open and no intervening rights would be disturbed by a modification or reconsideration of the court's decision. Pfister v. Northern Illinois Finance Corp., 317 U.S. 144, 63 S.Ct. 133, 87 L.Ed. 146 (1942) (reh. denied 1943); Wayne United Gas Co. v. Owens-Illinois Glass Co., 300 U.S. 131, 57 S.Ct. 382, 81 L.Ed. 557 (1937); In re Emergency Beacon Corp. 5 B.C.D. 372, 377 (Bankr.S.D.N.Y.1978) aff'd [1978-1981 Transfer Binder] Bankr.L.Rep. (CCH) ¶ 67,480 (S.D.N.Y.1980), aff'd 666 F.2d 754 (2d Cir.1981). However, a bankruptcy judge does not have concurrent jurisdiction with the district court over the subject matter of an appeal. Once a notice of appeal is filed "no lower court should be able to vacate or modify an order under appeal, not even a bankruptcy court attempting to eliminate the need for a particular appeal." Matter of Combined Metals Reduction Co., 557 F.2d 179 at 201 (9th Cir.1977).
An exception to the rule that the filing of a notice of appeal divests a lower court of jurisdiction is to be found in Bankruptcy Rule 8002(b) patterned after Rule 4(a)(4) of the Fed.R.App.P., and which provides as follows:
(b) Effect of motion on time for appeal
If a timely motion is filed in the bankruptcy court by any party: (1) for judgment notwithstanding the verdict under Rule 9015; (2) under Rule 7052(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) under Rule 9023 to alter or amend the judgment; or (4) under Rule 9023 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect; a new notice of appeal must be filed. No additional fees shall be required for such filing.
(emphasis added).
In the instant case, the debtor's motion pursuant to Bankruptcy Rules 9023 and 9024 and Fed.R.Civ.P. 59 and 60 for an amendment of the decision and order was filed simultaneously with his notice of appeal on August 5, 1985. In accordance with Bankruptcy Rule 8002(b), the debtor's notice of appeal is to be given no effect until after the determination of the debtor's motion for an amendment of the court's previous decision and order, at which time another notice of appeal may be filed, if necessary. See Griggs v. Provident Consumer Discount Company, 459 *955 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). The debtor's timely motion for an amendment tolls the time for taking an appeal while the motion remains undetermined. Clayton v. Douglas, 670 F.2d 143 (10th Cir.1982), cert. denied 457 U.S. 1109, 102 S.Ct. 2911, 73 L.Ed.2d 1319 (1982); Century Laminating, Ltd., v. Montgomery, 595 F.2d 563 (10th Cir.1979) cert. dismissed 444 U.S. 987, 100 S.Ct. 516, 62 L.Ed.2d 417 (1979).
COLLATERAL ESTOPPEL
The debtor disputes the application of the doctrine of collateral estoppel, or issue preclusion, to questions of fact or law that were actually litigated and necessarily decided by Bankruptcy Judge Ray in Hadar Leasing International Co., Inc. v. D.H. Overmyer Telecasting Co., Inc. (In re D.H. Overmyer Telecasting Co., Inc.), 23 B.R. 823 (Bankr.N.D.Ohio 1982), aff'd, No. C82-3175 (N.D.Ohio July 11, 1984). The debtor repeats his argument that Bankruptcy Judge Ray made his findings on the basis of the preponderance of the evidence standard, whereas nondischargeable conduct under 11 U.S.C. § 523 requires proof that must be established by clear and convincing evidence. This argument was previously rejected by this court because it found that Bankruptcy Judge Ray's findings were based upon clear and convincing evidence as affirmed by the District Court on July 11, 1984. Moreover, this case does not involve the question of whether or not collateral estoppel is available in a dischargeability case to preclude relitigation of issues actually and necessarily decided in a prior state court suit. See Clarks Delivery, Inc., v. Moultrie (In re Moultrie), 51 B.R. 368 (Bankr.W.D.Wash.1985). In the instant case, the issues of fraud and defalcation in a fiduciary capacity were decided by a bankruptcy court applying bankruptcy standards. In such a case the doctrine of collateral estoppel, or issue preclusion must apply, and any contentions as to erroneous standards should have been argued in the appeal of Bankruptcy Judge Ray's decision and not in this forum.
DAMAGES
The debtor notes that the original loan was not tainted by fraud and therefore argues that his subsequent fraudulent conduct should not render nondischargeable amounts attributable to interest, collection expenses and attorneys' fees. However, these items arose because the debtor was found to have engaged in a fraudulent scheme to prevent FNBB from realizing upon its claim. Although the debtor's liability to FNBB originally arose out of a contractual relationship, the ultimate measure of recovery was predicated on the debtor's fraudulent conduct. The collection expenses and attorneys' fees that were included in the Ohio Bankruptcy Court's award of damages as a result of the debtor's fraudulent scheme are nondischargeable under 11 U.S.C. § 523 and may not now be challenged because the debtor is bound by the Ohio Bankruptcy Court's determination in accordance with the doctrine of collateral estoppel. See Goldstein v. Maxwell (In re Maxwell) 51 B.R. 244 (Bankr.S.D.Ind.1983).
STAY PENDING DETERMINATION AND APPEAL
The debtor requests this court to stay execution of its order dated July 25, 1985, pending a determination of this motion and any appeal thereof. A motion for a stay pending appeal, as authorized under Bankruptcy Rule 8005, is discretionary. Hartigan v. Pine Lake Village Apartment Co. (In re Pine Lake Village Apartment Co.), 21 B.R. 395, 398 (S.D.N.Y.1982). Usually four elements must be satisfied; (1) a strong showing that the appellant is likely to prevail on the merits of the appeal; (2) irreparable injury to the appellant unless the stay is granted; (3) no substantial harm to other interested persons; and (4) no harm to the public interest. John P. Maguire & Co., Inc. v. Sapir (In re Candor Diamond Corp.), 26 B.R. 844, 847 (Bankr.S.D.N.Y.1983) (decision on remand); In re Hotel Associates, Inc., 7 B.R. 130 (Bankr.E.D.Pa.1980).
*956 The debtor argues that if a stay is not issued he will be left without remedy in the interim and will suffer irreparable injury through the collection efforts of the plaintiffs should he be successful on this motion or in his appeal. Apart from this conclusory statement there is no showing that the debtor has any assets that might be subject to the plaintiffs' collection efforts. Moreover, there is no basis for assuming that the plaintiffs are not financially able to return any improperly collected assets should the debtor prevail on his appeal. Additionally, the debtor has not shown that there is a strong likelihood that he will prevail on the merits of his appeal. The findings and conclusions of the Ohio Bankruptcy Court were affirmed by the District Court. That case is now on appeal to the Circuit Court of Appeals for the Sixth Circuit. As long as Bankruptcy Judge Ray's findings stand, the debtor is collaterally estopped from relitigating them in this court. Accordingly, the debtor's success on the merits does not hinge on the strength of his appeal from this court's order, but rather on the appeal now pending in the Sixth Circuit Court of Appeals from the Ohio District Court's affirmance of Bankruptcy Judge Ray's findings and conclusions.
In light of the foregoing, this court concludes that the debtor has not established that he is entitled to a stay pending appeal.
FNBB's MOTION TO AMEND
FNBB also seeks to amend this court's decision dated July 25, 1985 and order dated June 19, 1985 so as to obtain partial summary judgment on counts 18 and 20 of the amended complaint involving embezzlement and fiduciary fraud or defalcation.
EMBEZZLEMENT
FNBB contends that any debt created by embezzlement, not merely the claims of the direct victim of embezzlement, should be nondischargeable under 11 U.S.C. § 523(a)(4). This position begs the question because it assumes that FNBB has established that it holds a claim against the debtor for embezzlement of property. Included in the partial summary judgment decision by this court on June 19, 1985, was the holding that the debtor's willful misappropriation of funds from Telecasting through the Hadar Leasing International Co., Inc. was equivalent to nondischargeable embezzlement from Telecasting. Accordingly, the debtor was collaterally estopped from relitigating these facts and his liability to Telecasting for the debt arising out of such conduct was held to be nondischargeable in the context of Telecasting's motion for partial summary judgment. Bankruptcy Judge Ray did not make any finding that the debtor misappropriated any funds from FNBB. Therefore, the doctrine of collateral estoppel may not be used by FNBB for purposes of partial summary judgment. If FNBB wishes to establish that its claim against the debtor is not dischargeable because of an embezzlement of its property, FNBB will have to do so at a trial and not by way of partial summary judgment. Hence, count 20 in the amended complaint which alleges embezzlement or larceny cannot be established by FNBB on a motion for partial summary judgment.
FNBB's motion for partial summary judgment was sustained with respect to the nondischargeability of its claim against the debtor arising out of a willful and malicious injury to FNBB's property, as proscribed under 11 U.S.C. § 523(a)(6), to the extent of $18,111,997.59 plus interest, as set forth in count 22 of the amended complaint. A determination that this debt is also nondischargeable because of an alleged embezzlement will not enhance its value or ensure earlier collection.
FIDUCIARY FRAUD OR DEFALCATION
FNBB also contends that the debtor's fraud liabilities to it should be held nondischargeable pursuant to 11 U.S.C. § 523(a)(4) because Bankruptcy Judge Ray's findings collaterally estop the debtor from contesting that the liabilities were incurred while the debtor acted in a fiduciary capacity.
*957 FNBB cites several rationales for its position. First, FNBB argues that the debtor, as an officer and control person of Telecasting was a fiduciary of FNBB because FNBB was the owner of Telecasting's stock. This court's decision of June 19, 1985 found that the stock was held during the period in question as collateral and that FNBB was not the shareholder of record. First National Bank of Boston and D.H. Overmyer Telecasting Co., Inc. v. Daniel H. Overmyer (In re Overmyer), 52 B.R. at 120. The debtor did not owe an officer's fiduciary duty to a holder of collateral.
FNBB's next argument is that the debtor owed FNBB a fiduciary duty as an officer, director or control person of debtor-in-possession corporations of which FNBB was a creditor. It is hornbook law that an officer, director, control person or majority shareholder is a fiduciary of his or her corporation. Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1934). This fiduciary relationship may be extended to creditors of the corporation when the officer or controlling person seeks to interpose claims against the corporation to the detriment of other creditors. Pepper v. Litton, 308 U.S. at 308, 60 S.Ct. at 246. A trust is imposed as a result of the wrongful conduct of the fiduciary.
Historically, in order to bar the discharge in bankruptcy of liabilities incurred as the result of a fiduciary's fraud, the fiduciary relationship had to arise out of an express or technical trust rather than one implied in law. "It is not enough that by the very act of wrongdoing out of which the contested debt arose, the bankrupt has become chargeable as a trustee maleficio. He must have been a trustee before the wrong and without reference thereto." Davis v. Aetna Acceptance Company, 293 U.S. 328 at 333, 55 S.Ct. 151, at 153, 79 L.Ed.393 (1934); accord Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510, 511 (2d Cir.1937) (per L. Hand) (limiting application of former Bankruptcy Act § 17(a)(4) to "special" or "technical" fiduciaries). The Davis case continues to be applicable under the successor to § 17(a)(4) now codified at 11 U.S.C. § 523(a)(4) (1978 as amended). Giurbino v. Cook (In re Cook), 38 B.R. 743, 744 (Bankr. 9th Cir.1984); Kosik v. Hays (In re Hays), 31 B.R. 285 (Bankr.E.D. Tenn.1983).
Bankruptcy Judge Ray found that because of the frauds perpetrated by the debtor against FNBB a constructive trust and equitable liens should be impressed on assets controlled by the debtor. 23 B.R. at 937. Thus, the fiduciary relationship that arose stemmed directly from the debtor's conduct and not from any finding of an express trust. FNBB seeks to bootstrap on to that finding an argument that the debtor was the type of fiduciary whose obligations should be nondischargeable because he was an officer or control person of a debtor-in-possession. A debtor-in-possession is a fiduciary of its creditors. Ford Motor Credit Company v. Weaver, 680 F.2d 451, 461 (6th Cir.1982). FNBB, however, cites no authority for the proposition that an officer or control person of a debtor-in-possession is cloaked in the same mantle of an express trust with regard to a creditor of his or her principal. FNBB confuses liability with dischargeability. FNBB has established the debtor's liability for the debt.
In order to bar dischargeability of its claims FNBB must go beyond merely establishing liability. FNBB must satisfy the standards which establish that the debtor's obligations should not be discharged.
Bankruptcy Judge Ray did not find that the debtor was the kind of fiduciary whose discharge may be barred. Therefore, it is manifestly against the policy of the Bankruptcy Code to apply the doctrine of collateral estoppel in order to arrive at an inference which would then support a summary judgment of nondischargeability. The issue as to the debtor's alleged relationship to FNBB for purposes of nondischargeability under 11 U.S.C. § 523(a)(4) must be established at a trial after the presentation of evidence.
*958 CONCLUSIONS OF LAW
1. The debtor's motion to amend the court's decision and order, is denied.
2. The debtor's motion to stay execution of this court's order dated July 25, 1985, pending a determination of this motion and his appeal of such order, is denied.
3. FNBB's motion to amend the decision and order so as to apply the doctrine of collateral estoppel to counts 18 and 20 of the previously filed amended complaint involving embezzlement and fiduciary fraud or defalcation, is denied.
SUBMIT ORDER on notice.
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353 S.W.3d 270 (2011)
Gary GONZALEZ/Ione Grimm, Appellant/Cross-Appellee,
v.
Ione GRIMM/Gary Gonzalez, Appellee/Cross-Appellant.
No. 08-10-00140-CV.
Court of Appeals of Texas, El Paso.
October 26, 2011.
*272 Mark Berry, El Paso, for Appellant/Cross-Appellee.
Edward Dunbar, Dunbar, Armendariz, Crowley & Hegeman, L.L.P., El Paso, for Appellee/Cross-Appellant.
Before McCLURE, C.J., RIVERA, J., and CHEW, C.J., (Senior).
OPINION
GUADALUPE RIVERA, Justice.
These appeals arise from the trial court's grant of Appellee and Cross-Appellant lone Grimm's motion for summary judgment against Appellant and Cross-Appellee Gary Gonzalez. In two issues on appeal, Gonzalez contends that Grimm failed to prove each element of her immunity defense and that his controverting evidence created a fact issue. In her sole issue on appeal, Grimm contends that the trial court erred in failing to award her attorney's fees and costs,
BACKGROUND
The summary-judgment evidence shows that Grimm was the principal at the school Gonzalez' child attended in the El Paso Independent School District (EPISD). Gonzalez called Grimm at her school office and then recited Grimm's correct social security number. Gonzalez then asked Grimm how it made her feel to know that he had her social security number and then asked, "[D]o you know what I could do with this?" Grimm reported these events to her immediate supervisor. Dr. Linda Holman, who advised Grimm that she should report the incident to the EPISD police department Grimm thereafter reported the conversation to the EPISD police department.
EPISD Officer Lionel Calanche subsequently executed a complaint affidavit in which he recited Gonzalez' statements to Grimm as constituting the offense of harassment, a criminal offense with which the El Paso District Attorney then charged Gonzalez. The complaint and information alleged, in part, that Gonzalez committed the offense of harassment on March 8, 2006, by use of a telephone in a manner reasonably likely to alarm Grimm, by causing Grimm's phone to ring repeatedly, and by making repeated telephone communications to Grimm in a manner likely to harass, annoy, alarm, abuse, torment, or embarrass her. A capias for Gonzalez' arrest was executed. Ultimately, the case was dismissed upon the exercise of the prosecutor's discretion.
Gonzalez filed suit against Grimm, a middle-schdol principal, for malicious criminal prosecution. Grimm generally denied Gonzalez' allegations of malicious criminal prosecution and asserted three affirmative defenses of immunity: (1) that all of her complained-of actions were incident to or within the scope of her duties of employment as a professional employee of the El Paso Independent School District and involved the exercise of her judgment or discretion, thereby rendering her immune from liability under Texas Education Code Section 22.0511; (2) that she had engaged in the complained-of conduct in the course and scope of her employment as an official and employee of a governmental subdivision of the State of Texas, was performing discretionary governmental acts at all pertinent times, had performed those governmental acts in good faith, and was immune from liability under the common law doctrine of official immunity; and (3) that she was immune from liability under the Paul D. Coverdell Teacher Protection Act of 2001. TEX. EDUC.CODE ANN. § 22.0511(a) (West Supp. 2010). Grimm also asserted that she was entitled to recover attorney's fees and costs under Section 22.0517 of the *273 Texas Education Code. TEX. EDUC.CODE ANN.§ 22.0517 (West 2006).
Thereafter, Grimm sought both a final summary judgment based upon her alleged immunity under Section 22.0511 as well as the recovery of her attorney's fees under the Texas Education Code. TEX. EDUC.CODE ANN. § 22.0511(a) (West Supp. 2010), § 22.0517 (West 2006). Although Gonzalez opposed the motion, on April 6, 2010, the trial court granted summary judgment in favor of Grimm but did not award Grimm the attorney's fees she sought.
DISCUSSION
Initially, we consider both Gonzalez' first issue asserting that Grimm failed to prove each element of her alleged immunity defense and his second issue asserting that his controverting evidence raised a fact issue, thus barring the trial court's order granting summary judgment.
Standard of Review
A defendant who asserts an affirmative defense as the basis for summary judgment is entitled thereto upon conclusively proving all essential elements of the defense as a matter of law. Enriquez v. Khouri, 13 S.W.3d 458, 460-61 (Tex.App.-El Paso 2000, no pet.). We review de novo a trial court's determination that a party's right to prevail is established as a matter of law. Rabatin v. Kidd, 281 S.W.3d 558, 560 (Tex.App.-El Paso 2008, no pet). In reviewing the summary-judgment motion, we accept as true all evidence favorable to the non-moving party, draw all reasonable inferences in favor of the non-movant and resolve any doubts in the non-movant's favor. Enriquez, 13 S.W.3d at 460-61. When a defendant establishes that the asserted affirmative defense bars the plaintiff's action, the plaintiff must then produce summary-judgment evidence raising a genuine issue of material fact in avoidance of the affirmative defense. Enriquez, 13 S.W.3d at 461.
Summary Judgment
In relevant part. Section 22.0511 of the Texas Education Code provides:
(a) A professional employee of a school district is not personally liable for any act that is incident to or within the scope of the duties of the employee's position of employment and that involves the exercise of judgment or discretion on the part of the employee, except in circumstances in which a professional employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students.
TEX. EDUC.CODE ANN. § 22.0511(a) (West Supp. 2010). A "professional employee of a school district" includes a principal. TEX. EDUC.CODE ANN. § 22.051(a)(1) (West 2006). The statutory immunity provided by the Texas Education Code is in addition to and does not preempt the common-law doctrines of official and governmental immunity. TEX. EDUC.CODE ANN. § 22.051(b) (West 2006).
Grimm, therefore, was entitled to summary judgment only upon conclusively proving as a matter of law all of the essential elements of Section 22.0511(a): (1) that she was a principal; (2) that her actions were incident to or within the scope of her duties; and (3) that her duties involved the exercise of judgment or discretion on her part. TEX. EDUC.CODE ANN. § 22.0511(a) (West Supp. 2010). "Whether one is acting within the scope of his employment depends upon whether the general act from which injury arose was in furtherance of the employer's business and for the accomplishment of the object for which the employee was employed." Chesshir v. Sharp, 19 S.W.3d 502, 504 (Tex.App.-Amarillo 2000, no pet.), citing Leadon v. *274 Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 569 (Tex.1972). In determining whether an act is ministerial or discretionary, we look to the ability of the actor to exercise discretion when performing the act. Chesshir, 19 S.W.3d at 506. Because an official act that is ministerial still requires the actor to use some discretion in the performance of the act, the distinction between an act that is ministerial and one that is discretionary is often one of degree. Enriquez, 13 S.W.3d at 462. A ministerial act is not limited to commandment by statute but may be imposed by orders or other duties. City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex.1994). When a policy prescribes an actor's duties with a degree of precision and certainty that leaves nothing to the exercise of the actor's judgment, then the actor's performance of those duties is ministerial. Downing v. Brown, 935 S.W.2d 112, 114 (Tex. 1996). Because ministerial duties do not involve the exercise of judgment or discretion, they do not cloak the actor with immunity. Cortez v. Weatherford ISD, 925 S.W.2d 144, 148 (Tex.App.-Fort Worth 1996, no writ).
In support of her motion for summary judgment, Grimm presented the affidavit of Associate Superintendent Dr. Linda Holman, Ed.D., Grimm's own purported affidavit and supporting documents affixed thereto, and certified copies of records from the El Paso County Clerk's office relating to the charge, prosecution, and dismissal of the harassment case against Gonzalez.[1]
In conducting our de novo review, we first address Grimm's purported affidavit that is attached as Exhibit B to her summary-judgment motion. Exhibit B consists of Grimm's written statement entitled "Affidavit of lone Grimm" to which documents are affixed in support of the affidavit and the motion for summary judgment.
An affidavit is a written, factual statement signed by the person making it, sworn before an officer authorized to administer oaths, and officially certified by the officer under seal of office. TEX. GOV'T CODE ANN. § 312.011(1) (West 2005). A document which does not bear the third-party certification known as a "jurat" is not an affidavit and does not constitute proper summary-judgment evidence. Medford v. Medford, 68 S.W.3d 242, 246-47 (Tex.App.-Fort Worth 2002, no pet.). Because, absent a jurat, an intended affidavit does not authenticate any documents attached thereto as exhibits, such documents are not entitled to consideration as summary-judgment evidence. Medford, 68 S.W.3d at 246-47.
Because Grimm's written statement as it exists in both the appellate and trial-court records is unsigned by her and is not officially certified under seal by an officer authorized to administer oaths, it does not constitute an affidavit, does not authenticate the documents affixed thereto, and will riot support a summary judgment, even though it is unchallenged.[2]Medford, 68 S.W.3d at 246-47; Bernsen v. Live Oak Ins. Agency, Inc., 52 S.W.3d 306, 310 (Tex. App.-Corpus Christi 2001, no pet.) ("An unsworn statement that purports to be an affidavit will not support a summary judgment, even if unchallenged."); Hall v. Rutherford, 911 S.W.2d 422, 425 (Tex. App.-San Antonio 1995, writ denied) (without the notarization required by Section *275 312.011(1) of the Texas Government Code, a statement is not an affidavit and is not competent summary-judgment proof); De Los Santos v. Southwest Texas Methodist Hasp., 802 S.W.2d 749, 755 (Tex.App.-San Antonio 1990, no pet.) (a person making an affidavit must swear to and sign the statement before a notary; because the lack of a properly notarized signature is a substantive and not a purely formal defect, an unsigned, unsworn statement is not competent summary-judgment proof); compare TEX.R. Civ. P. 166a(f) (defects in the form of affidavit will not be grounds for reversal unless objection is made, and request to amend is refused). Consequently, in our de novo review of the trial court's grant of Grimm's summary-judgment motion, we will not consider the affidavit or evidence presented in Exhibit B. Medford, 68 S.W.3d at 246-47.
Grimm's remaining summary-judgment evidence includes: (1) the affidavit of Dr. Linda Holman, Grimm's immediate supervisor at the time of Gonzalez' March 8, 2006, phone call to Grimm; (2) the complaint and information filed on February 21, 2007, charging Gonzalez with harassment; (3) Officer Calanche's complaint affidavit in EPISD case numbers 06-44173 and 06-44288 wherein Officer Calanche states that he is aware of Gonzalez' "harassments during the months of February and March of 2006 by means of EPISD Case reports (sic) 06-44288 and numerous witness statements," and specifies within the complaint affidavit that the threatening manner of Gonzalez' "social-security number" phone call to Grimm by means of the school's business telephone on March 8, 2006, resulted in Grimm feeling harassed, annoyed, alarmed, abused, tormented, and embarrassed; (4) the executed capias issued for Gonzalez' arrest for harassment occurring on March 8, 2006; (6) an order setting Gonzalez' harassment case for trial on January 15, 2008; (6) the District Attorney's motion to dismiss the harassment case due to "prosecutorial discretion" on January 14, 2008; and (7) five witness subpoenas, three of which were returned unserved and filed with the District Clerk on January 15, 2008, the date on which trial was scheduled to commence.
In her affidavit, Dr. Holman stated that in March of 2006, she was the Associate Superintendent for middle schools within EPISD and was Principal Grimm's immediate supervisor. Dr. Holman stated that Principal Grimm was the administrative leader of the middle school, was responsible for ensuring the safety and security of all students, staff, and other personnel at the school, and who in the discharge of her duties was required to exercise judgment and discretion in determining when a situation exists which should be reported to law enforcement officials. According to Dr. Holman, Grimm's actions in reporting Gonzalez' phone call to the school district police and her cooperation with law enforcement authorities in regard thereto were made in the course and scope of her school district employment and necessarily involved the exercise of Grimm's judgment and discretion.
Dr. Holman's affidavit states that Grimm was employed as the principal at the middle school within the school district in March 2006, and this undisputed evidence meets the first element of Grimm's immunity defense. TEX. EDUC.CODE ANN. § 22.0511(a) (West Supp. 2010); TEX. EDUC.CODE ANN. § 22.051(a)(1) (West 2006). Gonzalez, however, complains that Grimm failed to conclusively prove as a matter of law that her report to law enforcement regarding Gonzalez' phone call was an act incident to or within the scope of her duties or that the report involved the exercise of judgment and discretion on Grimm's part. We agree and find that the *276 legal and factual conclusions set forth in Dr. Holman's affidavit are insufficient to conclusively prove that reporting Gonzalez' phone call to law enforcement was incidental to or within the scope of her duties as a principal. Although Grimm received Gonzalez' phone call while performing her duties as a principal and made a report to school district police, Dr. Holman's affidavit simply states a legal and factual conclusion that Grimm's actions were within the scope of her employment and fails to discuss how reporting Gonzalez' phone call to law enforcement related to and furthered the objectives of Grimm's responsibilities as a principal, which Dr. Holman described as "ensuring the safety and security of all students, staff, and other personnel at the school." Compare Kobza v. Kutac, 109 S.W.3d 89, 94 (Tex.App.-Austin 2003, pet. denied) (finding that affidavit which discussed scope of employee's duties and how employee's actions were an attempt to further her objectives as a teacher were non-conclusory).
Here, the summary-judgment evidence fails to show how Grimm's report of Gonzalez' alleged threat to use her social security number, a number which was only significant to Grimm individually, was in furtherance of the school district's business and fiarthered her objectives as a principal. Chesshir, 19 S.W.3d at 504. Thus, Grimm did not conclusively prove as a matter of law that she was entitled to shield herself with the statutory immunity offered under Section 22.0511 of the Texas Education Code. Because of this deficiency, the evidence was inadequate to support Grimm's motion for summary judgment upon the basis of the affirmative defense of immunity under the Texas Education Code. TEX. EDUC.CODE ANN. § 22.0511(a) (West Supp. 2010); TEX. EDUC.CODE ANN. § 22.051(a)(1) (West 2006). We sustain Gonzalez' first, issue and need not address his second issue.
Because we find the summary-judgment evidence to be deficient and the trial court's grant of Grimm's motion for summary judgment to be erroneous, we do not reach Grimm's sole issue on appeal regarding entitlement to attorney's fees under Section 22.0517 of the Texas Education Code, which is now moot TEX. EDUC.CODE ANN. § 22.0517 (West 2006).
CONCLUSION
The trial court's order granting summary judgment is reversed and the cause is remanded for further proceedings.
NOTES
[1] In support of her request for an award of attorney's fees, an affidavit from Grimm's counsel was also filed with her motion for summary judgment.
[2] Upon inquiry by this Court, the District Clerk confirmed that Grimm's written statement is deficient in the trial court's record.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: YAN SUI, No. 16-60049
Debtor. BAP No. 15-1336
______________________________
YAN SUI, MEMORANDUM*
Appellant,
v.
RICHARD A. MARSHACK, Chapter 7
Trustee,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Taylor, Landis, and Kirscher, Bankruptcy Judges, Presiding
Submitted May 8, 2017**
Before: REINHARDT, LEAVY, and NGUYEN, Circuit Judges.
Chapter 7 debtor Yan Sui appeals pro se from a judgment of the Bankruptcy
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Appellate Panel (“BAP”) affirming the bankruptcy court’s order denying Sui’s
claimed homestead exemption. We have jurisdiction under 28 U.S.C. § 158(d).
We review decisions of the BAP de novo and apply the same standard of review
that the BAP applied to the bankruptcy court’s ruling. Americredit Fin. Servs., Inc.
v. Penrod (In re Penrod), 611 F.3d 1158, 1160 (9th Cir. 2010). We affirm.
The bankruptcy court properly denied Sui’s claimed homestead exemption
because the record shows that Sui voluntarily transferred the property prior to
filing his bankruptcy petition and failed to disclose any interest in the property or
schedule secured claims that might have alerted the chapter 7 trustee to the
transfer. See 11 U.S.C. § 522(g)(1) (allowing a debtor to exempt property
recovered by a trustee if the debtor did not voluntarily transfer or conceal the
property); Glass v. Hitt (In re Glass), 60 F.3d 565, 568-69 (9th Cir. 1995)
(explaining requirements for 11 U.S.C. § 522(g)(1) to apply).
We do not consider arguments raised for the first time on appeal or matters
not specifically and distinctly raised and argued in the opening brief. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Sui’s motion for leave to file a late filed reply brief (Docket Entry No. 12) is
granted. The Clerk shall file the reply brief submitted at Docket Entry No. 11.
2 16-60049
Sui’s motion to consolidate this case with Appeal Nos. 16-60065 and 15-
60066 (Docket Entry No. 12) is denied.
AFFIRMED.
3 16-60049
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688 F.2d 834
Richardsonv.Ray
81-6940
UNITED STATES COURT OF APPEALS Fourth Circuit
9/13/82
1
E.D.N.C.
AFFIRMED
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55 Cal.App.4th 382 (1997)
MICHAEL TIETGE et al., Plaintiffs and Appellants,
v.
WESTERN PROVINCE OF THE SERVITES, INC., et al., Defendants and Respondents.
Docket No. G016361.
Court of Appeals of California, Fourth District, Division Three.
May 29, 1997.
*384 COUNSEL
Robins, Kaplan, Miller & Ciresi, Joseph L. Dunn, Alexandra M. Day, Reinhardt & Anderson, Jeffrey R. Anderson, Robinson, Phillips & Calcagnie, and Joseph L. Dunn for Plaintiffs and Appellants.
Guzin & Steier, Donald H. Steier, Kenneth W. Ralidis, McNicholas & McNicholas, John P. McNicholas and David M. Ring for Defendants and Respondents.
OPINION
SILLS, P.J.
Michael Tietge, Timothy Ender and Michael Moyneur assert they were sexually abused for several years by Gregory Atherton, a religious brother and parochial schoolteacher (brother). In 1993, plaintiffs filed separate actions against the brother and his religious order, the Western Province of the Servites, Inc. The complaints allege Tietge was born in 1969 and molested between 1984 and 1986; Ender was born in 1958 and molested between 1973 and 1975; and Moyneur was born in 1953 and molested between 1967 and 1976. The complaints also allege the molestations occurred at various places, including the Servite Center of the Servite Order, and charges the religious order under a theory of vicarious liability.
Defendants demurred to the complaints on the ground they were time-barred, pointing out that the alleged molestation occurred from 9 to 26 years before these actions were filed. Relying on the then applicable statute of limitations, the court sustained the demurrers without leave to amend. But *385 while these appeals were pending the Legislature retroactively amended the statute of limitations thereby changing the rules. Based on the statute as amended, we affirm the judgment as to the religious order and reverse it as to the brother.
I
Historically, claims of childhood sexual abuse were governed by a one-year statute of limitations. (Code Civ. Proc., § 340, subd. (3).) Because the statute was tolled until the person entitled to bring the action reached the age of majority, a person alleging childhood sexual abuse generally had one year unless another exception applied from the time he or she became an adult to file the action. (See Code Civ. Proc., § 352, subd. (a).)
In 1986 the Legislature enacted Code of Civil Procedure section 340.1, a special statute enlarging the limitations period to three years for sexual abuse of a child under the age of fourteen by a household or family member. This amendment changed the statute of limitations for actions which were essentially incestuous, but did not change it for actions against other perpetrators. Thus, actions brought against nonfamily members such as a scout master or the Boy Scouts were still governed by the one-year statute of limitations. (Snyder v. Boy Scouts of America, Inc. (1988) 205 Cal. App.3d 1318, 1325 [253 Cal. Rptr. 156] [action against Boy Scouts brought more than one year, but less than three years, after victim attained majority was time-barred].)
In 1990, and in response to Snyder, the Legislature completely rewrote Code of Civil Procedure section 340.1. Among the many changes it made, subdivision (a) now provided that: "In any civil action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within eight years of the date the plaintiff attains the age of majority or within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever occurs later." (Stats. 1990, ch. 1578, § 1, p. 7550.) The definition of childhood sexual abuse was also broadened to include "any act committed by the defendant against the plaintiff which would have been proscribed" by provisions in the Penal Code dealing with substantial sexual conduct against minors. (Ibid.)[1]
The 1990 amendment also deleted a provision of the original statute which had expressly revived claims that had lapsed under a prior statute of limitations. (David A. v. Superior Court (1993) 20 Cal. App.4th 281, 287 [24 *386 Cal. Rptr.2d 537].) When the plaintiffs filed these actions, their claims had clearly lapsed under the prior statute. Thus, the trial court properly sustained the defendants' demurrers without leave to amend. However, in 1994, and for the purpose of abrogating the holding in David A., the Legislature amended Code of Civil Procedure section 340.1 to provide that the "amendments to this section enacted at the 1990 portion of the 1989-90 Regular Session shall apply to any action commenced on or after January 1, 1991, including any action otherwise barred by the period of limitations in effect prior to January 1, 1991, thereby reviving those causes of action which had lapsed or technically expired under the law existing prior to January 1, 1991." (Code Civ. Proc., § 340.1, subd. (o).)
The plaintiffs claim the 1994 amendment operates to revive their lapsed claims. Although recognizing the change in the law, the defendants assert it has no such effect. The brother insists the amendment is inapplicable to actions filed in 1993 because the court must apply the statute as it existed when the complaints were filed, and any attempt to revive lapsed claims violates his constitutional rights. Further, he asserts that as to Moyneur the amendment cannot toll the statute of limitations because some of the alleged molestation occurred after Moyneur reached the age of majority. The religious order argues section 340.1 does not apply to a claim of negligence against the employer of the perpetrator of the abuse.
II
(1) The brother's first argument, that the Legislature has no power to retroactively revive a cause of action for childhood sexual abuse time-barred under the prior statute of limitations, was squarely rejected in Lent v. Doe (1995) 40 Cal. App.4th 1177 [47 Cal. Rptr.2d 389]. (See also Sellery v. Cressey (1996) 48 Cal. App.4th 538, 547 [55 Cal. Rptr.2d 706]; 3 Witkin, Cal. Procedure (4th ed. 1997) Actions, § 435, pp. 544-547; cf. Liebig v. Superior Court (1989) 209 Cal. App.3d 828, 835 [257 Cal. Rptr. 574] [holding revival language in original version of Code of Civil Procedure section 340.1 constitutional].) Like Lent, we find no constitutional impediment to the revival of a personal cause of action under the 1994 amendment. (Lent v. Doe, supra, 40 Cal. App.4th at pp. 1183-1184.)
(2) The brother's related claim, that the 1994 amendment is inapplicable because the demurrers were sustained and judgments were entered before the 1994 amendment became effective, also fails. In rejecting the same argument, the Lent court explained that, "[s]tatutes of limitations in civil actions are procedural, not substantive ..., and are not subject to the general rule against statutory retroactivity.... While the 1994 amendments to section 340.1 were not in effect at the time the trial court ruled on the demurrer[s], *387 the amended statute applies to this proceeding because it `was pending on appeal at the time the legislative enactment became effective.'" (Lent v. Doe, supra, 40 Cal. App.4th at pp. 1184-1185, citations omitted.)
(3) The brother's second argument is that Code of Civil Procedure section 340.1 does not apply to Moyneur because he alleges he was molested both as a minor and an adult, that is, from 14 to 23 years of age. While section 340.1 was written to protect victims of childhood sexual abuse, where there are allegations of continuing molestation as the plaintiff transitions from childhood into adulthood, the question is whether the enlarged statute of limitations still applies to the victim's claims.
The goal of Code of Civil Procedure section 340.1 is to allow victims of childhood sexual abuse "a longer time period in which to become aware of their psychological injuries and remain eligible to bring suit against their abusers." (Debbie Reynolds Prof. Rehearsal Studios v. Superior Court (1994) 25 Cal. App.4th 222, 232 [30 Cal. Rptr.2d 514].) The intimidation which allows an abuser to take advantage of a child does not magically or suddenly end the day the child attains majority. Indeed, it can continue into the victim's adulthood. That is why the Legislature drafted the delayed discovery provisions of section 340.1 to provide that the limitations period begins to run only after the victim, who is then an adult, appreciates the wrongfulness of the abuser's conduct. Accordingly, where as here the alleged childhood sexual abuse is part of a course of conduct that continues beyond childhood, the limitations period of section 340.1 must apply. Any other conclusion would run contrary to the goal of the statute and serve only to reward perpetrators who engage in long-term abuse.[2]
Accordingly, the judgment as to the brother must be reversed. However, just as the plaintiffs receive the benefits of the 1994 amendment they must also assume its burdens. The brother asserts, for example, that the plaintiffs have not filed a certificate of merit as required by subdivision (e) of Code of Civil Procedure section 340.1. To the extent the plaintiffs have not complied with the procedural requirements of the statute, the brother may raise those claims in the trial court.
III
(4) The religious order argues the demurrer was properly sustained as to it because Code of Civil Procedure section 340.1 only enlarges the statute of *388 limitations as to the perpetrators of the abuse, and not for the negligence of the employers of the abusers. This issue was squarely addressed in Debbie Reynolds. Finding the language of the statute "relatively plain," the Court of Appeal concluded in a well-written opinion that section 340.1 applies only to intentional acts of sexual abuse, and does not apply to actions seeking damages for negligent acts. (Debbie Reynolds Prof. Rehearsal Studios v. Superior Court, supra, 25 Cal. App.4th at pp. 231-234; cf. Chaney v. Superior Court (1995) 39 Cal. App.4th 152, 156 [46 Cal. Rptr.2d 73] [§ 340.1 does not apply to claim against wife of alleged abuser under theory of negligent supervision].) We think Debbie Reynolds was correctly decided and follow it here.
In her concurring and dissenting opinion, our colleague asserts the Debbie Reynolds court misread the 1990 amendment to Code of Civil Procedure section 340.1. All of the arguments made in our colleague's opinion are adequately addressed in Debbie Reynolds and we see no purpose in reiterating them here. We would only emphasize that we agree with that court's statement that "... the Legislature, in defining [in subdivision (b)] what constitutes sexual abuse, referred to the criminal statutes to make clear that childhood sexual abuse is an intentional rather than a negligent act." (Debbie Reynolds Prof. Rehearsal Studios v. Superior Court, supra, 25 Cal. App.4th at p. 232.) Indeed, to read section 340.1 any other way would render subdivision (b) meaningless, thereby violating an elementary rule of statutory construction "`"that effect must be given, if possible, to every word, clause and sentence of a statute."'" (Rodriguez v. Superior Court (1993) 14 Cal. App.4th 1260, 1269 [18 Cal. Rptr.2d 120].)
Two additional points are also worth mentioning. First, Code of Civil Procedure section 340.1 is a "special statute of limitations for some sexual molestations," and the Legislature may delimit its scope. (Snyder v. Boy Scouts of America, Inc., supra, 205 Cal. App.3d 1318, 1325.) Even if it could be shown that the underlying policy considerations create an inequitable result, the "courts are not at liberty to rethink that policy decision or rewrite the statute to extend its application to persons excluded by the Legislature." (Ibid.) In short, this court cannot substitute its policy judgments for those of our Legislature.
Second, Debbie Reynolds was decided three years ago this month. The Legislature has been very aware of this statute and the court interpretations of its provisions. On two prior occasions where the Legislature did not agree with a decision of the courts, it immediately amended the statute. Its silence in the face of the Debbie Reynolds decision strongly suggests that that court's interpretation is correct.
*389 IV
The judgment is reversed as to Brother Atherton, and the plaintiffs shall recover their costs only as to him. The judgment is affirmed as to the Western Province of the Servites, Inc., which shall recover its costs on appeal.
Rylaarsdam, J., concurred.
SONENSHINE, J., Concurring and Dissenting.
I concur in the majority opinion to the extent it reverses the judgment as to Atherton. I dissent to the extent it affirms the judgment in favor of the Western Province of the Servites, Inc.
I
INTRODUCTION
The plaintiffs' complaint alleges the Servites negligently hired and supervised Atherton, causing them significant damage. The trial court sustained the Servites' demurrer, finding the 1990 amendment to Code of Civil Procedure section 340.1[1] did not revive the claims and thus they were time barred. The Legislature amended the section again, this time specifically "reviving those causes of action which had lapsed ... under the [prior] law...." (§ 340.1, subd. (o).)
The question we answer is therefore different than the one the trial court addressed. We determine whether civil actions for recovery of damages suffered as a result of childhood sexual abuse encompass a student's cause of action against the teacher's employer for the negligent hiring and supervision of its employee. My colleagues conclude they do not. They misread section 340.1. The Legislature intended all civil actions based on child abuse to come within the statute's purview.
II
LEGISLATIVE HISTORY
As originally enacted, section 340.1 permitted a plaintiff to bring a claim alleging childhood sexual abuse by a household or family member any time *390 up to the plaintiff's 21st birthday.[2] If the perpetrator was not a member of the designated class, the plaintiff had only one year from his or her 18th birthday in which to file suit. (§ 352, subd. (a).)
In Snyder v. Boy Scouts of America, Inc. (1988) 205 Cal. App.3d 1318 [253 Cal. Rptr. 156], the plaintiff sought recovery from the Boy Scouts alleging the organization failed to take proper precautions to guard against the sexual abuse perpetrated on him by his scout leader. Snyder instituted the suit more than one year after his 18th birthday and the trial court found it time barred. (Id. at pp. 1321-1322.)
On appeal, the plaintiff in Snyder conceded the scout leader failed to come within those defendants delineated in section 340.1, subdivision (a), but asked the court to nevertheless apply the statute.[3] The court declined the invitation. "In enacting a special statute of limitations for some sexual molestations the Legislature made a policy decision over the scope of the special statute. It deliberately chose to limit the scope of the statute to cases where the offending defendant was a `household or family member.' The courts are not at liberty to rethink that policy decision or rewrite the statute to extend its application to persons excluded by the Legislature.... [S]ection 340.1 by its own terms does not apply to plaintiff's cause of action." (Snyder v. Boy Scouts of America, Inc., supra, 205 Cal. App.3d at p. 1325, italics added.)
The Legislature got the message. In response to Snyder and sensitive to the predicament in which this left many childhood sexual abuse victims, the Legislature amended section 340.1, subdivision (a) to apply to "any civil action for recovery of damages suffered as a result of childhood sexual abuse...." (Italics added.)
*391 The Legislature had one other concern. Despite the language formerly contained in section 340.1, subdivision (d), the court in DeRose v. Carswell (1987) 196 Cal. App.3d 1011 [242 Cal. Rptr. 368], refused to apply the delayed discovery doctrine to a section 340.1 cause of action. Realizing the importance of an adequate time frame in which to file suit and the delayed discovery doctrine, the Legislature amended the section accordingly. (See Sen. Com. on Judiciary, Analysis of Sen. Bill No. 108 (1989-1990 Reg. Sess.) Apr. 4, 1989.) As a result, "the time for commencement of the action [is] within eight years of the date the plaintiff attains the age of majority or within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever period expires later." (§ 340.1, subd. (a).)
The 1990 amendments changed section 340.1 in three ways: Adult victims of childhood abuse are generally permitted a longer statutory time in which to file suit and may specifically rely on the delayed defense doctrine. Moreover, the statute is apt to all plaintiffs suffering damages resulting from childhood sexual abuse.
III
CLEAR MEANING OF STATUTE
Only two courts have addressed the precise issue we consider. Not surprisingly, because the panels were almost identical, they came to the same conclusion.[4] In Debbie Reynolds Prof. Rehearsal Studios v. Superior Court, supra, 25 Cal. App.4th 222, 233, the court concluded the Legislature limited the statutes applicability to defendants who perpetrate the sexual abuse. Thus, the court found the plaintiff's cause of action against the dance studio based on its negligent hiring, training and retaining of abusing employees time barred.
The court determined the statutory text is clear and therefore controlling. It noted, "the words [are neither] at variance with the policy of the statute as a whole, [nor is there] a clearly expressed legislative intent [to the] contrary...." (Debbie Reynolds Prof. Rehearsal Studios v. Superior Court, supra, 25 Cal. App.4th at p. 231.) I disagree. The statutory text may be clear but not in the manner the Reynolds court finds.
*392 The Reynolds court's misreading of the section results from its ignoring some of the statutory language and analyzing the rest out of context. Reynolds maintained the statute "provides that a plaintiff may file a civil action seeking damages for `any act committed by a defendant against a plaintiff ... and which act would have been proscribed' by specified Penal Code sections...." (Debbie Reynolds Prof. Rehearsal Studios v. Superior Court, supra, 25 Cal. App.4th at p. 231.) Not quite. The Legislature amended section 340.1 to permit a plaintiff a longer time within which to file "any civil action for recovery of damages suffered as a result of childhood sexual abuse...." (§ 340.1, subd. (a), italics added.)
True, as the Reynolds court pointed out, the Legislature defined childhood sexual abuse in section 340.1, subdivision (b). But, contrary to the Reynolds court's interpretation, the Legislature did not limit the applicability of the section to criminal perpetrators. Indeed, the Legislature specifically explained, "`Childhood sexual abuse' as used in this section includes any act committed by the defendant against the plaintiff that occurred when the plaintiff was under the age of 18 years and that [is criminally] ... proscribed...." (§ 340.1, subd. (b), italics added.)
IV
LEGISLATIVE INTENT AND EVOLUTION OF PROPOSED STATUTE
The result is the same even if the language of section 340.1 is deemed ambiguous. "When statutory language is amenable to a range of meaning, ... perhaps the factor of greatest significance in the interpretive equation is that of legislative purpose." (Natural Resources Defense Council v. Fish & Game Com. (1994) 28 Cal. App.4th 1104, 1123 [33 Cal. Rptr.2d 904].) "`Once the intention of the Legislature is ascertained[,] it will be given effect even though it may not be consistent with the strict letter of the statute.'" (People v. Ali (1967) 66 Cal.2d 277, 280 [57 Cal. Rptr. 348, 424 P.2d 932].)
The Reynolds court concedes "[t]he purpose of the 1990 statutory change was ... to overcome the holding in Snyder...." (Debbie Reynolds Prof. Rehearsal Studios v. Superior Court, supra, 25 Cal. App.4th at pp. 230-231.) As explained, the Court of Appeal in Snyder held the plaintiff was not entitled to an extended statute of limitations in his suit against the Boy Scouts because the perpetrator of the criminal conduct was neither a family member nor a household member. (Snyder v. Boy Scouts of America, Inc., supra, 205 Cal. App.3d at p. 1325.)
The legislative purpose of overcoming Snyder can only be effectuated by reading the statute to include defendants other than criminal perpetrators. *393 Reynolds's statutory interpretation would result in the exact conclusion the Legislature sought to avoid. Because the Reynolds court failed to grasp Snyder, its premise is faulty and its conclusion meaningless.
I also look to the "evolution of [the] proposed statute after its original introduction ... [because it] offer[s] considerable enlightenment as to legislative intent." (People v. Goodloe (1995) 37 Cal. App.4th 485, 491 [44 Cal. Rptr.2d 15].) After section 340.1 was introduced in December 20, 1988, several school districts complained it was "unclear whether civil actions related to child abuse, such as negligent hiring and employment by school districts or other employers ... are also included under this extensive statute of limitations umbrella." (Letter from Nancy B. Bourn of Breon, O'Donnell & Miller to Assembly Member Maxine Waters (May 5, 1989) regarding Sen. Bill No. 108.) The Legislature did nothing to alleviate these concerns. Indeed, the bill, introduced in final form July 28, 1989, expanded the statute of limitations to eight years rather than five as first contemplated and included a specific reference to the delayed discovery doctrine. My "conclusion is [therefore] supported by the legislative history of.... [t]he original bill [which despite concerns to the contrary] became increasingly broader in scope as it went through successive drafts...." (People ex rel. Mautn v. Quattrone (1989) 211 Cal. App.3d 1389, 1396 [260 Cal. Rptr. 44].)
V
CONCLUSION
The Reynolds court opined: "There is an important distinction between a defendant who is accused of intentionally sexually abusing a child and those who, through their negligence, contribute to the damages of a child abuse victim.... [I]t is the perpetrator of the abuse who ... instill[s] the psychological defense mechanism leading to repression ... [and thus] deserve[s] ... special attention ... [in the form of] a delayed discovery statute of limitations directed specifically at [him or her].... [¶] ... To allow lawsuits based on an employer's negligence in hiring, training and retaining an employee years after the abuse is alleged to have occurred, and, in many cases, years after the assailant's employment has ended, would, we believe, have serious economic repercussions which would stifle business growth. [¶] More importantly, it would deny such defendants a meaningful opportunity to defend.... To ... [apply the section to employers would] defeat the purpose of a statute of limitations, which is to prevent claims from being brought when memories have faded, evidence has been lost, and witnesses have disappeared. [Citation.]" (Debbie Reynolds Prof. Rehearsal Studios v. Superior Court, supra, 25 Cal. App.4th at pp. 233-234.)
*394 As before, the court is wrong because having failed to understand Snyder, all of its resulting conclusions fall as well. But there is more.
The Legislature had no intention of differentiating between intentional and negligent tortfeasors or to limit the statute's applicability to intentional acts. The Legislature meant only to define the necessary underlying conduct. Stated another way, the statute is apt when a plaintiff alleges either a defendant's intentional acts caused him or her damages or a defendant's negligent acts caused damages resulting from another's intentional conduct.
Reynolds's reliance on J.C. Penney Casualty Ins. Co. v. M.K. (1991) 52 Cal.3d 1009 [278 Cal. Rptr. 64, 804 P.2d 689], is misplaced. In J.C. Penney, our Supreme Court merely concluded neither the terms of the underlying insurance policy nor a statutory mandate compelled insurance coverage for an insured accused of childhood sexual abuse.
Far more relevant for our purposes is John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 451 [256 Cal. Rptr. 766, 769 P.2d 948], where the Supreme Court determined school districts are not vicariously liable for the sexual abuse their employees commit on minors, but they must exercise due care in "the careful selection of ... employees and the close monitoring of their conduct ... and [are] subject[] ... to liability ... for their own direct negligence in that regard." (See also Roman Catholic Bishop v. Superior Court (1996) 42 Cal. App.4th 1556 [50 Cal. Rptr.2d 399]; Virginia G. v. ABC Unified School Dist. (1993) 15 Cal. App.4th 1848 [19 Cal. Rptr.2d 671].)
The Reynolds court concluded it is unfair to include noncriminal defendants within the purview of the statute. But this is not for us to decide. Moreover, viewed within the correct legislative and case law context, this is the only possible result. As the John R. court explained, "... the teacher's threats may be taken into account in resolving the procedural status of plaintiffs' claims against the district." (John R. v. Oakland Unified School Dist., supra, 48 Cal.3d at p. 445, fn. omitted.) "[I]t would plainly be inequitable to permit the district to escape liability only because the teacher's threats succeeded in preventing his victim from disclosing the molestation until the time for filing a claim against the district had elapsed." (Id. at p. 446.) "[I]f the employee succeeds by threats or duress in coercing the victim not to file a claim within the relevant period, the employer may be estopped from relying on that separate and independent misconduct to absolve itself of any responsibility for its own [conduct]." (Id. at pp. 445-446, fn. 5.)
My colleagues appear to have forgotten the "`"golden rule of statutory interpretation[.] [The] unreasonableness of the result produced by one *395 among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result."' ..." (Los Angeles Taxpayers Alliance v. Fair Political Practices Com. (1993) 14 Cal. App.4th 1214, 1222 [18 Cal. Rptr.2d 472], citation omitted.)[5] Our Legislature was painfully aware that childhood sexual abuse by definition often leads to repressed memories. It makes no sense to interpret this section as requiring some plaintiffs to file actions at a time when they have no memory of the conduct upon which their claims are made. In essence the ability to assert cause of actions against noncriminal defendants would be limited to those adult childhood abuse victims who do not suffer from the very syndrome typically associated with their abuse. This result is particularly nonsensical in light of other such plaintiffs' right to toll the statute based on independent threats and acts of duress. (John R. v. Oakland Unified School Dist., supra, 48 Cal.3d at p. 446.)
The Legislature's response to Snyder and DeRose provided all victims of childhood sexual abuse with the opportunity to seek meaningful redress from all those who cause them harm. The majority opinion perverts the Legislature's intentions, adding further injury to already damaged plaintiffs.
I would reverse the judgment in favor of the Servites and permit the appellants to amend their complaint to allege the statute was tolled by the delayed discovery doctrine pursuant to John R.
Appellants' petition for review by the Supreme Court was denied August 13, 1997. Mosk, J., and Werdegar, J., were of the opinion that the petition should be granted.
NOTES
[1] The statute lists Penal Code sections 266j, 285, 286, subdivisions (b)(1) or (2) and (c), 288, subdivisions (a) or (b), 288a, subdivisions (b)(1) or (2) and (c), 289, subdivisions (h), (i), or (j), 647.6, or "any prior laws of this state of similar effect at the time the act was committed." (Code Civ. Proc., § 340.1, subd. (b).)
[2] Because this case comes to us after demurrers were sustained without leave to amend, we are not called upon to decide whether Moyneur is entitled to damages for sexual abuse which is alleged to have occurred after he reached the age of majority.
[1] All further statutory references are to the Code of Civil Procedure.
[2] "Former section 340.1 provided [in part]: [¶] `(a) In any civil action for injury or illness based upon lewd or lascivious acts with a child under the age of 14 years, ... in which this conduct is alleged to have occurred between a household or family member and a child where the act upon which the section is based occurred before the plaintiff attained the age of 18 years, the time for commencement of the action shall be three years. [¶] (b) "Injury or illness" as used in this section includes psychological injury or illness, whether or not accompanied by physical injury or illness. [¶] (c) "Household or family member" as used in this section includes a parent, stepparent, former stepparent, sibling, stepsibling, any other person related by consanguinity or affinity within the second degree, or any other person who regularly resided in the household at the time of the act, or who six months prior to the act regularly resided in the household. [¶] (d) Nothing in this bill is intended to preclude the courts from applying delayed discovery exceptions to the accrual of a cause of action for sexual molestation of a minor.'" (Debbie Reynolds Prof. Rehearsal Studios v. Superior Court (1994) 25 Cal. App.4th 222, 230, fn. 2 [30 Cal. Rptr.2d 514].)
[3] The court acknowledged a defendant could be estopped to rely on a statute of limitations defense because of fraud or improper inducement, but concluded the facts as alleged did not constitute either.
[4] Justice Nott authored Debbie Reynolds Prof. Rehearsal Studios v. Superior Court, supra, 25 Cal. App.4th 222 and Chaney v. Superior Court (1995) 39 Cal. App.4th 152 [46 Cal. Rptr.2d 73]. Presiding Justice Boren concurred in both. Justice Gates was the third panel member in Reynolds and Justice Fukuto completed the trio in Chaney.
[5] The Chaney court reminds us the limiting of section 340.1 to situations where criminal conduct is alleged is not to render a plaintiff remediless. (Chaney v. Superior Court, supra, 39 Cal. App.4th 152.) A plaintiff alleging negligence may still sue, he or she just does not get the benefit of an extended statute of limitations. As explained, this in most instances proves to be a hollow victory.
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69 F.2d 631 (1934)
SAENGER
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 7148.
Circuit Court of Appeals, Fifth Circuit.
March 10, 1934.
S. L. Herold, of Shreveport, La., for petitioner.
Frank J. Wideman, Asst. Atty. Gen., Sewall Key, Norman D. Keller, and Robert N. Anderson, Sp. Assts. to Atty. Gen., and E. Barrett Prettyman, Gen. Counsel, Bureau of Internal Revenue, and Hartford Allen, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for respondent.
Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.
HUTCHESON, Circuit Judge.
The question for decision here as to amounts paid Saenger by Saenger Theaters, Inc., in 1929 as extra compensation in addition to his regular salary is: Whose income were they? Saenger insists that they were income of a corporation, A. & J., Inc., formed in 1927 to succeed to the partnership business of Saenger Bros.; the Commissioner, that they were Saenger's. The question is answered by determining who earned them. Lucas v. Earl, 281 U. S. 111, 50 S. Ct. 241, 74 L. Ed. 731.
The Commissioner and the Board say Saenger did. The petitioner admits that on the face of it, it appears that he did, but claims that this is only an appearance; that in fact A. & J., Inc., earned them through Saenger, its man. Until March, 1927, the brothers A. D. and J. H. Saenger constituted the universal partnership of Saenger Bros. This partnership had many and varied interests. It operated over a wide territory. It owned all of the properties the two partners had title to. All of their earnings for services and efforts were partnership earnings. In February, 1927, a preliminary agreement for the formation of the A. & J., Inc., successor to the partnership, was made. It recited the existence and scope of the partnership, its overgrown proportions, and the partners' determination to form and transfer to A. & J., Inc., as successor to it, all of its properties except the stock in Saenger Theaters, Inc., including all other earnings of the partners. The partners agreed to work exclusively for it and to account to it for any salary or other compensation received. The first meeting adopted a resolution substantially in accordance with the preliminary agreement, constituting A. & J., Inc., successor to Saenger Bros. and undertaking to provide that except as to the stock of Saenger Theaters, Inc., A. & J., Inc., should stand as to the properties of Saenger Bros. and as to the services and earnings of the individuals who had composed the partnership, just as Saenger Bros. *632 had done.[1] In July, 1929, Paramount Publix Corporation acquired all the capital stock of Saenger Theaters, Inc. On June 17 that company by resolution directed the assignment to A. D. Saenger or to the beneficiary designated by him, as extra or additional compensation, of two policies of insurance on Saenger's life; each having a cash surrender value of $5,725. On September 12, 1929, these policies were transferred on the order of A. D. Saenger to A. & J., Inc., and it was named as the beneficiary. Saenger Theaters, Inc., in its income tax for 1929 deducted these amounts as extra compensation to officers, and the deductions were allowed. Neither Saenger nor A. & J., Inc., returned them as income. The Commissioner and the Board thought the case a plain one of an abortive attempt to separate tree and fruit within the Earl case. We think so too.
Petitioner does not deny the authority of that case, nor does he dispute its comprehensive effect to strike down all efforts to separate, for income tax purposes, future earnings from their earner, future income from the thing or person that produces it, in short, the tree from its fruits. He asserts, however, that comprehensive as it is, it cannot apply to a case where in law and in fact there is no separation. He insists that here is no agreement to assign future earnings. Here is an agreement with Saenger assigning not his earnings but himself, to A. & J., Inc., so that compensation paid him is not his earnings, but that of A. & J., Inc.
It must be conceded that granting the setup assumed, this argument has theoretical consistency. It breaks down only because the assumption is not founded on fact. It assumes for the set-up that by the preliminary agreement and the resolution Saenger conveyed or assigned, not his future earnings, but himself. That he sold, not the fruit, but the tree. This will not do. Wholly aside from the fact that the sale of a man as distinguished from his earnings, as imagined by petitioner, cannot legally take place, the language used does not purport to do that; it does not admit of the view that any such result was attempted. An ingenious arrangement shrewdly designed to coalesce the corporation and the partnership, as regards the return and payment of income taxes it must fail. Statutes govern this. Incomes are taxed to and as the statutes provide; their terms, and not analogies, control. Busch v. Commissioner of Internal Revenue (C. C. A.) 50 F.(2d) 800.
When Saenger Bros. was a partnership, the partners were entitled to make their returns and pay their taxes as provided for partners. Now that they are individuals they must make their returns and pay their taxes as individuals. Their corporation must make its returns and pay its taxes as a corporation. The corporation is no more the partnership which it succeeded to than it is the individuals who own its stock. The whole structure of the federal taxing system is based upon a recognition of, and an exact compliance with, these distinctions. Fraudulent pretense absent, the government accepts the taxpayer as it represents itself to be, and it must make its returns and pay its taxes accordingly. Planters' Cotton Oil Co. v. Hopkins (C. C. A.) 53 F.(2d) at page 827.
The rule of the Earl Case, while made graphic by a figure, is more than a figure of speech. It is an expression of the simple truth that earned incomes are taxed to and must be paid by those who earn them, and unearned incomes to those who own the property or right that produced them, not to those to whom their earners or owners are under contract to pay them. It establishes once for all that no device or arrangement, be it ever so shrewdly and cunningly contrived, can make future earnings taxable to any but the real earner of them, can make future incomes from property taxable to any but the owner of the right or title from which the income springs. Corliss v. Bowers, 281 U. S. *633 376, 50 S. Ct. 336, 74 L. Ed. 916; Burnet v. Leininger, 285 U. S. 142, 52 S. Ct. 345, 76 L. Ed. 665; Burnet v. Guggenheim, 288 U. S. 280, 53 S. Ct. 369, 77 L. Ed. 748; Reinecke v. Smith, 289 U. S. 177, 53 S. Ct. 570, 77 L. Ed. 1109; Burnet v. Wells, 289 U. S. 677, 53 S. Ct. 761, 77 L. Ed. 1439; Van Meter v. Com'r (C. C. A.) 61 F.(2d) 817; Daugherty v. Com'r (C. C. A.) 63 F.(2d) 77, 78; Blumenthal v. Com'r (C. C. A.) 60 F.(2d) 715; Reynolds v. McMurray (C. C. A.) 60 F.(2d) 843; Pedder v. Com'r (C. C. A.) 60 F.(2d) 866.
The rule does not make taxable to one the income of another. It operates to prevent this occurring. If what is done in any case, no matter what form of words is used, amounts to the transfer of the right or title to that from which the income springs, the income follows the right. Likewise, if compensation paid to one is paid to him as the agent or servant in fact, not in fiction, of another, that income is taxable, not to the servant or agent as earner, but to its real earner, the principal. Poe v. Seaborn, 282 U. S. 101, 51 S. Ct. 58, 75 L. Ed. 239; Hopkins v. Bacon, 282 U. S. 122, 51 S. Ct. 62, 75 L. Ed. 249; Hoeper v. Tax Comm., 284 U. S. 206, 52 S. Ct. 120, 76 L. Ed. 248; Rose v. Com'r (C. C. A.) 65 F.(2d) 616; Commissioner v. Olds (C. C. A.) 60 F.(2d) 252, 253.
Neither Saenger nor A. & J., Inc., have returned these amounts as income. We are not concerned therefore to determine what would have been the situation had Saenger and the corporation agreed that it should return them and the government had accepted the returns as made.
The petition is denied.
NOTES
[1] "On motion of Mr. A. D. Saenger duly seconded, a resolution was unanimously carried to the effect that the charter so prepared was satisfactory, and that same be adopted and signed as a charter of A. & J. Inc. to take the place of, as the universal successor to the firm of Saenger Brothers, with the exception that the individual members of the firm of Saenger Bros. should retain each his common stock in Saenger Theaters, Inc. and with the agreement on the part of the individual members of Saenger Bros. that all earnings of every character accruing or paid to such member by any individual, firm or corporation for any services rendered by him should be the property of A. & J. Inc. in the same manner and to the same extent as were such earnings the property of the partnership prior to the formation of the corporation; it being understood that J. H. Saenger and A. D. Saenger were under obligation to the corporation for a period of ten years from this date to devote each his entire time to the affairs of the said corporation, and that all of his earnings of every character should belong thereto."
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578 F.2d 1375
Stargattv.Fidelity and Casualty Co. of New York
No. 77-2585
United States Court of Appeals, Third Circuit
6/23/78
D.Del., 67 F.R.D. 689
AFFIRMED
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9 P.3d 755 (2000)
169 Or. App. 530
STATE of Oregon, Appellant,
v.
Ronald Leslie LEACH, Respondent.
(98082072F; CA A106514)
Court of Appeals of Oregon.
Argued and Submitted May 18, 2000.
Decided August 30, 2000.
*756 Katherine H. Waldo, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, *757 Attorney General, and Michael D. Reynolds, Solicitor General.
Chris W. Dunfield, Corvallis, argued the cause and filed the brief for respondent.
Before De MUNIZ, Presiding Judge, and HASELTON and WOLLHEIM, Judges.
HASELTON, J.
The state appeals from a pretrial order excluding evidence in a prosecution for child sex abuse. The trial court concluded that OEC 404(3) precluded the admission of testimony describing two incidents in which defendant, inter alia, questioned the complainant and two of her young friends about their physical development. We affirm in part and reverse in part.
Defendant is charged with three counts of sexual abuse in the first degree, ORS 163.427, involving his step-daughter, S. The first count alleges conduct occurring between June 1992 and June 1995, when S was between nine and 12 years old, and the second and third counts allege conduct occurring between June 1995 and June 1997, when S was between 12 and 14 years old.
Before trial, defendant moved to exclude evidence of two incidents that both occurred in the summer of 1993 when S was 10. In the first incident, S and her friend, A, who was also about 10 years old, were watching television with defendant and S's mother. As they watched, defendant turned to the girls and asked them "if they had any body hair." A did not reply and could not recall whether S replied.
In the second incident, which occurred at about the same time, defendant asked S and her friend B, who was also about 10, whether they had any pubic hair. Both girls replied that they did. Defendant then asked B if he "could see hers" and pulled on the elastic waistband on the front of her panties. When B slapped defendant's hands, he let go.
Defendant contended that evidence of those incidents should be excluded under OEC 404(3)[1] as being irrelevant for any purpose other than as showing defendant's propensity for child sexual abuse. Defendant further argued that, to the extent the state contended that the evidence was probative of intent, intent was not a disputed matteri.e., defendant's position was that the alleged abuse never occurred; he did not claim that any touching was innocent or accidental. In all events, defendant asserted, evidence of the alleged prior incidents could not meet the cumulative five-fold test for relevance set out in State v. Johns, 301 Or. 535, 725 P.2d 312 (1986). Finally, defendant contended that, even if the evidence were somehow relevant, its probative value would be substantially outweighed by the potential of undue prejudice and confusion. See OEC 403.
The state responded that evidence of defendant's comments to S was relevant not only to intent but also to "plan" or "preparation." The prosecutor argued, particularly, that "defendant was trying to desensitize the victim in order to perform the crimes"that defendant was "engaging in grooming type of behavior with the victim." The state further argued that defendant's remarks to A and B and his conduct towards B were also relevant to intent and corroborated S's account of the two 1993 incidents. Finally, the state argued that OEC 404(4) precluded any balancing of probative value versus prejudicial impact in these circumstances.[2]
*758 The trial court granted the motion to exclude, reserving its ability to revisit that ruling depending on developments at trial:
"As already expressed by the Court, the rulings here on a Motion to Exclude are not rulings of absolute exclusion because certain facts or issues which are raised at trial may make the prior acts admissible for a different reason than presently anticipated.
"However, absent such additional reasons for admissibility, the two acts referenced in Defendant's motion would only have relevancy to show Defendant's bad character or Defendant's propensity to act in conformity therewith. Therefore, pursuant to OEC 404(3), the Defendant's motions are granted. The Court would also state that even if the Court could find that Defendant's referenced prior acts were admissible to show plan or preparation by desensitization as suggested by the State, the Court would still have to find under OEC 403 that the potential prejudice of the prior acts substantially outweighs any probative value."
The state appeals. For purposes of analytic coherence, we consider, in turn: (1) Defendant's comments to S; (2) defendant's comments to A and B; and (3) defendant's conduct in tugging at B's panty waistband.
On appeal, as before the trial court, the state argues primarily that evidence of defendant's questions and comments to S about "body hair" and pubic hair is admissible as relevant to defendant's intent and to "plan" or "preparation."[3] We agree with the trial court that that evidence is not relevant to intent. However, the trial court erred, on this record, in concluding that the evidence was not relevant to "plan" or "preparation." Moreover, to the extent the trial court invoked "balancing" under OEC 403 as an alternative basis for excluding the evidence, that alternative ground was also erroneous. OEC 404(4).
We note, at the outset, that there is a substantial and unresolved question as to whether "prior bad acts" evidence can ever be admitted as being relevant to intent where, as here, the defense is that the charged crime never occurred.[4] That is, this is not a case of allegedly "innocent" or "accidental" ambiguous conduct. We need not resolve that question, however, because the proffered evidence does not satisfy Johns's cumulative relevancy test:
"1) Does the present charged act require proof of intent?
"2) Did the prior act require intent?
"3) Was the victim in the prior act the same victim or in the same class as the victim in the present case?
"4) Was the type of prior act the same or similar to the acts involved in the charged crime?
"5) Were the physical elements of the prior act and the present act similar?" 301 Or. at 555-56, 725 P.2d 312.
Here, at the least, evidence of defendant's prior statements to S did not meet Johns's fourth (similarity of type of act) and fifth (similarity of physical elements) requirements. Asking a 10-year-old girl questions about her sexual development in the presence of her mother or friends is not the same or similar type of act as the intimate physical contact, constituting sexual abuse in the first *759 degree, that is charged here.[5] Moreover, although defendant allegedly commented on S's sexual development while engaging in the charged crimes, the differences in "physical elements" are manifest: The prior incidents involved comments and questions to S, without any physical touching, in the presence of others. Consequently, the trial court correctly concluded that evidence of defendant's alleged remarks to S was irrelevant to intent.[6]
The same analysis does not, however, preclude admission of the same evidence as proof of "plan" or "preparation." Although defendant seems to assume otherwise, Johns's requirements do not apply to all "non-propensity" bases for admissibility, including those specifically identified in OEC 404(3). See, e.g., State v. Hampton, 317 Or. 251, 257, 855 P.2d 621 (1993) (proof of the defendant's "parole status," including fact that there was an outstanding warrant for his arrest for a parole violation, was admissible as relevant to motive in the defendant's trial for assault of a police officer: "[T]he evidence of defendant's parole status tended to prove a relevant, noncharacter purpose that defendant had a motive to assault the officer"). Rather, Johns, by its terms, controls only where "prior bad acts" evidence is offered to prove intent. See Johns, 301 Or. at 535, 725 P.2d 312. See also State v. Pratt, 309 Or. 205, 210-11, 785 P.2d 350 (1990).[7] Thus, the fact that the proffered evidence does not meet Johns's fourth and fifth requirements does not mean that it is not relevant to "plan" or "preparation."
We return to the state's theory of relevance: Defendant's comments to S were a part of a scheme to "desensitize" her to sexual subject matter so that she would ultimately be more susceptible to defendant's advances. In a word: grooming. That theory was explicitly presented to the trial court, see 169 Or.App. at 533, 9 P.3d at 757, and defendant's only relevance response was that the evidence did not satisfy Johns.[8] On appeal, defendant's only relevance response is to invoke Johns. Defendant did not argue to the trial courtand does not argue on appealthat, to demonstrate relevance, the state was required, as a foundational matter, to present expert testimony that defendant's comments constituted "grooming." See State v. Stafford, 157 Or.App. 445, 972 P.2d 47 (1998), rev. den. 329 Or. 358, 994 P.2d 125 (1999) (addressing related *760 issues). That issue simply was not before the trial court and, in this posture, is not before us.[9]
In sum, the trial court concluded, without elaboration, that the evidence was irrelevant to "plan" or "preparation," see 169 Or.App. at 534, 9 P.3d at 758, and the only discernible basis in the record for that ruling is erroneous. Defendant urges no alternative basis for affirmance with respect to relevanceand, in this posture, we perceive none.[10] Consequently, we conclude that the trial court erred in determining that evidence of defendant's alleged comments to S was irrelevant to "plan" or "preparation." Further, to the extent that the trial court purported to rule, alternatively, that the evidence, if relevant, could be excluded under OEC 403 as more prejudicial than probative, such "balancing" was error. OEC 404(4).
We proceed to the admissibility of defendant's comments to S's friends, A and B. The state argues, as it did to the trial court, that those remarks are relevant to intent. We reject that argument for the same reasons that we rejected it in the context of defendant's remarks to S. The state argues, alternatively, that S's friends' testimony would be admissible as corroborating a significant element of her account of the charged crimes, viz., that while sexually abusing S, defendant repeatedly expressed his interest in the development of pubescent girls. Whatever the merits and limitations of such a theory of "corroborative relevance" in other contexts,[11] the state did not raise that theory of admissibility before the trial court; consequently, we do not consider it.[12] The trial court correctly excluded evidence of defendant's alleged remarks to A and B.
Finally, the state argues that evidence that defendant tugged at B's panty waistband in an apparent effort to view her genital area was relevant to intent. That argument fails because, at the least, that alleged conduct does not meet Johns's fourth and fifth requirements. The state's additional argument on appeal that such evidence would corroborate S's account of the charged crimes was not raised before the trial court, and we do not consider it. The trial court did not error in excluding that evidence.
Exclusion of evidence of defendant's alleged remarks to the complainant, S, reversed and remanded; otherwise affirmed.
De MUNIZ, P.J., concurring.
I write separately to emphasize that we are not holding that the state's proffered evidence of defendant's prior statements to the victim necessarily will come into evidence in this case. Our holding is that the trial court erred in granting defendant's pretrial motion in limine to exclude the evidence. The basis of our reversal is that the trial court erred in concluding that the evidence was not admissible under OEC 404(3) as proof of "plan" or "preparation." Because this case has not yet been tried, we are operating in the absence of facts, in a netherworld so to speak, and relying on the parties' representations of what they think their *761 evidence will establish. Although motions in limine may serve a valuable function in some cases, a trial court is always free to revisit a pretrial ruling if the facts or theory presented pretrial develop into something else at trial, or if, for example, a proper foundation is not laid for the evidence subject to the pretrial ruling. See generally State v. Foster, 296 Or. 174, 182-83, 674 P.2d 587 (1983) (whether to rule pretrial on evidentiary motions is left to the sound discretion of the trial court).
In this case, we have concluded that the evidence may fall within the "preparation" or "plan" provision of OEC 404(3) under the state's "grooming" theory. The foundational requirements for "grooming" evidence, however, are a hotly contested issue. In State v. Stafford, 157 Or.App. 445, 972 P.2d 47 (1998), rev. den. 329 Or. 358, 994 P.2d 125 (1999), a plurality of four members of this court expressed the opinion that no scientific foundation need be laid for "grooming" evidence of the sort at issue here. Two others agreed with the result on the ground that an adequate scientific foundation had been laid for the evidence. Id. at 460-66, 972 P.2d 47 (Deits, C.J., concurring). Three more judges believed that a foundation was required but had not been adequately established. Id. at 470-79, 972 P.2d 47 (Landau, J., dissenting). A final judge, myself, would not have reached the question of adequate foundation for the evidence at all because the threshold requirement of relevancy had not been established. Id. at 468-70, 972 P.2d 47 (De Muniz, J., dissenting).
In short, the foundational requirements for the type of evidence at issue in this case are an open question. I write to emphasize that, in ruling as we do, we are not foreclosing defendant from challenging the scientific basis of the state's proffered "grooming" evidence.
NOTES
[1] OEC 404(3) provides:
"Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."
[2] OEC 404(4) provides:
"In criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by:
"(a) ORS 40.180, 40.185, 40.190, 40.195, 40.200, 40.205, 40.210 [OEC 406-412] and, to the extent required by the United States Constitution or the Oregon Constitution, ORS 40.160 [OEC 403];
"(b) The rules of evidence relating to privilege and hearsay;
"(c) The Oregon Constitution; and
"(d) The United States Constitution."
That statute was enacted as part of Senate Bill 936, which we sustained in State v. Fugate, 154 Or.App. 643, 963 P.2d 686, on recons. 156 Or.App. 609, 969 P.2d 395 (1998), rev. allowed 328 Or. 275, 977 P.2d 1173 (1999). The indictment in this case issued in August 1998, after the effective date of SB 936.
[3] The state also argued, and on appeal briefly reiterates, that the evidence was probative of defendant's opportunity to abuse S. Before the trial court, defendant respondedand the court implicitly agreedthat, even assuming that the fact that defendant had been alone with S and A on at least one occasion was marginally relevant to "opportunity," the substance of his remarks was not. We agree.
[4] But cf. State v. Sullivan, 152 Or.App. 75, 79 n. 2, 952 P.2d 100 (1998) (where the defendant did not dispute that he and the complainant were in public view and acknowledged that the alleged act, if it occurred, was of a sexual nature, evidence that the defendant had previously engaged in "exhibitionist sex acts" with the same victim on other occasions was not admissible as relevant to the "knowing" element of the crime of public indecency, ORS 163.465).
[5] The indictment alleged that defendant had subjected S to "sexual contact by touching her breast and vaginal area" and "by causing [S] to touch his penis."
[6] On appeal, the state also argues that evidence of defendant's alleged comments to S was admissible to prove defendant's "`sexual predisposition' to this particular victim." In support of that argument, the state relies primarily on State v. McKay, 309 Or. 305, 787 P.2d 479 (1990). Based on our review of the record, we do not understand the state to have raised that theory of admissibility before the trial court and, hence, do not address it. Cf. State v. Wilhelm, 168 Or.App. 489, 493, 3 P.3d 715 (2000) ("romantic," "very intimate" letters from adult defendant to 13-year-old complainant were relevant and admissible "to demonstrate [the defendant's] sexual predisposition for this particular victim").
[7] A variation of the "similar physical elements" requirement applies when evidence of prior conduct is offered as proof of identity in the true "signature crime" context. See, e.g., State v. Pinnell, 311 Or. 98, 110, 806 P.2d 110 (1991); State v. Barnum, 157 Or.App. 68, 73-74, 970 P.2d 1214 (1998), rev. allowed 328 Or. 594, 987 P.2d 514 (1999).
[8] Defendant also generally objected that litigating whether the prior misconduct occurred would be a "sideshow to thisto what should be the issues before the jury"; that "it's way stale"; and that "all those things * * * are simply going to confuse the issue to the jury and not make it more clear." Defense counsel continued:
"[I]t is unfair to say, `well, we're going to wait, you know, four-and-a-half years and then we're going to bring it in as uncharged conduct,' and then assure ourselves that the jury can sort that out and just use it for some narrow purpose. That won't happen. This evidence is so much more prejudicial than it is probative. I think it is almost a given that that wouldn't happen.
"But once again, and I don't want to get too distracted into some of the things that [the State] is bringing up, because the main problem with the State's position is that it can't meet the five factor test of Johns. It doesn't meet it, and if it doesn't meet it the evidence is excluded, and the rest of the analysis doesn't have to be made."
We understand those arguments to pertain to the trial court's balancing function under OEC 403. However, such balancing is inappropriate in this context. OEC 404(4).
[9] We imply no view as to the correct resolution of that foundational issue, generally or specifically, if raised following remand in this case.
[10] Again, the expert witness/scientific evidence/foundational issue is not before us. Moreover, even if that matter had been raised for the first time on appeal as an alternative basis for affirmance, we might well have declined to consider it. See State ex rel. Juv. Dept. v. Pfaff, 164 Or.App. 470, 478, 994 P.2d 147 (1999) ("If, however, the alternative ground for affirmance * * * is asserted for the first time on appeal and it appears that the opposing party could have developed the record differently had that ground been raised at trial, then preservation principles preclude reliance on the new, alternative ground.").
[11] See, e.g., State v. Rood, 118 Or.App. 480, 484-85, 848 P.2d 128, rev. den. 317 Or. 272, 858 P.2d 1314 (1993) (evidence that the defendant had purchased x-rated videos was admissible to corroborate complainants' accounts that the defendant had watched x-rated videos while sexually abusing them).
[12] The only "corroboration" argument raised in the trial court was that B's and A's testimony would confirm S's account of the two incidents in the summer of 1993. Given our conclusion about the admissibility of S's testimony describing defendant's alleged remarks to her on those occasions, testimony by A and B that they heard defendant make the alleged remarks to S would be similarly admissible.
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117 Cal.App.2d 247 (1953)
ELIZABETH K. LANE, Respondent,
v.
BRADFORD F. LANE, Appellant.
Civ. No. 19246.
California Court of Appeals. Second Dist., Div. Two.
Apr. 10, 1953.
G. L. Berrey for Appellant.
J. Q. Gilchrist for Respondent. *249
FOX, J.
Upon a hearing of an order to show cause re modification of an interlocutory decree of divorce, defendant was required to pay plaintiff $200 per month for her support until the further order of the court. Defendant appeals.
Plaintiff filed suit for divorce on January 3, 1949, charging defendant with extreme cruelty. They were married in July, 1932, and separated in December, 1945. There were no children. Plaintiff attached to her complaint as an exhibit, and by reference made it a part thereof, a copy of "a property settlement agreement ... dividing their community property and providing for the support of plaintiff," according to her allegation. She prayed (1) for a decree of divorce; (2) that "the said property settlement agreement and agreement for the support of said plaintiff be confirmed, ratified and approved;" and (3) for general relief. The agreement was dated January 3, 1949; it recited that the parties desired "to settle all questions as to their respective property rights between themselves, and have been fully and independently advised by their respective counsel in regard thereto." It provided for the sale of the home and furniture and the equal division of the net proceeds. The husband kept the 1940 Chrysler sedan and 69 shares of the capital stock of Bank of America, and agreed to pay the wife $1,750, with interest at 5 per cent, out of his share of the proceeds of the sale of the house and furniture, but in any event within six months, whether said property was sold or not. He also bound himself, "his estate, his heirs, executors and administrators" to pay the wife the sum of $150 on the third day of each month thereafter, commencing with the date of the agreement, for a period of three years from date, or until she remarried. There was no characterization of these payments.
The wife agreed "to accept the said several sums of $150.00 per month ... for the next three years, or until her remarriage, together with the other real and personal property as herein set forth as and for and in full of her right and claim in and to any interest in the community property of herself and the First Party, as well as in full of her right and claim to alimony, support and maintenance from the First Party; ..." The agreement further provided that in case the wife filed suit to collect any of the monthly or other payments due her the husband would pay a reasonable attorney's fee. There was no provision in the agreement that it be submitted for court approval in the event of a suit for divorce. *250
Defendant appeared in the action but did not file an answer. He did, however, stipulate that "his default might be taken" and the matter be heard "as a default." An interlocutory decree of divorce was granted plaintiff in due course. It approved the agreement of the parties, designating it as a "property settlement," and by reference incorporated all of its terms and provisions in the judgment. It did not, however, contain any order requiring defendant to perform said agreement, nor did it contain any order directing him to make any payments whatever to plaintiff. The final decree made no change in these particulars.
Defendant has made each of the $150 monthly payments provided for in the agreement, the last being made on December 3, 1951. On December 28, 1951, less than a week prior to the expiration of the three-year period from the date of the agreement, plaintiff caused the issuance of an order to show cause, the hearing on which resulted in the order here on appeal.
Defendant attacks the order on the ground that the trial court lacked jurisdiction to modify the interlocutory decree. His contention is that the agreement he made with the plaintiff constituted a settlement of their property rights, and that the payments therein specified were not in the nature of alimony. His position must be sustained.
[1] Property settlement agreements are sanctioned by the Civil Code ( 158, 159) and occupy a favored position in the law. Such agreements are usually made, as in this case, with the advice of counsel after careful negotiations. The courts prefer agreement in such matters rather than litigation. (Hill v. Hill, 23 Cal.2d 82, 89 [142 P.2d 417].) When the parties have agreed upon the settlement of their property rights the courts are loath to disturb their agreement except for equitable consideration. A property settlement agreement, therefore, not tainted by fraud or compulsion and not in violation of the confidential relationship of the parties, is valid and binding. (Adams v. Adams, 29 Cal.2d 621, 624 [177 P.2d 265].) [2] When it appears that it was the intention of the parties to definitely, fully and permanently adjust and settle their property rights and obligations and a provision for monthly payments is a part of such plan and constitutes an integral and important element in the amicable adjustment of the property rights of the parties which has judicial approval, the court is without power thereafter to modify the decree. (Hamilton v. Hamilton, 94 Cal.App.2d *251 293, 295 [210 P.2d 750]; Puckett v. Puckett, 21 Cal.2d 833, 840 [136 P.2d 1]; Ettlinger v. Ettlinger, 3 Cal.2d 172, 178 [44 P.2d 540].)
[3] Where, as here, there was no extrinsic evidence relative to the agreement or its execution its construction is purely a question of law. Under such circumstances a reviewing court is not bound by the construction thereof by the trial court but must make final determination in accordance with the applicable principles of law. (Estate of Platt, 21 Cal.2d 343, 352 [131 P.2d 825]; Western Coal & Min. Co. v. Jones, 27 Cal.2d 819, 827 [167 P.2d 719, 164 A.L.R. 685]; Lalumia v. Northern Calif. Packing Co., 75 Cal.App.2d 917, 922 [172 P.2d 94]; Clark v. Tide Water Associated Oil Co., 98 Cal.App.2d 488, 490 [220 P.2d 628].) [4] In interpreting an agreement, of course, it must be considered in its entirety. (Streeter v. Streeter, 67 Cal.App.2d 138, 143 [153 P.2d 441]; Puckett v. Puckett, supra.) [5, 6] An interlocutory decree of divorce is, so far as it determines the rights of the parties, a contract between them (London G. & A. Co. v. Industrial Acc. Com., 181 Cal. 460, 465 [184 P. 864]; Taylor v. George, 34 Cal. 2d 552, 557-558 [212 P.2d 505]), and "[t]he interpretation of such a decree is a question of law." (Becker v. Becker, 36 Cal. 2d 324, 326 [223 P.2d 479].)
[7] We are satisfied from an examination of the agreement that it was the intention of the parties to completely settle all of their property rights and obligations to each other. The agreement stated at the outset that the parties desired to settle all questions as to their respective property rights. They then provided for the disposition of their home and furniture, the automobile, and the bank stock. Thus all the community property is disposed of. Then follows the provision whereby defendant agreed to pay to plaintiff $150 a month for a period of three years, or until she remarried, and binds his legal representatives to carry out this agreement. It is to be noted that these payments are not stated to be for a particular purpose. It is significant that there is no reference to support or maintenance or alimony in connection therewith. If these payments had been intended for such purpose it is both natural and reasonable that some mention thereof would have been made. Such is the usual practice. In the acceptance of these payments they are not described as being for support or maintenance. They are accepted "together with" the other property in full settlement of her community interest and claim to alimony, support and maintenance. The *252 completeness of the agreement is indicated by the provision that if plaintiff brings suit to collect any of the monthly or other payments provided for therein defendant agrees to pay a reasonable attorney's fee. It will also be recalled that there is no provision for submission of the agreement for court approval in the event an action for divorce is filed.
The facts that there are no express provisions in the agreement for plaintiff's support; that the monthly payments are not designated for that purpose; that defendant's estate is obligated to complete performance of the agreement in the event of defendant's death; that provision is made for payment of attorney's fees if suit is brought upon the agreement; that there is no provision for submitting the agreement to the court for approval; that plaintiff accepted the monthly payments and the other property in full for both her community interest and claim to alimony as a package settlement; and that the parties desired to settle all questions relative to their property rights, point unerringly to the conclusion that it was the intention of the parties to completely adjust and settle their property rights and that the provision for the monthly payments constituted an integral and important element in the amicable adjustment of the property rights of the parties. (Puckett v. Puckett, supra; Ettlinger v. Ettlinger, supra; Hamilton v. Hamilton, supra; Holloway v. Holloway, 79 Cal.App.2d 44, 46 [179 P.2d 22]; Kohl v. Kohl, 66 Cal.App.2d 535, 541 [152 P.2d 494]; Rich v. Rich, 44 Cal.App.2d 526, 529 [112 P.2d 780]; Hodgson v. Hodgson, 6 Cal.App.2d 496, 498 [44 P.2d 544]; Wallace v. Wallace, 136 Cal.App. 488, 492 [29 P.2d 314].) The fact that the monthly payments ceased upon the remarriage of plaintiff is not persuasively significant since they are made a charge upon defendant's estate. This is particularly true when the contract is considered in its entirety. A like provision terminating payments upon the remarriage of the wife was contained in the Kohl, Puckett, Hamilton and Ettlinger cases, supra, yet the agreement in each of those cases was held to be a settlement of property rights and not one for support or alimony.
Although plaintiff referred to the agreement in her complaint as a property settlement agreement and described it as dividing their community property and providing for her support, she did not pray for alimony but only requested approval of the agreement. The court, in the interlocutory decree, however, designated the agreement as a property settlement *253 agreement, but did not order the defendant to perform any obligations thereunder. [8] The fact that here, as in Wallace v. Wallace, supra, and Hamilton v. Hamilton, supra, the prayer of the complaint did not ask for alimony but merely that the property settlement agreement be approved, and that the decree did not undertake to make any award for alimony, but only approved the agreement without ordering the defendant to carry out his commitments therein (see Howarth v. Howarth, 81 Cal.App.2d 266, 271 [183 P.2d 670]) indicates that the trial court considered the agreement as a property settlement agreement and therefore designated it as such in the decree and did not consider it as providing for the plaintiff's support in the nature of alimony.
It should be noted that defendant has fully performed the agreement and has made the final payment when due and prior to the issuance of the order to show cause. [9] To permit the agreement which the parties made for the purpose of completely and finally settling their financial obligations, and which has been fully performed, to become the foundation for alimony payments of an indeterminate duration would be to make a different contract from that which the parties intended and actually made and would result in defendant's being trapped by the agreement and default judgment. (See Burtnett v. King, 33 Cal.2d 805, 811 [205 P.2d 657, 12 A.L.R.2d 333].) If property settlement agreements are to continue to occupy a favored place in the law their integrity must be preserved.
The order of January 23, 1952, ordering defendant to pay $200 per month for plaintiff's support is reversed. The purported appeals from the other orders are dismissed.
Moore, P. J., and McComb, J., concurred.
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625 F.2d 712
Robert A. GARRETT, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
No. 80-3091
Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Sept. 12, 1980.
Andrew I. Brown, New Orleans, La., for plaintiff-appellant.
John P. Volz, U. S. Atty., Michaelle F. Pitard, Asst. U. S. Atty., New Orleans, La., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before RONEY, KRAVITCH and TATE, Circuit Judges.
RONEY, Circuit Judge:
1
Robert Garrett filed a complaint against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C.A. §§ 2671-2680, alleging that he had been illegally and negligently detained in the United States Marine Corps for two months between the expiration of his enlistment and his formal discharge. He sought compensation for lost benefits, $100,000 damages, attorney's fees and costs. The district court dismissed the complaint on the ground that the Government is not liable under the FTCA for injuries which arise out of or are in the course of activity incident to military service. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). We affirm.
2
Briefly, Garrett, a member of the Marine Corps, submitted his request for reenlistment on May 16, 1974. On July 4, 1974, he was involved in an altercation with members of the Military Police. When he appeared for reenlistment on July 19, Garrett was not allowed to reenlist but instead was placed on legal hold. His prior enlistment contract was extended for an additional two months, until approximately September 19, 1974.
3
Although formal charges were lodged against Garrett on July 25, he was never tried and the charges against him were dropped on October 17, 1974. Garrett apparently was not then informed that the charges had been dropped and remained on legal hold until November 15, 1974. On that day, he was told that he was no longer on legal hold and had until 1:00 p. m. to reenlist. Garrett chose not to reenlist and was honorably discharged three days later.
4
In sum, Garrett's enlistment contract expired on September 19, 1974, but he was neither released nor discharged until about two months later.
5
The FTCA provides that "(t)he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C.A. § 2674. In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, however, where the estate of a soldier killed in a barracks fire allegedly caused by Army negligence brought suit against the Government, the Supreme Court interpreted the statute to exclude servicemen from coverage when their claims arise out of or in the course of activity incident to military service.
6
Garrett claims that Feres is not applicable in this case because he was not on valid active duty at the time of the alleged wrongdoing. Plaintiff, still on active duty and subject to military jurisdiction when he was placed on legal hold, overlooks two points. First, although there are no Fifth Circuit cases directly on point, it is well established that the mere expiration of enlistment does not effect an automatic discharge. Dickenson v. Davis, 245 F.2d 317 (10th Cir. 1957), cert. denied, 355 U.S. 918, 78 S.Ct. 349, 2 L.Ed.2d 278 (1958); Roman v. Critz, 291 F.Supp. 99, 102 (W.D.Tex.1968). In Dickenson v. Davis, the plaintiff, a former prisoner of war, argued that he had regained civilian status and was not subject to military discipline at the time formal charges were lodged against him because his enlistment term had expired and his requested formal discharge had not been granted within a reasonable time after his return to the United States. The Tenth Circuit found his argument ingenious but unsound.
7
Service in the military, whether by enlistment or otherwise, creates a status which is not and cannot be severed by breach of contract unfortified by a proper authoritative action. U. S. v. Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636; see also Morrissey v. Perry, 137 U.S. 157, 11 S.Ct. 57, 34 L.Ed. 644; U. S. v. Williams, 302 U.S. 46, 58 S.Ct. 81, 82 L.Ed. 39. At the time appellant was accused he had neither been discharged in accordance with 10 U.S.C.A. § 1580 (transferred to 652a for future codification) nor had his military status been severed under other authority or by judicial action. He was a soldier, subject to the rules, discipline and jurisdiction of the Army and squarely within the provisions of Article 2 of the Uniform Code of Military Justice . . ..
8
245 F.2d at 319 (footnote omitted).
9
Second, one who has not been discharged is still a member of the armed services on active duty. Congress has clearly stated that an individual is not released from active military duty until he has received his discharge papers. "A member of an armed force may not be discharged or released from active duty until his discharge certificate or certificate of release from active duty . . . are ready for delivery to him . . .." 10 U.S.C.A. § 1168(a). Further, 10 U.S.C.A. § 802 provides that "(m)embers of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment" are subject to the Code of Military Justice.
10
Garrett relies on Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), and Parker v. United States, 611 F.2d 1007 (5th Cir. 1980), in which servicemen were allowed to recover under the FTCA for injuries which occurred while on furlough from the armed forces. Garrett asserts that if claims are not barred for servicemen on furlough, they should not be barred for servicemen whose enlistments have expired, but who are illegally detained. But in both Brooks and Parker, the servicemen were injured while on leave from military duty. Their injuries were in no way related to or sustained as an incident of their military activities, nor did the injuries arise because they were servicemen. In this case, however, plaintiff's injury did arise out of his military service. He was placed on legal hold because of his activities as a marine, and the decision to keep him on hold beyond the expiration of his enlistment contract and after formal military charges against him were dropped, whether or not negligently made, was also incident to his activities as a marine. Since plaintiff's alleged injury arose out of activity incident to his military service, we hold that his suit under the FTCA is barred by the Feres doctrine.
11
The extended discussions of the Feres doctrine in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), and Parker v. United States, 611 F.2d 1007, make it unnecessary to elaborate further here.
12
The First Circuit has recently reached the same result in a similar case. Torres v. United States, 621 F.2d 30 (1st Cir. 1980). The plaintiff there alleged that due to Army negligence his discharge was erroneously classified as "under other than honorable conditions," when he in fact was entitled to and later received an honorable discharge. Holding the Feres doctrine barred the action, the court held that plaintiff's injuries arose out of or in the course of activity incident to his service. It noted that
13
discharge is incident to every soldier's military service and constitutes the final step in his active relationship with the Army. The discharge process itself is conducted by military personnel in the course of their military duties and involves an evaluation of the soldier's service and a classification of his status according to factors which are peculiar to the military nature of the relationship between the soldier and the government. . . . (T)o allow soldiers to maintain actions arising under state law for injuries allegedly stemming from discharges with which they take issue would be inconsistent with Feres, which rested in substantial part upon a finding that the "distinctly federal" character of the military relationship makes inappropriate the countenancing of FTCA actions based on injuries arising out of that relationship. 340 U.S. at 145 (71 S.Ct at 159); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671 (97 S.Ct. 2054, 2057, 52 L.Ed.2d 665) (1977).
14
Torres v. United States, 621 F.2d at 32. The court's reasoning is equally applicable to a case where the Army fails to release or discharge a soldier upon the expiration of his enlistment contract. In each case, the claim is for injuries which arise out of the military relationship.
15
This does not suggest that a soldier is foreclosed from legal relief if held in the military after he has met all of the requirements for discharge. See Howe v. Laird, 456 F.2d 233 (5th Cir. 1972); Helwick v. Laird, 438 F.2d 959 (5th Cir. 1971). He may not, however, sue the United States for damages in tort for such action under the Federal Tort Claims Act.
16
In light of our disposition of the case under the Feres doctrine, we do not reach the Government's argument that dismissal is required for failure to timely file an administrative appeal pursuant to 28 U.S.C.A. § 2401(b).
17
AFFIRMED.
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88 Cal.Rptr.2d 410 (1999)
74 Cal.App.4th 697
Donna Pineda ARMAN, Plaintiff and Appellant,
v.
BANK OF AMERICA, N.T. & S.A., et al., Defendants and Respondents.
No. B126930.
Court of Appeal, Second District, Division Four.
August 26, 1999.
Rehearing Denied September 10, 1999.
Review Denied December 15, 1999.[*]
*411 Roger J. Pryor, for Plaintiff and Appellant.
Riordan & McKinzie, Jeffrey L. Glassman, Gina M. Calvelli and Reynolds T. Cafferata, Los Angeles, for Defendant and Respondent Bank of America, N.T. & S.A.
Bill Lockyer, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Carole R. Kornblum, Senior Assistant Attorney General, and James M. Cordi, Supervising Deputy Attorney General, for Defendant and Respondent Attorney General of the State of California.
CURRY, J.
The trial court concluded that appellant Donna Pineda Arman, whose mother was named trustee in the will of John P. Lamerdin for a charitable trust to be created from funds remaining after the deaths of three members of Lamerdin's immediate family, lacked standing to petition the court for the appointment of a successor trustee after the death of her mother. The court went on to approve an established charitable organization as trustee in accordance with a proposal approved after mediation by respondents the Bank of America ("the Bank") and the Attorney General. We affirm the trial court's orders.
FACTUAL AND PROCEDURAL BACKGROUND
The essential facts are not in dispute. After the death of Lamerdin, a 1970 court order for construction and final distribution of his will stated that the trust created by the will would be divided into two funds. Payments from these funds were to be made to Olga Lamerdin, Vera Hellawell, and Peter Lamerdin during their lifetimes.[1] The order went on to state that, "[u]pon the death of the survivor" of the three individuals, "the trust shall terminate and the corpus of the trust shall be distributed to Elvira J. Arman, as trustee, for the purpose of setting up a foundation to distribute and award scholarships for needy students."[2] The trustee was initially *412 Security Pacific National Bank. In 1992, the Bank merged with Security Pacific, and succeeded it as trustee.
Vera Hellawell, the last of the three individual beneficiaries, died on September 27, 1996. By that time, Elvira Arman, too, was dead, having predeceased Vera by more than four years.
In October of 1997, appellant, the daughter of Elvira Arman, filed a petition to be named trustee of the trust which was to have been created by her mother. Appellant proposed using the remaining assets of the Lamerdin estate to create a foundationto be named the John P. Lamerdin Foundationwhich would set up a scholarship program to benefit mentally and physically impaired children. Appellant stated that Lamerdin's son Peter had been mentally disabled and that Lamerdin often mentioned that he would like to help children with disabilities similar to Peter's obtain educational opportunities.
The Bank objected to the petition on numerous grounds, contending that appellant lacked standing to petition for appointment of a trustee in that she was not an heir, beneficiary or successor trustee; that appellant was not qualified to act as trustee of a charitable foundation; and that granting the petition would result in unnecessary taxes being imposed on the trust. In February of 1998, the Bank filed its own petition, stating that although Lamerdin had expressed a clear intent to create a charitable trust, his intent might ultimately be frustrated because the trust instrument lacked provision to obtain a determination of tax exempt status and lacked a structure to distribute the scholarships. The Bank proposed that the existing trust be modified to allow it to obtain a determination of tax exempt status and to allow distributions from the trust to be made to the California Community Foundation, which had experience administering scholarship programs. The Bank also sought to be appointed trustee of the new trust, and proposed charging an annual fee of one-half of one percent of the value of the fund's assets for rendering this service.[3]
Appellant supplemented her petition, offering the Fulfillment Fund as an existing charitable organization to administer the scholarships and proposing that Wells Fargo Bank manage the portfolio, which it had offered to do at a lesser charge. Appellant's attorney submitted a declaration in which he stated that, before he died, Lamerdin had expressed the view that he did not trust large impersonal institutions to carry out the purposes he had in mind. The Fulfillment Fund thereafter filed a separate statement of interest requesting that it be appointed trustee (which appellant opposed).
In the meantime, in March of 1998, the Attorney General stepped in by submitting a statement of interest, stating that since the public at large was the intended beneficiary of the trust proposed by Lamerdin's will, it was the proper party to represent the beneficiaries. (See Gov.Code, § 12586 et seq. [duties of Attorney General with respect to charitable trusts].) The Attorney General first took the position that as the only valid representative of the beneficiaries, it alone had the power to approve a trustee for the fundand as between the Bank and appellant, it chose the Bank. The Attorney General also agreed with the Bank that the trust should be modified so as to qualify for tax exemption as a public charity rather than a private foundation, andat least initiallyagreed that the scholarship program be administered by the California Community Foundation. It did not object to including children with learning disabilities as beneficiaries of the funds. Later, the Attorney General asked the court to decide which of the potential trustees would be the best qualified between *413 the Bank, the Fulfillment Fund, and the California Community Foundation.
In June of 1998, the trial court ordered the parties to seek mediation and asked for further briefing on the issue of standing. In August, the court issued a minute order dismissing appellant's petition on the ground that she lacked standing.[4] It further found that the Fulfillment Fund was without standing, but allowed it to file "Amicus Curie [sic] briefs as to appointment of successor trustee."
The partiesthe Attorney General, the Bank, the Fulfillment Fund, and the California Community Foundationparticipated in a mediation in September of 1998.[5] The participating parties agreed that the trust would be terminated and the assets distributed to the California Community Foundation to hold in a separate fund named the John P. Lamerdin Scholarship Fund which would continue to be managed by the Bank, along with the California Community Foundation's other assets. The California Community Foundation would distribute an amount equal to 4 percent of the value of the fund to scholarship recipients or other charities. In addition, an amount equal to 2 percent of the principal of the fundless certain expenseswould be distributed to the Fulfillment Fund annually, which would award scholarships in Lamerdin's name. The agreement was presented to the court in the form of a petition for modification of the trust and appointment of a trustee. The court approved the petition by order dated November 3, 1998. Appellant appealed the order approving the petition for modification and the order dismissing her petition for lack of standing.
DISCUSSION
The standing dispute revolves around whether appellant is or is not an "interested person" under Probate Code section 48.[6] Subdivision (a) of that section defines "interested person" to "include[]": "(1) An heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding. [¶] (2) Any person having priority for appointment as personal representative, [¶] (3) A fiduciary representing an interested person." Subdivision (b) adds: "The meaning of `interested person' as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding."
In Estate of Davis (1990) 219 Cal.App.3d 663, 268 Cal.Rptr. 384, where a probate administrator's surety was determined to be an interested person, the court stated: "Subdivision (a) of section 48 does not purport to provide an exclusive list of recognizable interests. Rather, it permits the court to designate as an interested person anyone having an interest in an estate which may be affected by a probate proceeding. Subdivision (b) allows the court to determine the sufficiency of that party's interest for the purposes of each proceeding conducted. Thus, a party may qualify as an interested person entitled to participate for purposes of one proceeding but not for another. [¶] Accordingly, section 48 gives the trial court more flexibility in controlling probate proceedings than does [the section of the Code of Civil Procedure governing intervention]." (219 Cal.App.3d at p. 668, 268 Cal.Rptr. 384.)
In Estate of Maniscalco (1992) 9 Cal. App.4th 520, 522, 11 Cal.Rptr.2d 803, a prospective bidder on estate property who failed to attend a confirmation hearing, having no other preexisting relationship to the estate or to the property, was found by the trial court to be an interested party. *414 In affirming the trial court's determination, the appellate court explained: "Section 48, subdivision (a) provides a nonexclusive list of recognizable interests, providing the court with the authority to designate as an `interested person' anyone having a property right in or claim against an estate which may be affected by the probate proceeding. On the other hand, section 48, subdivision (b) broadly permits the court to determine the sufficiency of a party's interest for the purposes of each proceeding conducted.... Thus, section 48 is designed to provide the probate court with flexibility to control its proceedings to both further the best interests of the estate and to protect the rights of interested persons to those proceedings." (9 Cal. App.4th at pp. 523-524, 11 Cal.Rptr.2d 803, fn. omitted.) Determination of whether a party has standing under section 48, subdivision (b), "requires [the trial court] to evaluate the underlying policy considerations regarding a specific probate proceeding in determining whether the person or party is sufficiently interested to intervene." (Ibid.)
Here, the trial court ruled that appellant did not have standing under section 48. We review the trial court's determination under the "abuse of discretion" standard. (Estate of Maniscalco, supra, 9 Cal. App.4th at p. 525, 11 Cal.Rptr.2d 803.)
As we can see from section 48 and the cases that have interpreted it, standing for purposes of the Probate Code is a fluid concept dependent on the nature of the proceeding before the trial court and the parties' relationship to the proceeding, as well as to the trust (or estate). This means that before the issue of standing can be resolved, we must understand the nature of the proceedings so that we may determine the parties' relationship to it. As a practical matter, standing and the merits are closely tied, and it is often necessary to come to terms with the substantive claim before the issue of standing can be satisfactorily resolved.[7] Here, the issue is complicated by the fact that the parties do not agree on the type of proceeding that was presented to the trial court. Appellant contends the court should have proceeded under section 15410, governing disposition of property upon termination of a trust.[8] The Bank and the Attorney General take the position that the only thing before the court was a simple matter of filling a vacancy in the office of trustee governed by section 15660,[9] coupled with a motion to modify under section 15409.[10] In addition, while appellant contends that the doctrine of cy pres should apply, both the Bank and the Attorney General argue that since Lamerdin's ultimate purpose of benefiting needy students is clear, the court need not resort to cy pres.[11]
*415 As expressed in the 1970 order, Lamerdin's intent was clear: after providing for the members of his immediate family during their lifetimes, the remaining assets in his estate were to be transferred to his close friend and trusted employee Elvira Arman so that she could set up a trust to assist needy students with scholarships. In the expected course of events, the last of the three individual beneficiaries died, the Bank's duties as trustee have been concluded, and its only remaining responsibility would have been to transfer the funds in the account to Elvira Arman so that a trust could be set up under her direction. Unfortunately, Lamerdin's will did not anticipate the events which transpiredhis sister lived to see her 94th birthday, whereas Elvira Arman died at the comparatively young age of 71. All the parties, including appellant were in agreement that Lamerdin's intent was to provide scholarships to needy students whether or not Elvira Arman survived to set up and administer the charitable trust. The only problem was that the trustee he had personally selected was not available.
In this situation, the court's options are more limited than appellant supposes. The fact that Lamerdin was willing to entrust his assets to an individual inexperienced in administering charitable funds or creating tax exempt foundations does not mean that the court is free to do the same. There is no dispute that Lamerdin did not want a bank, a trust company, a charitable corporation, or other large impersonal organization to be the trusteehe wanted Elvira Arman. But acknowledging that still left the trial court with the question of what to do with funds left for a charitable purpose after the testator's specified trustee has died. The court's primary focus must be to ensure that funds intended for charitable purposes are in safe hands and properly administered. Rarely will this entail transferring funds to an individual, even one who is as close to the testator and his intended trustee as appellant. Appellant was not named by Lamerdin as a trustee, and she had no evidence to suggest that his will could be interpreted to insert her name as successor trustee in place of her mother's.
We believe the trial court made the proper determination here. Contrary to appellant's contention that the matter was resolved by an improper mediation, the evidence is clear that the mediation resulted in a proposal agreeable to the Attorney General which was placed before the court for its approval. The proposal approved by the court placed the funds in the hands of an established organization which will hold them in Lamerdin's name. In addition, funds will be made available for distribution by the same organization recommended by appellant to administer her proposed trust.
For this reason, the trial court was correct in its determination that appellant lacked standing. Appellant had no more interest in the trust proceeds than anyone else acquainted with Lamerdin and familiar with his interests, and she presented no evidence which would have placed her in a better posture. Her position was similar to that of the charitable organizations discussed in In re Veterans' Industries, Inc. (1970) 8 Cal.App.3d 902, 920, 88 Cal. *416 Rptr. 303, which sought to object to the disposition of the assets of a dissolving nonprofit corporation that had similar charitable goals. The objecting organizations sincerely believed that the assets of the nonprofit corporation were being misdirected. The court in Veterans' Industries addressed the following questions: "What remedy, if any, is available to one who has good cause to believe that a proposed distribution [of a nonprofit corporation's assets] ... will constitute a breach of trust, despite the Attorney General's consent to such distribution, but whose interest in the trust res rises no higher than that of a possible cy pres beneficiary? How is the public's paramount interest in the proper discharge of charitable trusts to be protected in such circumstances?" (8 Cal.App.3d at pp. 908-909, 88 Cal.Rptr. 303, fn. omitted.) The court concluded that "it is the Attorney General's duty to protect interests of the beneficiaries of a charitable trust"; that "a charitable corporation even if named as a possible successor trustee by the dissolving corporation does not have, as a possible beneficiary under application of cy pres, an `interest different in kind from that of the public generally, which is represented exclusively by the Attorney General'"; and that "[t]he interest of a possible cy pres beneficiary not named or nominated by the dissolving corporation is of course no greater than that of one which is named or nominated." (Id. at pp. 919, 923, 88 Cal.Rptr. 303, citations omitted.) The court affirmed the lower court's decision to strike the objections of the objecting organizations for lack of standing. The court went on to hold that if the party could not garner permission from the court to appear as amicus or from the Attorney General to intervene as "a relator," [12] the solution to the problem presented would be a petition for mandamus to require the Attorney General's office to perform its duty. (Id. at pp. 924-927, 88 Cal.Rptr. 303.)
We are cognizant of the fact that at the time appellant filed her petition more than a year after the death of Vera Hellawellno action had been taken to see that the remaining funds were being utilized for the aid of needy students, and it appeared that no one was looking out for the interests of Lamerdin or the intended beneficiaries of the proposed trust. However, the answer was not for appellant to file a petition in her own name. The Attorney General is the only party with standing to represent the intended beneficiaries of a charitable trust. As the court held in Veterans' Industries, a party concerned that a breach of trust is taking place can only attempt to compel the Attorney General to perform his proper duty, he or she cannot intervene directly in an action on the trust.
DISPOSITION
The orders of the trial court regarding standing and approving the petition for modification, both entered November 3, 1998, are affirmed.
EPSTEIN, Acting P.J., and HASTINGS, J., concur.
NOTES
[*] Baxter, J., and Chin, J., did not participate.
[1] Olga was Lamerdin's wife, Vera was his sister, and Peter was his son.
[2] Elvira Arman, appellant's mother, was apparently the general manager of Lamerdin's Pontiac agency for some time prior to his death and a close friend of the Lamerdin family; she and her daughter often socialized with them.
[3] As we understand it, the assets of the trust have a value of approximately $2 million.
[4] A formal order was prepared and filed November 3, 1998.
[5] Counsel for appellant was present at the mediation, but the agreement was struck over his protests.
[6] All further statutory references are to the Probate Code unless otherwise indicated.
[7] See, e.g., Hart v. County of Los Angeles (1968) 260 Cal.App.2d 512, 516, 67 Cal.Rptr. 242 (where plaintiff could not establish a reversionary interest in property donated to charity, his claim was subject to demurrer for lack of standing).
[8] Section 15410 provides in part: "At the termination of a trust, the trust property shall be disposed of as follows: [¶] ... [¶] (c) ... as provided in the trust instrument or in a manner directed by the court that conforms as nearly as possible to the intention of the settlor as expressed in the trust instrument.''
[9] Section 15660 applies where "the trust has no trustee or if the trust instrument requires a vacancy in the office of a cotrustee to be filled...."(§ 15660, subd. (a).)
[10] Section 15409 permits the court "[o]n petition by a trustee or beneficiary" to "modify the administrative or dispositive provisions of the trust or terminate the trust if, owing to circumstances not known to the settlor and not anticipated by the settlor, the continuation of the trust under its terms would defeat or substantially impair the accomplishment of the purposes of the trust." (§ 15409, subd. (a).)
[11] Cy pres literally means "[a]s near as (possible)." (Black's Law Dictionary (6th ed.1990) p. 387.) "The rule of cy-pres is a rule for the construction of instruments in equity, by which the intention of the party is carried out as near as may be, when it would be impossible or illegal to give it literal effect." (Ibid., original emphasis.) It is frequently applied in situations where a charitable corporation to which a fund or property was donated has dissolved and is no longer in existence. (See, e.g., In re Metropolitan Baptist Church of Richmond, Inc. (1975) 48 Cal.App.3d 850, 857-858, 121 Cal.Rptr. 899; Estate of Connolly (1975) 48 Cal.App.3d 129, 131-133, 121 Cal.Rptr. 325; In re LA. County Pioneer Society (1953) 40 Cal.2d 852, 865-866, 257 P.2d 1; see Estate of Lamb (1971) 19 Cal.App.3d 859, 867, 97 Cal.Rptr. 46 [organization had not yet been incorporated at the time of the testator's death].) "[U]nder the equitable doctrine of cy pres the corporate assets will ordinarily be transferred to another corporation, organization, society or trust so that the original trust purposes can be carried out, as nearly as possible. [Citation.]" (In re Metropolitan Baptist Church of Richmond, Inc., supra. 48 Cal.App.3d at pp. 857-858, 121 Cal. Rptr. 899.)
[12] "`A relator is a party in interest who is permitted to institute a proceeding in the name of the People or the attorney general when the right to sue resides solely in that official(In re Veterans' Industries, Inc., supra, 8 Cal.App.3d at p. 925, 88 Cal.Rptr. 303, quoting Brown v. Memorial Nat. Home Foundation (1958) 162 Cal.App.2d 513, 538, 329 P.2d 118.)
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April:20, 1969
Honorable H. B. Virgil Crawford Opinion No. M-385
County Attorney
Terry County Re: Whether.the Terry
Brownfield,, Texas 79316 County Hospital Dis-
trict must furnish
ambulance ser\ii.ce and
whether TerryCounty
and the City of .Brown-
field can participate
in providing funds for
Dear Mr. Crawford: ambulance service.
you have requested the opinion of 'this office on
the following questions:
"1. Is.'ambulance"service a part of '.
medical care required of a hospital dis-
trict, such as ours, and under tha present
situation?
.“2
. Are Terry County and the City of
Brownfield barred from participation in pro- .'
viding funds for ambulance service in Terry
Counicy?
"'3
. Can city, county;' or hospital ex-
pend money to subsidize private ambulance
service?"
The Terry Memorial Hospital District was created
pursuant to the provis.ions of House Bill 1146, Acts 59th.
Leg. R.S.; 1965, Ch. 653, p. 1502, 'as authorized by Section
9 of Article IX.of the Texas Constitution. Under House
Bill 1146, the district is given full responsibility for
the medical and hospital care of th8 needy ,and indigent
persons within the district.
;/ "
The pertinent parts of House Bill 1146 are as
* follows: '.,
"Sec.. '2. The District herein authot-
ized to b8,~created shall take OV8r and there
-1902-
.
Honorable k.'B. Virgil Crewf&d, Page 2. (M-385)
shall be transferred to it title to all
lands, buildings, improvements and equip-
ment in anywise pertaining to the hospitals
or hospital systemSowned by Terry County
and any city or town within such County,
and thereafter the.District shall provide
for the establishment of a hospital system
by'the purchase, construction, acquisition,
repair' or renovation.of -buildings an'd::equip-
ment, and equipping the same and the admin-
istration thereof for hbsoital uurooses:
Such District shall assum; full-responsibil-
ity for providing medical and hospital care
for its needy inhabitants and shall assume
the outstanding indebtednesswhich shall..
have .@een inCtiS8d by eny city or town.or by
Terry County for hospital purposes prior
to the creation of said District. . . .
"Sec. 5. . .. . The Board of Directors
shall have the authority to employ such
nurses, technicians, and other lay personnel
as may be deemed necessary fOS the efficient
operation of the District. . . .,
"Sec. 17. After creation of Terry Memo-
ri'al Hospital District, neither Terry County,
Texas, nor any city or town therein shall
thereafter.issue bonds or other eVid8nC8S of
indebtedness or levy .taxes for hospital pur-
poses or for medical care, and the said Terry
kemoriai Hospital DistriUz shall assume full-
responsibility for the operation oft all hos-
pital.facilities for the furnishing of medical
and hospital care of indigent persons."
(Emphasis added.).
This office has previously expressed the view,
in Attorney General's Opinion C-759 (19661, that the
operation of .an ambulance service, while not exclusively
a hospital Service, is sufficiently related to the effec-
tive aud efficient operation of a hospital as to be with-
in the authority of the Board of Managers of a hospital
district to acquire and operate such an ambulance.service
in carrying out its duties within the district. c-759
expressly stated that,the authority of the.disttict with
regard to the operation of anambulance service was not
8xclusiVe and did not preclude the operation of such a
service within th8 distric.t'by others.. The essence Of th8
. - 1903-‘,
Honorable H. D. Virgil Crawford, page 3 ‘(M-385)
'.
holding in C-759 was that ambulance service was an an-
cillary function which a hospital district could undertake
if it were deemed nec8ssary, but that such s&vice was not
a duty which fell exclusively upon the district. We adhere
to that holding.
W.ith regard to your second question, the pro-
tection and~preservation of the public.health is within
the scope of the police power. of. the State, and, in darryihg
out its responsibilities, the county, city or.hospital dis-
trict is exercisinr deleaated DOW8rS of the State within
the limits of the.county1 city-or hospital district..
of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872 (1937
Under the provisions of AStiC 4418f, Vernon's Civil
statutas, a county has the authority to operate and main-
tain an ambulance service within the county if the Com-
missioners Court determines,'that such service is in further-
'ante of the public health and sanitation. Under the au-'
thority.of'Article 4434 a ,county may cooperate with incor-
porated cities within the countyin the operation of an
ambulance se,rvice, provided tbat the,extent of the county's.
con'tribution under the agreement.does not contravene the
limitations of Article III, Section 52,.Texas Constitution.
Attorney General's Opinion C-772 (1966).
:
With regard to cities and towns, Attorney.
General's Opinion M-231 (1968) expressed the view that'
Article XI, 'Sections 4 and 5, Texas Constitution, and
Articles 1011 and 1175, Vernon's Civil Statutes, con-
stituted authority for .the governing bodies of such
cities and towns to operate emergency ambulance serv-
ices within their cities in order to protect the .health,
safety and.general'welfare of the citizens. "
Taking into bonsideration all of the various
authorities and powers that.bave bean discussed above,
~together with the fadt that at no time has the Legis- ',
lature ma;ae an express statement regarding the authority
to perform ambulance services, it is the opinion. of
this office that towns, cities, counties and hospital
districts each have the authority to provide such tier?-
ices to the citizens of .this State within the limits of
their respective donstitut$onal and statutory'authoriza-
tion, and,may also join together. in a cooperative enter-
prise for such services.
With respect to your 'third question, in accordance
with.Attorney General's Opinions C-759 and C-772, you.are
advised th.at Terry County,, ,tha City of Brownfield'and the
-1904-
..
.
Honorable H. B. Virgil Crawford, page 4 (M-385)
'Terry Memorial Hospital District have the authority to ex-
pend money to provide ambulance service when~ there has been
a determination by the governing body of each governmental
agency that'such service will be in furtherance of the pub-
lic health and general welfare of their citizens. This au-
thority extends to entering into contracts with a private
agency to provide ambulance Service, subject to the pro-
visions of Article III, SectiOn'52, Texas Constitution.
SUMMARY
-------
The furnishing of ambulance service
is not an exclusive duty of a,hospital
district within the meaning of House Bill
1146, Acts 59th Leg., 1965, RegularSession,
Ch. 653, p. 1502, but the furnishing of such
service is within the authority, of the dis-
trict if the Board of Directors deem such
service necessary for the effective and
effi~cient operation of the district.
Cities and counties within a hospital
district have authority to furnish ambulance
se'rvice , cooperate with 8aCh other and the
hospital district for the furnishing of such
services, or may contract with a private
agency for
C. MARTIN
Attorney General of'Texas
Prepared by. Malcolm L. Quick
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Pat.-Bailey, Chairman
W. 0. Shultz
Roger Tyler
Fisher Tyler
Allo.Crow
W. V. GEPPERT
Staff Legal Assistant
HAWTHORNE PHILLIPS
Executive Assistant
-1905-’
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970 So.2d 478 (2007)
Ross ORTA, Appellant,
v.
STATE of Florida, Appellee.
No. 5D06-2716.
District Court of Appeal of Florida, Fifth District.
December 14, 2007.
James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
*479 PALMER, C.J.
Ross Orta appeals his judgment and sentence claiming that the trial court erred by denying his request for new counsel. We agree and therefore, reverse.
Orta pled guilty to the charge of fleeing or attempting to elude at high speed and was sentenced to a term of two years of probation. He subsequently pled guilty to violating his probation and received a sentence of 18 months' community control. The order of community control included a provision that Orta live and remain at liberty without violating any law.
An affidavit of violation of community control was subsequently filed alleging that Orta had committed the criminal offense of domestic violence. After three continuances, the matter proceeded to a hearing. During the hearing, Orta's counsel requested a fourth continuance arguing that she was not prepared to proceed. After listening to his counsel admit she was unprepared, Orta asked the trial court to appoint new counsel.
The trial court denied Orta's request for new counsel, stating that Orta had not sufficiently demonstrated, pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), that his lawyer was not fulfilling her job or was incompetent. The trial court indicated that it did not have an obligation to discharge counsel and to provide Orta with another court-appointed attorney, and that Orta's only choice, if he discharged his council, was to represent himself. Orta declined to discharge his attorney under those circumstances. The hearing proceeded. At the conclusion of the hearing, Orta was found guilty of violating his probation.
Orta moved for rehearing based on the fact that, after the violation of probation hearing, he was found not guilty by a jury on the underlying charge of domestic violence. The trial court denied the motion for rehearing and sentenced Orta to a term of eight years in the Department of Corrections.
Orta claims that the trial court erred by failing to discharge his counsel and to appoint new counsel. We agree.
When a defendant seeks to discharge his court-appointed counsel citing incompetency of counsel, the trial court should determine whether there is reasonable cause to believe that the court-appointed counsel is rendering ineffective assistance. If reasonable cause exists, the court should make such a finding on the record and appoint a substitute attorney, who should be allowed adequate time to prepare a defense. Weaver v. State, 894 So.2d 178 (Fla.2004).
Orta's counsel stated repeatedly that she was unprepared to proceed to trial. While counsel's admissions of incompetence are not binding on the trial court, the record is clear that trial counsel had failed to take any of the steps reasonably necessary to prepare for this hearing. On these facts, Orta had a legitimate complaint about his attorney and reasonable cause existed that his attorney was not competent to try the case. Accordingly, the trial court abused its discretion by failing to appoint new counsel for Orta. See Guardado v. State, 965 So.2d 108 (Fla.2007)(holding a trial court's decision involving withdrawal or discharge of counsel is subject to review for abuse of discretion).
REVERSED and REMANDED.
PLEUS and LAWSON, JJ., concur.
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Matter of Brighton Grassroots, LLC v Town of Brighton (2020 NY Slip Op 00754)
Matter of Brighton Grassroots, LLC v Town of Brighton
2020 NY Slip Op 00754
Decided on January 31, 2020
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 January 31, 2020
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., NEMOYER, CURRAN, AND WINSLOW, JJ.
1114 CA 19-00576
[*1]IN THE MATTER OF BRIGHTON GRASSROOTS, LLC, PETITIONER-PLAINTIFF-APPELLANT,
vTOWN OF BRIGHTON, TOWN OF BRIGHTON TOWN BOARD, TOWN OF BRIGHTON PLANNING BOARD, M & F, LLC, DANIELE SPC, LLC, MUCCA MUCCA, LLC, MARDANTH ENTERPRISES, INC., DANIELE MANAGEMENT, LLC, COLLECTIVELY DOING BUSINESS AS DANIELE FAMILY COMPANIES, RESPONDENTS-DEFENDANTS-RESPONDENTS, ET AL., RESPONDENTS-DEFENDANTS.
THE ZOGHLIN GROUP, PLLC, ROCHESTER (MINDY L. ZOGHLIN OF COUNSEL), FOR PETITIONER-PLAINTIFF-APPELLANT.
WEAVER MANCUSO FRAME PLLC, ROCHESTER (JOHN A. MANCUSO OF COUNSEL), FOR RESPONDENTS-DEFENDANTS-RESPONDENTS TOWN OF BRIGHTON, TOWN OF BRIGHTON TOWN BOARD AND TOWN OF BRIGHTON PLANNING BOARD.
WOODS OVIATT GILMAN LLP, ROCHESTER (WARREN B. ROSENBAUM OF COUNSEL), FOR RESPONDENTS-DEFENDANTS-RESPONDENTS M & F, LLC, DANIELE SPC, LLC, MUCCA MUCCA, LLC, MARDANTH ENTERPRISES, INC. AND DANIELE MANAGEMENT, LLC, COLLECTIVELY DOING BUSINESS AS DANIELE FAMILY COMPANIES.
Appeal from an order and judgment (one paper) of the Supreme Court, Monroe County (Daniel J. Doyle, J.), entered February 7, 2019 in a CPLR article 78 proceeding and declaratory judgment action. The order and judgment, among other things, granted the motions of respondents-defendants Town of Brighton, Town of Brighton Town Board, Town of Brighton Planning Board, M & F, LLC, Daniele SPC, LLC, Mucca Mucca, LLC, Mardanth Enterprises, Inc., and Daniele Management, LLC, collectively doing business as Daniele Family Companies, for partial dismissal of the amended petition-complaint.
It is hereby ORDERED that the order and judgment so appealed from is unanimously modified on the law by denying the motions in part with respect to the 9th, 10th and 14th causes of action, vacating the last two decretal paragraphs, and reinstating the 14th cause of action, and as modified the order and judgment is affirmed without costs.
Memorandum: Petitioner-plaintiff (petitioner) commenced this hybrid CPLR article 78 proceeding and declaratory judgment action to, inter alia, annul the determination of respondent-defendant Town of Brighton Town Board (Town Board) approving an incentive zoning application by respondents-defendants M & F, LLC, Daniele SPC, LLC, Mucca Mucca, LLC, Mardanth Enterprises, Inc., and Daniele Management, LLC, collectively doing business as Daniele Family Companies, in connection with a proposed Whole Foods store in respondent-defendant Town of Brighton (Town). Petitioner appeals from an order and judgment that, inter alia, granted the motions of respondents-defendants (respondents) to dismiss certain causes of action and claims in the amended petition-complaint.
Contrary to petitioner's contention, Supreme Court properly dismissed its 11th cause of action, which alleged a violation of Brighton Town Code chapter 113, because there is no private right of action to enforce that provision (see generally Rubman v Osuchowski, 163 AD3d [*2]1471, 1474 [4th Dept 2018]).
Even assuming, arguendo, that petitioner's 12th and 13th causes of action challenging the validity of the Town's incentive zoning law (Brighton Town Code ch 209) were timely commenced (see generally Matter of Association for a Better Long Is., Inc. v New York State Dept. of Envtl. Conservation, 23 NY3d 1, 9 [2014]), we nevertheless conclude that those causes of action were properly dismissed on the merits because the provisions of the challenged incentive zoning law are consistent with its authorizing legislation (see Town Law
§ 261-b). Contrary to petitioner's contention, section 261-b does not require an incentive zoning law to specifically adopt a prospective formula for weighing the costs and benefits of awarding any particular incentive under the law.
Contrary to petitioner's further contentions, we conclude that its claims under the Open Meetings Law (Public Officers Law art 7) were properly dismissed. Specifically, petitioner's claim alleging that one or more secret meetings took place as evidenced by a specific press conference is speculative and conclusory (see Matter of Feinberg-Smith Assoc., Inc. v Town of Vestal Zoning Bd. of Appeals, 167 AD3d 1350, 1353 [3d Dept 2018]; Residents for More Beautiful Port Washington v Town of N. Hempstead, 153 AD2d 727, 729 [2d Dept 1989], lv denied 75 NY2d 703 [1990]), petitioner's claim regarding the online posting of voluminous information prior to the March 28, 2018 public meeting is without merit (see Matter of Clover/Allen's Cr. Neighborhood Assn. LLC v M & F, LLC, 173 AD3d 1828, 1831-1832 [4th Dept 2019]), and petitioner's claim regarding the facility used for the February 28, 2018 public hearing is likewise without merit (see generally Matter of Frigault v Town of Richfield Planning Bd., 107 AD3d 1347, 1351-1352 [3d Dept 2013]). In light of our determinations on those claims, petitioner's contention that the court erred in denying its cross motion for discovery in connection therewith is academic (see Niagara Falls Water Bd. v City of Niagara Falls, 85 AD3d 1664, 1665 [4th Dept 2011], lv denied 17 NY3d 714 [2011]). We note that there is no indication in the record that the court considered the various affidavits to which petitioner now objects.
We agree with petitioner, however, that the court erred by granting a declaration in favor of respondents on petitioner's 9th and 10th causes of action, which allege violations of the public trust doctrine, because there are unresolved factual issues concerning the impact of the Whole Foods development on a recreational trail known as the Auburn Trail, including whether the development would require the constructive abandonment of the existing public use easements for that trail (see Clover/Allen's Cr. Neighborhood Assn. LLC, 173 AD3d at 1829-1831; Matter of Tilcon N.Y., Inc. v Town of Poughkeepsie, 87 AD3d 1148, 1150-1152 [2d Dept 2011]). We therefore modify the order and judgment by vacating the last two decretal paragraphs.
We further agree with petitioner that the court erred in granting those parts of the motions seeking to dismiss its 14th cause of action concerning a permissive referendum under Town Law § 64 (2) (cf. Matter of Conners v Town of Colonie, 108 AD3d 837, 838-842 [3d Dept 2013]), and we therefore further modify the order and judgment accordingly. Contrary to the court's determination, that cause of action is ripe for adjudication (see generally Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 518-521 [1986], cert denied 479 US 985 [1986]).
Entered: January 31, 2020
Mark W. Bennett
Clerk of the Court
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ELMER UNDERWOOD,
Petitioner,
v.
ELKAY MINING, INCORPORATED;
HOBET MINING COMPANY; WEST
VIRGINIA C.W.P. FUND; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION
No. 95-2717
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents,
and
W & G CONSTRUCTION COMPANY;
WHITESVILLE A & S COAL COMPANY,
Parties in Interest - Employers.
On Petition for Review of an Order
of the Benefits Review Board.
(95-0414-BLA)
Argued: October 28, 1996
Decided: February 4, 1997
Before NIEMEYER and MOTZ, Circuit Judges, and
DOUMAR, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Motz and Senior Judge Doumar joined.
_________________________________________________________________
COUNSEL
ARGUED: Roger Daniel Forman, FORMAN & CRANE, L.C.,
Charleston, West Virginia, for Petitioner. Konstantine Keian Weld,
Assistant Attorney General, Charleston, West Virginia; Douglas A.
Smoot, JACKSON & KELLY, Charleston, West Virginia, for
Respondents. ON BRIEF: Darrell V. McGraw, Jr., Attorney General,
Charleston, West Virginia, for Respondent Fund.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
This case presents the question of whether an administrative law
judge ("ALJ"), conducting a hearing on a claim for benefits under the
Black Lung Benefits Act, 30 U.S.C. §§ 901-45, committed reversible
error by admitting cumulative evidence offered by the coal mine oper-
ator. Because we conclude that the ALJ's decision to allow the opera-
tor's evidence did not contravene standards established by the
Administrative Procedure Act, 5 U.S.C. § 556(d), for the admission
of evidence and did not constitute an abuse of discretion, we affirm.
I
Elmer Underwood labored as a coal miner for 40 years and retired
from Elkay Mining, Incorporated, as a supervisor of 38 men. On his
claim for black lung benefits Underwood established clearly that he
suffers from a pulmonary problem, but doctors presented differing
opinions as to whether it was pneumoconiosis, whether it originated
from Underwood's 25-year pack-a-day smoking habit or from coal
mining, and the extent of his disability. In support of his claim,
Underwood submitted evidence from the West Virginia Occupational
Pneumoconiosis Board (which had awarded him partial disability), a
report with various tests from one doctor and nine x-ray readings by
three different doctors. The respondents, in contrast, submitted a radi-
ologist's deposition, reports with various tests from five other doctors,
and multiple x-ray readings by several different doctors. Although
some of the x-rays examined showed disease, the vast majority of the
2
x-rays, most of which the coal mine operator had introduced, were
negative. Some of the pulmonary function studies had qualifying val-
ues, but all of the arterial blood gas studies failed to satisfy the regula-
tory minimum standards for disability.
In his opinion denying benefits, the ALJ summarized each of the
medical opinions and evaluated each based not only on its contribu-
tion to the quantity of the evidence presented, but primarily on the
opinion's quality. The ALJ found various problems with the opinions
of Underwood's doctor and credited the doctors whose opinions were
"more consistent with the overwhelmingly negative x-ray evidence,
the reversible nature of at least some of the pulmonary function
studies, and the nonqualifying arterial blood gas study results." The
ALJ concluded that the reports of Underwood's doctors are "out-
weighed in probative effect" by the opinions of Elkay Mining's doc-
tors.
The Benefits Review Board affirmed the ALJ's denial of benefits,
and this appeal followed.
II
Underwood's principal argument on appeal is that the ALJ violated
the Administrative Procedure Act, 5 U.S.C. § 556(d), by admitting
cumulative or repetitive evidence submitted by Elkay Mining. Under-
wood asserts that Elkay Mining's submission of 18 additional eviden-
tiary items relating to various medical issues after the 89th exhibit on
its side constituted an "obscene overdevelopment" of the case.
Because of his limited financial resources, Underwood maintains that
the failure to exclude such evidence "allows the employer to buy
more evidence and win." He contends that with the admission of this
cumulative evidence, the ALJ simply "counted heads" in violation of
Adkins v. Director, OWCP, 958 F.2d 49, 52 (4th Cir. 1992) (noting
that merely "counting heads" is a "hollow" process). He concludes
that if the ALJ had properly applied the Administrative Procedure
Act's prohibition against unduly repetitious evidence, he would have
succeeded in demonstrating entitlement to benefits.
The issue raised presents a legal question about the proper standard
for the admission of evidence in hearings before the ALJ under the
3
Black Lung Benefits Act, which we review de novo , see Dehue Coal
Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir. 1995); Walker v. Direc-
tor, OWCP, 927 F.2d 181, 183 (4th Cir. 1991), and a question about
the proper application of that standard in allowing allegedly cumula-
tive evidence into the record, which we review for abuse of discre-
tion, see Hinkle v. City of Clarksburg, 81 F.3d 416, 424 (4th Cir.
1996); Hottle v. Beech Aircraft Corp., 47 F.3d 106, 111 (4th Cir.
1995).
In the larger context, we review the decisions of the Benefits
Review Board for errors of law and to assure that the Board adhered
to its statutory authority in reviewing the ALJ's factual determina-
tions. 33 U.S.C. § 921(c); see also Dehue Coal Co., 65 F.3d at 1193.
The Board must affirm the ALJ's decision if it is"supported by sub-
stantial evidence on the record considered as a whole." Banks v. Chi-
cago Grain Trimmers Ass'n, 390 U.S. 459, 467 (1968); 33 U.S.C.
§ 921(b)(3). An ALJ hearing a claim under the Black Lung Benefits
Act is empowered to make credibility determinations and to weigh the
evidence presented. See Zbosnik v. Badger Coal Co., 759 F.2d 1187,
1190 (4th Cir. 1985); Peabody Coal Co. v. Benefits Review Board,
560 F.2d 797, 802 (7th Cir. 1977). Moreover, as trier of fact, the ALJ
is not bound to accept the opinion or theory of any medical expert.
See White v. Newport News Shipbuilding & Dry Dock Co., 633 F.2d
1070, 1075 (4th Cir. 1980). He must evaluate the evidence, weigh it,
and draw his own conclusions.
Hearings conducted under the Black Lung Benefits Act are gov-
erned by the Administrative Procedure Act. See 30 U.S.C. § 932(a)
(incorporating 33 U.S.C. § 919(d), in turn incorporating 5 U.S.C.
§ 554 (the Administrative Procedure Act)); see also 20 C.F.R.
§ 725.452(a); Bethlehem Mines Corp. v. Henderson, 939 F.2d 143,
148 (4th Cir. 1991). And the applicable provision of the Administra-
tive Procedure Act governing the admission of evidence provides:
Any oral or documentary evidence may be received, but the
agency as a matter of policy shall provide for the exclusion
of irrelevant, immaterial, or unduly repetitious evidence.
5 U.S.C. § 556(d).
4
Elkay Mining contends that ALJ's are required to admit all evi-
dence, subject to objection, giving it weight where appropriate. Elkay
Mining relies on the Benefits Review Board's statement holding that
"the administrative law judge is required, subject to the objection by
any party, to admit into the record all evidence that has been timely
developed and exchanged in accordance with 20 C.F.R.§ 725.456."
Cochran v. Consolidation Coal Co., 12 BLR 1-136, 1-138 (Ben. Rev.
Bd. 1989). Elkay Mining also points to the language of the Black
Lung Benefits Act which provides that "[i]n determining the validity
of claims under this part, all relevant evidence shall be considered
. . . ." 30 U.S.C. § 923(b) (emphasis added). Underwood, on the other
hand, argues that the Administrative Procedure Act nevertheless
requires the exclusion of "irrelevant, immaterial, or unduly repeti-
tious" evidence. 5 U.S.C. § 556(d). While these contentions of the
parties appear, at first blush, to be in conflict, a closer look demon-
strates that they are not entirely inconsistent.
We begin with the statutory command that the validity of claims
for black lung benefits shall be based on consideration of "all relevant
evidence," 30 U.S.C. § 923(b), and with the recognition that black
lung benefits proceedings are nonjury trials conducted before ALJ's
who are charged with both conducting the hearing and making find-
ings of fact. In ruling on evidence, an ALJ sees both excludable and
nonexcludable evidence, but in making a decision, he considers only
admitted evidence. Because the ALJ is presumably competent to dis-
regard that evidence which should be excluded or to discount that evi-
dence which has lesser probative value, it makes little sense, as a
practical matter, for a judge in that position to apply strict exclusion-
ary evidentiary rules. As we noted in Multi-Medical Convalescent &
Nursing Center of Towson v. NLRB, 550 F.2d 974, 977 (4th Cir.
1977) (footnote omitted):
It has long been settled that an appellate court will not
reverse a judgment in a nonjury case because of the admis-
sion of incompetent evidence, unless all of the competent
evidence is insufficient to support the judgment or unless it
affirmatively appears that the incompetent evidence induced
the court to make an essential finding which would not oth-
erwise have been made.
5
Applying that same rule to administrative agencies, we concluded
bluntly, "Thus, we strongly advise administrative law judges: if in
doubt, let it in." Id. at 978.
The Benefits Review Board has applied our decision in Multi-
Media and reached what might appear to be an almost absolute rule
that the ALJ is required to admit all evidence that is timely developed
and exchanged. See Cochran, 12 BLR at 1-138. But the Board in
Cochran recognized the statutory limitations of relevancy, instructing
at most that where relevance is "questionable," the trier of fact would
be better advised to admit the evidence. See id.
We believe that the Administrative Procedure Act's command that
ALJ's should exclude "irrelevant, immaterial, or unduly repetitious
evidence," 5 U.S.C. § 556(d), need not conflict with the Black Lung
Benefits Act and Cochran. The exclusion of"irrelevant" or "immate-
rial" evidence is not here challenged and is clearly consistent with the
broad statutory mandate of 30 U.S.C. § 923(b). We conclude similarly
that "unduly repetitious evidence" need not be received by an ALJ
hearing cases under the Black Lung Benefits Act. Evidence that is
"unduly repetitious" has little or no probative value and does not fall
within the statutory mandate to consider all "relevant" evidence.
"While the parties certainly have the right to present evidence to
defend or support their respective claims, the ALJ must be vested
with the discretion to limit the impact of voluminous, duplicative evi-
dence." Woodward v. Director, OWCP, 991 F.2d 314, 321 (6th Cir.
1993); see also Pagel, Inc. v. SEC, 803 F.2d 942, 947 (8th Cir. 1986)
(upholding an ALJ's discretion to exclude expert testimony so long
as the ALJ does not act arbitrarily); Yaffe Iron & Metal Co. v. EPA,
774 F.2d 1008, 1016 (10th Cir. 1985) (recognizing an ALJ's discre-
tion to limit evidence); Atlas Copco, Inc. v. EPA, 642 F.2d 458, 467
(D.C. Cir. 1979) ("Courts have generally recognized the discretion
reposed in agencies when it comes to deciding whether to permit the
introduction of particular evidence at a hearing."); Alabama Ass'n of
Ins. Agents v. Board of Governors, 533 F.2d 224, 254 (5th Cir. 1976)
("So long as an administrative agency is not arbitrary, it has some dis-
cretion in determining whether to admit expert evidence"), vacated in
part, 558 F.2d 729 (5th Cir. 1977). Accordingly, we recognize that
the APA grants ALJ's broad discretion to exclude excessive evidence
which lacks significant probative value and, by implication, to limit
6
examinations, evaluations, and consultations by experts when such
events will, in the ALJ's judgment, merely give rise to evidence so
unduly repetitious as to be lacking in probative value.
In recognizing that an ALJ is authorized to exclude"unduly repeti-
tious" evidence, however, we do not mean to authorize the ALJ to
exclude merely repetitious or cumulative evidence so long as such
evidence retains nontrivial probative value. He must conclude that the
evidence serves little useful value other than to expand the record,
impose additional cost, or repeat that which is already well estab-
lished in the record. Two independent and qualified expert opinions
that agree on a disputed point may be substantively more probative
than one. And while four similar opinions also may be more probative
than two, it does not follow that four are twice as probative as two.
There is a point of diminishing returns and a point at which additional
evidence provides almost no value. Such determinations are matters
for consideration by the ALJ based on the extent and nature of the
dispute on the issue, the closeness of the question, and the nature of
the opinions and qualifications of the experts giving them.
In Adkins v. Director, OWCP, 958 F.2d 49 (4th Cir. 1992), we
pointed out that in considering expert opinions, merely "counting
heads" with the underlying presumption that two expert opinions ipso
facto are more probative than one is a hollow endeavor and contrib-
utes little when weighing evidence. Id. at 52. While we recognized
that merely counting heads is not the appropriate manner for an ALJ
to weigh numerous and diverse opinions, we did not suggest that two
or three independent, qualified opinions were necessarily of less pro-
bative value than one. In weighing opinions, the ALJ is called upon
to consider their quality. Thus, the ALJ should consider the qualifica-
tions of the experts, the opinions' reasoning, their reliance on objec-
tively determinable symptoms and established science, their detail of
analysis, and their freedom from irrelevant distractions and preju-
dices. In addition, the ALJ should consider whether an opinion was,
to any degree, the product of bias in favor of the party retaining the
expert and paying the fee. To the extent that ALJ's determine that a
particular expert's opinion is not, in fact, independently based on the
facts of a particular claim, but is instead influenced more by the iden-
tity of his or her employer, ALJ's have clear discretion to disregard
such an expert's opinion as being of exceedingly low probative value.
7
For example, this circuit, as well as most other circuits, has already
concluded that an ALJ must not rely upon the opinion of an expert
who expresses an opinion based on a premise "antithetical to the
Black Lung Benefits Act" because such an opinion"is not probative."
Thorn v. Itmann Coal Co., 3 F.3d 713, 719 (4th Cir. 1993); see also
Warth v. Southern Ohio Coal Co., 60 F.3d 173, 175 (4th Cir. 1995);
Robinson v. Missouri Mining Co., 955 F.2d 1181, 1183 (8th Cir.
1992); Robbins v. Jim Walter Resources, Inc., 898 F.2d 1478, 1482
(11th Cir. 1990); Penn Allegheny Coal Co. v. Mercatell, 878 F.2d
106, 109 (3d Cir. 1989); Adams v. Peabody Coal Co., 816 F.2d 1116,
1119 (6th Cir. 1987); Wetherill v. Director, OWCP, 812 F.2d 376,
382 (7th Cir. 1987); Kaiser Steel Corp. v. Director, OWCP, 757 F.2d
1078, 1083 (10th Cir. 1985).
In short, we hold that in considering multiple opinions of medical
experts in black lung benefits cases, ALJ's should recognize that they
must consider all relevant evidence, erring on the side of inclusion,
but that they should exclude evidence that becomes unduly repetitious
in the sense that the evidence provides little or no additional probative
value.
Applying that principle to this case, we cannot conclude that the
ALJ applied the wrong standard or abused his discretion. The chal-
lenged evidence consisted of a group of medical opinions addressing
an array of disputed issues such as whether Underwood suffered from
pneumoconiosis, whether his impairment arose out of coal mine
employment, whether he was totally disabled, and whether he had
experienced a material change since denial of his previous claim.
Those issues were multiplied by evidence of six different x-rays span-
ning a period of ten years and revealing five different levels of opac-
ity perfusion. Against this grid of issues, the medical reports gave
various but undoubtedly overlapping opinions. The ALJ, however,
found them of assistance in his evaluation of Underwood's claim,
concluding that "reports of Drs. Eakle, Walker, Shank, and Rasmus-
sen are outweighed in probative effect by the opinions of Drs. Crisalli,
Fino, Jarboe, Morgan . . . and Tuteur." (Emphasis added). The fact
that the evidence was cumulative does not render it, ipso facto, "un-
duly repetitious" as the term is used in the Administrative Procedure
Act, 5 U.S.C. § 556(d).
8
Moreover, we should not conclude that the admission of cumula-
tive evidence, when it increases confidence in the outcome of the pro-
ceedings, constitutes prejudicial error. As the Administrative
Procedure Act's legislative history notes, "[a]n administrative hearing
is to be compared with an equity proceeding in the courts. The mere
admission of evidence is not to be taken as prejudicial error (there
being no lay jury to be protected from improper influence). . . ." S.
Doc. No. 79-248, at 208 (1946).
III
Underwood also claims that the ALJ's decision is not supported by
substantial evidence under the standards of Dehue Coal Co., 65 F.3d
at 1193. In this case, the evidence presented was clearly substantial,
and the ALJ carefully evaluated each opinion in a manner consistent
with the statute, regulations, and our established standards. See, e.g.,
Warth, 60 F.3d at 175. Accordingly, we affirm the decision of the
Benefits Review Board which in turn affirmed the ALJ's decision.
AFFIRMED
9
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ACCEPTED
03-13-00060-CV
4316633
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/27/2015 2:35:07 PM
JEFFREY D. KYLE
CLERK
No. 03-13-00060-CV
FILED IN
3rd COURT OF APPEALS
In the AUSTIN, TEXAS
Third Court of Appeals 2/27/2015 2:35:07 PM
Austin, Texas JEFFREY D. KYLE
Clerk
Homer Alvarado and Valania Alvarado,
Appellants,
v.
The Abijah Group, Inc. d/b/a and f/k/a Baker
Surveying and Engineering, Inc.,
Appellee.
From the 424th Judicial District Court
Blanco County, Texas
Honorable Don Leonard (Retired), Judge Presiding
APPELLEE’S UNOPPOSED MOTION FOR SUBSTITUTION
OF COUNSEL
TO THE HONORABLE COURT OF APPEALS:
NOW COMES, The Abijah Group, Inc. d/b/a and f/k/a Baker Surveying and
Engineering, Inc., Appellee in the above cause and files this Unopposed Motion for
Substitution of Counsel and would show the Court the following:
1. This Motion is to advise the Court that J. Ken Nunley, one of the attorneys for
Appellee, passed away on September 30, 2013, and Appellee’s other attorney of record is no
longer an employee of The Nunley Firm.
2. Chad M. Upham respectfully requests this Court grant this Unopposed Motion for
Substitution of Counsel and allow him to appear as the attorney of record for Appellee.
Appellee agrees to this substitution of counsel and Appellants have no opposition to this
motion.
WHEREFORE, Appellee The Abijah Group, Inc. d/b/a and f/k/a Baker Surveying and
Engineering, Inc. prays that this motion be granted and that the court substitute Chad M.
Upham as the attorney of record for Appellee.
Respectfully submitted,
THE NUNLEY FIRM
1580 South Main Street; Suite 200
Boerne, Texas 78006
830/816-3333
830/816-3388 (fax)
BY: /s/ Chad M. Upham
CHAD M. UPHAM
SBN: 24028178
Attorneys for Appellee, The Abijah Group, Inc. d/b/a and
f/k/a Baker Surveying and Engineering, Inc.
Certificate of Conference
On February 27, 2015, Chad M. Upham conferred by email with Michael S.
Truesdale, counsel for Appellants, regarding this motion. Mr. Truesdale responded that
Appellants do not oppose the motion.
/s/ Chad M. Upham
CHAD M. UPHAM
2
Certificate of Service
I hereby certify that a true and correct copy of the above and foregoing has been
served via email on the 27th day of February, 2015 to the following:
Mr. Michael S. Truesdale
Law Office of Michael S. Truesdale, PLLC
801 West Avenue, Suite 201
Austin, Texas 78701
/s/ Chad M. Upham
Chad M. Upham
3
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Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
8-15-1997
United States v. Roman
Precedential or Non-Precedential:
Docket 96-1962
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997
Recommended Citation
"United States v. Roman" (1997). 1997 Decisions. Paper 194.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/194
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact [email protected].
iled August 15, 1997
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 96-1962 and 96-1963
UNITED STATES OF AMERICA
v.
SAMUEL ROMAN, a.k.a. SAMUEL MERCADO
SAMUEL ROMAN,
Appellant
UNITED STATES OF AMERICA
v.
OSCAR ROMAN, a.k.a. OSCAR MERCADO,
Appellant
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 95-cr-00335-1)
(D.C. Crim. No. 95-cr-00335-2)
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 27, 1997
Before: GREENBERG and MCKEE, Circuit Judges,
GREENAWAY,* District Judge.
(Filed August 15, 1997)
_________________________________________________________________
* The Honorable Joseph A. Greenaway, Jr., United States District Judge
for the District of New Jersey, sitting by designation.
Rocco C. Cipparone, Jr., Esq.
203-205 Black Horse Pike
Haddon Heights, NJ 08035
Attorney for Appellant
Oscar Roman
Jeffrey M. Lindy, Esq.
1760 Market St.
Suite 600
Philadelphia, PA 19103
Attorney for Appellant
Samuel Roman
Michael R. Stiles, Esq.
United States Attorney
Walter S. Batty, Jr., Esq.
Assistant United States Attorney
Chief of Appeals
Kristin R. Hayes, Esq.
Assistant United States Attorney
615 Chestnut St.
Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee
OPINION OF THE COURT
McKEE, Circuit Judge.
In this consolidated appeal, we are asked to review the
sentences of Samuel Roman, who pled guilty to possession
with intent to distribute cocaine base and aiding and
abetting, and Oscar Roman, who pled guilty to possession
with intent to distribute and distribution of cocaine base as
well as carrying a firearm in connection with a drug-
trafficking crime. The district court sentenced both Samuel
and Oscar Roman to 188 months of imprisonment for the
drug related offenses and imposed a consecutive sentence
of five years on Oscar Roman for the firearm offense. Both
2
defendants contend that the district court erred by
imposing enhancements for "crack cocaine" and concluding
that the government had not breached their plea
agreements by refusing to file a downward departure
motion. Samuel Roman raises the additional argument that
the district court erred by refusing his request for funds to
retain a psychologist to testify on his behalf at sentencing.
For the reasons that follow, we will affirm.
I.
These prosecutions are based on three separate
incidents. On September 2, 1994, during surveillance of the
4400 block of North 4th Street, Philadelphia police officers
observed Bobby Rodriguez and an unknown purchaser
engage in a drug transaction with Samuel Roman. After the
purchaser paid Rodriguez for the drugs, he handed the
money to Roman. The police stopped Rodriguez and Roman
and seized fifty vials of crack cocaine from Rodriguez and
$494 in cash from Roman.
On November 7, 1994, Philadelphia police officers, again
surveilling the 4400 block of North 4th Street, saw William
Serrano engage in a drug sale. An undercover officer then
approached and purchased two vials of crack from Serrano.
Serrano then handed the money to Oscar Roman, who was
seated in a nearby car. Backup officers arrested Serrano
and Roman. They seized eleven vials of crack from Serrano
and a loaded weapon and $259 in cash from Roman. A
subsequent search of the car disclosed additional "bundles"
containing numerous vials of crack cocaine.
On November 22, 1994, police officers were once again
surveilling the same block of North 4th Street when they
saw Samuel Roman hand a brown paper bag to Oscar
Roman and another individual. Oscar Roman and the other
individual then hid the paper bag in a vacant lot. Samuel
collected money from the two and left. Police apprehended
Samuel in a car shortly thereafter. They found $1,494 on
his person and a bundle of suspected crack cocaine in the
car. The officers searched the vacant lot and found the
brown paper bag that Oscar and the other individual had
hidden. It contained fourteen bundles of crack, and three
more bundles were found nearby.
3
Samuel and Oscar Roman both were charged with
possession with intent to distribute crack cocaine (21
U.S.C. § 841 (a)(1)), and Oscar Roman was also charged
with distribution of crack cocaine (21 U.S.C. § 841(a)(1))
and carrying a firearm in connection with a drug-trafficking
crime (18 U.S.C. § 924(c)). Defendants were initially named
in an indictment that specifically charged them with
offenses involving "crack cocaine." However, the government
obtained a superseding indictment that identified the
controlled substance at issue as "cocaine base."
Both defendants pled guilty to all of the offenses in the
superseding indictment pursuant to standard written plea
agreements. In those agreements, each defendant agreed
"to provide truthful, complete, and accurate information,"
"to provide all information concerning his knowledge of, and
participation in, the distribution of cocaine base and any
other crimes about which he has knowledge," and not to
"protect any person or entity through false information or
omission." App. at 19a-20a, 26a-27a. During the change-of-
plea hearings that followed their initial plea of not guilty,
the government clarified their obligations under the plea
agreements by acknowledging that defendants could
provide historical information only, and did not have to
"engage in affirmative investigative techniques." App. at
59a.
A sentencing hearing was held on October 16, 1996. Both
defendants argued that the government had the burden of
proving that the controlled substance involved in this case
was crack cocaine. To meet its burden, the government only
presented the testimony of Officer Wilbert Kane, the officer
assigned to the case. Kane had twelve years of experience
in investigations and prosecutions of persons charged with
crack cocaine distribution and had trained state and
federal narcotics officers. Over defense objections, Kane
testified that the substance seized from defendants was
crack cocaine. His conclusion was based solely upon the
way the substance was packaged. Kane conceded that the
substance seized from the defendants did not contain
sodium bicarbonate, a residue common in crack cocaine.
However, he explained that the head of the police
laboratory had told him that the absence of sodium
4
bicarbonate did not mean the substance was not crack
because, if the "cook" was good, sodium bicarbonate would
not be found in the finished crack. App. at 74a.
Kane testified that he had seen crack cocaine cooked and
that he had seen the substance that was seized from the
defendants. For some reason, he was not asked to compare
that crack's appearance with the substance seized from the
defendants. He did, however, testify that the drugs taken
from the defendants was in vials with color caps which is
how crack cocaine is typically packaged for sale in
Philadelphia. He testified that "powder cocaine," in contrast,
is usually packaged in ziplock bags. App. at 75a. Based
solely upon the packaging, Kane concluded that the
substance seized from the defendants was crack. The court
accepted that conclusion and sentenced the defendants
accordingly over defense objections.
Defendants also objected to the government's decision
not to file a downward departure motion. They argued that
this decision breached their plea agreements and that
government investigators were angry because they were
only able to provide "historical" information. The defendants
maintained that they only had historical information and
that their agreements did not require them to provide more.
The government, however, argued that it was the Romans
who breached the agreement by not providing complete
information. In support of its argument, the government
again presented the testimony of Officer Kane who testified
that "the accumulation of intelligence that [the Romans]
would have gathered while in the business far exceeded
what they were willing to tell us in the proffer." App. at 83a.
Kane conceded, however, that the information the Romans
had provided was accurate. The district court concluded
that the government had not breached the plea agreements.
Samuel Roman was sentenced at the bottom of the
applicable guidelines range to 188 months imprisonment.
Oscar Roman was also sentenced to 188 months on the
narcotics offenses as well as to a consecutive sentence of 60
months stemming from his 924(c) conviction. These appeals
followed.
This Court has jurisdiction to review final sentences
pursuant to 18 U.S.C. § 3742(a).
5
Discussion
II.
Defendants contend that the district court erred in
finding that the controlled substance involved in their case
was crack cocaine and sentencing them pursuant to the
guideline enhancement for that drug.1 The district court's
determination that the substance seized from defendants
was crack cocaine is a finding of fact that we review for
clear error. See United States v. Johnson, 12 F.3d 760, 765
(8th Cir. 1993). "Factual findings are clearly erroneous if
the findings are unsupported by substantial evidence, lack
adequate evidentiary support in the record, are against the
clear weight of the evidence or where the district court has
misapprehended the weight of the evidence." Davin v.
United States Dep't of Justice, 60 F.3d 1043, 1049 (3d Cir.
1995)(internal quotations omitted). However, "[t]his court
has plenary review of issues of law raised by the district
court's application of the Sentencing Guidelines." United
States v. James, 78 F.3d 851, 855 (3d Cir.), cert. denied,
117 S. Ct. 128 (1996).
In support of their argument, defendants cite our recent
decision in United States v. James. There, the defendant
was charged with distribution and possession of a
"substance containing a detectable amount of cocaine
base." Id. (emphasis added). He plead guilty to that charge
and stipulated for sentencing purposes that "the relevant
quantity of cocaine base is 57.4 grams." Id. at 856
(emphasis added). At his plea colloquy the court asked
"Now Mr. James, did you, as charged in Count One of the
indictment . . . knowingly, intentionally and unlawfully
distribute in excess of five grams of a mixture and
substance containing a detectable amount of cocaine base?"
Id. (emphasis added). James answered this question
_________________________________________________________________
1. Note D of section 2D1.1 of the Sentencing Guidelines defines "cocaine
base" as "crack." " `Crack' is the street name for a form of cocaine base,
usually prepared by processing cocaine hydrochloride and sodium
bicarbonate, and usually appearing in a lumpy, rocklike form." U.S.S.G.
§ 2D1.1 n.D.
6
affirmatively. However, during the plea colloquy, the
government made several casual references to "crack":
The parties agree that the relevant quantity of cocaine
base . . . is 57.4 grams. That's the total net weight of
the crack cocaine that was purchased . . . .
. . . .
Mr. James exchanged a plastic baggy that contained
some suspected crack cocaine. . . . I believe the net
weight was 22.0 grams of cocaine base or crack
cocaine.
Id. (emphasis added). Although we recognized that
"admissions to the court by a defendant during a guilty
plea colloquy can be relied upon by the court at the
sentencing stage," we concluded that these casual
references, without more, did not "amount[ ] to a knowing
and voluntary admission that the cocaine base constituted
crack." Id. The government had the burden of showing by
a "preponderance of the evidence that the substance in
question was actually crack." Id. Because we concluded
that the government had not met that burden, we vacated
James's sentence under the crack cocaine enhancement
and remanded for resentencing.
Here, we conclude that the government did meet its
burden but just barely. The government's only evidence was
the testimony of Officer Kane. Kane is assigned to the task
force of the Philadelphia Drug Enforcement Administration
and admits that he is not a chemist. See app. at 77a. The
district court, nevertheless, permitted him to state his
opinion about the identity of the controlled substance
involved in this case based upon his years of experience as
a police officer. "Courts imposing sentence are free to
consider a wide range of relevant material." United States v.
Deaner, 1 F.3d 192, 198 (3d Cir. 1993)(internal quotations
omitted). Moreover, Rule 704 of the Federal Rules of
Evidence "provides that opinion testimony is not
objectionable because it embraces an ultimate issue to be
decided." United States v. Theodoropoulos, 866 F.2d 587,
591 (3d Cir. 1989)(internal quotations omitted). Thus, it
was not improper for the district court to rely upon Kane's
testimony at sentencing.
7
The substance seized from defendants did not contain
sodium bicarbonate - a common residue in crack cocaine.
See app. at 73a. However, Kane explained that the presence
of that ingredient is not crucial "[I]t depends on the cooker
and how precise he is in his measurements as to whether
there would be sodium bicarbonate left behind after the
crack cocaine cooking process is over." App. at 74a.2
However, no evidence was presented about the expertise of
the person who "cooked" the drugs seized from defendants.3
Kane stressed that the substance seized from defendants
was packaged in "clear plastic vials with color caps" which
is how crack is commonly packaged on the streets of
Philadelphia. App. at 75a. He, therefore, concluded that
this substance was in fact "crack cocaine," see app. at 77a,
and the strength of that conclusion was tested by cross
examination.
Although the identity of the substance defendants
possessed need only be established by a preponderance of
the evidence, "the preponderance standard is not toothless.
It is the district court's duty to ensure that the Government
carries this burden by presenting reliable and specific
evidence." United States v. Lawrence, 47 F.3d 1559, 1566
(11th Cir. 1995). Officer Kane has over twelve years of
experience on the DEA task force, and, in that time, he has
participated in over 1000 cases involving crack cocaine.
Kane has also attended training sessions on cocaine
conducted by the Philadelphia police chemical lab, and
himself instructs other narcotics officers about identifying
crack and prosecuting such cases. See app. at 74a-75a.
Given Kane's experience and expertise, we conclude that
the record adequately supports the district court's finding
that the controlled substance here was crack cocaine.4
_________________________________________________________________
2. See United States v. Sciarrino, 884 F.2d 95, 97 (3d Cir. 1989)(hearsay
admissible at sentencing hearing).
3. It is certainly understandable that the government would not know
who manufactured a given seizure of drugs, and we do not fault the
government for not presenting that evidence. We mention the absence of
such testimony because it reduces (but does not negate) the probative
value of Kane's explanation for the absence of sodium bicarbonate.
4. We take this opportunity to express our concern over the manner in
which the government chose to establish that the substance involved in
8
III.
Defendants next contend that the district court erred in
concluding that the government had not breached their
plea agreements. "Whether the government's conduct
violated the terms of the plea agreement is a question of
law" to which this Court gives plenary review. United States
v. Wilder, 15 F.3d 1292, 1295 (5th Cir. 1994)(internal
quotations omitted); see also United States v. Hernandez,
17 F.3d 78, 80-81 (5th Cir. 1994). As the parties alleging
the breach, defendants "bear[ ] the burden of proving the
underlying facts establishing a breach by a preponderance
of the evidence." Wilder, 15 F.3d at 1295 (internal
quotations omitted). "In determining whether the terms of
the plea agreement have been violated, the court must
_________________________________________________________________
this case was crack. We have previously emphasized the importance of
correctly determining that a substance is crack because of the 100:1
sentencing ratio for cocaine base, as compared to cocaine, under the
Sentencing Guidelines. See James, 78 F.3d at 855. Indeed, the wisdom
and fairness of that ratio, and the social consequences of it, have been
discussed and debated in forums so vast and varied that they need not
be referenced here. The wisdom of the policy is not for us to determine.
However, we would hope that the government would take steps to
provide a quality of proof that is consistent with the seriousness of the
consequences of that distinction.
We have recently stated that an indictment need not identify the
controlled substance at issue as the identity is a factor for sentencing,
and not an element of the offense. See United States v. Lewis, 113 F.3d
487, 490 (3d Cir. 1997). However, where a written plea agreement is
entered questions of notice and proof at sentencing could be greatly
minimized by simply including language in the plea agreement by which
a defendant acknowledges the identity of the drugs involved. Similarly,
problems of proof could be eliminated by a specific inquiry of the
defendant during the Rule 11 colloquy as opposed to only casual
references to "crack" or "cocaine base."
Given our limited standard of review here, we cannot say that the
government's evidence was insufficient to carry its burden. As we noted
above, the government did meet its burden and that ends our inquiry on
that issue. Nevertheless, in view of our recent holding in James, we hope
the proof presented in this case on the crucial issue of whether the
substance was crack cocaine does not reflect a lack of appreciation for
the seriousness of that determination or the consequences that flow from
it.
9
determine whether the government's conduct is consistent
with the parties' reasonable understanding of the
agreement." Id. (internal quotations omitted).
In Hernandez, the defendant pled guilty pursuant to a
written agreement in which the government agreed to
"recommend [that Hernandez receive] credit for acceptance
of responsibility and a sentence at the low end of the
guideline range." Id. at 80. The agreement was amended in
court by the Assistant U.S. attorney who stated on the
record "that if Mr. Hernandez should provide substantial
assistance to the Government, either I guess through
truthful information and testimony if necessary, that the
Government may make a motion for downward departure at
sentencing." Id. Following his guilty plea, Hernandez
provided two types of assistance. "First, he gave the
government a hand-drawn map that ostensibly showed
where a stash of cocaine could be found." Id. "Second,
Hernandez provided the government with information
(which the government insists was `stale') concerning drug
dealing and illegally possessed guns in the Corpus Christi
area." Id. The government argued that the assistance was
not substantial and refused to move for a downward
departure at Hernandez's sentencing. He then appealed his
sentence on grounds that the government had breached the
plea agreement. "Considering the type of information that
the government should have expected from a defendant like
Hernandez, who had been incarcerated for over six months,
[the court of appeals] f[ou]nd it difficult to conceive of what
more Hernandez could have provided that would be
substantial . . . ." Id. at 82. It therefore vacated his
sentence and remanded to the district court for a
determination of what the parties intended as "substantial
assistance."
Here, the government concedes that the defendants did
provide truthful and accurate information, but insists that
the information was not "complete" as required under the
plea agreements. Officer Kane testified that "[he] believe[d]
it was truthful, the information they gave us, although I did
not believe it was full or complete." App. at 82a. "Because
both of the defendants had been involved in the drug
business, specifically crack cocaine for numerous years.
10
. . . the accumulation of intelligence that they would have
gathered while in the business far exceeded what they were
willing to tell us in the proffer." App. at 83a. Kane's
suspicions are supported by the defendants' conduct
during the "debriefing" sessions. Defendants demanded that
they be interviewed together, and, during the interview,
"one brother or the other would begin talking about
something and the other brother would tell him, no, . . .
we're not going to tell them about that. Often times they
would laugh at each other." App. at 83a. From this
testimony, the district court properly could conclude that
the each defendant failed to provide "all information
concerning his knowledge of, and participation in the
distribution of cocaine base and other crimes about which
he has knowledge" as was required by the agreement. App.
at 19a, 26a-27a.
We also agree with the district court that the
government's in-court clarification of the terms of the plea
agreements did not in any way alter defendants' obligation
to provide complete information. In open court, the
Assistant U.S. Attorney acknowledged that "it's the
Government's expectation after the proffer that Mr. Roman,
if the information he is able to provide proves truthful and
accurate, that he would receive a downward departure
motion and it would not be a barrier to receiving such a
motion, simply that he could not engage in affirmative
investigative techniques but that he solely may be able to
provide historical information to the Government." App. at
58a-59a. Defendants argue that, if they provided truthful,
accurate, but incomplete historical information, the
government was still obligated to move for a downward
departure. See Appellant Br. at 16. (Appellant Oscar
Roman)("There is no ambiguity in that language . . . Oscar
Roman would receive a downward departure motion if the
information he provided met two criteria -- truthfulness
and accuracy . . . ."). We disagree. Instead, we believe that
the district court correctly interpreted this statement to
mean that "the fact that [the information defendants
provided] was simply historical would not, in and of itself,
prevent it from qualifying as substantial assistance." App.
at 143a. Therefore, we find no error in the district court's
11
determination that the government did not breach the plea
agreement by refusing to file a downward departure motion.
IV.
Samuel Roman alleges error in the district court's denial
of his request for CJA funds to retain a psychiatrist. In
appropriate cases a court can order that such funds be
provided to assist an indigent defendant in preparing for
sentencing.
Counsel for a person who is financially unable to
obtain investigative, expert, or other services necessary
for adequate representation may request them in an ex
parte application. Upon finding, after appropriate
inquiry in an ex parte proceeding, that the services are
necessary and that the person is financially unable to
obtain them, the court . . . shall authorize counsel to
obtain the services.
18 U.S.C. § 3006A(e)(1). However, a court should first
"satisfy itself that a defendant may have a plausible
defense." United States v. Alden, 767 F.2d 314, 318 (7th
Cir. 1984)(emphasis added). "The decision to grant or deny
a motion under section 3006A(e) is one committed to the
discretion of the district court, and a district court's
decision will be disturbed on appeal only if it constitutes an
abuse of discretion." Id. at 319.
Samuel Roman wanted a psychiatrist "to testify at
sentencing in support of his motion for a downward
departure . . . based on mental and emotional conditions
and diminished capacity." Appellant Br. at 12 (Appellant
Samuel Roman). His mental and emotional condition, he
claimed, was "due to, (a) the murder of his father, (b) the
fact that from the age of five years old, he grew up without
a father, and (c) his extensive abuse of drugs and alcohol."
Appellant Br. at 15 (Appellant Samuel Roman).
Under the Guidelines, those factors do not warrant a
downward departure. Section 5H1.4 of the Guidelines
states that "[d]rug or alcohol dependence or abuse is not a
reason for imposing a sentence below the guidelines."
U.S.S.G. § 5H1.4 (emphasis added). Section 5H1.12 states
12
that "[l]ack of guidance as a youth and similar
circumstances indicating a disadvantaged upbringing are not
relevant grounds for imposing a sentence outside the
applicable guideline range." U.S.S.G. § 5H1.12 (emphasis
added). Taken together, these sections demonstrate that the
facts of his case did not warrant a downward departure.
Accordingly, the district court did not abuse its discretion
by denying Samuel Roman funds to retain a psychiatrist to
testify in support of that departure.
He also claims that this denial "deprived him of his rights
under the Due Process and Equal Protection clauses of the
United States Constitution." Appellant Br. at 12 (Appellant
Samuel Roman). For this proposition, he cites Ake v.
Oklahoma, 470 U.S. 68 (1985). In Ake, the Supreme Court
held that, when a capital defendant demonstrates that his
mental condition is a significant factor at his sentencing
phase, he is "entitled to the assistance of a psychiatrist . . .
and [ ] the denial of that assistance deprive[s] him of due
process." Id. at 87. The Court recognized, however, that "[a]
defendant's mental condition is not necessarily at issue in
every criminal proceeding . . . and it is unlikely that
psychiatric assistance . . . would be of probable value in
cases where it is not." Id. at 82. "The variable on which [a
court] must focus is, therefore, the probable value the
assistance of a psychiatrist will have . . . and the risk
attendant on its absence." Id. at 84. Since the psychiatric
testimony that Samuel Roman wanted to present would
have been irrelevant, the court did deprive him of due
process in refusing to authorize funds for a psychiatrist.
V.
For the reasons set forth above, we will affirm defendants'
judgments of sentence entered on October 16, 1996.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
13
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465 A.2d 385 (1983)
DISTRICT OF COLUMBIA, Appellant,
v.
Ronald E. WOODS, Appellee.
No. 82-411.
District of Columbia Court of Appeals.
Argued May 3, 1983.
Decided August 4, 1983.
*386 Richard G. Amato, Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel, Lutz Alexander Prager and Richard L. Aguglia, Asst. Corp. Counsels, Washington, D.C., were on the brief, for appellant. James E. Lemert, Asst. Corp. Counsel, Washington, D.C., also entered an appearance for appellant.
Fredric J. Einhorn, Olney, Md., for appellee.
Before NEBEKER, MACK and FERREN, Associate Judges.
NEBEKER, Associate Judge:
This case involves appellee's District of Columbia income taxes for the years 1976, 1977 and 1978. After denial of cross-motions for summary judgment, the trial court issued a trial ruling that appellant, the District of Columbia, must refund appellee for taxes paid on those years. The trial court found that Mr. Woods became a domiciliary of Florida beginning in 1976, despite his continuing residence in the District of Columbia as a foreign service officer assigned to the State Department.[1] The District challenges the order to refund, urging that the trial court erred as a matter of law by finding on the facts as presented that Mr. Woods had changed his domicile in 1976.[2] We agree and reverse.
I
The facts are not in dispute.[3] Mr. Woods, a career foreign service officer, was reassigned to the State Department in the District *387 of Columbia in 1974. He and his wife purchased a condominium in the District and otherwise established residency.[4] The trial court found that Mr. Woods thereby became a District domiciliary. He continuously resided in the District during the operative years.
Mr. Woods conceded that he owns no real property in Florida and has never owned a Florida residence. He has visited Florida on several occasions, but the record shows that he has never remained there for more than about three weeks. Mr. Woods had no investments of any kind in Florida from 1976 through 1978. He did, however, maintain a bank account with about fifty dollars. In 1976, while on a visit to inspect "investment" property, Mr. Woods had opened the account. At that time, he registered to vote and enrolled in the Democratic party. Since 1976, he has voted in Florida by absentee ballot in national, state, and local elections.
Although Mr. Woods claimed at trial that he had established domicile in Florida long before 1976, he filed no tax returns in Florida until 1976. In 1976, 1977 and 1978, he filed intangible personal property tax returns. He did not, however, have intangible personal property in an amount which would create tax liability.
Stating correctly that domicile requires both (1) an intention to remain indefinitely, and (2) physical presence, the trial court ruled that Mr. Woods had demonstrated his intention "to become a resident and domiciliary of Florida while he was physically present in that jurisdiction in 1976," during his visit to view investment property.
II
It may be inferred that the nub of the trial court's opinion was that appellee's physical presence in Florida during his 1976 visit coupled with his then present intention to make Florida his domicile effected a change in his domicile at that time. This determination, however, betrays a misinterpretation of the law of domicile, and reduces the physical presence prong of the test to a nullity.
The two requisites for establishing a change of domicile are "(1) physical presence, and (2) an intent to abandon the former domicile and remain [in the new one] for an indefinite period of time ...." Heater v. Heater, 155 A.2d 523, 524 (D.C. 1959). It is with physical presence that we are concerned. Mr. Woods bore the burden of establishing the change in his domicile. See District of Columbia v. Murphy, 314 U.S. 441, 456, 62 S.Ct. 303, 310, 86 L.Ed. 329 (1941) ("If one has at any time become domiciled [in the District], it is his burden to establish any change of [domicile] upon which he relies to escape the tax." The District does not dispute that Mr. Woods had the requisite intent, but argues that he never demonstrated physical presence. We agree.
"Intent alone to establish a new place of abode without physical presence there is neither sufficient to abandon a former domicile nor to establish a new one. There must be a concurrence of the two requisites before a new domicile comes into being." Jones v. Jones, 136 A.2d 580, 581-82 (D.C.1957). See generally Shilkret v. Helvering, 78 U.S.App.D.C. 178, 138 F.2d 925 (1943); Heater v. Heater, supra, 155 A.2d at 524. "Mere absence from a fixed home, however long continued, cannot work the change [in domicile]." Shilkret v. Helvering, supra, at 180, 138 F.2d at 927. In this light, we do not understand physical presence to mean only a temporary visit. There must be the establishment of a new physical residence. Residence in fact is an essential element of domicile. See Stine v. Moore, 213 F.2d 446, 448 (5th Cir.1954); Bache Halsey Stuart, Inc. v. Namm, 446 F.Supp. 692, 694 (S.D.N.Y.1978); Alex S.A. v. Julia A., 419 A.2d 965, 968 (Del.Fam.Ct. *388 1980). See also Anwo v. Immigration & Naturalization Service, 197 U.S.App.D.C. 121, 123 n. 7, 607 F.2d 435, 437, n. 7 (1979). As Alexander v. District of Columbia, 370 A.2d 1327, 1329 (D.C.1977), indicates "actual removal" to the new location must be shown. See Wetherstein v. Wetherstein, 111 So.2d 292, 293 (Fla.Dist.Ct.App.1959). This has not been done.[5] The judgment of the trial court, erroneous as a matter of law, is reversed and the case remanded with directions to enter judgment for the District of Columbia.
Reversed and remanded.
NOTES
[1] After Mr. Woods paid his back tax assessments, he filed a claim for a refund, asserting that though physically resident in the District of Columbia during the years in question, he was not, because of his residency, subject to local income taxes by virtue of D.C.Code § 47-1801.4(17) (1981). This provision states:
The word "resident" means every individual domiciled within the District on the last day of the taxable year, and every other individual who maintains a place of abode within the District for more than 7 months of the taxable year, whether domiciled in the District or not. The word "resident" shall not include ... any officer of the executive branch of such government whose appointment to the office held by him was by the President of the United States and subject to confirmation by the Senate of the United States and whose tenure of office is at the pleasure of the President of the United States, unless such officers are domiciled within the District on the last day of the taxable year.
[2] Mr. Woods does not appeal the trial court's finding that he was a domiciliary of the District until 1976.
[3] "[W]here, upon admitted or undisputed facts, the decision turns on controverted legal principles, it is reviewable. Here, there is no dispute as to the essential facts. The conflict relates only to their legal effect." Sweeney v. District of Columbia, 72 U.S.App.D.C. 30, 32, 113 F.2d 25, 27, cert. denied, 310 U.S. 631, 60 S.Ct. 1082, 84 L.Ed. 1402 (1940). We may therefore review the trial court's ruling.
[4] Mr. Woods listed his condominium address as his permanent address in passport applications. Further, he obtained the necessary driver's license, registration and tags for the District. He maintained two local bank accounts.
[5] We are not persuaded by appellee's assertion during oral argument that our holding would punish Mr. Woods for the nature of his profession by denying him the domicile of his choice. He was free to change his domicile by appropriate presence and intent anytime his employment status permitted the change.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 24 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-3111
BERNARD J. COLLINS, (D.C. No. 97-CR-20047)
(D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**
A jury convicted Defendant-Appellant Bernard J. Collins of possessing with intent
to distribute approximately 262 grams of cocaine base and 882 grams of cocaine powder
in violation of 21 U.S.C. § 841(a)(1) (Count I); attempting to distribute approximately
28.6 grams (one ounce) of cocaine base in violation of 21 U.S.C. § 846 (Count II);
and carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)
*
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.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(A)(2). The case is therefore
ordered submitted without oral argument.
(Count III). The district court sentenced Defendant to 322 months imprisonment,
consisting of 262 months on the first two counts, to run concurrently, and 60 months on
the third count, to run consecutively. On appeal, Defendant argues that (1) the first two
counts of the indictment were multiplicitous; (2) the court improperly admitted Rule
404(b) evidence at trial; (3) the evidence was insufficient for sentencing purposes to
prove the presence of cocaine base; and (4) the cocaine base/cocaine powder sentencing
differential violates due process. Our jurisdiction arises under 28 U.S.C. § 1291 and 18
U.S.C. § 3742. We affirm.
The historical facts are largely undisputed. A police informant set up a purchase
of one ounce of cocaine base from Defendant. Upon Defendant’s arrival at the
informant’s home, authorities arrested him. During Defendant’s apprehension, a police
officer observed Defendant drop a plastic bag containing an off-white rock substance.
The bag contained approximately one ounce of cocaine base. Officers also recovered a
gun, a pager, and over $70,000 in cash from Defendant. A search of Defendant’s vehicle
revealed an additional 262 grams of cocaine base and 882 grams of cocaine powder. The
indictment against Defendant followed.
Defendant first argues that Counts I and II of the indictment were multiplicitous,
and thus he was subjected to multiple punishments arising from the same criminal
behavior in violation of the Double Jeopardy Clause. See U.S. Const. amend. V. We
review claims of multiplicity de novo. United States v. Segien, 114 F.3d 1014, 1022
2
(10th Cir. 1997). Multiplicity refers to multiple counts of an indictment which cover the
same criminal behavior. The threat of multiple convictions and sentences for the same
offense raises double jeopardy concerns. United States v. Johnson, 130 F.3d 1420,
1424 (10th Cir. 1997).
Defendant’s claim that the two instances of criminal conduct charged in Counts I
and II of the indictment constitute only one crime has little merit. Count I of the
indictment charged Defendant with possessing with an intent to distribute a large quantity
of cocaine base and cocaine powder which authorities located inside his vehicle following
his arrest, in violation of 21 U.S.C. § 841(a)(1). Count II charged Defendant with
attempting to distribute a smaller quantity of cocaine base which Defendant dropped from
his person upon his arrest, in violation of 21 U.S.C. § 846. The one ounce of cocaine
base which Defendant dropped was the type and amount Defendant had previously agreed
to distribute to the informant.
The facts of this case clearly indicate that on the date of his arrest, Defendant
attempted to distribute one ounce of cocaine base to the informant. Defendant meanwhile
possessed the much larger quantity of cocaine base and cocaine powder located in his
vehicle for distribution at a later time. Thus, despite the temporal proximity of
Defendant’s criminal conduct, his attempt to immediately distribute one ounce of cocaine
base to the informant, and his possession with the intent to distribute the much larger
quantity of cocaine base and powder at a later time, constitute separate crimes
3
chargeable under separate criminal statutes. Compare United States v. Palafox, 764 F.2d
558, 560 (9th Cir. 1985) (en banc) (where defendant distributed a sample of drugs and
retained the remainder for the purpose of making a further immediate distribution to the
same recipient at the same place and time, defendant could be punished for only one
criminal act). Accordingly, we reject Defendant’s argument that Counts I and II of the
indictment were multiplicitous.
Defendant next argues that the district court erred when pursuant to Fed. R. Evid.
404(b), it allowed the government to introduce evidence of his 1989 conviction for
conspiracy to possess crack cocaine. We review admission of evidence under Rule
404(b) for an abuse of discretion. United States v. Lazcano-Villalobos, 175 F.3d 838,
846 (10th Cir. 1999). Four requirements must be met before evidence of other crimes is
admissible: (1) the evidence must be introduced for a proper purpose; (2) the evidence
must be relevant; (3) the unfair prejudice to defendant must not substantially outweigh the
evidence’s probative value; and (4) upon request, a limiting instruction must be tendered.
Huddleston v. United States, 485 U.S. 681, 691-92 (1988). Defendant challenges the
district court’s determination that evidence of his conviction was relevant and its
probative value was not substantially outweighed by its prejudicial impact.
At trial, Defendant claimed he was a pawn in the informant’s operation and all the
cocaine in his vehicle belonged to the informant. The district court ruled that evidence of
Defendant’s prior conviction was relevant for the purpose of showing opportunity. See
4
Fed R. Evid. 404(b) (evidence of other crimes may be admissible to show opportunity).
The district court reasoned that Defendant’s prior conviction proved he had other sources
from which he could obtain cocaine. The court concluded: “It isn’t an opportunity to
distribute that we’re talking about. We’re talking about the source issue.” Consistent
with Huddleston, the district court also applied Fed. R. Evid. 403 and ruled that the
potential prejudice to Defendant did not substantially outweigh the evidence’s probative
value. Finally, the court tendered an appropriate limiting instruction to the jury. Given its
careful application of Huddleston, we cannot say on the record before us that the district
court abused it’s discretion in allowing the Rule 404(b) evidence.
Thirdly, Defendant argues that because the government failed to present evidence
regarding the presence of baking soda within the cocaine base, the evidence was
insufficient to establish that he possessed cocaine base as opposed to cocaine powder.
Thus, Defendant claims we should vacate his sentence on Counts I and II and remand for
application of the less harsh cocaine powder guideline. See U.S.S.G § 2D1.1(c) (equating
one gram of cocaine base to 100 grams of cocaine powder). At sentencing, the
government need only prove by a preponderance of the evidence that cocaine within a
defendant’s possession constitutes cocaine base. United States v. Brooks, 161 F.3d 1240,
1248 (10th Cir. 1998) (where the evidence at trial demonstrated by a preponderance of the
evidence that the substance was “street-form crack,” the district court properly calculated
defendant’s base offense level premised on the distribution of cocaine base). We review
5
the district court’s factual finding that a challenged substance constitutes cocaine base
only for clear error. United States v. Bencomo-Castillo, 176 F.3d 1300, 1303 (10th Cir.
1999).
In Brooks, 161 F.3d at 1247-49, we squarely rejected the proposition that before
the district court may properly find a substance constitutes cocaine base, the government
must present evidence that the substance contains sodium bicarbonate or baking soda.
Brooks controls here. In this case, the government presented the testimony of a DEA
chemist who conducted a series of tests on the cocaine. Based upon those tests, the
chemist concluded that the challenged substance was cocaine base. The district court
did not err in its finding that the evidence was sufficient to establish the substance as
cocaine base. See id. at 1247.
Finally, Defendant argues that the cocaine base/cocaine powder sentencing
differential violates the due process guarantees of the Fifth Amendment. See U.S.
Const. amend. V; U.S.S.G. § 2D1.1(a). This argument has long been foreclosed by
circuit precedent. E.g., United States v. Turner, 928 F.2d 956, 959-60 (10th Cir. 1991)
(holding that different penalties for cocaine base and cocaine in other forms do not violate
due process). Absent en banc review, we are not empowered to alter that precedent. See
United States v. Nichols, 169 F.3d 1255, 1261 (10th Cir. 1999) (one
6
panel cannot overrule the judgment of a prior panel of the court).
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
7
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELECTRONIC PRIVACY
INFORMATION CENTER,
Plaintiff,
v. Civil Action No. 12-1282 (JEB)
OFFICE OF THE DIRECTOR OF
NATIONAL INTELLIGENCE,
Defendant.
MEMORANDUM OPINION
Plaintiff Electronic Privacy Information Center, a Washington-based nonprofit, submitted
a Freedom of Information Act request to the Office of the Director of National Intelligence
seeking guidelines describing how the National Counterterrorism Center retrieves and safeguards
information from other federal agencies. After a search and review of records, the agency
located 29 responsive documents. It released eight in part but declined to disclose the remaining
21, invoking a number of specific statutory exemptions to justify its withholding. Plaintiff then
brought this suit challenging the adequacy of the agency’s search, the propriety of many of its
withholdings, and its segregability analysis. Believing that it has complied with its FOIA
obligations, Defendant has now moved for summary judgment. As the Court agrees, it will grant
that Motion.
I. Background
After the Director of National Intelligence, the Attorney General, and the Director of the
NCTC signed an updated version of the “Guidelines for Access, Retention, Use, and
1
Dissemination by the NCTC and Other Agencies of Information in Datasets Containing Non-
Terrorism Information,” Plaintiff submitted four FOIA requests to ODNI. See Def. Mot. at 2.
The first, sent on March 28, 2012, asked for “the ‘priority list’ of databases that [NCTC] plans to
copy.” Id., Exh. 1 (Declaration of ODNI Chief Management Officer Mark Ewing), ¶ 9. The
second, filed on June 14, 2012, requested information about the privacy procedures NCTC
employs when handling the datasets described in the Guidelines. See id., ¶ 17; Def. Mot. at 2-3.
The third and fourth requests, filed on June 14 and 15, 2012, sought documents describing the
way NCTC works with other agencies to share the datasets and “guidelines or legal memoranda”
discussing NCTC’s interpretation of certain language in the Guidelines. See Ewing Decl., ¶¶ 27-
28.
In response to EPIC’s first request, ODNI produced seven pages partially redacted
pursuant to FOIA Exemptions 1, 3, 5, and 7(E). See id., ¶¶ 15, 37(d). The second request
prompted ODNI to release, at least in part, over 160 pages from four responsive records, but the
agency also withheld portions of those pages pursuant to Exemptions 1, 2, 3, and 6. See id., ¶¶
16, 19, 37(b). The agency’s search did not turn up any documents responsive to the fourth
request. See id., ¶ 19. None of ODNI’s actions in relation to these three requests is challenged.
Instead, only ODNI’s disclosures with respect to EPIC’s third FOIA request are at issue
here. In response to that request, ODNI released parts, but withheld the remainder, of eight
documents pursuant to Exemptions 1, 2, and 6. It also withheld 21 documents in full. See Def.
Mot. at 8. Of those 21 records, eleven are one-page documents described as “Deletion Issue
Trackers.” See Ewing Decl., ¶ 37(c)(ii). DITs describe instances in which “records in specific
data-sets were possibly not deleted on time.” Id., ¶ 56. Four others, totaling eight pages, are
described as “Deletion Issue Reports,” see id., ¶¶ 37(c)(iii), 56, which are like DITs but go into
2
greater detail. Id. The remaining six documents ODNI withheld in full – records totaling 19
pages – are described as “Deletion Issue Tracker Emails,” which are like DITs but are used for
less consequential issues. Id., ¶ 78.
ODNI withheld all 21 documents because they pertain to “intelligence sources and
methods,” including the names of specific datasets and data-provider agencies, as well as other
“bits of information that would provide insights into the particular sources and methods relied
upon by NCTC analysts to produce terrorist intelligence reports, generate law enforcement
investigative leads,” and carry out other counterterrorism activities. Id., ¶¶ 54-58, 78-80. For
those reasons, ODNI claims that all 21 records are protected in full by Exemption 3 and the
National Security Act of 1947, as well as by Exemption 7(E). See Def. Mot. at 8, 21. According
to the agency, moreover, all of the records are draft documents that remain “subject to change,”
Ewing Decl., ¶ 67, and contain “deliberative discussions among ODNI employees regarding
possible approaches to take,” “candid internal discussions,” and “recommendations for actions.”
Id. As a result, ODNI also contends that the documents are protected by Exemption 5. See Def.
Mot. at 9. The agency maintains, finally, that portions of some of the 21 documents are also
exempt from disclosure pursuant to Exemptions 2 and 6. See Ewing Decl., ¶¶ 37(c)(iii), 49, 72.
After exhausting the available administrative remedies, EPIC initiated this suit
challenging ODNI’s position. See Compl., ¶ 52. ODNI now moves for summary judgment,
asserting that it has engaged in a reasonable search for responsive documents, properly withheld
records pursuant to the aforementioned exemptions, and released all reasonably segregable
information. See Def. Mot. at 10-34. Plaintiff has also filed a Cross-Motion for Summary
Judgment. By failing to address each argument in ODNI’s Motion, however, EPIC has conceded
that: (1) ODNI’s search was adequate; (2) the information redacted from the documents
3
produced in part was properly withheld pursuant to the cited exemptions; and (3) ODNI properly
claimed the protection of Exemptions 1, 2, and 6 with regard to portions of the 21 documents
withheld in full. See Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d
15, 25 (D.D.C. 2003) (“It is well understood in this Circuit that when a plaintiff files an
opposition to a dispositive motion and addresses only certain arguments raised by the defendant,
a court may treat those arguments that the plaintiff failed to address as conceded.”), aff’d, 98 F.
App’x 8 (D.C. Cir. 2004). As a result, all that remains of Plaintiff’s challenge are its arguments
relating to: (1) ODNI’s decision to withhold 21 records in full pursuant to Exemptions 3, 5, and
7(E); and (2) the sufficiency of ODNI’s segregability analysis. See Pl.’s Opp. and Cross-Mot. at
7-22.
Because some of ODNI’s explanations for withholding certain documents in full were
difficult to evaluate in the abstract, the Court ordered the agency to provide copies for in camera
inspection. See Minute Order of Sept. 19, 2013. The Government delivered the documents
(including one that was classified) to the Court on September 24, and the Court has now
completed its review.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477
4
U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion” by “citing to particular parts of materials in the record” or
“showing that the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
FOIA cases typically and appropriately are decided on motions for summary judgment.
See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a
court may grant summary judgment based solely on information provided in an agency's
affidavits or declarations when they “describe the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information withheld logically falls within the
claimed exemption, and are not controverted by either contrary evidence in the record nor by
evidence of agency bad faith.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)
(citation omitted). Such affidavits or declarations “are accorded a presumption of good faith,
which cannot be rebutted by purely speculative claims about the existence and discoverability of
other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal
quotation marks omitted). “Unlike the review of other agency action that must be upheld if
supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the
burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter
de novo.’” U.S. Dep’t of Justice v. Reporters Comm. for the Freedom of the Press, 489 U.S.
749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).
III. Analysis
5
Congress enacted FOIA in order to “pierce the veil of administrative secrecy and to open
agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976) (citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to
the functioning of a democratic society, needed to check against corruption and to hold the
governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146,
152 (1989) (citation omitted). The statute provides that “each agency, upon any request for
records which (i) reasonably describes such records and (ii) is made in accordance with
published rules . . . shall make the records promptly available to any person.” 5 U.S.C.
§ 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order
the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B);
Reporters Comm., 489 U.S. at 755. “At all times,” moreover, “courts must bear in mind that
FOIA mandates a ‘strong presumption in favor of disclosure’. . . .” Nat’l Ass’n of Home
Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep’t of State v. Ray, 502
U.S. 164, 173 (1991)).
With those principles in mind, the Court now turns to Plaintiff’s two central challenges to
Defendant’s Motion. First, EPIC asserts that ODNI improperly withheld 21 records in full
pursuant to Exemptions 3, 5, and 7(E). And second, it claims that even if ODNI’s withholdings
were justified, the agency failed to release the reasonably segregable portions of those
documents. The Court will address each in turn.
A. Propriety of Defendant’s Withholdings
Nine categories of information are exempt from FOIA’s broad rules of disclosure. 5
U.S.C. § 552(b)(1)-(9). These exemptions are to be narrowly construed, see Dep’t of Air Force v.
6
Rose, 425 U.S. 352, 361 (1976), and this Court can compel the release of any records that do not
satisfy the requirements of at least one exemption. See Reporters Comm., 489 U.S. at 755.
1. Overall Sufficiency of Government’s Documentation and Explanations
In order to assist a court in its de novo review of the withholdings and to allow the party
seeking access to documents to engage in effective advocacy, the government must furnish
“detailed and specific information demonstrating ‘that material withheld is logically within the
domain of the exemption claimed.” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 30 (D.C.
Cir. 1999) (quoting King v. U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)). Courts
in this Circuit have stressed that the government cannot justify its withholdings on the basis of
summary statements that merely reiterate legal standards or offer “far-ranging category
definitions for information.” King, 830 F.2d at 221; see also Campbell, 164 F.3d at 30
(emphasizing that an agency’s explanations will not suffice if they “‘are conclusory, merely
recit[e] statutory standards, or if they are too vague or sweeping’”) (quoting Hayden v. Nat’l Sec.
Agency/Cent. Sec. Serv., 608 F.2d 1381, 1387 (D.C. Cir. 1979)).
While FOIA’s individual exemptions impose their own tailored evidentiary burden, as a
starting point, the government must meet five overarching requirements for each withholding.
See King, 830 F.2d at 224. The government must:
(1) [I]dentify the document, by type and location in the body of
documents requested; (2) note that [a particular exemption] is
claimed; (3) describe the document withheld or any redacted
portion thereof, disclosing as much information as possible without
thwarting the exemption’s purpose; (4) explain how this material
falls within one or more of the categories . . . ; and [if the
exemption requires a showing of harm] (5) explain how disclosure
of the material in question would cause the requisite degree of
harm.
Id.
7
ODNI has, for the most part, met each of these requirements. The Ewing Declaration
describes the 21 documents withheld, often in some detail, and it spells out the rationale for each
exemption claimed. See Ewing Decl., ¶¶ 36-80. Of course, the Declaration could not have
described the documents perfectly; to do so would defeat the very purpose of FOIA’s
exemptions. In circumstances where an in-depth description of a withholding would risk
disclosure of sensitive information, though, the Government may supplement its explanations
with non-public affidavits and other documents for in camera review by the court. See Simon v.
Dep’t of Justice, 980 F.2d 782, 784 (D.C. Cir. 1992). ODNI has done just that.
Even where documents have not been produced for court review, assertions of privilege
in the national-security context deserve special attention. See Ctr. For Nat’l Sec. Studies v. U.S.
Dep’t of Justice, 331 F.3d 918, 926-27 (D.C. Cir. 2003) (citing Zadvydas v. Davis, 533 U.S. 678,
696 (2001)). In such context, “the reviewing court must give ‘substantial weight’” to agency
declarations. ACLU v. U.S. Dep’t of Justice, 265 F. Supp. 2d 20, 27 (D.D.C. 2003) (quoting
King, 830 F.2d at 217); Ctr. For Nat’l Sec. Studies, 331 F.3d at 927 (courts have “consistently
deferred to executive affidavits predicting harm to the national security”). Against this
backdrop, the Court will now consider Plaintiff’s specific challenge to Defendant’s withholdings.
2. Applicable Exemptions
ODNI seeks to withhold 21 documents in full under Exemptions 3, 5, and 7(E). In
addition, the agency claims – and EPIC apparently concedes – that portions of many of those 21
documents are protected from disclosure under Exemptions 1, 2, and 6. Although ODNI argues
that several exemptions protect each document from disclosure, the Court may grant the agency
summary judgment as long as each record is exempt under at least one exemption. See Simon,
980 F.2d at 785. As the Court concludes that Exemption 3 protects all 21 documents in full, it
8
need not address ODNI’s arguments with respect to Exemptions 5 or 7(E), and ODNI need not
rely on EPIC’s concessions with respect to Exemptions 1, 2, or 6.
Exemption 3 permits agencies to withhold from disclosure records “specifically
exempted from disclosure by statute . . . [provided that such statute either] (A)(i) requires that the
matters be withheld from the public in such a manner as to leave no discretion on the issue; or
(A)(ii) establishes particular criteria for withholding or refers to particular types of matters to be
withheld.” 5 U.S.C. § 552(b)(3). In analyzing documents withheld pursuant to Exemption 3,
the Court need not examine “the detailed factual contents” of the documents. Morley v. CIA,
508 F.3d 1108, 1126 (D.C. Cir. 2007). Rather, “‘the sole issue for decision is the existence of a
relevant statute and the inclusion of withheld material within the statute’s coverage.’” Id.
(quoting Ass’n of Retired R.R. Workers v. U.S. R.R. Ret. Bd., 830 F.2d 331, 336 (D.C. Cir.
1987)).
Defendant invokes Exemption 3 here based on the protection of Section 102(A)(i)(1) of
the National Security Act of 1947, among other statutes. Section 102A requires that the Director
of National Intelligence “protect intelligence sources and methods from unauthorized
disclosure.” 50 U.S.C. § 403-1(i)(1); see also Wolf v. C.I.A., 473 F.3d 370, 377 (D.C. Cir. 2007)
(describing ODNI’s obligations under 2004 amendments to the Act). It is indisputable that
Section 102A qualifies as a withholding statute for the purpose of Exemption 3, see, e.g., ACLU
v. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011), as it “refers to particular types of
matters to be withheld” – namely, “intelligence sources and methods.” Id. (quoting 5 U.S.C. §
552(b)(3), 50 U.S.C. § 403-1(i)(1)). Indeed, the Supreme Court has noted that the Act provides
“wide-ranging authority” to the intelligence community to protect its sources and methods; after
all, in passing the Act, “Congress simply and pointedly protected all sources of intelligence that
9
provide, or are engaged to provide, information the [CIA] needs” to gather and analyze
intelligence. CIA v. Sims, 471 U.S. 159, 169-70, 177 (1985). The only remaining question
regarding this exemption, then, is whether the records ODNI has withheld “satisfy the criteria of
the exemption statute.” Fitzgibbon v. CIA, 911 F.2d 755, 761 (D.C. Cir. 1990). In other words,
do the documents contain “intelligence sources and methods” within the meaning of the Act?
EPIC argues that they do not. See Opp. and Cross-Mot. at 9-10. Even if the names of
specific datasets and data-provider agencies are sources and methods, Plaintiff argues that the
“date the issue was identified, the date the records were due to be deleted, the number of records
deleted, the exposure of access, and the brief description of the issue” are not properly exempt
from disclosure because they are too far afield from the intelligence community’s core mission
and thus do not threaten operations. See id. at 9-11.
Plaintiff’s reading of the Act, however, is too limited. The Supreme Court has confirmed
time and again that “it is the responsibility of the [intelligence community], not that of the
judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure
of information may lead to an unacceptable risk of compromising the . . . intelligence-gathering
process.” Sims, 471 U.S. at 180. In the intelligence context, moreover, “bits and pieces of data
may aid in piecing together bits of other information even when the individual piece is not of
obvious importance in itself.” Id. at 178 (internal quotation marks omitted). For that reason, the
NSA’s protection of sources and methods is a “near-blanket FOIA exemption,” Whalen v. U.S.
Marine Corps, 407 F. Supp. 2d 54, 59 n.5 (D.D.C. 2005), that includes the “power to withhold
superficially innocuous information on the ground that it might enable an observer to discover
the identity of an intelligence source.” Sims, 471 U.S. at 178.
10
Defendant avers that Exemption 3 justifies withholding all 21 documents – composed of
the Deletion Issue Trackers, Deletion Issue Reports, and Deletion Issue Tracker Emails –
because they “consist entirely of information containing sensitive and/or classified sources and
methods information, specifically including dates that records were obtained and deleted by
NCTC, the number of records deleted, and information about who has access to the dataset and
the nature of the issue.” Def. Mot. at 22 (citing Ewing Decl., ¶¶ 55-57). This information, the
agency contends, “would reveal sensitive and/or classified sources and methods information,
which, if revealed, would likely assist ‘those who would seek to penetrate, detect, prevent, or
damage’ NCTC intelligence operations.” Id. (quoting Ewing Decl., ¶ 53). “[E]ven the release of
pieces of information on these documents,” moreover, “innocuous thought [sic] they may seem
individually, ‘would assist adversaries in piecing together bits of information that would provide
insights into the particular sources and methods relied upon by NCTC analysts.’” Id. (quoting
Ewing Decl., ¶ 54).
Although at first glance the records at issue here may appear technical – and thus of little
help to potential adversaries – the Court, after its in camera review, is persuaded that this
“superficially innocuous information” could compromise intelligence operations. There is little
doubt that the names of particular datasets and the agencies from which they originate would
allow interested onlookers to gain important insight into the way ODNI and its partners operate.
See Ewing Decl., ¶ 43 (asserting that release of information about “what datasets are routinely
reviewed by NCTC . . . might assist [terrorists] in identifying gaps and seams” in U.S.
intelligence and counterterrorism programs). Information regarding the number of records
deleted, similarly, could help counterintelligence personnel deduce the scope of U.S. intelligence
operations. See Aftergood v. CIA, 355 F. Supp. 2d 557, 562 (D.D.C. 2005) (upholding
11
intelligence agency’s withholding of aggregate intelligence budget data on similar grounds).
And the date an issue was identified and the date records were due to be deleted could help such
personnel understand when ODNI has access to intelligence data for analysis. Courts in this
Circuit have held unequivocally that similar “internal organizational data” constitute intelligence
sources and methods protected under Exemption 3. See, e.g., Schoenman v. FBI, 841 F. Supp.
2d 69, 83-84 (D.D.C. 2012) (information pertaining to “dissemination-control markings,” “file
numbers, and internal organizational data” properly withheld under Exemption 3); James
Madison Project v. CIA, 605 F. Supp. 2d 99, 114 (D.D.C. 2009) (upholding application of
Exemption 3 to CIA’s “special practices and procedures” and “internal information concerning
the CIA’s organizational structure”).
Having reviewed the relevant records in camera, and taking into account the “special
deference owed to agency affidavits on national security matters,” Schoenman, 841 F. Supp. at
84, the Court concludes that Exemption 3 protects the information ODNI has withheld.
B. Segregability
Plaintiff next objects that Ewing failed to analyze the segregability of the 21 documents
withheld in full. See Opp. and Cross-Mot. at 7-8. FOIA requires that “any reasonably
segregable portion of a record shall be provided to any person requesting such record after
deletion of the portions which are exempt.” 5 U.S.C. § 552(b). Accordingly, “non-exempt
portions of a document must be disclosed unless they are inextricably intertwined with exempt
portions.” Mead Data Cent., 566 F.2d at 260. On the other hand, an agency is not obligated to
segregate non-exempt material if “the excision of exempt information would impose significant
costs on the agency and produce an edited document with little informational value.” Neufeld v.
12
IRS, 646 F.2d 661, 666 (D.C. Cir. 1981), rev’d on other grounds by Church of Scientology of
California v. IRS, 792 F.2d 153 (D.C. Cir. 1986).
While the Government is “entitled to a presumption that [it] complied with the obligation
to disclose reasonably segregable material,” Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013),
this presumption of compliance does not obviate its obligation to carry its evidentiary burden and
fully explain its decisions on segregability. See Mead Data Cent., 566 F.2d at 261. The agency
must provide “a detailed justification and not just conclusory statements to demonstrate that all
reasonably segregable information has been released.” Valfells v. CIA, 717 F. Supp. 2d 110,
120 (D.D.C. 2010) (internal quotation marks omitted); see also Armstrong v. Exec. Office of the
President, 97 F.3d 575, 578 (D.C. Cir. 1996) (determining Government affidavits explained
nonsegregability of documents with “reasonable specificity”).
Based on the Ewing Declaration and careful in camera review, the Court concludes that
there is no material that could have been released in the 21 documents withheld in full. On the
basis of “a line-by-line review of all [withheld] documents,” the agency concluded that “all
reasonably segregable, non-exempt information has been disclosed.” Ewing Decl., ¶ 81. Indeed,
as the Court has noted, Ewing asserted that “[releasing even] pieces of information on [the 21
documents], innocuous thought [sic] they may seem individually, ‘would assist adversaries in
piecing together bits of information that would provide insights into the particular sources and
methods relied upon by NCTC analysts.’” Def. Mot. at 22 (quoting Ewing Decl., ¶ 54). The
Court’s review does not lead to a contrary conclusion. The D.C. Circuit, moreover, has found in
favor of agencies based on less than that. See, e.g., Johnson v. Exec. Office for U.S. Attorneys,
310 F.3d 771, 776-77 (D.C. Cir. 2002) (holding that agency had met its segregability burden by
13
submitting Vaughn index and affidavit confirming only that line-by-line review had confirmed
that no information could reasonably be segregated).
Finally, the Court notes that even if it found that pieces of information in the 21
documents withheld in full were not exempt from disclosure, the remaining information would
amount to “an edited document with little informational value.” See Neufeld, 646 F.2d at 666.
Indeed, all that would be left would be a date here, an internal direction there. Although the cost
of releasing that information would be minimal, the Court sees no reason to impose any further
burden on the agency. Because the 21 documents in question contain no segregable material that
could prove of interest, the Court finds that any such token release is unnecessary.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendant’s Motion for Summary
Judgment and deny Plaintiff’s Cross-Motion. An Order consistent with this Opinion shall issue
this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: October 9, 2013
14
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156 S.E.2d 684 (1967)
271 N.C. 465
Edmund HUFFMAN
v.
Ella HUFFMAN.
No. 199.
Supreme Court of North Carolina.
September 27, 1967.
Donald P. Brock, Trenton, Jones Reed & Griffin, Kinston, for plaintiff appellant.
Whitaker, Jeffress & Morris, by A. H. Jeffress, Kinston, for defendant appellee.
*685 PER CURIAM:
The judgment of nonsuit was proper and must be sustained. If it be conceded the defendant was negligent in the manner in which she operated the Ford sedan, nevertheless, the plaintiff's evidence shows his contributory negligence as a matter of law. He voluntarily sat on the fender, astride the radiator, of a moving automobile, with one foot on the bumper and the other under the elevated hood. He rode in that position 150 to 200 yards before the engine ignited, and 200 to 300 yards before he fell off and was injured. A clear case of contributory negligence is disclosed by the plaintiff's own evidence.
Affirmed.
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173 Ga. App. 697 (1985)
327 S.E.2d 815
LOZIER
v.
LEONARD.
69248.
Court of Appeals of Georgia.
Decided March 7, 1985.
William F. Lozier, for appellant.
Robert B. Morrow, Richard C. Foxworth, for appellee.
BEASLEY, Judge.
Defendant, Kathryn Lozier, appeals from a jury verdict and judgment for the plaintiff, Dr. James Leonard. This was an action on account.
Defendant Lozier was of the opinion that her "ears were abnormal in that they did not lay against her head." She spoke to a friend who had the same problem and Dr. Leonard had performed an operation on her ears to make them align more closely to her head. Her friend told her that her insurance paid for the operation. Lozier spoke to Dr. Leonard about having him perform the operation. She testified that Dr. Leonard told her the insurance company would be "no problem." She was asked what he meant by that. "A. That it was a very practiced [sic] thing to do; that it happened all the time that he did it all the time by using insurance claims. Now, did you question that with him? A. Yes. Q. And what did he say? A. He said if I *698 needed to be completely sure, to call them right there. Q. To call who? A. The insurance company. Q. Did you do that? A. Yes. Q. In his office. A. Right." Lozier called her insurance company and gave them the name of the operation. They told her: "yes, we cover it." She reported this to Dr. Leonard. She signed a document for Dr. Leonard which stated: "I understand I'm financially responsible for all charges whether or not they are covered by insurance." After the operation the insurance company paid the hospital and then asked the hospital to refund the amount paid. They refused payment to Dr. Leonard on the ground that it was "cosmetic surgery." Lozier paid Dr. Leonard $240 (apparently the deductible) and he brought this action for the remainder due under the contract signed by her. The trial court entered judgment on the jury verdict for plaintiff and defendant Lozier brings this appeal. Held:
1. Defendant's enumeration on the general grounds are without merit. The jury was authorized to find from the evidence that Lozier did not believe her operation would be covered by her insurance, but since her friend had the same operation and her insurance paid for it she asked the doctor that performed her friend's operation for his opinion. Lozier's testimony on this point is equivocal. At one time she testified "I didn't think it would be, but I wanted to find out . . . And he [Dr. Leonard] said it would be, and I still didn't accept it, even when he told me it would be That's why I called" the insurance company. At another point she testified that Dr. Leonard had told her it would be "no problem" about insurance coverage. She also stated that when she called the insurance company and asked them about the coverage, they said it was "no problem." Earlier she had testified that the insurance company's response was: "Yes, we cover it." It is revealing that Lozier admitted that Dr. Leonard stated after the problem arose that "they'd probably pay it if it was that if it was resulted from a hearing problem," and at an earlier time had advised her "if I needed to be completely sure, to call them [the insurance company] right there." Accordingly, the jury was authorized to find that Lozier did not justifiably believe the operation was covered and that she was initially told over the phone by her insurance company that it was covered. She relied upon the representation by her insurance company which at that point did not know all the facts. In deciding to go ahead with the procedure, she did not rely on the representation by her doctor, but rather followed his suggestion that if she was not sure she was covered she should contact her insurance company. Thus, she knowingly signed a contract which stated that she was responsible for all charges not covered by her insurance. This written contract cannot be varied by contemporaneous oral evidence which would vary the terms. OCGA § 24-6-1; Simmons v. Wooten, 241 Ga. 518 (2) (246 SE2d 639) (1978).
*699 2. The defendant argues that it was error for the trial court to fail to charge on mutual mistake of fact. We do not agree. Pretermitting whether the evidence would support such a charge, the record does not show that a written request was made and no objections were made to the failure to charge until after the jury had retired. This court has held that a party cannot complain of the court's failure to charge the jury where no written requests were received prior to argument. Ledbetter Bros. v. Holmes, 122 Ga. App. 514 (2) (177 SE2d 824) (1970); accord Slaughter v. Linder, 122 Ga. App. 144 (2) (176 SE2d 450) (1970); Steed v. Steel Prods. Mfg. Co., 152 Ga. App. 350 (6) (262 SE2d 616) (1979); Wiley v. Wiley, 231 Ga. 798 (1) (204 SE2d 170) (1974).
3. The trial court did not err in refusing to permit counsel to perfect the record by stating the answer he intended to solicit from the witness. The hearsay testimony was offered for the purpose of "explain[ing] motive and conduct" of the defendant. The motive and conduct of the defendant were not in issue nor were they relevant to any issue before the court. State v. Momon, 249 Ga. 865 (294 SE2d 482) (1982). Thus it did not matter what the answer would have been.
Judgment affirmed. Birdsong, P. J., and Carley, J., concur.
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496 F.Supp. 1188 (1980)
LOUISIANA CHEMICAL ASSOCIATION
v.
Eula BINGHAM, Occupational Safety and Health Administration, and Ray Marshall.
Columbus P. MILLET, Jr.
v.
Eula BINGHAM, Asst. Secy. of OSHA and Ray Marshall, Secy. of Labor.
Ronald P. CHAUFFE
v.
Eula BINGHAM, Asst. Secy. of OSHA and Ray Marshall, Secy. of Labor.
Harry J. SMITH
v.
Eula BINGHAM, Asst. Secy. of OSHA and Ray Marshall, Secy. of Labor.
Civ. A. Nos. 801178, 801201, 801200 and 801199.
United States District Court, W. D. Louisiana, Lake Charles Division.
August 29, 1980.
*1189 Horace A. Thompson, III, McCalla, Thompson, Pyburn & Ridley, New Orleans, La., Robert V. Zener, Richard B. Herzog, Donald R. Crowell, II and Arthur W. Adelberg, Pepper, Hamilton & Scheetz, Stephen A. Bokat, National Chamber Litigation Center, Inc., Washington, D. C., for plaintiffs, La. Chemical Assoc.
James E. White, Regional Sol., Dallas, Tex., Nathaniel I. Spiller, U. S. Dept. of Labor, Diane E. Burkley, U. S. Dept. of Labor, Washington, D. C., for defendants.
Dennis K. Kade, for Court Standards Litigation, Washington, D. C.
OPINION
VERON, District Judge.
This action involves a challenge to a rule promulgated on May 23, 1980 by the Occupational Safety and Health Administration (OSHA) pursuant to the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.[1] The rule entitled "Access to Employee Exposure and Medical Records" has been published at 45 Fed.Reg. 35212 and is proposed as a new Part 1910.20 to Title 29 of the Code of Federal Regulation.
Plaintiffs include Louisiana Chemical Association ("LCA"), a Louisiana corporation which represents 58 chemical companies doing business throughout the State of Louisiana with facilities in this district and division, and three individuals working in facilities located in this district and division. Joining these plaintiffs is a physician who has intervened pursuant to Rule 24(a), Intervention of Right, of the Federal Rules of Civil Procedure. All claim that they will be adversely affected by this rule and that the rule exceeds several statutory and constitutional restraints upon the authority of OSHA. Pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, plaintiffs moved the court to grant a preliminary injunction barring enforcement of 1910.20. A hearing upon this motion was held on August 18, 1980.
The threshold question presented by this case is whether or not this court has jurisdiction over the subject matter of the controversy. The question turns on whether the rule in issue may be properly characterized as a "standard." Under Section 3(8) of the Occupational Safety and Health Act an occupational safety and health standard is defined as:
A standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.
The procedure for the promulgation, modification or revocation of standards is outlined in Section 6(b). Section 6(f) provides that pre-enforcement judicial review of a standard may be sought by a party potentially adversely affected by a standard only "with the United States Court of Appeals *1190 for the circuit wherein such person resides or has his principal place of business . .." Thus if the rule in issue is a standard this court may not properly exercise jurisdiction over this case.
The Occupational Safety and Health Act extends to the Secretary of Labor authority to promulgate rules and regulations other than standards.[2] The act is silent as to the proper forum wherein judicial review of such administrative action may be sought.[3] As a consequence judicial review of such actions is governed by relevant provisions of the Administrative Procedure Act. 5 U.S.C. § 553 et seq. Under the Administrative Procedure Act, the court would have to determine whether some independent jurisdictional basis existed which would enable it to entertain this suit.[4] Such a determination however, awaits the court's preliminary characterization of the rule in question.
The preamble to the rule[5] challenged by the plaintiffs repeatedly characterizes the rule as a standard promulgated under the authority of section 6(b).[6] If simply calling a rule a standard made it so, OSHA has provided the court with ample justification for refraining from entertaining this suit.[7] However, the court is of the opinion that the designation given to a particular rule should most properly be derived from a judicial determination that the disputed rule shares the attributes of the statutory classification into which the rule is claimed to fall. In the present case, this determination requires the court to examine the rule in issue and decide whether it possesses the attributes of a standard as defined in Section 3(8). Since the characterization of the rule presents only a question of statutory interpretation relating to the jurisdiction of this court the conclusion expressed by the preamble will be given proper deference but will not be dispositive of the issue. Zuber v. Allen, 396 U.S. 168, 193, 90 S.Ct. 314, 328, 24 L.Ed.2d 345 (1969); Texas Gas Corp. v. Shell Oil Co., 363 U.S. 263, 270, 80 S.Ct. 1122, 1126, 4 L.Ed.2d 1208 (1960).
As explained in the preamble, the essence of this rule would appear to be that employers in a vast number of industries will be required to assure the preservation of certain employee medical records pertinent to an employee's actual or potential on the job exposure to any one of an ever-expanding *1191 number of toxic substances and dangerous conditions. Employers falling within the scope of the rule will be required to preserve the records for the duration of the employee's employment and for thirty years after the employment has terminated. Throughout this time the employer must assure access to these records by the employee, fellow employees exposed or potentially exposed to similar job hazards, designated employee representatives, and to OSHA officials.[8]
The obvious purpose of the rule is to establish an extremely comprehensive monitoring system which will in time provide a wealth of information relevant to the general purpose of the Occupational Safety and Health Act, i. e., the elimination of hazardous employment conditions through the establishment of uniform national health and safety standards. Another primary purpose of the rule is to enlist the aid of employees and their representatives in the search for and identification of hazardous conditions.
As mentioned earlier an occupational safety and health standard is defined in Section 3(8) of the Act. This definitional provision employs the word "standard" as part of its definition of an occupational safety and health standard. The meaning given to "standard" as used in the definition should therefore be that which enables the word to serve the definitional purpose of the provision. In interpreting the language used in a statute the common sense meaning of words should govern unless the statute or its legislative history suggests that a different technical meaning should be given to the language used. Addison v. Holly Hill Co., 322 U.S. 607, 618, 64 S.Ct. 1215, 1221, 88 L.Ed. 1488 (1944). A definitional provision in a statute is the vehicle by which a word used in the statute may be assigned a technical meaning different from that commonly given the word. A word used in the definitional provision must be given its common sense meaning so that the technical meaning of the word being defined may be clearly understood. As commonly understood a "standard" provides a means of determining what a thing should be. It is a measure against which a thing may be compared to make an immediate determination of whether the thing conforms to established criteria. As used in the definition of an occupational safety and health standard, the word "standard" most rationally denotes a similar meaning with respect to those components of the work environment which affect employee safety. Thus it may be concluded that Congress intended an occupational safety and health standard to establish a measure against which the conditions existing or the practices, means, methods, operations, or processes used in a given work place may be compared for an immediate determination of whether the work place is safe.
An occupational safety and health standard must also address particular hazards existing in a work environment. Before a work place may be made safe by compliance with a standard, there must be a hazard which is reduced through conforming the conditions existing or the practices, means, methods, operations or processes used in the work place to those prescribed by the standard. That Congress intended the identification of hazards as a preliminary step in the standard promulgation process is reflected in both the legislative history and various sections of the Occupational Safety and Health Act. The legislative history of Section 6(b) states that "[S]tandards promulgated under this procedure would include requirements [concerning] the use of labels or other forms of warning to alert *1192 employees to the hazards covered by the standard." U.S.Code Cong. & Admin.News, p. 5183 (1970) (emphasis added). Sections 6(b)(6)(A) and 6(b)(5) of the OSH Act also speak in terms of hazards either dealt with or covered by a standard.
Judicial recognition of the apparent Congressional intent to have standards address hazards may be found in Industrial Union Dept., A.F.L.-C.I.O. v. American Petroleum Institute, ___ U.S. ___, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980). In that case a plurality of the court agreed that with regard to toxic substances "3(8) requires the Secretary [of Labor] to find as a threshold matter that the toxic substance in question poses a significant health risk in the workplace and that a new, lower standard is therefore `reasonably necessary or appropriate to provide safe or healthful employment or places of employment.'" ___ U.S. at ___, 100 S.Ct. at 2850. This conclusion was in part based on the court's interpretation of section 6(g). ___ U.S. at ___, 100 S.Ct. at 2847. That section requires the Secretary of Labor to establish priorities for the promulgation of standards so that the more serious hazards are addressed first. The establishment of priorities necessarily requires both the identification and comparison of hazards existing in various work environments so that standards covering those hazards posing the greatest risks may be established first.
From this discussion the court has concluded that Congress intended an occupational safety and health standard to possess two qualities: (1) it must address a particular hazard existing in a work environment; and (2) it must establish a measure against which the condition existing or the practices, means, methods, operations or processes used in a work place may be compared for an immediate determination of whether the work place is safe with respect to the hazard addressed by the standard.
In so identifying two essential qualities of a standard, the court rejects the definition urged by the plaintiffs.[9] Plaintiffs argue that a standard must regulate the physical environment of the workplace. It is plaintiffs' contention that the rule in issue may not be deemed a standard because it concerns only preservation and access to medical records and thus has no effect on the actual physical environment of the workplace. The court however feels that the word "practices" as used in 3(8) can reasonably be read to reflect a desire on Congress' part to extend to OSHA authority to promulgate standards requiring employer adherence to certain administrative procedures designed to reduce an identified occupational hazard posed by procedures different from those prescribed. For example, if it was the practice of an employer to use potentially lethal substances in a particular manufacturing process without informing an employee of the dangers to which he was exposed, the practice would pose an occupational hazard which could be reduced through adherence to a standard requiring that employees be informed of the risk. Such a standard would prescribe a different practice from that existing at the work place and thus be within the definition of 3(8) even though it did not regulate the physical environment of the workplace.
Having rejected the interpretation of a standard urged by the plaintiffs, it remains to be determined whether or not the rule in issue is an occupational health and safety standard within the interpretation of that term which this court has gleaned from the Occupational Safety and Health Act. In so deciding the character of the rule the court must bear in mind the congressional purpose underlying the review provision of 6(f).
Through Section 6(f) Congress provided that judicial review of standards be available *1193 only in the Courts of Appeal. U.S.Code Cong. & Admin.News 5184 (1970). It may be assumed that by requiring judicial review of standards to be sought only in the Courts of Appeal, Congress hoped that judicial expertise in occupational safety and health would be focused in those courts. See Note, Jurisdiction to Review Federal Administrative Action: District Court or Court of Appeals; 88 Harv.L.Rev. 980, 983 (1975). In so directing litigation to specific courts Congress no doubt also intended to reduce the number of potentially conflicting rulings which might otherwise impair the activities of an agency having national responsibilities. See Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654 (D.C.Cir. 1975). A bifurcation of judicial review of identical agency action between the district courts and the Courts of Appeal would frustrate these congressional policies. Foti v. I. & N. S., 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963).
In a case such as the one here presented, where the considerations just discussed are so obviously involved, the court believes that they should weigh heavily against a litigant challenging an administrative action which may be reasonably characterized as possessing the qualities of an action reviewable only in another forum. With regard to the case at hand, the court feels that the rule may be reasonably characterized as possessing the qualities of a standard.
Insofar as whether the rule addresses a hazard, counsel for OSHA claimed at the hearing on plaintiffs' motion that the denial of access to employee medical records poses an occupational hazard. This conclusion is reflected in the preamble to the rule. See, 45 Fed.Reg. 35213-14. Whether or not such a denial actually does pose a hazard is not for this court to decide. For purposes of determining whether the court has jurisdiction it is necessary only to find that the rule was formulated with what could reasonably be considered a hazard in mind. The importance of medical records to the maintenance of good health can not be denied. To find that the denial of access to medical records poses somewhat of a hazard is therefore not unreasonable. The question of whether denial of access to the records covered by 1910.20 is actually a hazard is for the Courts of Appeal to decide.[10] We simply find that for jurisdictional purposes the rule addresses a hazard and thus possesses one of the two essential qualities of a standard.
With regard to whether the rule establishes a measure against which the conditions existing or the practices, means, methods, operations or processes used in a work place may be compared for an immediate determination of whether the work place is safe with respect to an identified occupational hazard, the court finds that it does. OSHA contends that the rule prescribes a practice designed to reduce the risk presented by a denial of access to employee medical records. We find that the denial of access to medical records may fairly be considered a practice. The rule in question addresses the hazard posed by a denial of access and prescribes an alternative practice designed to reduce it.
We therefore hold that 1910.20 is an occupational safety and health standard as defined by 3(8) and that jurisdiction over this suit properly lies in the Courts of Appeal pursuant to Section 6(f) of the OSH Act. Plaintiffs' suits are hereby dismissed at their cost.
NOTES
[1] When made in the body of the opinion, references to various sections of the Act will be according to how those sections were numbered in the original Act of Congress. For purposes of cross reference between the Act as referred to and as codified the following key is provided:
Section 3 29 U.S.C. § 652
Section 6 29 U.S.C. § 655
Section 8 29 U.S.C. § 657
[2] E. g., Section 8(C)(1)-(3) (authorizing the promulgation of regulations requiring employers to make and preserve various kinds of records), Section 8(e) (concerning regulations governing inspection of work sites) and Section 8(g)(2) (a general rulemaking provision authorizing such rules as the Secretary of Labor deems "necessary to carry out his responsibilities under the Act"). Since the singular issue implicated in the determination of this court's jurisdiction is whether the rule in issue is a standard, any consideration of the power of OSHA to issue this rule pursuant to the above mentioned sections must be deferred until the jurisdictional issue is resolved.
[3] The Act does specifically provide for review in the district courts of two actions: (1) when the secretary charges an employer with discriminating against an employee for exercising his rights under the Act; 29 U.S.C. § 660(c)(2); and (2) when the Secretary seeks an injunction against conditions or practices in any place of employment which present an imminent danger of death or serious physical harm. 29 U.S.C. § 662(a)(b). Although these sections specify district court jurisdiction in the matters referred to, they ought not be read to preclude district court jurisdiction over matters neither referred to nor directed to another forum. See, Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733 (1944); Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1510, 18 L.Ed.2d 681 (1967).
[4] 5 U.S.C. § 703 states that:
The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute, or, in the absence or inadequacy thereof, any applicable form of legal action including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus in a court of competent jurisdiction.
[5] The preamble appears at 45 Fed.Reg. 35212-35277. The text of the rule appears at 35277.
[6] See, e. g. 45 Fed.Reg. 35243-44 (Legal Authority Issue). See also 45 Fed.Reg. 35212 (Summary and Introduction).
[7] See, e. g. Defendants' Opposition to Plaintiffs' Motions for Preliminary Injunction at 23: "In sum, the records access standard looks like a standard; it acts like a standard . . .."
[8] The right of access varies dependent upon whether access is being sought to an "employee exposure record" 1910.20(c)(5) or "employee medical records" 1910.20(c)(6). With respect to "employee exposure records," an "employee" 1910.20(c)(4) and "designated employee representative" 1910.20(c)(3), are given access rights by 1910.20(e)(2)(i). With regard to employee medical records only the employee who is the subject of the record and a designated representative to whom that employee has given "specific written consent" 1910.20(c)(10) are given rights of access to the records by 1910.20(e)(2)(iii). Under 1910.20(e)(3) OSHA representatives have a right to immediate access to either kind of record regardless of whether the employee has consented.
[9] OSHA argued that the rule in question is a standard because it is: (1) nationally applicable, (2) prescribes practices necessary for healthful employment, (3) is closely related to substancespecific standards, and (4) was declared by the Secretary of Labor to be promulgated under the authority of Section 6(b) of the OSH Act. While not finding these arguments particularly helpful in deciding what a standard is, the court feels that to the extent they are relevant to the jurisdictional issue presented, they are not so inconsistent with the court's conclusion that extensive comment is warranted.
[10] Under 6(f), a challenge against a standard will be sustained unless the determination upon which the standard was based are supported by substantial evidence on the record. The determination that a practice poses a significant risk of injury would presumably be a matter reviewable by the Courts of Appeal. See, Industrial Union Dept., A.F.L. C.I.O. v. American Petroleum Institute, ___ U.S. ___, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980).
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407 F.2d 629
69-1 USTC P 9246
LOCAL FINANCE CORPORATION, Local Finance Corporation ofSouth Marion, Local Finance Corporation of Elkhart, LocalFinance Corporation of Gas City, Local Finance Corporationof Rushville, Local Finance Corporation of Danville, LocalFinance, Inc., Local Finance Co., Inc. of Gary, LocalFinance Company, Inc., Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant,v.GUARDIAN AGENCY, INC., Beneficial Insurance Agency, Inc.,Petitioners-Appellees.
Nos. 16840-16850.
United States Court of Appeals Seventh Circuit.
Feb. 28, 1969, Rehearing Denied April 9, 1969.
Stephen A. Milwid, John K. O'Connor, Max E. Meyer, Wilbur S. Legg, Chicago, Ill., Lord, Bissell & Brook, Chicago, Ill., of counsel, for Local Finance Corp.
Mitchell Rogovin, Asst. Atty. Gen., Stuart A. Smith, Attorney, Department of Justice, Tax Division, Washington, D.C., Lee A. Jackson, J. Edward Shillingburg, Attorneys, Department of Justice, Washington, D.C., for C.I.R.
Before SWYGERT, FAIRCHILD and KERNER, Circuit Judges.
SWYGERT, Circuit Judge.
1
We are asked to review a decision of the Tax Court upholding the assessment of income tax deficiencies by the Commissioner of Internal Revenue.1 This case presents the question whether the Tax Court was correct in holding that the Commissioner's allocation to the petitioners, Local Finance Corporation and its subsidiaries pursuant to his authority under Int.Rev.Code of 1954, 482,2 of one-half of the credit life insurance net premiums paid by borrowers from these corporations was not arbitrary or unreasonable. Federal income taxes for the years 1958 through 1962 in the amount of $418,977.31 are in question.
2
The facts are largely undisputed and have been set forth in the Tax Court's opinion reported at 48 T.C. No. 76 (Aug. 31, 1967). We will only recite the facts which are necessary for a basic understanding of the financial interrelationships which existed between the various corporate taxpayers involved in this appeal. Taxpayers are Indiana corporations which, during the years in question, engaged in the business of making small and industrial loans. Local Finance Corporation is the parent corporation and all the other named finance company taxpayers are wholly owned subsidiaries of Local Finance.
3
Taxpayers, Guardian Agency, Inc. and Beneficial Insurance Agency, Inc., are respectively parent and wholly owned subsidiary. They were organized as general insurance brokers to provide fire and casualty insurance coverage on property given as security to Local Finance by its borrowers. The finance companies were virtually the entire source of their fire and casualty business. During the years in question, stockholders who owned in excess of seventy per cent of Local Finance's stock also owned all the stock of Guardian and its subsidiary beneficial.
4
In connection with the loans made by the finance companies, credit life insurance was offered to their borrowers for a term which was coextensive with the contractual term of the related indebtedness. Although not required to do so, about ninety per cent of the borrowers took out credit life insurance. This insurance was written by Old Republic Life Insurance Company, an unrelated concern, at a rate of one dollar per year per $100 of coverage. Such rate was commonly charged in the credit life insurance industry in Indiana and its reasonableness is not at issue. Since it was customary for insurance companies to pay a commission for the sales of such insurance, the rate of premium charged by Republic was fixed in an amount sufficient to provide for such commission.
5
During the period January 1 through June 30, 1958, the commissions on the credit life insurance sold to borrowers from the finance companies were not paid directly to the finance companies. Rather, such commissions were paid pursuant to an agreement entered into between Republic and Don H. Miller, who was an officer of each of the finance companies. The agreement provided that Miller should act as agent for Republic and receive a fixed commission of forty per cent of the net premiums paid by the borrowers from the finance companies, that Republic should retain nine and a half per cent of such net premiums to cover its overhead and profit, and that Miller should receive an additional contingent commission measured by the remainder of the net premiums after payment of all claims. Miller simultaneously executed an assignment of such commissions to Guardian. The commissions so assigned to Guardian over the period ending June 30, 1958 amounted to about fifty-six per cent of total net premiums.
6
After June 30, 1958, Republic continued to write the insurance on the lives of the borrowers from the finance companies, but no commissions, as such, were paid to Miller. Instead, Republic entered into an agreement with Grand National Life Insurance Company, an Arizona corporation, which was controlled by the finance companies and Guardian, whereby Grand National agreed to reinsure the risks and receive ninety and a half per cent of the net premiums, Republic retaining nine and a half per cent of the net premiums. Over the period July 1, 1958 through December 31, 1962, the proceeds which Grand National received, after provision for payment of the claims, amounted to about fifty-eight per cent of the total net premiums. Grand National also had some operating expenses, but in relatively small amounts.
7
It was the contention of the Commissioner before the Tax Court that a portion of the commission income received by Guardian and Beneficial during the period January 1 to June 30, 1958 and a portion of the reinsurance premiums received by Grand National during the period July 1, 1958 to December 31, 1962 constituted compensation actually earned by the finance companies for selling and processing the credit life insurance, and therefore should be allocated to them in proportion to the amount of insurance which each finance company sold. The amounts allocated by the Commissioner equaled fifty per cent of the total net premiums received by the finance companies throughout the taxable years in question. The Tax Court upheld the Commissioner's allocation and deficiency assessment and found that fifty per cent of the net premiums were taxable to the finance companies under sections 61 and 482 of the Internal Revenue Code.
8
The taxpayers make two principal contentions: that the finance companies did not earn or have sufficient control over the premium income from the insurance to be taxed thereon and that the Tax Court's decision conflicts with prior cases holding that a taxpayer is not taxable on income he does not receive and is prohibited by law from receiving. In reviewing the Commissioner's allocation and the Tax Court's determination, our inquiry is a limited one. Ballentine Motor Co. v. Commissioner of Internal Revenue, 321 F.2d 796 (4th Cir. 1963). When evaluating section 482 situations, the Commissioner is empowered to examine closely the transactions between controlled taxable entities in order to determine whether they are such as would have been consummated in an arm's length negotiation between strangers and to make an allocation when they fail to meet that standard. Eli Lilly & Co. v. United States, 178 Ct.Cl. 666, 372 F.2d 990, 1000 (1967); Oil Base, Inc. v. Commissioner of Internal Revenue, 362 F.2d 212, 214 (9th Cir. 1966). Because of the Commissioner's broad discretion to appraise the factual situation, his determination under section 482 'is essentially one of fact and * * * must be affirmed if supported by substantial evidence.' Advance Machinery Exchange v. Commissioner of Internal Revenue, 196 F.2d 1006, 1007-1008 (2d Cir. 1952).
9
The two primary elements which must exist to sustain a section 482 allocation are the existence of commonly controlled companies and the earning of income by certain of these companies which in the absence of the Commissioner's reallocation would not adequately be reflected in the income they would otherwise report for federal income tax purposes.
10
The goal of the statutory allocation procedure is to insure that controlled taxpayers are placed on a parity with uncontrolled taxpayers. Turning first to the question of common control, there is no doubt that during the years at issue Local Finance, Guardian, Beneficial, and Grand National were controlled by the same interests within the meaning of section 482. The common shareholder interests previously described make it clear that the 'control' requirements have been met.3
11
The more difficult inquiry is whether the finance companies and insurance companies would have entered into the same arrangements had they been uncontrolled corporations and bargained at arm's length. This question can be resolved only by determining who actually earned the commission premiums. The undisputed evidence in the record shows that during the entire period employees of the finance companies performed most of the services incident to the sale and servicing of the insurance. It is well known that insurers pay policy solicitors a portion of the premium as a commission for generating and processing the insurance. The touchstone of our analysis is who expended the effort which caused the policies to be issued. The record demonstrates that it was the finance companies who advised the borrowers of the opportunity to obtain life insurance and encouraged them to subscribe.4 The finance companies wrote the policies, collected the premiums and deposited them in the bank accounts of Guardian and Beneficial, made refunds, prepared the necessary papers in the event of the death of an insured borrower, and made weekly reports to Guardian and Beneficial. The sole function of the latter companies was to collate and transmit information and premiums to Old Republic.5 The Commissioner's allocation had the effect of compensating the finance companies for their efforts in generating and processing the life insurance. Despite the fact that the commissions were diverted to Guardian and Grand National during the period in question, it is clear that neither entity earned the commissions. Because the record indicated that Beneficial received commissions amounting to fifty-six per cent of the net premiums, from January 1 to June 30, 1958 and Grand National received for the remainder of the years in issue about fifty-eight per cent of the net premiums by its reinsurance of the risks, the Commissioner's allocation of only fifty per cent of the net premiums to the taxpayers is reasonable.
12
The taxpayers argue that the finance companies did not earn the insurance commissions because they performed only routine paper work. Although it is our holding that the record supports the Tax Court's determination that the taxpayers did in fact earn the commissions, even if it was true that the finance companies did little to earn the commissions, it does not follow that the premium income should be regarded as belonging to the controlled insurance companies. However little the finance companies did to earn this money, they performed those minimal services which were the sine qua non of the insurance business. It cannot be seriously contended that Guardian or Grand National did anything that entitled them to a greater portion of the net premiums representing the commissions.
13
That the finance companies did not actually receive the premium proceeds which the Commissioner attributed to them does not prevent taxation. This proposition is settled by the assignment of income doctrine set forth in Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731 (1930).6
14
The taxpayers contend that the Commissioner's allocation is precluded by state law. Indiana law apparently forbids finance companies from receiving any income other than interest from loans, although there has been no judicial interpretation of the statutory language cited by the finance companies.7 We are of the opinion that regardless of the status under Indiana law of the taxpayers' arrangements, the Commissioner is not precluded from making his allocation, since the criteria of what constitutes income under section 61 and the appropriateness of an allocation under section 482 are matters of federal law. Federal taxing statutes apply their own criteria of what constitutes income. In Burnet v. Harmel, 287 U.S. 103, 110, 53 S.Ct. 74, 77, 77 L.Ed. 199 (1932), the Supreme Court observed: 'Here we are concerned only with the meaning and application of a statute enacted by Congress, in the exercise of its plenary power under the Constitution, to tax income. The exertion of that power is not subject to state control. * * * State law may control only when the federal taxing act, by express language or necessary implication, makes its own operation dependent upon state law.' None of the exceptions enumerated by the Court in Burnet which require invocation of state law are presented in the instant case. Section 482 by its terms makes no express reference to state law. If the taxpayers' state law argument is logically extended, it would lead to the erroneous conclusion that no income the payment or receipt of which is prohibited by state law can be included in gross income for federal income tax purposes. See, e.g., James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961).
15
The final argument relied upon by taxpayers is that the Tax Court's decision conflicts with prior authorities. Specifically, the taxpayers cite Nichols Loan Corp. v. Commissioner, 21 T.C.M. 805 (1962), rev'd, 321 F.2d 905 (7th Cir. 1963), Campbell County State Bank, Inc. v. Commissioner, 37 T.C. 430 (1961), rev'd, 311 F.2d 374 (8th Cir. 1963), and L. E. Shunk Latex Products, Inc. v. Commissioner, 18 T.C. 940 (1952). Although these cases closely resemble the ones before us, none of them is contrary to the result reached here. Nichols involved a loan and insurance arrangement whereby these activities were handled by two separate entities. Unlike the instant case, there was no finding by the Tax Court that the commissions would have been payable to the finance companies but for a special arrangement, deflecting them to the insurance partnership. Furthermore, there was no finding that the partnership had not earned the insurance commissions.8 Finally, there was no finding in Nichols that the finance companies earned or controlled the disposition of the commission income although this court did hold that the cost of providing services in connection with the sale of insurance was an ordinary and necessary business expense deductible by the finance companies.
16
The Campbell Bank case presented a bank-insurance partnership relationship. The Tax Court rejected the Commissioner's contention that the insurance agency was a sham and refused to attribute its income to the bank. In the instant case there is no claim that the insurance companies are shams, but additionally the Tax Court found that the finance companies earned the commission income. Contrary to the facts before us, in Campbell Bank the Eighth Circuit specifically noted that the services performed by the bank in connection with the insurance were minimal. Additionally, the insurance company was the source of compensation for those people located at the bank who devoted their full efforts to the insurance work.
17
In the Shunk case, the Tax Court held that an allocation under the predecessor provision of section 482 was unreasonable because the price charged by taxpayers for their products to a controlled partnership distributor was fixed by the Office of Price Administration and could not have been raised to the level contained in the Commissioner's income allocation. The critical element in Shunk was that the taxpayer could not have raised its price, whether to a controlled or wholly independent distributor. Contrary to the taxpayers' assertion here, the Shunk case does not stand for the proposition that if a particular item of income cannot be legally earned on account of provisions of a nonfederal tax statute, it cannot be reported as federal taxable income. Section 482's predecessor was inapplicable in Shunk because there was no need to implement the section's policy of placing a controlled corporation on a parity with an uncontrolled one. The OPA regulations in Shunk prevented the generation of the income which the Commissioner sought to allocate; here Indiana law merely prohibited the receipt of the Commission income by the finance companies.
18
Since it is our holding that the decisions in Nos. 16840 through 16848 should be affirmed, we need not reach the issues raised by the Commissioner in Nos. 16849 and 16850.
19
The decision of the Tax Court is affirmed.
1
In addition, the Commissioner also petitions for review on the basis that if this court reverses the decisions of the Tax Court with respect to the income allocation to Local Finance and its subsidiaries, the cause should be remanded for consideration of the Commissioner's alternative allocation to Guardian Agency, Inc. and Beneficial Insurance Agency, Inc
2
Section 482 provides:
In any case of two or more organizations, trades or businesses * * * owned or controlled directly or indirectly by the same interests, the Secretary or his delegate may distribute, apportion, or allocate gross income, deductions, credits, or allowances between or among such organizations, trades, or businesses, if he determines that such distribution, apportionment, or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any of such organizations, trades, or businesses.
3
See Treas.Reg. 1.482-1(a)(3) (1967)
4
The record established the finance companies' expertise in this regard. Although the borrowers were not required to purchase credit life insurance, eighty-five to ninety-five per cent of them did so
5
No contention is made that Grand National, the reinsurer, was not a valid business entity; our holding rests on an application of income-earning criteria to the taxpayers' activities
6
See also Kimbrell v. Commissioner of Internal Revenue, 371 F.2d 897, 902 n. 15 (5th Cir. 1967), where the fact that direct receipt of the income would probably have been illegal did not prevent the income from being taxed to the individual who earned and controlled it
7
The taxpayers ground their state law argument on Indiana's Small Loan Law, Burns' Ind.Stats.Ann. 18-3002 (1964) which provides in part:
In addition to the rate of interest or charges herein provided for no further or other charge or amount whatsoever for examination, service, brokerage, commission, expense, fee, or bonus or other thing or otherwise shall be directly or indirectly charged, contracted for, or received * * *.
8
We agree with Judge Tannenwald's observation in his concurring opinion in the Tax Court proceeding in the instant case:
In none of the cases relied upon by petitioners, with one possible exception, did the taxpayer in fact perform the services for which the allocated payments were made. In each, as petitioners themselves point out on brief, the taxpayer was simply in 'the position to have performed the services for which the income was paid out but chose not to do so.' At best, those cases stand for the proposition that the mere possibility of performance of services by the taxpayer does not sustain an allocation of payment by respondent. They do not hold that taxability cannot be imposed where the taxpayer actually performs the services. The possible exception is Nichols Loan Corporation of Terre Haute, T.C.Memo. 1962-149, reversed on other grounds 321 F.2d 905 (C.A. 7, 1963). But it is significant that neither in the opinion of this Court nor that of the Court of Appeals was there any reference to section 482 and the opinion of this Court makes clear that its decision was based on a 'consideration of all evidence.' In any event, if that case can be viewed as requiring a contrary result herein, I would not follow it.
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147 Cal.App.3d 429 (1983)
195 Cal. Rptr. 527
THE PEOPLE, Plaintiff and Appellant,
v.
FELIX REYNOSO ZAVALA, Defendant and Respondent.
Docket No. 43973.
Court of Appeals of California, Second District, Division Three.
September 27, 1983.
*431 COUNSEL
Ira Reiner, City Attorney, Jack L. Brown and Greg Wolff, Deputy City Attorneys, for Plaintiff and Appellant.
Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Philomene J. Swenson and Chloris A. deBrauwere, Deputy Public Defenders, for Defendant and Respondent.
OPINION
DANIELSON, J.
The People appealed from the order of the Municipal Court for the Los Angeles Judicial District granting the motion of defendant and respondent Felix Reynoso Zavala (Zavala) to have an alleged prior conviction declared constitutionally invalid, pursuant to People v. Buller (1979) 101 Cal. App.3d 73 [160 Cal. Rptr. 657]. The People's appeal was transferred to this court from the Appellate Department of the Superior Court for the County of Los Angeles, on this court's own motion, pursuant to California Rules of Court, rule 62(a).
For the reasons set forth below, we reverse the order which invalidated the prior.
FACTS
Defendant Zavala was charged with driving under the influence of alcohol (Veh. Code, § 23102, subd. (a))[1] and with having suffered a prior conviction for this same offense on May 4, 1978.
*432 He moved through counsel to have the prior conviction declared constitutionally invalid, by a written motion which stated its ground as:
"Buller The record does not reflect proper advisement of constitutional rights."[2]
The motion was made on a printed form which also contained 13 other possible grounds which could be alleged by checking them off, and these included substantive grounds, such as, "No knowing, intelligent, understanding waiver of counsel; No advisement of right to appointed counsel." However, none of these grounds was alleged as the basis for the present motion.
Attached to the motion was a two-page docket of the 1978 case. The first page consisted of a checklist reciting that defendant was appearing in propria persona and further reciting in a printed format, that defendant had been "advised that he is entitled to a public trial within 45 days; to the aid of the court in producing witnesses in his behalf; to be confronted with the witnesses against him in the presence of the court; not to be a witness against himself; to a trial by jury; to be admitted to reasonable bail; to be represented by a lawyer of his own choosing; or to have counsel provided for him ...; to represent himself." On the same page, a checklist appeared with the following items checked in ink as expressly waived by defendant: Right to remain silent; jury trial; counsel, public or private; witnesses; confrontation; and subpoena power.
The docket also indicated, by a check mark, that after inquiry, the court had found that all waivers had been knowingly, intelligently, and understandingly made. Zavala's plea of guilty was likewise recorded.
This same docket sheet shows that the proceedings were recorded by a court reporter.
The second page of the docket was individually imprinted with a rubber stamp reading as follows:
"Advised of Constitutional rights as approved February 24, 1977 by Judge A. [illegible] and filed in Division 66."
*433 The impression of the rubber stamp was followed, in handwriting, by the following: "& 1016.5 P.C."[3]
At the hearing on the motion to strike the prior, the People offered no other evidence beyond these docket sheets regarding advisement of rights on the prior conviction. Zavala also offered no other evidence, and made no allegation that his advisement and waiver of rights had, in fact, been inadequate at the time of the prior conviction, but chose to rely on the alleged inadequacy of the docket under Buller. Neither party produced a reporter's transcript of the proceedings on the prior, and each party contended that the burden was on the other to produce that transcript.
On the above-described record, and on the authority of People v. Buller, supra, 101 Cal. App.3d 73, the municipal court found that the 1978 prior was constitutionally invalid.
ISSUE ON APPEAL
The issue on this appeal by the People is whether the municipal court's order may be upheld, where a reporter had been present at the proceedings on the prior, but the only evidence produced by either side was the municipal court docket sheet reflecting that defendant had been advised of and waived his rights, and the only allegation by defendant was that this docket sheet was inadequate.
As we have noted above, the order must be reversed.
DISCUSSION
I. The Advisement and Waiver Was, in Fact, Adequate.
As a preliminary matter, this court ordered a reporter's transcript of the advisement and waiver of rights from the 1978 prior to be prepared. We have received this transcript as a part of our power to judicially notice the records of other courts. (Evid. Code, §§ 452, subdivision (d)(1), 459, subdivision (a).)
That transcript reflects that on May 4, 1978, defendants who were charged with violations of section 23102, subdivision (a), or related offenses, were advised by a court commissioner as a group of their constitutional rights, as reflected on the docket described above. All were appearing in propria persona.
*434 Although Zavala and one other defendant received advisement from a commissioner through a Spanish language interpreter, Zavala acknowledged before the court that he had heard and understood the advisement in Spanish.
The reporter's transcript reflects that the court then took Zavala's guilty plea and waiver of rights, as reflected on the docket sheet.
Thus, Zavala was in fact advised of his rights on the prior, and his failure to allege any actual violation of his constitutional rights was not mere inadvertence on his part.
(1) Upon the transfer of this case to this court, Zavala contends for the first time that the reporter's transcript shows that his waiver of counsel was inadequate because the trial court did not explicitly advise him of "the nature of the charge, the elements of the offense, the pleas and defenses which may be available, [and] the punishment...." (See In re Birch (1973) 10 Cal.3d 314, 319 [110 Cal. Rptr. 212, 515 P.2d 12].)
This contention is without merit.
The reporter's transcript shows that the group of defendants present in court were advised on May 4, 1978, by the court commissioner taking their pleas, that he would suspend sentence and impose a fine or jail time, then place them on summary probation. The terms of the probation were described. The court also advised the defendants of the maximum sentence, the consequences of subsequent convictions, the elements of the offense, the defenses to the charges, and various collateral consequences which could flow from the conviction, such as loss of auto insurance. Zavala affirmed that he had heard and understood these advisements through the Spanish interpreter.
As for more elaborate defenses which Zavala might have had, we quote with approval the language of People v. Buller, supra, 101 Cal. App.3d at page 78, footnote 2: "To the extent that such possible defenses merely consist of raising a reasonable doubt concerning one of the necessary elements of the People's case, defendant was, of course, advised that he was charged with `driving under the influence of intoxicating liquor ...' and it was hardly necessary to spell out that it would be a defense not to have driven or not to have been under the influence. To the extent that counsel may be thinking of fancier `affirmative' defenses diminished capacity, insanity, entrapment, compulsion, former jeopardy, limitations and the like we know of no case which requires such a partial course in Criminal Law I before accepting a plea even from an unrepresented defendant."
*435 II. Upon the Record Presented to the Trial Court, Zavala's Motion Should Have Been Denied.
(2a) Zavala's motion to invalidate his prior conviction should have been denied upon the record in the municipal court, for the following reasons: (1) he failed to allege with specificity in what way his constitutional rights were denied; and (2) he failed to produce evidence on the question of whether his rights had been denied, even though further evidence was available on that question.
We begin by setting forth section 23102.2, the statute which governs proceedings to challenge the validity of priors, as it read at the time of the hearing below (Nov. 1980).[4]
"(a) In any proceedings to have a prior judgment of conviction of a violation of subdivision (a) or (b) of Section 23102, or of subdivision (a), (b), or (c) of Section 23105, declared invalid on constitutional grounds, the defendant shall state in writing and with specificity wherein he was deprived of his constitutional rights, which statement shall be filed with the clerk of the court and a copy served on the court that rendered such prior judgment and on the prosecuting attorney in the present proceedings at least five court days prior to the hearing thereon.
"(b) The court shall, prior to the trial of any pending criminal action against the defendant wherein such prior conviction is charged as such, hold a hearing, outside of the presence of the jury, in order to determine the constitutional validity of the charged prior conviction issue. At such hearing the procedure, the burden of proof and the burden of producing evidence shall be as follows:
"(1) The burden of proof remains with the prosecution throughout and is that of beyond a reasonable doubt.
"(2) The prosecution shall initially have the burden of producing evidence of the prior conviction sufficient to justify a finding that the defendant has suffered such prior conviction.
"(3) In such event, the defendant then has the burden of producing evidence that his constitutional rights were infringed in the prior proceeding at issue.
*436 "(4) If the defendant bears this burden successfully, the prosecution shall have the right to produce evidence in rebuttal.
"(5) The court shall make a finding on the basis of the evidence thus produced and shall strike from the accusatory pleading any prior conviction found to be constitutionally invalid."
Section 23102.2 was added to reflect the holding in People v. Coffey (1967) 67 Cal.2d 204, 217-218 [60 Cal. Rptr. 457, 430 P.2d 15]. (People v. Guevara (1980) 111 Cal. App.3d Supp. 19, 25 [169 Cal. Rptr. 19].) Thus, we turn to the Coffey case for interpretation of the statute.
In People v. Coffey, supra, 67 Cal.2d 204, 210, defendant moved to strike a prior conviction on the ground that he had been denied his constitutional right to the assistance of counsel, and the trial court denied the motion on the ground that there was no authority for such a motion in the statutes. The Supreme Court held that attacks upon the constitutional basis of prior convictions could properly be made by motions to strike in the trial court, and said the following about such attacks: "We emphasize, however, that the issue must be raised by means of allegations which, if true, would render the prior conviction devoid of constitutional support. `One seeking to challenge prior convictions charged against him may do so only through a clear allegation to the effect that, in the proceedings leading to the prior conviction under attack, he neither was represented by counsel nor waived the right to be so represented.'" (Italics in original.) (At p. 215.)
The Coffey court held that the defendant in that case had alleged infringement of the right to counsel, sufficient to entitle him to a hearing in the trial court. (At p. 217.) In remanding the case to the trial court for a hearing, the court delineated the procedures to be followed in that hearing. The court said that: (1) when the defendant raises the issue of the constitutionality of a prior conviction, before trial, the court must hold a hearing out of the presence of the jury to determine that issue; (2) the People first have the burden of producing evidence that defendant has suffered a previous conviction, which requires a prima facie type of showing only (see Pen. Code, § 1025; (3) when the People have made their prima facie showing, defendant then has "the burden of producing evidence that his constitutional right to counsel was infringed in the prior proceeding at issue"; (4) if defendant meets this burden, the People have the right to produce evidence in rebuttal; and (5) the trial court should then make a ruling on the basis of the evidence produced. (At p. 217.) The court also stated that the burden of proof as to the constitutionality of the prior conviction always remains with the People, even though the burden of producing evidence shifts to the defendant after the People have made their initial showing. (At p. 217, fn. 15.)
*437 Turning to the case at hand, we note that Zavala never alleged any actual failure to advise him of his constitutional rights. Zavala's only allegation was that the docket sheet from the prior plea and conviction was inadequate under Buller, supra.
His allegation that the docket was inadequate to show advisement of rights was not the legal equivalent of an allegation that the entire record of the plea failed to reflect such advisements or that an advisement did not, in fact, occur. One of the two latter allegations is required under People v. Coffey, supra, and section 23102.2. In People v. Buller, supra, 101 Cal. App.3d 73, the court's opinion says that defendant challenged the validity of a prior conviction, but does not tell us on what ground that challenge was made. However, the opinion tells us that defendant had pleaded guilty without being represented by counsel and that "the only suggestion that he had been advised of the right to counsel is a preprinted form which contains a recital to the effect that defendant had been advised of his rights, including his right to counsel." The court considered that this printed form constituted "no particularized record at all" of advice of those rights, as required by In re Smiley (1967) 66 Cal.2d 606, 617, footnote 8 [58 Cal. Rptr. 579, 427 P.2d 179], and, therefore, that the record did not "adequately show that defendant was advised of his rights, including the right to counsel." (At p. 76.)
We have taken judicial notice of the docket sheet which the Buller court found to be an inadequate record of advisement, and we note that it contained no indication that a reporter had been present at the proceedings on the prior. Therefore, the only record which could possibly have been introduced at the hearing on the validity of the prior was the docket sheet.
Moreover, in People v. Buller, supra, 101 Cal. App.3d 73, when the court ruled on defendant's other prior convictions in which reporter's transcripts were available, the court considered the transcripts and held that defendant had been adequately advised of his rights on those prior convictions.
Therefore, we do not consider the Buller case to be determinative of whether the court may properly find that a prior conviction is invalid by examining the docket sheet alone and finding it inadequate in form, when the docket sheet indicates that a reporter was present at the advisement of rights on the prior.
Our reading of In re Smiley, relied upon in the Buller opinion, further persuades us that the docket alone is insufficient to invalidate a prior where a court reporter was present at the proceedings.
In In re Smiley, supra, 66 Cal.2d 606, defendant's conviction of a misdemeanor was reversed on a petition for writ of habeas corpus, which alleged *438 that he was indigent and had not been advised of the right to appointment of counsel and the right to speedy trial. The only record of the proceedings in the municipal (justice) court was a docket entry showing that defendant was "... `duly arraigned', pleaded not guilty, and thereafter defended himself without benefit of counsel." (At p. 616.) The court held that the words "duly arraigned" were insufficient to show that defendant had been properly advised of his rights, and that the trial courts should make "minute or docket entries specifically listing the rights of which the defendant is actually advised." (At p. 617.)
In a footnote (fn. 8), the court said the following: "Such entries, of course, must be prepared for the particular case before the court; the requirement will not be satisfied by the use of minute forms containing printed recitals of this advice. [Citations.]" (At p. 617, fn. 8.)
However, the court went on to say, "... docket entries listing the rights of which a defendant has actually been informed may constitute an adequate record of that advice; by the same token, we have no difficulty in conceiving of entries which could satisfactorily reflect a knowing and intelligent waiver of those rights by the defendant." (At p. 622.)
We bear in mind that in evaluating advisement and waiver of rights proceedings in misdemeanor cases, the realities of the typical municipal court environment must be taken into account, and that as long as the spirit of the constitutional principles is respected, the convenience of the parties and the courts should be given great weight. (Mills v. Municipal Court (1973) 10 Cal.3d 288, 303 [110 Cal. Rptr. 329, 515 P.2d 273], citing In re Smiley, supra, 66 Cal.2d 606, 622.)
Under Coffey and section 23102.2, the challenge to the prior must be commenced by a clear allegation that defendant's constitutional rights were violated in some way. The People then must produce evidence amounting to a prima facie showing that the prior conviction took place.
The next step is where all the trouble has arisen. Section 23102.2, subdivision (b)(3), provides that "... the defendant then has the burden of producing evidence that his constitutional rights were infringed in the prior proceeding...."
Zavala has contended that the production of a docket sheet containing a printed recital that defendant was advised of enumerated constitutional rights, is the production of evidence, as required by subdivision (b)(3), supra, that defendant's rights were violated. We do not agree.
*439 We are of the opinion that when the docket sheet contains a printed advisement of rights but also contains a notation that a further record exists, such as reporter's notes or a defendant's signed waiver form, then producing the docket does not have the effect of showing that an inadequate record was made. Rather, defendant has only succeeded in showing that a further and, presumably, adequate record was made. It is, thus, incumbent on defendant to obtain, or at least to examine, the complete record and furnish some proof that defendant was actually denied some constitutional right or that the full record is also inadequate in some respect.
(3) A reporter's transcript of proceedings in which a defendant waives his constitutional rights is an establishment "on the face of the record" of such a waiver. (People v. Shannon (1981) 121 Cal. App.3d Supp. 1, 7 [175 Cal. Rptr. 331], citing Mills v. Municipal Court, supra, 10 Cal.3d at p. 307.)
Placing this burden of producing evidence upon defendant comports with the practical realities of the municipal court situation, as well as with the statutory and decisional authority. It is defendant who must commence the proceedings by alleging that his constitutional rights were violated, and, therefore, defendant or defense counsel will normally need to review the record of the prior to determine if such an allegation can be made. (2b) Under our holding, when the docket contains a printed recital of advisement of rights and an indication that further record is available, defendant must cause that further record to be produced.
Zavala contends that because section 23102.2 provides that the "burden of proof remains with the prosecution throughout," a defendant can introduce the docket sheet, not produce the reporter's transcript, and sit back while the People lose. Not so.
Even though the burden of proof remains with the prosecution, the burden of producing evidence can shift.
Evidence Code section 115 defines "burden of proof" as follows: "`Burden of proof' means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court. The burden of proof may require a party to ... establish the existence or nonexistence of a fact ... by proof beyond a reasonable doubt."
Evidence Code section 110 defines "burden of producing evidence" as follows: "`Burden of producing evidence' means the obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue."
*440 Evidence Code section 550 provides as follows: "(a) The burden of producing evidence as to a particular fact is on the party against whom a finding on that fact would be required in the absence of further evidence.
"(b) The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact."
The comment of the Law Revision Commission to this section is as follows: "Section 550 deals with the allocation of the burden of producing evidence. At the outset of the case, this burden will coincide with the burden of proof. [Citation.] However, during the course of the trial, the burden may shift from one party to another, irrespective of the incidence of the burden of proof. ..." (Italics added.)
We are here dealing with a problem of who should produce evidence, not who has the burden of proof. The statute is clear that defendant has the burden of producing evidence in order to go forward with his motion.
Section 23102.2 expressly provides that the burden of producing evidence of unconstitutionality is on defendant. To produce a docket sheet which contains a printed statement that defendant was advised of his rights, without producing an available reporter's transcript, or any other evidence to show otherwise, is not to produce evidence of unconstitutionality.
(4) When the burden of producing evidence is on one party, the other party need not produce any further evidence until the party with the burden has produced sufficient evidence to meet that burden. (Vaughn v. Coccimiglio (1966) 241 Cal. App.2d 676, 678 [50 Cal. Rptr. 876].)
In Worsley v. Municipal Court (1981) 122 Cal. App.3d 409 [176 Cal. Rptr. 324], the court held that a prior conviction was valid, after the court had examined the docket sheet, on which the advisement of rights was recorded with a series of rubber stamps and handwritten notations, and said that, "Accordingly, we are not dealing with the `dreaded' impersonal pre-printed forms of Smiley or Buller, but a contemporaneous reporting of what respondent was advised and what he waived." (At p. 415.)
In Worsley, supra, at page 415, the court discussed the problem of docket sheets recording advisements of rights, as follows: "The inherent problem with the use of preprinted forms is that it is a recording of formal rights and waivers before their actual delivery. This is where the dangers arise. The use of a stamp for recording purposes is the mechanical impressing with a device or lettering to authenticate, certify, or register formal or *441 official examination of the action taken. (See Webster's Third New Internat. Dict. (1966) p. 2222.)
"Whether the docket is filled out with a rubber stamp, typewriter, or quill pen should make no difference so long as it can be determined that the advisements and waivers were placed in the docket by one authorized and qualified to do so, and the memorializations reflect the true nature of the recitals. (See People v. Weitzer (1969) 269 Cal. App.2d 274, 280 [75 Cal. Rptr. 318]; People v. Brussel (1932) 122 Cal. App.Supp. 785, 788-789 [7 P.2d 403].) [Italics added.]
"Since this particular docket provides a reviewing court with more than a silent record (In re Smiley, supra, 66 Cal.2d 606, 624), the municipal court docket entry is some indication of what occurred. `[T]here [remains] a presumption that in preparing the docket entry official duty [judge's and clerk's] was regularly performed (Evid. Code, § 664)....' Therefore `"... such an entry must ordinarily be deemed to speak the truth."' (In re Lopez (1970) 2 Cal.3d 141, 146 [84 Cal. Rptr. 361, 465 P.2d 257], quoting from In re Johnson (1965) 62 Cal.2d 325, 330 [42 Cal. Rptr. 228, 398 P.2d 420]. See also People v. Witt (1971) 15 Cal. App.3d 6, 14 [92 Cal. Rptr. 770].)"
(2c) In accord with the reasoning of Worsley, we hold that a docket sheet which contains a printed recital of advisement of rights, and checked off waiver of rights, a rubber-stamped notation, and a notation that the proceedings were reported is no evidence at all that defendant was not advised of his rights. Defendant has the burden of producing some evidence, from the reporter's transcript or other relevant sources, that the proceedings were unconstitutional. If defendant fails entirely to meet this burden, the prior should not be stricken.
DISPOSITION
The order is reversed, and the case is remanded to the municipal court for further proceedings consistent with this opinion.
Klein, P.J., and Lui, J., concurred.
A petition for a rehearing was denied October 27, 1983, and the opinion was modified to read as printed above. Respondent's petition for a hearing by the Supreme Court was denied November 23, 1983.
NOTES
[1] References to sections hereafter are to the Vehicle Code, unless otherwise noted.
[2] In order to understand this ground for the motion, it is necessary to note that the reference "Buller" referred to the case of People v. Buller, supra, 101 Cal. App.3d 73, which held that when defendant challenged his prior conviction for a section 23102 violation, on the ground of inadequate advisement of rights, a docket sheet containing a printed recital of advisement of rights did not constitute an adequate showing of advisement, and that the prior must be stricken.
[3] Penal Code section 1016.5 sets forth the statutory requirement of advisement to aliens before acceptance of a guilty plea as to its possible effect on the alien's immigration status.
[4] Section 23102.2 was renumbered and amended in 1981 (Stats. 1981, ch. 940, § 15). The current version is contained in section 23208, which is identical to the former section 23102.2 in all respects relevant to our decision.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60452
Summary Calendar
VERONICA MCCALLUP,
Plaintiff-Appellant,
versus
MIKE MOORE,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:02-CV-246-BN
--------------------
October 29, 2002
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Veronica McCallup, prisoner # K1256, appeals the district
court’s dismissal of her civil rights complaint as malicious and
for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(i),
(ii). A district court is required to dismiss a prisoner’s in
forma pauperis (IFP) civil rights complaint, sua sponte, if the
court determines that the action is frivolous or malicious or
fails to state a claim. Black v. Warren, 134 F.3d 732, 733 (5th
*
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.
Cir. 1998); see 28 U.S.C. § 1915(e)(2)(B). McCallup has
abandoned the issue of the district court’s dismissal of her
claims as duplicative by failing to brief the issue on appeal.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see
28 U.S.C. § 1915(e)(2)(B)(i). McCallup has not demonstrated that
the district court erred in dismissing for failure to state a
claim her claim of unlawful confinement. See Heck v. Humphrey,
512 U.S. 477, 486-87 (1994); 28 U.S.C. § 1915(e)(2)(B)(ii).
McCallup has shown no abuse of discretion in the dismissal of her
complaint without providing her an opportunity to amend. See
Jones v. Greninger, 188 F.3d 322, 326-27 (5th Cir. 1999).
McCallup’s appeal is without arguable merit and is therefore
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Accordingly, McCallup’s appeal is DISMISSED. See 5TH CIR.
R. 42.2. This court recently has cautioned McCallup that because
of her accumulation of strikes for purposes of 28 U.S.C.
§ 1915(g), she may not proceed IFP in any civil action or appeal
filed while she is incarcerated or detained in any facility
unless she is in imminent danger of serious physical injury. See
28 U.S.C. § 1915(g); McCallup v. Musgrove, No. 02-60233 (5th Cir.
Aug. 20, 2002) (unpublished); McCallup v. Miss. Dep’t of
Corrections, No. 02-60243 (5th Cir. Aug. 20, 2002) (unpublished).
McCallup is hereby further cautioned that the prosecution of
additional frivolous appeals will invite the imposition of
2
additional sanctions. McCallup should review any pending appeals
to determine whether they raise frivolous issues.
APPEAL DISMISSED; THREE-STRIKES BAR NOTED; SANCTION WARNING
ISSUED.
3
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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
Argued January 7, 2008
Decided January 11, 2008
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 07-2475
Continental Casualty Co., American Appeal from the United States District
Casualty Co. of Reading, Court for the Northern District
Pennsyl vania, Transportation of Illinois, Eastern Division
Insurance Co., et al.,
Plaintiffs-Appellants, No. 06 C 5473
v. Ronald A. Guzman,
Judge.
Staffing Concepts, Inc., Staffing
Concepts Nat’l, Inc., Staffing Concepts
Int’l, Inc., Ventures Resources Group,
LLC,
Defendants-Appellees.
ORDER
The appeal is DISMISSED for want of appellate jurisdiction. See 9 U.S.C.
§ 16(a)(1)(A) & (B); Middleby Corp. v. Hussman Corp., 962 F.2d 614, 616 (7th Cir.
1992) (barring appeal when an order denying a petition is “a delay incident to an
orderly process”); IDS Life Ins. Co. v. SunAmerica, Inc., 103 F.3d 524, 526-27 (7th Cir.
1996) (extending Middleby to denials of an order to arbitrate under 9 U.S.C. §
16(a)(1)(A)). An opinion will follow.
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798 So.2d 271 (2001)
Adrian GRAY
v.
H.B. ZACHARY CONSTRUCTION COMPANY.
No. 01-CA-276.
Court of Appeal of Louisiana, Fifth Circuit.
September 25, 2001.
*272 William Ken Hawkins, LaPlace, LA, Attorney for Appellant Adrian Gray.
Philip J. Borne, Christopher J. Alfieri, Christovich & Kearney, L.L.P., New Orleans, LA, Attorney for Appellee Zachary Construction Company.
Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and CLARENCE E. McMANUS.
JAMES L. CANNELLA, Judge.
Plaintiff, Adrian Gray, appeals from a judgment denying workers' compensation benefits.[1] We affirm.
In 1999, Plaintiff was employed as an electrician for Defendant, H.B. Zachary Construction Company, working at the Union Carbide plant in Taft, Louisiana. He had worked in the plant for Defendant for 9½ years. Sometime in the fall, he alleges that he was assisting a new worker pulling cables in one of the substructures that had a low ceiling with pipes running along the top. As he raised himself from a squatting position, he struck his head on an overhead beam, "jamming" his neck. Plaintiff alleges that the accident happened during a "turnaround" or "shut down" and that he had been working 12-14 hours. He continued to work, he did not report the accident directly to the Safety Department, and no one completed a report of injury. Plaintiff claims that, when the accident happened, he informed his *273 immediate supervisor and a co-worker that he was injured. He later attempted to obtain workers' compensation benefits, but his request was denied.
On December 21, 1999, Plaintiff filed a Disputed Claim for Compensation. On the form he stated that the accident happened on October 12, 1999. After a hearing was held on November 2, 2000, the workers' compensation judge denied the claim on the basis that Plaintiff failed to prove a work related injury.
On appeal, Plaintiff asserts that the trial judge erred in failing to find that he had sustained a work related injury and in failing to award penalties and attorneys fees for Defendant's arbitrary refusal to provide workers' compensation benefits.
At trial, Plaintiff testified that the accident happened sometime in September of 1999. At various points in his testimony, he said that it happened on September 3, during the second week of September, or the latter part of September. He denied that it happened on October 12, 1999, as he alleged on the claim form, or in the week before Halloween as he alleged in his deposition. He said that the October date on the claim form was when he saw a doctor. Plaintiff was positive, however, that the accident happened during a "shut down" or "turnaround" when he was in the Etox area of the plant, although he noted that the "shut down" also involved the acrylics' department.
Plaintiff explained that a "shut down" occurs when the work in an area is stopped so that various equipment can be upgraded. Plaintiff testified that work during the "shut down" is performed 24 hours a day. This "shut down" lasted approximately 7 days. Because the company loses money during a "shut down", the workers are under pressure to complete the upgrade quickly. Plaintiff said that it is a very hectic time, during which everyone works longer hours, and that he worked 12-14 hours a day during that period, as opposed to his regular 10 hours. Plaintiff contends that he reported the accident to Bobby Breaux (Breaux), his immediate supervisor, right after the accident, but continued working because he was needed. He claims that he waited until the first Friday on which he was off before seeking medical attention.
Plaintiff first visited Dr. Raja Talluri, an internal medicine specialist, on September 10, 1999, for pain in his upper back, left shoulder, and radiating down his left arm. He did not tell the doctor that the injury was work related. Because of his continuing complaints, the doctor placed Plaintiff on no-work status starting October 1, 1999. He was then referred to Dr. Richard Morvant, who treated him briefly, before referring him to Dr. Thomas Donner, a neurosurgeon. Dr. Donner subsequently operated on Plaintiff for a cervical disc herniation.
Breaux testified by deposition that he worked with Plaintiff for some time and that Plaintiff was dependable, punctual, and an above average worker. Plaintiff filled-in for Breaux, when Breaux was on vacation. Breaux stated that he could not remember the exact day on which Plaintiff reported his injury, but he did remember that it was during the "turnaround" and that Plaintiff was working in the Etox unit at the time. Breaux could not be more specific on the date, but thought it was between mid and late September. However, he also testified that he first noticed Plaintiff having problems performing his job at the end of September.
Chad Ruiz (Ruiz), a co-worker, also testified by deposition. Although he could not recall the date of the accident, he testified that Plaintiff told Breaux that he was hurt either that day or the next, that *274 the weather was cool, that everyone was wearing jackets and that it occurred in October. Ruiz's testimony was not consistent about whether Plaintiff told Breaux he suffered a job injury. At one time, he stated that he heard Plaintiff tell Breaux that he had hurt himself at work. At another time he said that he "personally" never heard it. At still another time, he said that he heard Plaintiff tell Breaux that Breaux had to take him to safety, and that he was hurting. Ruiz also testified that he witnessed Plaintiff injuring himself in the acrylics' unit, not in Etox, as testified by Plaintiff and Breaux.
Jennifer Greenwell (Greenwell) was one of the safety people on the site. She testified that company policy requires an injured worker to report to the safety department. Plaintiff and his co-workers, however, stated that when an injury occurs, they tell the supervisor, who asks if they want to go to "Safety." They claim that they do not go for every injury, because some injuries are too minor. However, Greenwell testified that it is important that the worker report any injury because the safety department is responsible for determining whether the worker needs first aid treatment or a referral to a physician. In addition, the safety person fills out an accident report. In this case, no one reported Plaintiffs injury to the safety department at any time. Otherwise, there would be a record.
Greenwell testified that she first discovered that Plaintiff was having problems with his neck in October, when she noticed that he seemed to be in pain. During their discussion about it, she recommended a commonly used, over the counter, back pain medication that she thought might help, because he told her the prescription medication was making him drowsy. Plaintiff did not tell her that he had injured his neck at work. To the contrary, she said that he told her that he was hurt elsewhere. Furthermore, Greenwell testified that the only "shut down" that occurred near the dates alleged by Plaintiff was on September 17, 1999 in acrylics. She stated that the plant began gearing up for a "shut down" in Etox on October 4, 1999.
In a workers' compensation case, the employee bears the burden of proving that an accident occurred, that it occurred in the course and scope of his employment, that the accident caused his injury, and that the injury caused his disability. Tranchant v. Environmental Monitoring Service, Inc., 00-1160 (La.App. 5th Cir.12/13/00), 777 So.2d 516, 518.
The standard of review in a workers' compensation case is whether the workers' compensation judge was manifestly erroneous or clearly wrong in the factual findings. Id. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Tranchant, 777 So.2d at 518; Rosell v. ESCO, 549 So.2d at 840, 844-45 (La.1989); Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993). However, where documents or objective evidence so contradict a witness's story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness's story, the court of appeal may find manifest error, even in a finding based upon a credibility determination. Tranchant, 777 So.2d at 518; Rosell, 549 So.2d at 844-45; Stobart, 617 So.2d at 882. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Tranchant, 777 So.2d at 518; Stobart, 617 So.2d at *275 882. Thus, where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Tranchant, 777 So.2d at 518; Stobart, 617 So.2d at 882.
Plaintiff's wage records show that he worked 10 hours between August 18, 1999 and September 16, 1999. Starting with the week of September 19, 1999, Plaintiff worked more than his usual 10 hours. These documents support Greenwell's statement that the "shut down" started on September 17, 1999. Plaintiff was emphatic that the injury occurred during the "shut down", which then, would have been sometime after September 17, 1999. However, Plaintiff went to Dr. Talluri complaining about the herniated disc symptoms one full week before the "shut down" started. Since Plaintiff denies any other injury, this fact casts doubt on Plaintiff's version of the events, which the trial judge found.
In addition, although Plaintiff asserted that he reported the accident, Greenwell denied that anyone reported the alleged injury and no accident report was ever completed. Furthermore, Plaintiff's witnesses, Breaux and Ruiz, vacillated on the date and place of the alleged accident. Consequently, based on the evidence, we find that the workers' compensation judge was not clearly wrong in finding that Plaintiff failed to bear his burden of proving by a preponderance of the evidence that he suffered a work related injury. Accordingly, the judgment is hereby affirmed.
Costs of appeal are assessed to Plaintiff.
AFFIRMED.
NOTES
[1] La. R.S. 23:1021, et seq.
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05-5741-ag
Qin Wen Zheng v. Gonzales
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term, 2006
4 (Submitted: March 21, 2007 Decided: August 31, 2007
5 Errata Filed: September 20, 2007)
6 Docket No. 05-5741-ag
7
8 -------------------------------------
9 QIN WEN ZHENG,
10 Petitioner,
11 - v -
12 ALBERTO R. GONZALES,
13 Attorney General of the United States
14 Respondent.
15 -------------------------------------
16 Before: SACK, PARKER, and HALL, Circuit Judges.
17 Petition for review of a decision by the Board of
18 Immigration Appeals denying the petitioner's motion to reopen his
19 asylum proceedings. The Board did not abuse its discretion in
20 determining that the petitioner failed to demonstrate changed
21 country conditions.
22 Petition denied.
23 Michael Brown, New York, NY, for
24 Petitioner.
25 Margaret A. Hickey, Assistant United
26 States Attorney for the Northern
27 District of Illinois (Patrick J.
28 Fitzgerald, United States Attorney,
29 Craig Oswald, Assistant United States
30 Attorney, on the brief), Chicago, IL,
31 for Respondent.
1 SACK, Circuit Judge:
2 Qin Wen Zheng, a Chinese citizen from Changle City in
3 the Fujian Province of China, petitions for review of a decision
4 by the Board of Immigration Appeals ("BIA") denying his second
5 motion to reopen proceedings in his case as untimely and
6 numerically barred under 8 C.F.R. § 1003.2(c)(2). In re Qin Wen
7 Zheng, No. A 77 224 430 (B.I.A. Oct. 18, 2005); see also 8 C.F.R.
8 § 1003.2(c)(3)(ii) (allowing for one motion to reopen filed
9 within ninety days of the final agency decision). Zheng contends
10 that the BIA wrongly determined that he failed to demonstrate
11 changed country conditions in China that might exempt the motion
12 from those bars. As particularly relevant here, Zheng argues
13 that the BIA erred in rejecting for lack of authentication a
14 purported notice from a municipal government in China threatening
15 him with "severe[] punish[ment]" if he did not abandon his
16 application for asylum and return to China forthwith.
17 BACKGROUND
18 Zheng arrived in the United States in July 1998. He
19 applied for asylum, withholding of removal, and relief under the
20 Convention Against Torture1 ("CAT") based on the alleged forced
21 sterilization of his wife under the Chinese family-planning
22 policy. At a hearing before Immigration Judge ("IJ") Adam
1
United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,
1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. See
also 8 C.F.R. § 208.16(c) (implementing regulations).
-2-
1 Opaciuch, Zheng conceded removability. He testified and
2 submitted documentary evidence in support of his claims. On June
3 23, 2000, the IJ denied Zheng's requests for relief, determining
4 that his testimony was not credible because it was inconsistent
5 with his prior statements and other documentary evidence, and
6 that he, therefore, failed to meet his burdens of proof. In re
7 Qin Wen Zheng, No. A 77 224 430 (Immig. Ct. N.Y. City June 23,
8 2000). Zheng appealed to the BIA, which affirmed the IJ's
9 decision, without opinion, on November 21, 2002. In re Qin Wen
10 Zheng, No. A 77 224 430 (B.I.A. Nov. 21, 2002). Zheng did not
11 petition this Court for review of that decision.
12 In October 2003, Zheng filed a motion to reopen his
13 removal proceedings. He again argued the merits of his asylum
14 claim and submitted, inter alia, affidavits from, and photographs
15 of, his wife and children in China. On April 19, 2005, the BIA
16 denied the motion, finding that Zheng had filed the motion beyond
17 the ninety-day time limit and had failed to establish changed
18 circumstances that would permit a late filing. In re Qin Wen
19 Zheng, No. A 77 224 430 (B.I.A. Apr. 19, 2005). Again, Zheng
20 refrained from petitioning this Court for review.
21 In August 2005, Zheng filed a second motion to reopen,
22 claiming that he was newly eligible for relief based on changed
23 country conditions in China. He submitted a variety of documents
24 in support of his motion, including various country reports from
25 the United States Department of State, the governments of the
26 United Kingdom and Canada, and Amnesty International; a newspaper
-3-
1 article; an internet printout of a Chinese law addressing the
2 entry and exit of citizens to and from China; and a copy of a
3 decision by the United States Court of Appeals for the Ninth
4 Circuit. He also submitted a notice allegedly sent to his wife
5 from officials of his local village that, he contends,
6 demonstrates that conditions had materially changed there.
7 The Village Notice
8 The notice that Zheng submitted was in Chinese
9 accompanied by an English translation. Entitled "Notice" (we
10 refer to it hereinafter as such), it is dated June 26, 2005, and
11 its letterhead in the submitted English translation reads "Long
12 Tian Villager Commission, Guhuai Town, Changle City, Fujian
13 Province, China." It also appears to have a stamp on the lower
14 right quadrant which is translated to read "Long Tian Villager
15 Commission, Guhuai Town, Changle City." As translated, the
16 Notice reads in its entirety:
17 The government is currently investigating those
18 people who had left the country illegally and
19 applied for asylum in overseas. Their behaviors
20 has damaged our countries' international image.
21 From the report we received, we found out that
22 your husband, Zheng Qin Wen is among those people.
23 He not only violated the family planning policy in
24 China, but also illegally left China and went to
25 the United States wherein he did something
26 detrimental to our country's dignity. It is
27 hereby ordered that you must persuade your husband
28 Zheng Qin Wen immediately stopping his asylum
29 application in overseas, coming back to China and
30 surrendering himself to the government to obtain a
31 lenient treatment. Otherwise, he will be severely
32 punished if he is arrested.
-4-
1 The Notice was supported solely, and only to some extent, by an
2 affidavit from Zheng's wife. Also translated from Chinese to
3 English,2 the affidavit rehearses the underlying assertions of
4 Zheng's asylum application. The affidavit also attempts to
5 provide further context to the local government's crackdown
6 against Chinese citizens who apply for asylum elsewhere, and
7 generally reiterates the message and substance of the Notice. It
8 does not include any reference to the Notice.
9 The BIA Opinion
10 The BIA was unpersuaded by Zheng's submission. See In
11 re Qin Wen Zheng, No. A 77 224 430 (B.I.A. Oct. 18, 2005) (per
12 curiam). "Much of the evidence now presented, including the
13 wife's affidavit and background material," it said, "was not
14 previously unavailable or is not new. . . . The new country
15 reports have not been highlighted. . . ." Id. The BIA
16 continued: "[T]he purported notice from the respondent's home
17 town has not been authenticated, a fact which is relevant in the
18 context of this case in light of the [IJ's] adverse credibility
19 finding." Id. The agency denied Zheng's motion to reopen on the
20 grounds that his evidentiary submissions failed to demonstrate
21 changed country conditions, which could have excepted the motion
22 from the time and numerical bars that otherwise apply.
23 Zheng petitions for review.
2
Although the text of the "Translation Certificate" refers
to Lawrence He as the translator, the document is signed by Allen
Chan.
-5-
1 DISCUSSION
2 I. Standard and Scope of Review
3 Zheng's petition to this Court, filed on October 26,
4 2005, is timely only as it pertains to the BIA's denial of his
5 second motion to reopen on October 18, 2005. See 8 U.S.C.
6 § 1252(b)(1) (requiring a petition for review to be filed no
7 later than thirty days after the date of the order to be
8 challenged). We therefore may review no more than that denial.
9 See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam)
10 (noting that we are precluded from reviewing the underlying
11 merits of an asylum claim on a motion to reopen).
12 It is undisputed that both the time and numerical bars
13 pertaining to motions to reopen apply here. See 8 U.S.C.
14 § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).3 Zheng argues,
3
The applicable portion of section 1229a provides:
(7) Motions to reopen.
(A) In general. An alien may file one motion to
reopen proceedings under this section . . . .
. . . .
(C) Deadline.
(i) In general. Except as provided in this
subparagraph, the motion to reopen shall be
filed within 90 days of the date of entry of
a final administrative order of removal.
(ii) Asylum. There is no time limit on the
filing of a motion to reopen if the basis of
the motion is to apply for relief under
sections 208 or 241(b)(3) [8 USCS §§ 1158 or
1251(b)(3)] and is based on changed country
conditions arising in the country of
nationality or the country to which removal
has been ordered, if such evidence is
material and was not available and would not
-6-
1 however, that he has demonstrated the existence of materially
2 changed conditions in China affecting the possibility of his
3 persecution there should he be forced to return, which would
4 satisfy one of four possible exceptions to those limitations.
5 See 8 C.F.R. § 1003.2(c)(3)(ii) ("[T]ime and numerical
6 limitations . . . shall not apply to a motion to reopen
7 proceedings . . . based on changed circumstances arising in the
8 country of nationality or in the country to which deportation has
9 been ordered, if such evidence is material and was not available
10 and could not have been discovered or presented at the previous
11 hearing.").
12 "A motion to reopen proceedings [must] state the new
13 facts that will be proven at a hearing to be held if the motion
14 is granted and shall be supported by affidavits or other
15 evidentiary material." 8 C.F.R. § 1003.2(c)(1). Such a motion
16 "[may] not be granted unless it appears to the [BIA] that
17 evidence sought to be offered is material and was not available
18 and could not have been discovered or presented at the former
19 hearing." Id.
20 "We review the decision to deny a motion to reopen
21 removal proceedings for abuse of discretion." Bhanot v.
22 Chertoff, 474 F.3d 71, 73 (2d Cir. 2007) (per curiam). The BIA
23 abuses its discretion if its decision "provides no rational
have been discovered or presented at the
previous proceeding.
8 U.S.C. § 1229a(c)(7)(A), (C).
-7-
1 explanation, inexplicably departs from established policies, is
2 devoid of any reasoning, or contains only summary or conclusory
3 statements." Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.
4 2006) (internal quotation marks and citation omitted).
5 II. The Notice
6 The propriety of the BIA's decision to deny Zheng's
7 second motion to reopen depends on its conclusion that Zheng had
8 not established a change in country conditions, which in turn was
9 based in part on the BIA's refusal to credit the Notice. The BIA
10 noted that the Notice lacked authentication, which, "in light of
11 the [IJ's] adverse credibility finding," prompted the BIA to
12 reject the document's authenticity. Citing no authority, Zheng
13 argues that "the Board committed a legal error in giving no
14 weight to the merit of the evidence[,] instead focusing on the
15 admissibility of the evidence." Pet. Br. at 7.
16 We conclude that the BIA, in relying on the adverse
17 credibility determination made by the IJ following Zheng's asylum
18 hearing, reasonably rejected the authenticity of the Notice. In
19 Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007), we found that the
20 doctrine of falsus in uno, falsus in omnibus supported a general
21 adverse credibility finding based on a determination that the
22 petitioner had submitted a fraudulent document. Id. at 170. In
23 reaching that conclusion, we noted that "a single false document
24 or a single instance of false testimony may (if attributable to
25 the petitioner) infect the balance of the alien's uncorroborated
-8-
1 or unauthenticated evidence." Id. Similarly, in Borovikova v.
2 U.S. Dep't of Justice, 435 F.3d 151 (2d Cir. 2006), we decided
3 that the conclusion that a document was fraudulent supported a
4 general finding of adverse credibility sufficient to reject an
5 asylum application. Id. at 157-58. The BIA's use here of the
6 IJ's unchallenged conclusion that Zheng was not credible in
7 support of its refusal to credit the authenticity of the Notice
8 was similarly appropriate.
9 The BIA's decision to reject the Notice was further
10 buttressed by the inconsistencies between it and the "new country
11 reports" that Zheng submitted in an attempt to demonstrate that
12 country conditions had changed adversely and materially. The
13 2004 Department of State report on China submitted by Zheng
14 states:
15 The Chinese Government accepts the
16 repatriation of citizens who have entered
17 other countries or territories illegally. In
18 the past several years, hundreds of Chinese
19 illegal immigrants have been returned from
20 the United States, and U.S. Embassy officials
21 have been in contact with scores of them. In
22 most cases, returnees are detained long
23 enough for relatives to arrange their travel
24 home. Fines are rare. U.S. officials in
25 China have not confirmed any cases of abuse
26 of persons returned to China from the United
27 States for illegal entry. Persons identified
28 as organizers or enforcers of illegal migrant
29 trafficking are liable to face criminal
30 prosecution in China.
31 China: Profile of Asylum Claims and Country Conditions, U.S.
32 Department of State, Bureau of Democracy, Human Rights and Labor,
-9-
1 at 33 (June 2004).4 Although the BIA is required to consider an
2 applicant's countervailing evidence in addition to State
3 Department reports, see Cao He Lin v. U.S. Dep't of Justice, 428
4 F.3d 391, 403 (2d Cir. 2005), the BIA does not abuse its
5 discretion in crediting the State Department reports in the face
6 of uncorroborated anecdotal evidence to the contrary, Wei Guang
7 Wang v. BIA, 437 F.3d 270, 274-76 (2d Cir. 2006); see also Mu
8 Xiang Lin v. U.S. Dep't of Justice, 432 F.3d 156, 159-60 (2d Cir.
9 2005). Apart from the Notice, we have found no evidence in the
10 record indicating that Zheng's act of leaving China to seek
11 asylum in the United States without permission from Chinese
12 authorities would, without more, result in Zheng's persecution.
13 Although Zheng does not mention the case, his argument
14 raises a question akin to one of those we examined in Cao He Lin.
15 There, we addressed the denial by an immigration judge of an
16 application for asylum and concluded that the IJ errs if he or
17 she rejects a document supporting the application solely because
4
The petitioner also submitted a September 1999 report
from the Immigration and Refugee Board of Canada, which examines
the treatment of illegal emigrants who return to Fujian province.
Although the BIA properly disregarded this submission because it
was available to the petitioner at the time of his original
asylum application, the report focuses on the illegal activities
of immigrant smugglers, known as "snakeheads," not the emigrants
themselves. The lone discussion of the role of the Chinese
government centers on its response to the snakeheads' activities,
and its attempt to crackdown on the improper treatment of Chinese
returnees by the snakeheads. The provisions of Chinese law cited
in the document focus primarily on those who facilitate the
illegal exit from and entry into the country, and on any citizens
who obtain immigration documents through illegal means.
-10-
1 it was not properly authenticated under the BIA's regulations.5
2 See Cao He Lin, 428 F.3d at 405. We reasoned that "[b]ecause
3 asylum applicants can not always reasonably be expected to have
4 an authenticated document from an alleged persecutor," id., 428
5 F.3d at 404 (internal citation and quotation marks omitted), the
6 BIA's authentication regulation "is not the exclusive means of
7 authenticating records before an immigration judge," id.; accord
8 Xue Deng Jiang v. Gonzales, 474 F.3d 25, 29 (1st Cir. 2007)
9 (noting that the IJ commits error when it "reject[s] . . .
10 documents solely because they were not authenticated in strict
11 conformity with the regulation"); Yong Ting Yan v. Gonzales, 438
12 F.3d 1249, 1256 n.7 (10th Cir. 2006) ("[C]ourts generally do not
13 view the alien's failure to obtain authentication as requiring
14 the rejection of a document." (citing Cao He Lin, 428 F.3d at
15 404)); see also Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001)
16 (noting that "[t]he procedure specified in 8 C.F.R. § 287.6
17 provides one, but not the exclusive, method" of authentication
18 (internal quotation marks and citation omitted)).
19 As we have discussed, however, the BIA's refusal to
20 credit the Notice in this case did not depend on the lack of
21 official authentication consonant with BIA regulations alone.
22 The BIA's rejection of the Notice's authenticity was based
5
Regulations governing authentication of official records
and public documents in BIA proceedings include the requirement,
generally, that specified foreign documents must be
authenticated, either as official documents or as an attested
copy authorized by both foreign-country officials and the United
States Foreign Service. 8 C.F.R. § 287.6.
-11-
1 substantially on legitimate concerns about Zheng's credibility
2 and contrary evidence in the record. That removes this case from
3 the teaching of Cao He Lin.6
4 We do not reach the question of whether the BIA might
5 err if it required strict compliance with 8 C.F.R. § 287.6 for
6 foreign documents submitted in support of motions to reopen. We
7 recognize that it may not be possible for an applicant filing a
8 motion to reopen to obtain from a foreign government valid and
9 proper authentication of a document such as the Notice, which
10 purports to threaten persecution of an individual seeking asylum
11 elsewhere, even if the evidence supporting its authenticity were
6
We note further that the context of the immigration
proceeding was crucially different in Cao He Lin, which addressed
a petition for review of the denial of an asylum application. An
applicant for asylum may meet his burden of proof based entirely
on his testimony alone; corroborating documents are not required.
See 8 C.F.R. § 1208.13(a) ("The testimony of the applicant, if
credible, may be sufficient to sustain the burden of proof
without corroboration."). Corroborating evidence is required in
an asylum proceeding only "where it would reasonably be
expected." Diallo v. INS, 232 F.3d 279, 285 (2d Cir. 2000). A
motion to reopen based on changed country conditions, by
contrast, depends solely on a showing of previously unavailable,
material documentary evidence in support of the underlying
proceeding. The Board may consider only the documents submitted
to establish that conditions have indeed changed critically since
the applicant's departure from his home country. The concerns
motivating the Cao He Lin panel are largely absent. The
petitioner need not have -- indeed could not have -- brought the
required documents with him given the requirement that the
evidence must have been previously unavailable, see Wei Guang
Wang, 437 F.3d at 274 (concluding that evidence obtained before
the petitioner left China could not support the BIA's grant of a
motion to reopen because such proof could not amount to "evidence
that 'is material and was not available and could not have been
discovered or presented at the previous hearing'" (quoting 8
C.F.R. § 1003.2(c)(3)(ii)), but the petitioner nevertheless must
present credible, documentary evidence in order for the BIA to
grant the motion.
-12-
1 credible.7 We decide only that, in this case, the BIA did not
2 abuse its discretion in declining to consider a document --
3 questionable on its face, supported only by a spouse's affidavit,8
4 and not authenticated pursuant to regulation -- that attempts to
5 establish the sweeping proposition that subsequent to the date of
6 the petitioner's entry into the country and application for
7 asylum, country conditions had undergone a material adverse
8 change sufficient to affect his petition for asylum.
9 B. Other Evidence
10 The petitioner's other evidence, and arguments in
11 support thereof, are also unavailing. The BIA acted within its
12 discretion in determining that many of the documents submitted to
13 it were previously available and that the country reports alone
14 did not demonstrate changed country conditions. Zheng failed to
7
Conversely, we have found that a foreign government's
statement that a document is not authentic may be of limited
probative value. In Zhen Nan Lin v. U.S. Dep't of Justice, 459
F.3d 255, 269-70 (2d Cir. 2006) (finding unreliable a United
States Consular Report that relied entirely "on the opinions of
Chinese government officials who appear to have powerful
incentives to be less than candid on the subject of their
government's persecution of political dissidents" because
"[w]here . . . the document at issue, if authentic, is evidence
that a foreign government violated human rights, that
government's 'opinion' as to the document's authenticity is
obviously suspect and therefore of questionable probative
value").
8
To the extent that the wife's affidavit was submitted in
an effort to authenticate the Notice -- which is not clear from
the text of the affidavit, as it does not mention the Notice --
it fails to do so. In addition to the fact that it includes no
mention of the Notice, such as how, when, and where the wife
received it, the affidavit merely reiterates the underlying
asylum arguments and the substance of the Notice.
-13-
1 explain why any of the documents, which were dated from September
2 1999 to February 2004, could not have been submitted earlier.
3 CONCLUSION
4 The BIA did not abuse its discretion in denying the
5 motion to reopen. The petition is denied. Our review having
6 been completed, the petitioner's request for a stay of removal is
7 also denied.
-14-
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22 F.3d 1104NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Rosia L. TAYLOR, Petitioner,v.DEPARTMENT OF the Navy, Respondent.
No. 94-3056.
United States Court of Appeals, Federal Circuit.
March 11, 1994.
Before MICHEL, PLAGER and RADER, Circuit Judges.
JUDGMENT
PER CURIAM.
1
AFFIRMED. See Fed.Cir.R. 36.
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IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 6, 2012 Session
DAVEY MANN ET AL. v. ALPHA TAU OMEGA FRATERNITY ET AL.
Appeal by permission from the Court of Appeals, Western Section
Circuit Court for Shelby County
No. CT-003646-07 John R. McCarroll, Jr., Judge
____________________
No. W2010-02316-SC-R11-CV - Filed: July 3, 2012
____________________
We accepted this appeal of a personal injury action to determine whether the dismissal of a
defendant pursuant to a written order not made final under Tennessee Rule of Civil
Procedure 54.02 renders that defendant “not a party to the suit” for purposes of Tennessee
Code Annotated section 20-1-119. We answer this question in the affirmative. Because the
Court of Appeals upheld the judgment of the trial court dismissing the appellees from the
Manns’ second amended complaint as time-barred, we reverse the Court of Appeals and
remand to the trial court for further proceedings.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Reversed; Remanded to the Circuit Court
C ORNELIA A. C LARK, C.J., delivered the opinion of the court, in which J ANICE M. H OLDER,
G ARY R. W ADE, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.
Herschel L. Rosenberg, Memphis, Tennessee, for the Appellants, Davey Mann and Teresa
Mann.
Russell C. Rutledge, Germantown, Tennessee, for the Appellees, Daniel Kelly and John
Condon, III.
Scott C. Campbell, Memphis, Tennessee, for the Appellees, Nicholas Beaver and Zachary
Beaver.
Darryl D. Gresham and Harry W. Lebair, IV, Memphis, Tennessee, for the Appellee, E.J.
Cox.
OPINION
Factual and Procedural Background
This personal injury suit arose from an automobile accident on July 22, 2006, when
twenty-year-old Jeffrey Callicutt1 drove his parents’ vehicle into that of Davey and Teresa
Mann. On July 17, 2007, the Manns sued Jeffrey Callicutt, as well as his parents, William
and Deborah Callicutt, Alpha Tau Omega Fraternity (“ATO”), its Tennessee Zeta Rho
Chapter (“ZR Chapter”), Eric and Lori Cox, and “John Doe, A through Z.” The Manns
alleged that just before the accident, Jeffrey Callicutt had attended a social gathering
sponsored by ATO and ZR Chapter at the home of Eric and Lori Cox. According to the
complaint, unknown fraternity members “John Doe, A through Z” provided Jeffrey Callicutt
with alcohol “knowing that he was underage and continued to provide him with alcoholic
beverages knowing his state of intoxication, and furthermore allowed him to drive his vehicle
in an intoxicated state.”
In its answer filed December 5, 2007, the ZR Chapter admitted that some of its
members attended a social gathering on July 22, 2006, but it denied sponsoring the event or
providing alcohol to Jeffery Callicutt. As to which of its members attended the gathering,
the ZR Chapter provided:
The roster of members of ZR Chapter are listed on Exhibit A,2 attached
hereto. Some of the members of Defendant ZR Chapter were in attendance at
the social function and others were not. Defendant ZR Chapter is without
knowledge or information sufficient to form a belief as to the truth of the
remaining allegations . . . .
The ZR Chapter did not allege fault against any of its members, and it affirmatively averred:
“All persons in attendance at the gathering used all reasonable means to prevent Defendant
Jeffrey Callicutt from driving his vehicle.”
1
Throughout the record, Jeffrey Callicutt’s surname is variously spelled “Callicutt” and “Callicut,”
even in filings by his own attorney. As we are unable to find any signature in the record to resolve this
ambiguity, we follow the Court of Appeals and use “Callicutt” in this opinion.
2
Exhibit A was not included in the record on appeal.
2
On March 3, 2008, the Manns amended their complaint to name, as additional
defendants, fraternity members Nicholas and Zachary Beaver, E.J. Cox,3 Daniel Kelly,4 and
John Condon, III (“Appellees”).5 In substance, the amended complaint closely tracked the
claims, theories, and factual allegations of the original complaint.
Thereafter, Appellees filed dispositive motions in which they contended that the one-
year statute of limitations had expired before they were named as parties. See Tenn. Code
Ann. § 28-3-104 (2000). In response, the Manns relied upon Tennessee Code Annotated
section 20-1-119, which allows a plaintiff to file an amended complaint against “a person not
a party to the suit” within ninety days of the filing of an answer or amended answer by a
timely sued defendant alleging that the person “contributed to the injury or damage for which
the plaintiff seeks recovery.”
On October 16, 2009, the trial court granted Appellees’ dispositive motions, finding
section 20-1-119 inapplicable and thus dismissing with prejudice the Manns’ claims against
Appellees as time-barred. However, the trial court’s orders were not made final pursuant to
Tennessee Rule of Civil Procedure 54.02. Less than one week later, on October 22, 2009,
William and Deborah Callicutt filed an amended answer that explicitly alleged fault against
Appellees.
On November 12, 2009, the Manns moved the trial court to permit an interlocutory
appeal from the orders granting Appellees’ dispositive motions, which the trial court
ultimately denied on September 14, 2010. On January 11, 2010, while the motion for
interlocutory appeal remained pending before the trial court, the Manns filed a second
amended complaint, alleging the same claims against the same defendants on the same facts
and theories. On February 18, 2010, a consent order was filed dismissing Jeffrey Callicutt
and his parents from the suit.
3
On April 3, 2012, the Manns voluntarily dismissed E.J. Cox, rendering moot his appeal to this
Court.
4
Throughout the record, Daniel Kelly’s surname is variously spelled “Kelly” and “Kelley,” even in
filings by his own attorney. As we are unable to find any signature in the record to resolve this ambiguity,
we follow the Court of Appeals and use “Kelly” in this opinion.
5
A consent order was entered on February 28, 2008, which allowed the Manns to file an amended
complaint. We note that Tennessee Rule of Civil Procedure 15, as amended effective July 1, 2007, now
permits a plaintiff to file an amended complaint pursuant to Tennessee Code Annotated section 20-1-119
(2009) without prior consent of the parties or leave of the court.
3
Thereafter, Appellees filed dispositive motions attacking the second amended
complaint.6 In their memoranda of law, Appellees argued that the second amended complaint
was barred by the one-year statute of limitations. Although Appellees conceded that the
Manns had filed their second amended complaint within ninety days of the Callicutts’
amended answer alleging fault against them, Appellees argued that the Manns could not rely
upon section 20-1-119, which allows a plaintiff to file an amended complaint against “a
person not a party to the suit.” Appellees contended that they remained “parties” when the
Callicutts amended their answer because the trial court’s orders dismissing the first amended
complaint as to Appellees had not been certified as final pursuant to Tennessee Rule of Civil
Procedure 54.02 and the Manns’ motion for interlocutory appeal remained pending before
the trial court. In the alternative, Appellees argued that if the orders dismissing the first
amended complaint as to them were final judgments, then the doctrine of res judicata would
preclude the Manns from filing a second amended complaint that raised the same issues
against the same parties as the first amended complaint.
On September 14, 2010, the trial court granted Appellees’ dispositive motions and
certified its order as final. See Tenn. R. Civ. P. 54.02. The Manns appealed, and the
Western Section of the Court of Appeals affirmed the judgment of the trial court. Mann v.
Alpha Tau Omega Fraternity, No. W2010-02316-COA-R3-CV, 2011 WL 3276233 (Tenn.
Ct. App. Aug. 2, 2011). The Court of Appeals found that the Manns had waived any
challenge to the trial court’s orders granting Appellees’ dispositive motions attacking their
first amended complaint. Id. at *2 n.5. As to their second amended complaint, the Court of
Appeals distinguished Townes v. Sunbeam Oster Co., 50 S.W.3d 446, 454 (Tenn. Ct. App.
2001), a factually similar case decided by the Middle Section, on the ground that the order
at issue in Townes had been made final pursuant to Rule 54.02. Mann, 2011 WL 3276233,
at *5-6. We granted the Manns’ application for permission to appeal.
Standard of Review
The only issue before this Court is whether the trial court properly dismissed the
Manns’ second amended complaint as to Appellees.7 Nicholas and Zachary Beaver filed a
6
Specifically, Nicholas and Zachary Beaver filed a joint motion to dismiss for failure to state a
claim, see Tenn. R. Civ. P. 12.02(6); Daniel Kelly and John Condon, III each filed motions for summary
judgment, see Tenn. R. Civ. P. 56.02; and E.J. Cox filed a motion to dismiss for failure to state a claim, see
Tenn. R. Civ. P. 12.02(6).
7
In the October 16, 2009 orders granting Appellees’ dispositive motions, the trial court found that
none of the original defendants had explicitly alleged comparative fault against any of Appellees. The trial
court did not address Austin v. State, 222 S.W.3d 354, 358 (Tenn. 2007), in which we held that “Tennessee
Code Annotated section 20-1-119 applies whenever a defendant’s answer gives a plaintiff notice of the
4
joint motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(6). In granting
the motion, the trial court based its decision on “the arguments of counsel in open court and
the entire record in this cause.” By considering matters outside the pleadings, however, the
trial court converted the motion to dismiss for failure to state a claim into a motion for
summary judgment. See Tenn. R. Civ. P. 12.02.8 For their part, Daniel Kelly and John
Condon, III expressly filed separate motions for summary judgment. See Tenn. R. Civ. P.
56.02.
Summary judgment is proper only “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Tenn. R. Civ. P. 56.04. Because the parties do not dispute any material
fact in this case, the issue presented is purely a question of law, which we review de novo
with no presumption of correctness. Mills v. Fulmarque, Inc., 360 S.W.3d 362, 366 (Tenn.
2012). This appeal also involves statutory construction, which we likewise review de novo
with no presumption of correctness. Id.
Analysis
The parties do not dispute that Tennessee Code Annotated section 28-3-104 imposes
a one-year statute of limitations on personal injury actions, or that the Manns filed their
second amended complaint more than one year after their cause of action accrued on July 22,
2006. This appeal centers on whether the Manns may avoid the statute of limitations by
relying upon Tennessee Code Annotated section 20-1-119.
In McIntyre v. Balentine, 833 S.W.2d 52, 56 (Tenn. 1992), we abrogated our long-
held principles of contributory negligence and adopted a system of modified comparative
identity of a potential nonparty tortfeasor and alleges facts that reasonably support a conclusion that the
nonparty caused or contributed to the plaintiff’s injury.” The Manns argued in their brief before the Court
of Appeals that the answer of ZR Chapter to the original complaint satisfied the low threshold of Austin.
See Mann, 2011 WL 3276233, at *2 n.5. However, the Court of Appeals found that the Manns did not
include this issue in their notice of appeal, which only references the September 14, 2010 order dismissing
the second amended complaint, and that the Manns conceded this issue at oral argument. Id. In any event,
the Manns did not discuss this issue in their briefs before this Court. Accordingly, we do not reach this issue.
See Tenn. R. App. P. 13(b) (“Review generally will extend only to those issues presented for review.”).
8
The last sentence of Tennessee Rule of Civil Procedure 12.02 provides: “If, on a motion asserting
the defense numbered (6) to dismiss for failure to state a claim upon which relief can be granted, matters
outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56 . . . .”
5
fault to resolve tort claims. Under McIntyre, “so long as a plaintiff’s negligence remains less
than the defendant’s negligence the plaintiff may recover; in such a case, plaintiff’s damages
are to be reduced in proportion to the percentage of the total negligence attributable to the
plaintiff.” Id. at 57. With this system, “we attempted to reconcile a plaintiff’s interest in
being made whole with a defendant’s interest in paying only those damages for which he or
she is responsible.” Jones v. Prof’l Motorcycle Escort Serv., L.L.C., 193 S.W.3d 564, 567
(Tenn. 2006). More specifically, we outlined the following procedure:
[F]airness and efficiency require that defendants called upon to answer
allegations in negligence be permitted to allege, as an affirmative defense, that
a nonparty caused or contributed to the injury or damage for which recovery
is sought. In cases where such a defense is raised, the trial court shall instruct
the jury to assign this nonparty the percentage of the total negligence for which
he is responsible. However, in order for a plaintiff to recover a judgment
against such additional person, the plaintiff must have made a timely
amendment to his complaint and caused process to be served on such
additional person. Thereafter, the additional party will be required to answer
the amended complaint.
McIntyre, 833 S.W.2d at 58. However, we anticipated that allowing a defendant to shift
some or all of the fault to a nonparty would result in a “predicament for some plaintiffs
because a defendant could plead the fault of a nonparty after the statute of limitations had run
against that nonparty, thus preventing the plaintiff from adding the nonparty to the suit.”
Browder v. Morris, 975 S.W.2d 308, 310 (Tenn. 1998). In such situations, “[a]ny fault
attributed to the time-barred nonparty would then not be recoverable by the plaintiff.” Id.
In response to this problem, the General Assembly enacted Tennessee Code Annotated
section 20-1-119,9 which provides in relevant part:
(a) In civil actions where comparative fault is or becomes an issue, if a
defendant named in an original complaint initiating a suit filed within the
applicable statute of limitations, or named in an amended complaint filed
within the applicable statute of limitations, alleges in an answer or amended
answer to the original or amended complaint that a person not a party to the
suit caused or contributed to the injury or damage for which the plaintiff seeks
recovery, and if the plaintiff’s cause or causes of action against that person
would be barred by any applicable statute of limitations but for the operation
9
See Act of May 13, 1993, ch. 407, 1993 Tenn. Pub. Acts 699, 699-700; Browder, 975 S.W.2d at
310 (discussing the history and purpose of the statute).
6
of this section, the plaintiff may, within (90) ninety days of the filing of the
first answer or first amended answer alleging that person’s fault, . . . [a]mend
the complaint to add the person as a defendant . . . .
Tenn. Code Ann. § 20-1-119 (emphasis added). We have previously recognized that this
provision simply preserves a plaintiff’s prerogative to select defendants in the same manner
as before McIntyre. McNabb v. Highways, Inc., 98 S.W.3d 649, 654 (Tenn. 2003) (quoting
Townes, 50 S.W.3d at 453).
The statute allows a plaintiff to add a comparative tortfeasor as a defendant after the
statute of limitations has expired when two conditions are met. The first condition is that the
plaintiff must assert a claim against a potential tortfeasor within ninety days of the naming
of that person by a defendant sued within the statute of limitations applicable to the
plaintiff’s claim. Mills, 360 S.W.3d at 370 (Tenn. 2012). The second condition is that the
person named must not already be a party to the lawsuit. Townes, 50 S.W.3d at 453.
The parties do not dispute that the Manns sued William and Deborah Callicutt within
the one-year statute of limitations, that the Callicutts named Appellees as comparative
tortfeasors in their amended answer, filed October 22, 2009, or that the Manns named
Appellees as additional tortfeasors within ninety days of the Callicutts’ amended answer.
The dispute is whether Appellees remained parties for purposes of section 20-1-119 when
Appellees were dismissed from the lawsuit pursuant to a written but non-final order. If so,
the Manns failed to satisfy the second condition of section 20-1-119. Whether a named
defendant ceases to be a “party to the suit,” for purposes of section 20-1-119, upon entry of
a written but non-final order of dismissal is an issue of first impression before this Court.
Both the Middle and Eastern sections of the Court of Appeals have held that section
20-1-119 does not necessarily preclude a plaintiff from amending her complaint to again
name as a comparative tortfeasor a person previously dismissed from the suit. McCullough
v. Johnson City Emergency Physicians, P.C., 106 S.W.3d 36, 46 (Tenn. Ct. App. 2002);
Townes, 50 S.W.3d at 454 (“[W]e have concluded that an added defendant’s status as a party
should be determined . . . when the plaintiff . . . seeks to amend its complaint to name the
additional comparative tortfeasor . . . .”); see also Ward v. AMI SUB (SFH), Inc., 149
S.W.3d 35, 38-39 (Tenn. Ct. App. 2004). Indeed, Appellees do not dispute the premise in
Townes that a person’s status in a suit may change over time. We must decide, therefore,
when a person is no longer a “party to the suit” for purposes of section 20-1-119.
Appellees rely primarily on Tennessee Rule of Civil Procedure 54.02, which provides
in its entirety:
7
When more than one claim for relief is present in an action, whether as
a claim, counterclaim, cross-claim, or third party claim, or when multiple
parties are involved, the court, whether at law or in equity, may direct the entry
of a final judgment as to one or more but fewer than all of the claims or parties
only upon an express determination that there is no just reason for delay and
upon an express direction for the entry of judgment. In the absence of such
determination and direction, any order or other form of decision, however
designated, that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties shall not terminate the action as to any
of the claims or parties, and the order or other form of decision is subject to
revision at any time before the entry of the judgment adjudicating all the
claims and the rights and liabilities of all the parties.
Tenn. R. Civ. P. 54.02 (emphasis added). Appellees interpret this language to mean that a
defendant ceases to be a “party to the suit,” for purposes of section 20-1-119, only upon the
entry of a final judgment by the trial court dismissing that defendant from the suit. Other
than the language of the rule itself, however, Appellees cite no authority in support of this
interpretation.
We note that Rule 54.02 took effect on July 1, 1979—before passage of section 20-1-
119 in 1993. The language of Tennessee Rule of Civil Procedure 54.02 closely tracks that
of Federal Rule of Civil Procedure 54(b). The federal rule arose from the liberal joinder of
claims and parties allowed by the Federal Rules of Civil Procedure. Robert Banks, Jr. &
June F. Entman, Tennessee Civil Procedure § 11-3(d), at 11-29 (2d ed. 2004) (quoting Fed.
R. Civ. P. 54(b) advisory committee’s note (1946)). The wide scope of modern actions
necessitated a limited exception to the policy against piecemeal appeals, lest an injustice
result from the delay in awaiting judgment of a distinctly separate claim until adjudication
of the entire case. Id.; see also Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7-10
(1980) (discussing how federal courts must apply Rule 54(b)); Fox v. Fox, 657 S.W.2d 747,
749 (Tenn. 1983) (applying Rule 54.02). In short, the purpose of Rule 54.02 is to allow the
trial court to convert an interlocutory ruling into an appealable order—not to define when a
person is no longer a “party to the suit.”
The word “party” is not a term of art uniformly defined at common law or by statute;
rather, its meaning depends upon the context in which it appears. See, e.g., Tenn. Code Ann.
§ 39-11-401(a) (2010) (“A person is criminally responsible as a party to an offense, if the
offense is committed by the person’s own conduct, by the conduct of another for which the
person is criminally responsible, or by both.”); State v. Flood, 219 S.W.3d 307, 314 (Tenn.
2007) (holding that a rape victim was not a “party” for purposes of the hearsay exception for
party admissions); Monceret v. Bd. of Prof’l Responsibility, 29 S.W.3d 455, 460 (Tenn.
8
2000) (holding that the professional obligation of an attorney to obtain consent before
communicating with a represented “party” extends to a witness represented by counsel);
Boles v. Smith, 37 Tenn. (5 Sneed) 105, 106 (1857) (holding that a landlord was not a
“party” to an action of ejectment where the trial court improperly allowed him to conduct his
tenant’s defense).
These examples demonstrate, moreover, that general definitions of “party,” while
helpful, cannot be dispositive. Compare Boles, 37 Tenn. at 107 (“By the term party, in
general, is meant one having a right to control the proceedings, to make a defence, to adduce
and cross-examine witnesses, and to appeal from the judgment.”), with Black’s Law
Dictionary 1154 (8th ed. 2004) (defining “party” as “one by or against whom a lawsuit is
brought.”). At best, these various authorities define who is a party, either generally or in
specific contexts, but not when a person becomes—or ceases to be—a “party.”
In Townes, the Court of Appeals carefully addressed this issue, for purposes of section
20-1-119, on similar facts. The Towneses suffered injuries when their grill exploded on
December 1, 1993. Their complaint, timely filed on October 13, 1994, identified several
defendants, including “Sunbeam” and “Manchester.” Mistakenly believing that Sunbeam
had no role in manufacturing a propane tank that may have caused the explosion, the
Towneses voluntarily dismissed Sunbeam from the suit. On June 23, 1997, the Towneses
filed a second amended complaint alleging new claims against Sunbeam, as well as
Manchester. Sunbeam moved for summary judgment, citing the statute of limitations, while
Manchester alleged comparative fault against Sunbeam in an answer filed September 4,
1997. Townes, 50 S.W.3d at 448-50, 454.
On September 26, 1997, the trial court ruled from the bench that the statute of
limitations barred the Towneses’ claims against Sunbeam, though a written order was not
entered until October 17, 1997. Meanwhile, the Towneses sought permission to file a third
amended complaint on October 3, 1997, again seeking to add Sunbeam as a defendant
pursuant to section 20-1-119. The trial court denied the motion to amend, which led the
Towneses to appeal the dismissal of the claims against Sunbeam in both the second and third
amended complaints. Townes, 50 S.W.3d at 450.
The Court of Appeals upheld the trial court’s dismissal of the second amended
complaint as to Sunbeam. Manchester alleged fault against Sunbeam on September 4, 1997,
but this allegation did not trigger section 20-1-119 because “Sunbeam actually became a
party to the case in June 1997 when the trial court permitted the Townes[es] to file this
[second] amended complaint.” Id. at 454. Because the statute of limitations applicable to
Sunbeam had expired, the appellate court held that the trial court’s dismissal of the second
amended complaint had been proper.
9
The Court of Appeals reversed the trial court’s denial of the Towneses’ motion to file
a third amended complaint, however, because “Sunbeam’s status changed as a result of the
trial court’s decision at the September 26, 1997 hearing.” Id. There was no dispute that the
Towneses had attempted to file their third amended complaint within ninety days of the
allegation of fault against Sunbeam by Manchester—a defendant sued within the statute of
limitations. “Since the Townes[es]’ claims against Sunbeam had been dismissed, Sunbeam
was no longer a party when the Townes[es] moved to file their third amended complaint on
October 3, 1997.” Id.
We adopt the reasoning of Townes and hold that a named defendant ceases to be a
“party to the suit,” for purposes of section 20-1-119, when the trial court issues an
order—whether final or interlocutory—dismissing that defendant. We reach this conclusion
based on the history and purpose of section 20-1-119, discussed above, as well as our many
opinions liberally construing this statute and the impracticality of a contrary rule, which we
discuss below.
We have repeatedly held that section 20-1-119 must be construed liberally to
effectuate its remedial purpose. See Austin, 222 S.W.3d at 357-58 (holding that a defendant
need not expressly allege comparative fault against the nonparty); Jones, 193 S.W.3d at 572-
73 (holding that substantial compliance with procedural requirements suffices); McNabb, 98
S.W.3d at 654-55 (holding that plaintiffs have prerogative to select defendants); Browder,
975 S.W.2d at 311-12 (holding that comparative tortfeasors include vicarious tortfeasors).
Although we may not contravene the plain language of the statute, Mills, 360 S.W.3d at 368,
we agree with the Court of Appeals that the General Assembly enacted this section in order
“to provide an injured party with a fair opportunity to bring before the court all persons who
caused or contributed to the party’s injuries.” Townes, 50 S.W.3d at 451.
“The purpose of comparative fault under McIntyre is to link one’s liability to his or
her degree of fault in causing a plaintiff’s damages.” McNabb, 98 S.W.3d at 654 (citing
McIntyre, 833 S.W.2d at 57). This objective is greatly impaired when a nonparty appears on
the jury form against whom the plaintiff has no recourse. The purpose of section 20-1-119
is to afford plaintiffs a reasonable opportunity to bring into the lawsuit those persons to
whom a timely sued defendant has attributed fault. This linking of a defendant’s ability to
shift fault to a nonparty with the plaintiff’s ability to join that nonparty allows for the fair and
efficient resolution of tort cases in a system of comparative fault. See McIntyre, 833 S.W.2d
at 58.
Bearing this in mind, we note that a contrary holding in this case could lead to harsh
results, particularly where the trial court improperly dismisses a defendant and denies leave
10
for an interlocutory appeal.10 If a co-defendant then alleges fault against the dismissed party,
the plaintiff is left with the unpalatable prospect of proceeding to a trial at which the co-
defendant may attribute fault to an empty chair. Even if the improper dismissal is
subsequently rectified on appeal, significant resources will have been wasted. Our holding
today avoids this inefficiency by allowing the plaintiff to bring the dismissed defendant back
into the suit within ninety days of the co-defendant’s answer, effectively curing the trial
court’s improper dismissal.
In so holding, we reject as unpersuasive several arguments advanced by one or more
Appellees. First, Appellees read Townes as holding that “application of Tenn. Code Ann.
§ 20-1-119 hinged on whether the Townes[es] had sought to amend their complaint to add
new claims against Sunbeam,” 50 S.W.3d at 454 (emphasis added), whereas here the Manns
sought only to revive old claims. Indeed, the trial court premised its ruling, in part, on the
admission by the Manns’ counsel that “there are no new claims, they’re the same that we had
before.” We have found no support for this proposition in Tennessee law, including Townes,
which, quoted more fully, does not require plaintiffs to allege different facts and theories in
an amended complaint:
Since the Townes[es]’ claims against Sunbeam had been dismissed, Sunbeam
was no longer a party when the Townes[es] moved to file their third amended
complaint on October 3, 1997. In this circumstance, the application of Tenn.
Code Ann. § 20-1-119 hinged on whether the Townes[es] had sought to amend
their complaint to add new claims against Sunbeam within (90) ninety days
after Manchester identified Sunbeam as a party who caused or contributed to
the Townes[es]’ damages.
Id. To the extent that Townes could have been read as requiring plaintiffs to plead new facts
and theories, such an interpretation is not consistent with our more recent decision in Austin,
222 S.W.3d at 356, where we applied section 20-1-119 to plaintiffs who made “the same
allegations of negligence against the [later added] State that they previously made against
[the original defendant] Fayette County.”
Second, Appellees argue that Townes is distinguishable because the written order
dismissing Sunbeam was a final judgment.11 This fact is not evident from the Townes
10
Nothing in this opinion precludes a dismissed defendant from seeking to make the order of
dismissal final pursuant to Tennessee Rule of Civil Procedure 54.02.
11
The October 17, 1997 order in Townes was submitted to this Court as an attachment to the brief
of E.J. Cox. The mere attachment of a document to a party’s brief does not render it part of the record on
11
opinion, however, and the order itself does not appear in the record of this appeal. In any
event, this fact, if true, does not aid Appellees, because the Court of Appeals reasoned in
Townes that Sunbeam ceased to be a “party to the suit” on September 26, 1997, when the
trial court orally dismissed the claims against Sunbeam in the second amended complaint.
Thus, the finality of the October 17, 1997 written order was immaterial to the decision in
Townes.
Third, the trial court premised its ruling, in part, on the fact that the Callicutts, whose
answer to the first amended complaint triggered section 20-1-119, were later dismissed from
the suit: “Callicutt’s now out. I don’t think that gives the plaintiffs any right then to again sue
the same people.” We have found no authority to support this proposition. To the extent that
Appellees rely on this reasoning of the trial court, we hereby reject it. A plaintiff’s right to
invoke section 20-1-119 does not depend upon whether the defendant whose answer
triggered a ninety-day window remains a party to the suit. The plaintiff need only to have
sued this defendant within the statute of limitations and filed within the ninety-day window
an amended complaint naming the nonparty.
Fourth, Appellees argue that they remained parties to the suit, for purposes of section
20-1-119, because the Manns sought an interlocutory appeal of the dismissal of the first
amended complaint before filing the second amended complaint.12 The mere filing by the
Manns of a motion for an interlocutory appeal did not somehow nullify the trial court’s
orders dismissing Appellees. For purposes of section 20-1-119, Appellees were not parties
to the suit.13
Finally, Appellees alternatively contend that even if section 20-1-119 applies to final
judgments, res judicata precludes the Manns from filing their second amended complaint,
which raises the same issues against the same parties as the first amended complaint.
Because the trial court’s orders granting Appellees’ dispositive motions as to the first
amended complaint were indisputably not final judgments from a prior suit, however, we
need not address this issue further. See State v. Thompson, 285 S.W.3d 840, 848 (Tenn.
2009) (noting that res judicata requires a final judgment from a prior suit).
appeal. Tenn. R. App. P. 24(a).
12
Again, Appellees cite no authority for this argument apart from various Tennessee Rules of
Appellate Procedure in which the word “party” appears. See, e.g., Tenn. R. App. P. 9(b) (“The party seeking
an appeal . . . .”).
13
We reserve decision on whether the granting of a plaintiff’s motion for an interlocutory appeal of
an order dismissing a defendant would prevent the plaintiff from relying upon Tennessee Code Annotated
section 20-1-119 to bring the dismissed defendant back into the lawsuit.
12
Conclusion
We hold that “a person not a party to the suit,” for purposes of Tennessee Code
Annotated section 20-1-119, includes any defendant previously dismissed pursuant to a
written, non-final order; thus, we reverse the judgment of the Court of Appeals upholding
the trial court’s dismissal of Appellees from this suit and remand to the trial court for further
proceedings. Costs of this appeal are taxed to Nicholas and Zachary Beaver, Daniel Kelly,
and John Condon, III, for which execution may issue if necessary.
__________________________________
CORNELIA A. CLARK, CHIEF JUSTICE
13
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709 F.2d 1512
Whitseyv.Williamson County Bank
82-5709
UNITED STATES COURT OF APPEALS Sixth Circuit
3/31/83
1
M.D.Tenn.
APPEAL DISMISSED
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18 Cal.2d 146 (1941)
AARON L. JAFFE, Appellant,
v.
RICHARD I. STONE et al., Respondents.
S. F. No. 16539.
Supreme Court of California. In Bank.
June 23, 1941.
Albert Picard, Werner Olds and E. Coke Hill for Appellant.
Morris, Jaffa & Sumski and Jaffa & Sumski for Respondents.
GIBSON, C.J.
Plaintiff appeals from a judgment entered after defendants' motions for judgment on the pleadings were granted.
The action was brought for damages for malicious prosecution. Defendants filed demurrers to the complaint, which were overruled, but later each defendant moved for judgment on the pleadings, on the ground that the complaint failed to state a cause of action. This ground embraced two points: first, that it failed to allege facts showing a final termination of the former criminal prosecution in favor of plaintiff herein in such manner as not to be legally susceptible of revival; and second, that it appeared on the face of the complaint that the criminal complaint charging a felony had been dismissed by a justice of the peace on motion of the accused. *149 The motions were granted, and judgment thereupon rendered in favor of defendants.
[1] The complaint alleged in substance that the defendants, maliciously and without probable cause, obtained a complaint charging plaintiff with grand theft, a felony, and secured a warrant of arrest from a justice of the peace with whom the complaint was filed; that plaintiff was thereupon arrested and a preliminary hearing was had at which witnesses were examined; that plaintiff made a motion for dismissal of the proceeding on the ground that there was no evidence to prove his guilt, and that the motion was granted and the proceeding dismissed. Allegations of general and special damages followed.
The complaint thus alleges the necessary elements of an action for malicious prosecution: (1) a judicial proceeding favorably terminated; (2) lack of probable cause; and (3) malice. The motion for judgment on the pleadings was directed at the sufficiency of the allegations of favorable termination, and the specific point urged is that the complaint fails to show a final termination of the prosecution in such a manner as to be incapable of revival. The issue, phrased in the language of pleading, is whether the complaint sufficiently pleads favorable termination when it alleges that the criminal proceeding was dismissed by the magistrate at the preliminary hearing for lack of evidence. But, since the motion for judgment on the pleadings, like a general demurrer, admits the facts alleged for the purpose of the motion, the real issue is one of substantive law: whether the element of favorable termination is satisfied by a dismissal of the criminal proceeding by the committing magistrate, or whether the termination must be in such a manner that the accused cannot again be charged with that particular crime. Dismissal by a committing magistrate for lack of evidence is, of course, not a bar to another prosecution for felony. (Pen. Code, sec. 1387.)
1. Dismissal by magistrate as favorable termination.
[2] In a criminal prosecution for felony where the proceeding is by information, the accused is entitled to a preliminary examination or hearing before a magistrate. The purpose of this hearing is to determine whether a public offense has been committed, and whether there is sufficient *150 cause to believe the defendant guilty thereof. If a sufficient showing is made, the defendant is "held to answer" for trial in the superior court. (Pen. Code, secs. 858 et seq.) The purpose of the preliminary hearing is to weed out groundless or unsupported charges of grave offenses, and to relieve the accused of the degradation and the expense of a criminal trial. Many an unjustifiable prosecution is stopped at that point, where the lack of probable cause is clearly disclosed. The more unwarranted the charge, the more reckless and malicious the motives which inspired it, the less likelihood there is of its surviving this initial scrutiny by a judicial officer. Thus frequently the most objectionable and unwarranted prosecutions, which most clearly call for redress, are those which are terminated by dismissal by the magistrate for lack of evidence.
[3] It is not enough, however, merely to show that the proceeding was dismissed. The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused, and coupled with the other elements of lack of probable cause and malice, establishes the tort, that is, the malicious and unfounded charge of crime against an innocent person. If the accused were actually convicted, the presumption of his guilt or of probable cause for the charge would be so strong as to render wholly improper any action against the instigator of the charge. The thought has also been expressed that the tort action under such circumstances would involve a collateral attack on the criminal judgment. Hence, if the criminal proceeding goes to trial, it is ordinarily necessary, as a foundation for a malicious prosecution suit, that the plaintiff should have been acquitted. (See generally, Prosser on Torts, p. 867; Harper on Torts, p. 584.) [4] The same fundamental theory is applied in testing a dismissal or other termination without a complete trial on the merits. If it is of such a nature as to indicate the innocence of the accused, it is a favorable termination sufficient to satisfy the requirement. If, however, the dismissal is on technical grounds, for procedural reasons, or for any other reason not inconsistent with his guilt, it does not constitute a favorable termination.
Thus, the accuser or the prosecuting officers may abandon the proceeding because of the defects in the complaint, or doubts as to the jurisdiction of the offense, with the intention *151 of bringing a new proceeding in proper form or before a proper court. Whether this abandonment takes place before the committing magistrate or at the actual trial itself, the dismissal cannot be regarded as a favorable termination in favor of the accused. (See Rest., Torts, sec. 660, pp. 401, 399.) Similarly, if the accused manages to thwart the efforts of the officials by suppression of evidence, flight from the jurisdiction, or other acts of this nature, the abandonment of the prosecution resulting in a dismissal of the complaint cannot be used by him as the basis of an action for malicious prosecution. (See Halberstadt v. New York Life Ins. Co., 194 N.Y. 1 [86 N.E. 801, 16 Ann. Cas. 1102, 21 L.R.A. (N. S.) 293]; Prosser on Torts, p. 869; Rest., Torts, sec. 660, p. 400.)
On the other hand, where the prosecuting officials press the charge before the committing magistrate, the accused does not seek improperly to prevent a fair hearing, and the complaint is dismissed for failure to produce a case against the defendant, there is a favorable termination sufficient to form the basis of a tort action. (See Harrelson v. Johnson, 119 S. C. 59 [111 S.E. 882]; Empire Gas & Fuel Co. v. Wainscott, 91 Okl. 66 [216 P. 141]; Graves v. Scott, 104 Va. 372 [51 S.E. 821, 113 Am.St.Rep. 1043, 7 Ann. Cas. 480, 2 L.R.A. (N. S.) 927]; Robbins v. Robbins, 133 N.Y. 597 [30 N.E. 977]; Southern Car & Foundry Co. v. Adams, 131 Ala. 147 [32 So. 503]; Stewart v. Blair, 171 Ala. 147 [54 So. 506, Ann. Cas. 1913A, 925]; Sasse v. Rogers, 40 Ind. App. 197 [81 N.E. 590]; Rest., Torts, sec. 659; Harper on Torts, p. 585; Prosser on Torts, p. 868; see, also, cases applying the same rule where the prosecuting attorney at the trial enters a nolle prosequi for lack of evidence. (Snead v. Jones, 169 Ala. 143 [53 So. 188]; MacLaughlin v. Lehigh Valley R. Co., 93 N. J. L. 263 [108 Atl. 309]; Dickerson v. Atlantic Refining Co., 201 N. C. 90 [159 S.E. 446]; Hobbs v. Illinois Cent. R. Co., 182 Iowa, 316 [165 N.W. 912]; see note, 43 Harv. L. Rev. 500, criticising contrary Massachusetts rule.)
The distinction is summed up in Halberstadt v. New York Life Ins. Co., supra, as follows: "... Where a criminal proceeding has been terminated in favor of the accused by judicial action of the proper court or official, in any way involving the merits or propriety of the proceeding; or by a *152 dismissal or discontinuance based on some act chargeable to the complainant, as his consent or his withdrawal or abandonment of his prosecution,--a foundation in this respect has been laid for an action of malicious prosecution. The other and reverse rule is that, where the proceeding has been terminated without regard to its merits or propriety by agreement or settlement of the parties, or solely by the procurement of the accused as a matter of favor, or as the result of some act, trick, or device preventing action and consideration by the court, there is no such termination as may be availed of for the purpose of such an action. The underlying distinction which leads to these different rules is apparent. In one case the termination of the proceeding is of such a character as establishes or fairly implies, lack of a reasonable ground for his prosecution. In the other case no such implication reasonably follows."
2. Necessity of "final" termination.
[5] In stating the requirement of termination, courts often say that the proceeding must be "finally" terminated. Such a statement is entirely accurate if the ordinary reasonable meaning of the words is taken. The proceeding must be finally terminated; that is, the particular criminal proceeding commencing, for example, by complaint and arrest, must have passed through some such stage as preliminary hearing and dismissal, or trial and acquittal or abandonment by the prosecuting authorities. When this has occurred, that proceeding is finally terminated. If the termination was such as not to constitute a bar to a new prosecution, the accused may be charged and tried again for the same offense; but this will be a new proceeding, with a new court number, new pleadings, new judge and jury, and a new judgment.
Occasionally, however, the statement is taken to mean that the proceeding must be "incapable of revival", and that "final termination" means termination which is a bar to any further prosecution for the offense, so that the accused is forever safe from prosecution. As will be seen hereinafter, this view has no substantial support in authority and is unsound in principle. But it has found expression in certain recent decisions of the District Court of Appeal, following a dictum in an early opinion of this court, and we shall proceed first to examine the language and holding of these cases. *153
The origin of this view may be traced to the case of Carpenter v. Nutter, 127 Cal. 61 [59 P. 301]. The complaint alleged that plaintiff was charged with grand larceny, arrested, and at the preliminary examination was held to answer for trial in the superior court, and two informations were filed. It was then alleged that subsequently "the plaintiff was released and discharged from custody and said informations dismissed by the Hon. Joseph H. Budd, judge of the said superior court, on the ground that there was no evidence, cause, or probability that a crime had been committed, or that plaintiff was in any way connected with the crime. ..." A demurrer was sustained and the ruling upheld on appeal. The opinion states that there was no allegation that plaintiff was discharged by any order of the court, for it did not appear that the judge named in the pleading was the judge before whom the informations were pending, or that he was acting with authority as a court. The conclusion reached was that "it must, in the face of the demurrer, be conclusively presumed that the informations are still pending, unless it is made to appear by direct averment or by a statement of facts which show the necessary legal conclusion that the prosecution has finally ended and terminated in favor of plaintiff. There is no allegation that the plaintiff was acquitted of the charges contained in the information. It might have been alleged that he was discharged by an order of the court in which the prosecutions were pending, but this was not done." The opinion also declares that the allegations of a pleading will be most strongly construed against the pleader, a doctrine long repudiated in this state. (See Mix v. Yoakum, 200 Cal. 681 [254 P. 557]; Terry Trading Corp. v. Barsky, 210 Cal. 428 [292 P. 474].)
It will be observed that this case presents a problem quite distinct from that before us here, for in Carpenter v. Nutter, the accused was not dismissed by the magistrate, but actually held to answer for trial. The main defect in the pleading, as pointed out in the opinion, was not merely a failure to allege final termination, but a failure to allege any valid termination. The equivocal statement that plaintiff was "released and discharged from custody", and the informations "dismissed" by a judge, did not satisfy the court in the malicious prosecution suit that the proceedings had been validly terminated by proper authority. Later on in the *154 opinion it is briefly observed, with no citation of authority, that "If it had been alleged that the information was dismissed by the court the facts would have to be alleged in such manner as to show that the dismissal was an end of the prosecution." This dictum cannot be deemed authority for a point to which it was not even addressed, namely, that all possible new prosecutions for the particular offense would have to be barred. That this point was not presented to nor deemed relevant by the court is clear from the fact that the opinion makes no attempt to lay down any new law, but purports to state the rule on termination which "has always prevailed both in England and in this country". In view of the well established law at that time and now that termination of the particular prosecution was sufficient (see infra), it is impossible to believe that the court intended to declare an exactly opposite rule without discussing a single case.
The idea next appears in Wilson v. Troy, 19 Cal.App.2d 156 [64 PaCal.2d 1141], where the complaint alleged that plaintiff "was tried" on the charge, that the prosecution "terminated" in his favor and that the charge was thereupon "dismissed". Here, again, the plaintiff was actually held to answer for trial, and the nature and reasons for dismissal at the trial were in no way disclosed. The court discusses this defect, and then adds: "But, if under the order made, a new indictment or information may be filed, the order does not terminate the proceedings." The only authority cited is Carpenter v. Nutter, supra. To the same effect is White v. Brinkman, 23 Cal.App.2d 307, 317 [73 PaCal.2d 254]. The complaint alleged dismissal by the justice of the peace, and the court declared that it "falls short of pleading a complete and final determination of the proceeding in favor of the accused beyond susceptibility of revival." No authority at all is cited on this supposed requirement. Taylor v. Parsons, 41 Cal.App.2d 315 [106 PaCal.2d 638], likewise holds that a dismissal at a preliminary hearing does not constitute a final termination on the authority of Wilson v. Troy, supra.
The explanation for these holdings lies in a curious misconception of the notion of "finality". Mistaken emphasis is placed upon the idea of "final" rather than "favorable" termination; and the offense is confused with the proceeding. *155 When we look at the problem in the light of the background of the tort and the purpose of the requirement of favorable termination, we perceive that freedom of the accused from new prosecutions is not involved in all cases. Such freedom may be assured by an acquittal at the trial, or by some other termination at the trial to which jeopardy attaches. But where the proceeding is dismissed by a magistrate, there is no jeopardy, and no bar to a new prosecution until the statute of limitations runs on the offense. In the case of the usual felony, this is three years in California (Pen. Code, sec. 800), but in a few instances (murder, embezzlement of public money, falsification of public records) there is no limitation, and the prosecution is never barred. (Pen. Code, sec. 799.) Consider, then, the effect of this doctrine upon the rights of a plaintiff who is wrongfully and maliciously accused of a felony, arrested and brought before a magistrate, and is discharged because no case against him is made. He must ordinarily wait three years before he may sue for malicious prosecution. In some instances, he must wait longer; and in others it would seem that he cannot sue at all because the statute of limitations does not run on the offense. There is no rational basis for this result, nor any justification for it in policy.
This view would, moreover, introduce a new and disturbing problem of accrual of the cause of action for malicious prosecution. If in cases where the termination is not a bar to a new prosecution for the offense, the cause of action were postponed until the statute of limitations had run on the liability for the crime, the accrual of the cause of action in the civil suit would depend upon difficult questions of law as to the effect of the termination of the criminal proceeding. The result would be to permit and require one kind of malicious prosecution suits (those based on acquittals or other such final judgments) to be brought promptly; while others (those based on dismissals or abandonments or other terminations not constituting a bar) could not be brought until years afterwards, if at all, to the manifest disadvantage of the defendant as well as the plaintiff.
One more fallacy in this view may be noted. If the test were whether the termination was a bar to a new prosecution, we would expect to find that every termination which did constitute a bar would be a "final termination" sufficient for *156 a malicious prosecution suit. Yet there are situations where the plaintiff may show malice, lack of probable cause, and final termination which precludes any further prosecution for the offense, and still be unable to recover. These are the situations where after indictment or information the district attorney enters a nolle prosequi, formally and finally abandoning the proceedings, but does so, for example, as a result of acts of the accused preventing the procurement of evidence, or the impracticability of bringing the accused to trial. The accused is finally free from any prosecution for the offense, but his innocence has not been indicated; though finally terminated, the proceeding was not favorably terminated. (See Rest., Torts, sec. 660, and discussion therein; and cases cited supra.)
The correct rule is set forth in the Restatement of Torts, section 659, Comment a, as follows: "In order that there may be a sufficient termination in favor of the accused it is not necessary that the proceedings should have gone so far as to preclude further prosecution on the ground of double jeopardy. Hence, although the quashing of an indictment does not preclude the initiation of new proceedings for the same offense or for other charges growing out of the same misconduct on the part of the accused, it constitutes a termination of the original proceedings in favor of the accused unless such new proceedings have been initiated before the trial of the civil action. ..." In the same section Comment b, it is said: "One against whom criminal proceedings have been instituted may be discharged by a magistrate at a preliminary hearing because the evidence produced against him is not such as to warrant his being held for further proceedings to determine his guilt or innocence. In such a case, the discharge is a final termination of the proceedings in favor of the accused, unless it appears that further proceedings growing out of the same misconduct on his part have been instituted." In other words, whether the proceeding is dropped by the magistrate or in the superior court, it is sufficient that the particular proceeding is terminated. It is immaterial whether the termination is a bar to any further prosecution for the same offense, or whether the accused may be charged and tried anew. Only if the new proceeding is already instituted can the accused be precluded from suing for malicious prosecution. This view is supported *157 by the great weight of authority. (See Southern Car & Foundry Co. v. Adams, supra; Graves v. Scott, supra; Brooks v. Super Service, 183 Miss. 833 [183 So. 484, 185 So. 202]; Moreau v. Picard, 54 R. I. 93 [169 Atl. 920]; Harrelson v. Johnson, (S. C.) supra; 34 Am. Jur. 721, sec. 31; 38 C.J. 442, sec. 92; 14 Harv. L. Rev. 223; Newell, Malicious Prosecution, p. 349.)
Hurgren v. Union Mutual Life Ins. Co., 141 Cal. 585 [75 P. 168], the only California case which discusses the principles involved, unqualifiedly supports the general rule. The suit was brought for malicious prosecution of a civil action, but the court treated the issue as identical with that which would arise from a criminal prosecution, and said (p. 587): "... it is now the well-established rule that a verdict or final determination upon the merits of the malicious civil suit or criminal prosecution complained of is not necessary to the maintenance of an action for malicious prosecution, but that it is sufficient to show that the former proceeding had been legally terminated. The fact that such legal termination would not be a bar to another civil suit or criminal prosecution founded on the same alleged, cause is no defense to the action for malicious prosecution ..." The court then reviewed a number of authorities and approved the following statement from the syllabus in Apgar v. Woolston, 43 N. J. L. 57: "The law requires only that the particular prosecution complained of shall have been terminated--and not that the liability of the plaintiff for prosecution for the same offense shall have been extinguished--before the action for malicious prosecution is brought. Consequently, the refusal of the grand jury to file an indictment, a nolle prosequi, or any proceeding by which the particular prosecution is disposed of in such a manner that it cannot be revived, and that the prosecutor, if he intends to proceed further, must institute proceedings de novo, is a sufficient termination of the prosecution to enable the plaintiff to bring his action." Whether the court had in mind the dictum in its former opinion in Carpenter v. Nutter, supra, does not appear; but it is significant that in the Hurgren case, where the point was squarely raised and fully considered, the opinion declares (p. 589) that "There are no decisions of this court to the contrary." *158
It may be noted that until Wilson v. Troy, supra, was decided, a large number of cases were decided in this state in which judgments for plaintiff for malicious prosecution were upheld following dismissal of the charges by the committing magistrate. (See Russell v. Dennison, 45 Cal. 337; Williams v. Casebeer, 126 Cal. 77 [58 P. 380]; Murphy v. Davids, 181 Cal. 706 [186 P. 143]; Burke v. Watts, 188 Cal. 118 [204 P. 578]; Fleischhauer v. Fabens, 8 Cal.App. 30 [96 P. 17]; Auener v. Norman, 39 Cal.App. 425 [179 P. 219]; Braga v. Ponte, 50 Cal.App. 94 [194 P. 514]; Krauskopf v. Brooking, 59 Cal.App. 683 [211 P. 469]; Pickering v. Havens, 70 Cal.App. 381 [233 P. 346]; Robinson v. McKnight, 103 Cal.App. 718 [284 P. 1056]; Green v. Stewart, 106 Cal.App. 518 [289 P. 940]; Gooding v. McAlister, 114 Cal.App. 284 [299 P. 774]; Mills v. Friedman, 119 Cal.App. 74 [5 PaCal.2d 901]; Carroll v. Pacific Coast Auto. Assn., 123 Cal.App. 568 [11 PaCal.2d 660]; Diggs v. Arnold Bros., Inc., 132 Cal.App. 518 [23 PaCal.2d 71]; Davidson v. De Sousa, 20 Cal.App.2d 311 [66 PaCal.2d 740]; Wood v. Lehne, 30 Cal.App.2d 222 [85 PaCal.2d 910].) They add further strength to the conviction that the dictum in Carpenter v. Nutter was laid at rest by the square holding of the Hurgren case, and that its revival in the decisions mentioned above was unjustified. These decisions must therefore be disapproved.
3. The pleading requirement.
[6a] It has been suggested that apart from the questions of substantive law the complaint has two serious defects of pleading. First, it is said that since the commencement of new criminal proceedings before the filing of the malicious prosecution suit would be a defense to the action (see supra), the complaint should allege that no such proceedings have been commenced. The answer to this contention is obvious. If such subsequent proceedings have, in fact, been commenced, defendants may so plead in their answers. But, like other defenses, this should be raised in the answer, not anticipated in the complaint. It would not involve a positive averment of fact, an element of plaintiff's cause of action; plaintiff would be simply negativing an exception to, or a qualification upon, these elements of his cause of action; he would have to single out that particular exception among others that might be raised as defenses. [7] But the salutary rule of pleading *159 frowns upon averments negativing or anticipating defenses, and requires that such matters be left to the answer. (Canfield v. Tobias, 21 Cal. 349, 350; Munson v. Bowen, 80 Cal. 572, 574 [22 P. 253]; Weinberger v. Weidman, 134 Cal. 599, 601 [66 P. 869].) [6b] Accordingly we are satisfied that such an allegation cannot be deemed an essential element of the cause of action.
[8] Second, it is urged that the complaint is defective in failing to plead that the proceeding was "finally" dismissed. As we have seen, the substantive law merely requires proof of the final termination of the particular proceeding. The complaint pleads the actual facts in a clear and understandable manner, alleging that the proceeding was "dismissed". "Dismissal" was the fact; its finality is a matter of legal effect and involves a question of law. To insist that the plaintiff add the word "final" or "finally" to his pleading would simply require him to plead a conclusion of law. There is no justification for such a rule.
4. Considerations of public policy.
[9] It is finally urged in support of the judgment that malicious prosecution suits are not favored. The frequency with which this statement is made in these cases calls attention to the need of some explanation. Properly applied, it means that public policy is in favor of the apprehension and punishment of criminals, and limits the person complaining of criminal charges by placing upon him the burden of proving the basic elements of the tort. These elements, viewed on the other side, furnish full defenses to the public spirited accuser or prosecutor. But where the difficult burden of proof is met by the plaintiff, recovery is allowed. This being true, we should not be led so astray by the notion of a "disfavored" action as to defeat the established rights of the plaintiff by indirection; for example, by inventing new limitations on the substantive right, which are without support in principle or authority, or by adopting stricter requirements of pleading than are warranted by the general rules of pleading. In brief, the public policy involved has properly served, over many years, to crystallize the limitations on the tort, and the defenses available to the defendant. Having served that purpose, it should not be pressed further to the extreme of practical nullification of the tort and consequent *160 defeat of the other important policy which underlies it of protecting the individual from the damage caused by unjustifiable criminal prosecution. (See Graves v. Scott, supra; Rest. Torts, vol. 3, p. 380, Introductory note; Harper on Torts, sec. 268.)
The judgment is reversed.
Traynor, J., Curtis, J., Edmonds, J., Carter, J., and Shenk, J., concurred.
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245 S.W.2d 157 (1952)
STATE ex rel. CORDER SCHOOL DIST. NO. R-3
v.
OETTING.
No. 21671.
Kansas City Court of Appeals, Missouri.
January 7, 1952.
Ike Skelton, Lexington, Newton R. Bradley, Lexington, of counsel, for appellant.
H. Townsend Hader, Blackwell & Sherman, all of Lexington, for respondent.
DEW, Judge.
Mandamus was sought by the appellant to compel the respondent, treasurer of Lafayette County, Missouri, to pay certain warrants issued to the appellant on certain school funds in the hands of the respondent. The warrants, three in number, were for sums aggregating $915.50. Such funds were in the hands of the respondent but he had refused payment. Upon the final decree of the court denying the writ, the relator appealed.
The gist of the petition is that there had been a proper annexation of Common School District No. 5, known as the Hitt District, with Corder District No. 32, which latter description became the proper designation until, upon reorganization, it became and now is Corder School District No. R-3 of Lafayette County, Missouri; that upon such annexation the funds in question, having been the property of the former Hitt District No. 5, became, under the law, the property of the relator, the reorganized Corder School District No. R-3. It is alleged that the three warrants were issued October 27, 1949, payable to the order of the Corder Public School District No. 32 *158 on the funds in the respondent's hands for services rendered to or expenses incurred by Hitt District No. 5.
The alternative writ having been issued, the respondent duly filed his return wherein, in substance, he denied that the funds in question are now the property of the relator (appellant) but alleges that pursuant to the statutes, the County Board of Education of Lafayette County had submitted to the voters in several school districts said Board's plan for reorganization of the school districts of that county, the result of which was that the said plan was adopted by a large majority and in which School District No. 5 (Hitt) became and is a part of the new Waverly District R-8, and that the funds in question are, therefore, the property of said new reorganized Waverly District R-8, for which funds the duly elected officers of that reorganized district have made demand upon the respondent.
In reply the relator pleaded a special election in the old Hitt District No. 5 on the proposition of its annexation to the old Corder District No. 32, now Corder School District No. R-3 (appellant), and that the said election resulted in the adoption of said annexation proposal, prior to the election by the County Board of Education alleged in the return.
Most of the pertinent facts of the case are admitted by stipulation. The respondent, in support of his return, is relying on certain provisions in RSMo 1949, Sections 165.657 to 165.707, V.A.M.S. The appellant, on the other hand, relies on certain provisions of RSMo 1949, Section 165.300, V.A.M.S. To clarify the respective theories of the parties, a brief examination of the two sets of statutes in question is advisable. Article 4, Chapter 72, RSMo 1939, was designed to accomplish the enlargement of school districts of convenient size and of contiguous territory in a given county by and through a central County Board required to be established thereunder. Many of the sections of that article were repealed and new sections enacted in lieu thereof in 1945. See Laws of Mo.1945, page 1657. However, radical changes were made in 1947 and the said new sections were repealed and the present new statutes enacted in lieu thereof. RSMo 1949, Secs. 165.657 to 165.707, V.A.M.S., creating a Board of Education in and for each county of the state. Laws of Mo.1947, Vol. II, page 370. This law went into effect July 18, 1948. Under certain provisions of these statutes, it is required that within sixty days after the effective date of such sections each county superintendent shall call a meeting of the members of the boards of education and boards of directors of the various school districts in his county and elect a County Board of Education of six members for such county; that within six months thereafter the Board must make a comprehensive study of each school district in the county and prepare a plan of reorganization as to tax valuation, geographical features, numbers of pupils, etc. Upon the completion of such study and not later than May 1, 1949, such County Board of Education must submit to the said State Board of Education a specific plan for the reorganization of the school districts of the county. If the State Board of Education deems the plan inadequate, it shall so notify the County Board of Education, which shall, within sixty days thereafter, review the rejected plan, make alterations, revisions, and amendments as deemed proper and submit the revised plan to the State Board. If the revised plan is disapproved by the State Board, then the County Board is required to submit its own plan to the voters for a vote for or against it on the first Tuesday of November, 1949. If the plan be adopted as submitted to the voters in such cases, the directors of the enlarged district are thereupon elected. Funds of a district included are to be transferred to the enlarged district.
The salient provisions of RSMo 1949, Section 165.300, V.A.M.S., upon which the appellant relies, relate to annexation by one district to another of certain classifications. Laws of Mo.1947, page 507. It was enacted in lieu of Section 10484, a part of Article 5, Chapter 72, RSMo 1939, and became effective June 23, 1947, under its emergency clause. Provision is made therein for a school district adjoining any city, town, consolidated or village school district, desiring to be annexed thereto for school purposes, *159 to hold special elections therefor and if carried, the districts shall be annexed as proposed, and funds of the district, if annexed, shall become the property of the city or town school district.
According to the facts, the County Board of Education of Lafayette County proceeded under the provisions above cited, RSMo 1949, Sections 165.657 to 165.707, V.A.M.S., as related below. It was established August 23, 1948. It promptly made a detailed study of the school districts of the county and filed said report with the State Board of Education. On April 28, 1949, within the statutory time it adopted a plan of reorganization of all the districts of the county, including Hitt District No. 5. On April 30, 1949, it submitted its plan to the State Board of Education. The State Board rejected the plan on June 28, 1949. On August 22, 1949, the County Board adopted a revised plan of reorganization, which included Hitt District No. 5 in a reorganized district called the Waverly District No. R-8, and again submitted the plan to the State Board on August 31, 1949. Thereafter, on September 14, 1949, the State Board rejected the revised or second plan of reorganization. In its letter of disapproval of the second plan the State Board stated in part"In the disapproval of a reorganization plan the second time, attention is called to the fact that the law, under Section 7 of Senate Bill No. 307 directs the County Board to propose a plan of reorganization and submit the same to the voters on the first Tuesday in November, 1949." On September 27, 1949, the County Board voted to submit the second plan to the voters. On October 5, 1949, the County Board called an election on the said second plan of reorganization, giving due notice thereof, to be held November 1, 1949. At that election there were 458 votes in favor, and 69 votes against the proposed reorganization.
In the meantime, however, after the rejection of the County Board's second plan by the State Board on September 14, 1949, a petition of 16 voters was filed on September 26, 1949, with the clerk of the School Board of Hitt District No. 5, for the calling of an election therein to annex that district with Corder District No. 32 (itself now a part of reorganized Corder District No. R-3, the appellant). This petition being approved by the District Board of Hitt District No. 5 on September 27, 1949, the same date that the County Board of Education voted to submit its second plan to the voters, the Board of Hitt District No. 5 caused notices to be posted as of October 3, 1949, for an election therein to be held October 21, 1949. At that election there were twenty votes in favor of the annexation to the Corder District, and seventeen votes against it. The Corder District No. 32 voted on the same day to accept the annexation.
It is the contention of the appellant that on and after September 14, 1949, when the second plan of the County Board of Education was rejected by the State Board, no plan then existed for the reorganization or enlargement of the school districts of the county, and that there was none then available to the voters of the county as the Board's own plan. It is argued that the District Board's proceeding for annexation was begun prior to the adoption and submission of the plan of the County Board. In other words, the appellant's theory is that the School Boards of Hitt District No. 5 and Corder School District No. 32, became vested with exclusive jurisdiction in the matter of their annexation, and that the later adoption of the County Board's plan by the voters is void.
Respondent maintains that the County Board of Education acquired exclusive jurisdiction over the territory of Hitt District No. 5 when it adopted its first plan of reorganization April 28, 1949, including that district, and that such jurisdiction continued until the election submitted by it on November 1, 1949. Especially it contends that such exclusive jurisdiction was clear on August 22, 1949, when the County Board submitted its second plan to the State Board, and, on September 14, 1949, when the second plan was rejected by the State Board, at which time, under the statute, the County Board became legally bound to propose and to submit that or another plan of its own to the voters on November 1, 1949. The plan so submitted and adopted at such election placed Hitt District No. 5 in the Waverly District R-8, and not in Corder School District No. R-3. It is urged that the *160 annexation proceedings carried out in the meantime by Hitt District No. 5 and Corder School District No. 32 were void.
Assuming that both the County Board and the local District Board generally had concurrent jurisdiction to proceed as they did, affecting the districts in question, the facts support the contention of the respondent that it acquired prior and exclusive jurisdiction in the premises by reason of its having first begun its proceedings. At the time of the establishment of the County Board of Education in Lafayette County on August 23, 1948, there was no pending proceeding of any kind on the part of the School Board of Hitt District No. 5 for annexation; nor when the County Board prepared and adopted its proposed plan for reorganization on April 28, 1949, within the time and as required by the statute, and which included Hitt District No. 5; nor on April 30, 1949, when that plan was submitted to the State Board; nor on June 28, 1949, when that plan was rejected by the State Board; nor at the time when the County Board amended the plan, including District No. 5 in the Waverly District No. R-8, and on August 22, 1949, submitted it to the State Board as a second plan of reorganization, nor on September 14, 1949, when the second plan was rejected. At that juncture the County Board became legally bound by law to submit a plan of its own to the voters in the districts involved (including Hitt District No. 5) to accept or reject it on the first Tuesday of November, 1949. This was done by the County Board's order of September 27, 1949, and the plan overwhelmingly adopted by the voters on November 1, 1949. See State ex inf. Stipp ex rel. Stokes Mound School Dist. v. Collier, Mo.Sup., 243 S.W.2d 344.
The fact that, during the interim between the date the second plan of the County Board was rejected by the State Board September 14, 1949, and the prompt submission of the County Board's own plan to the vote of the people within the statutory period, a petition of 16 voters of Hitt District No. 5 was filed with the clerk of that district, calling for an election on October 21, 1949, to annex with the Corder District No. 32, and that such annexation was carried at that election did not divest the County Board of its prior jurisdiction acquired as aforesaid, to proceed and to consummate its reorganization plan if and when adopted by the voters at the election on November 1, 1949.
It was said in State ex inf. Goodman ex rel. Crewdson v. Smith, 331 Mo. 211, at page 214, 53 S.W.2d 271, 272: "It is a well established principle of law that, when several separate authorities have concurrent jurisdiction of the same subject-matter the one in which proceedings were first commenced has exclusive jurisdiction to the end of the controversy."
In the recent case of State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, at page 404, 228 S.W.2d 762, 779, involving the priority between two extension proceedings over the same territory and each instituted by a different municipality one day apart, the court said: "(1) relator, by the institution of its prior proceedings on August 19, 1946 thereby acquired prior jurisdiction of the subject matter, and (2) relator thereby acquired the right to continue its proceedings to a conclusion, unimpaired by any effort whatever upon the part of respondent to annex any of the same area."
It was also stated in State ex rel. Fry v. Lee, 314 Mo. 486, 284 S.W. 129, that proceedings started by the Superintendent of Camden County for the formation of a consolidated school district gave prior jurisdiction over proceedings later begun by the Superintendent of the adjoining Laclede County under which notices for an election were given to be held one day prior to the election proposed for the first proceedings, and that the second proceeding was an attempted usurpation of jurisdiction of the subject matter previously acquired by the County Superintendent of Camden County. See, also, 73 C.J.S., Public Administrative Bodies and Procedure, § 53, page 376.
Appellant relies strongly on the opinion of this court in Mullins v. Eveland, Mo.App., 234 S.W.2d 639, wherein we held that the annexation proceedings taken by a *161 local school district were valid and were not affected by the fact that the County Board had merely contemplated a plan to reorganize the districts in question. The holding there was that the County Board of Education had never made or submitted a plan and the State Board had taken no action whatever in respect to the same. That case is distinguishable from the case at bar where all of the requirements of the statutes were met by the State and County Boards of Education at the times and in the manner stated.
In view of the admitted facts and the law applicable thereto it is our conclusion that the annexation proceedings instituted by the Board of Hitt District No. 5 with Corder School District No. 32, now Corder School District No. R-3, are void, and that said Hitt District No. 5 was lawfully made a part of said Reorganized Waverly District No. R-8, under the adopted plan of the County Board of Education of Lafayette County, ratified by its voters on November 1, 1949, and that the funds in the hands of the respondent, formerly belonging to Hitt District No. 5 are now the property of and vested in the Reorganized Waverly School District No. R-8 of Lafayette County, Missouri. In view of so holding, the result is that the court properly denied the writ of mandamus. The judgment and decree are hereby affirmed.
All concur.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 5, 2005
No. 05-10240
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-60192-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD MELVIN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 5, 2005)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Edward Melvin appeals his sentence of 100 months imprisonment, imposed
following his guilty plea as to knowingly and intentionally distributing and
possessing with intent to distribute a controlled substance, “crack” cocaine, within
1,000 feet of a playground, in violation of 21 U.S.C. §§ 841(a)(1) and 860.
Because Melvin preserved his Booker 1 challenge, the government must show that
any constitutional error in the district judge’s imposition of sentence was harmless
beyond a reasonable doubt. Here, the record does not establish harmless error,
and, therefore, we VACATE and REMAND for resentencing.
I. BACKGROUND
Melvin was charged by indictment with three counts of knowingly and
intentionally distributing and possessing with intent to distribute an unspecified
quantity of a controlled substance, “crack cocaine,” within 1,000 feet of a
playground, in violation of 21 U.S.C. §§ 841(a)(1) and 860. He agreed to plead
guilty without a written plea agreement, and without admitting to the drug
quantities totaling 5.63 grams outlined in the government’s factual proffer. R3 at
8-10. The court accepted the guilty plea in light of the government’s consent to
accept the plea without an admission as to quantity. Id. at 10-11.
The probation officer computed a base offense level of 28, using the drug
amounts alleged by the government, but not admitted by Melvin. There were no
other enhancements. Melvin was awarded a three-level reduction for timely
1
United States v. Booker, 534 U.S. ___, 125 S. Ct. 738 (2005).
2
acceptance of responsibility. This yielded a total offense level of 25. The
probation officer calculated Melvin’s criminal history score at ten points, resulting
in a criminal history category of V. Accordingly, Melvin’s guidelines range was
100 to 125 months imprisonment.
Melvin challenged the computation of his offense level on the basis of
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). R2-28 at 2-3, 10.
He argued that Blakely should be applied to the federal sentencing guidelines and
that, if it were so applied, his base offense level would be 12, rather than 28,
because he had not admitted to the quantity of drugs used in calculating it. Id. at 2.
Melvin also objected to the computation of his criminal history score, contending
that giving multiple points for a single offense constitutes judicial fact-finding,
precluded by Blakely and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348
(2000). Id. at 11.
Melvin argued, alternatively, that he should receive a downward departure
pursuant to U.S.S.G. §4A1.3 (2004) because his criminal history was over-
represented by the assigned score, and pursuant to U.S.S.G. §5K2.11, because his
conduct did not threaten the harm sought to be prevented by the drug statute he had
violated. Id. at 12-16. More specifically, he argued that his distribution of drugs
within 1,000 feet of a playground was purely inadvertent, because his family’s
3
residence (the location from which he distributed the “crack” cocaine) was located
near a park with a playground. Id. at 14-16.2
At sentencing, Melvin renewed his Blakely objections and reiterated that
“[w]hen the quantities were recited [at the change-of-plea hearing, he had] made no
agreements, no admissions, [and] no concessions” regarding any amount of
“crack” cocaine. R4 at 7. The court overruled Melvin’s objections to the base
offense level and the criminal history score on the basis of United States v. Reese,
382 F.3d 1308 (11th Cir. 2004),3 and denied his requests for downward departure.
R4 at 10, 22-23. With regard to the §5K2.11 request, the court concluded that
Melvin’s offense conduct, selling “crack” cocaine “within [ ] a stone’s throw” of a
park frequented by children, fell squarely within the harm contemplated by 21
U.S.C. § 860. R4 at 12, 14.
Melvin also raised a sixth objection, contending that the guidelines as a
whole were unconstitutional. Id. at 7. The court overruled this objection, again
citing Reese, and sentenced Melvin to 100 months imprisonment as to each count,
2
Melvin also objected to the omission of a three-level downward adjustment for acceptance
of responsibility. R2-28 at 12. The probation officer corrected the calculation to account for this
oversight before the sentencing hearing.
3
In Reese, we held that Blakely did not apply to the federal sentencing guidelines. Reese,
382 F.3d at 1312. Following the Supreme Court’s further consideration in light of United States v.
Booker, 534 U.S.__ , 125 S. Ct. 738 (2005), we vacated Reese’s sentence and remanded. United
States v. Reese, 397 F.3d 1337 (11th Cir. 2005).
4
to be served concurrently, and 6 years supervised release as to each count, also to
run concurrently. Id. at 10, 24-25. Melvin now appeals the calculation of his base
offense level in light of the unadmitted drug quantities.4
II. DISCUSSION
In United States v. Booker, 534 U.S. ___, 125 S. Ct. 738 (2005),5 the
Supreme Court held that Blakely applied to the federal sentencing guidelines and
that the Sixth Amendment required that any fact that increased a defendant’s
sentence beyond the maximum sentence authorized by the facts established by a
plea or a jury verdict must be admitted by the defendant or proven to a jury beyond
a reasonable doubt. Id. at , 125 S. Ct. 755-56. We have explained that a Booker
error also results from the district court’s use of a mandatory guidelines scheme,
even in the absence of any constitutional error. See United States v. Shelton, 400
F.3d 1325, 1330-31 (11th Cir. 2005).
Because Melvin preserved his Booker challenge in the district court, we
review the sentence de novo, but will reverse only if the error was harmful. See
United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (per curiam). The burden
is on the government to show that the error was harmless. To show that a
4
The other issues raised before the court, but not argued in the briefs on appeal are deemed
abandoned. See Cross v. United States, 893 F.2d 1287, 1289 n.4 (11th Cir. 1990).
5
We now review Blakley arguments under Booker.
5
constitutional error was harmless, the government must demonstrate “beyond a
reasonable doubt, that the error did not contribute to the defendant’s ultimate
sentence.” United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005) (per
curiam) (citation omitted). To show non-constitutional harmless error, the
government is held to a less demanding standard, but must show that, viewing the
proceedings in their entirety, the error had no effect or a very slight effect on the
sentence. See id. at 1291-92. Here, the government concedes that the record
establishes both constitutional and non-constitutional error. We agree.
A sentencing court’s determination of drug quantities, if it serves to increase
an individual’s base offense level under the guidelines, is constitutional error. See
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, __ U.S.
__, 125 S. Ct. 2935 (2005). Here, in calculating the base offense level, the court
relied on drug quantities that were neither included in the indictment nor admitted
by Melvin. The court’s determination was based on the government’s statements
in the change-of-plea colloquy and on the statement of offense contained in the
presentence investigation report. R4 at 6. Melvin never agreed to this or any other
quantity, and specifically stated that he planned to contest the quantities asserted if
it ever became necessary. R3 at 11; R4 at 6-7. Reliance on these quantities in
calculating the sentence thus amounted to a constitutional error. Further, the
6
court’s treatment of the guidelines as mandatory constitutes statutory error.
The government also concedes that the error here is not harmless. We agree.
Where it is unclear whether the court would have imposed the same sentence but
for the mandatory guidelines, the government cannot show that the error was
harmless beyond a reasonable doubt. See United States v. Davis, 407 F.3d 1269,
1271-72 (11th Cir. 2005) (per curiam).
Here, the court did not indicate that it would have imposed the same
sentence if the guidelines had been advisory. During sentencing, it discussed
options for a downward departure from the guidelines range, but was unable to
find a basis for such departure under U.S.S.G. §§4A1.3 and 5K2.11. R4 at 14, 18,
23. Departures under these sections must be based on factors not necessarily
encompassing those considered under 18 U.S.C. §3553(a). The court also stated
that it finds “lengthy incarcerated sentences for young men extremely difficult to
give,” and gave Melvin the lowest sentence permitted in his range. R4 at 23-24.
Finally, the court commented that an appeal after Booker might bring a different
result. Id. at 23. We cannot say how the court would have sentenced Melvin had it
not believed the guidelines were mandatory. Consequently, as it has conceded, the
government cannot show the constitutional error was harmless beyond a reasonable
7
doubt.6
III. CONCLUSION
Therefore, because the government cannot meet its burden to show harmless
error, we VACATE and REMAND for resentencing under an advisory guidelines
scheme.
6
The same facts would result in a remand under the less stringent test for statutory harmless
error. The court specifically told Melvin that its decision was predicated on her being bound by a
mandatory sentencing scheme. R4 at 23. Where the district court has indicated a desire to impose
a lesser sentence than that mandated by federal guidelines, we have remanded the case. See Shelton,
400 F.3d at 1332-33, 1334. The facts here suggest that the court was concerned with the length of
Melvin’s sentence. Thus, as the government has conceded, it cannot show the error had only a slight
effect on the sentence imposed. See Mathenia, 409 F.3d at 1292.
8
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268 S.W.2d 270 (1954)
EASTEX POULTRY CO. et al.
v.
BENEFIELD.
No. 4983.
Court of Civil Appeals of Texas, Beaumont.
April 22, 1954.
*271 John A. Erhard, Dallas, for appellants.
McLeroy & McLeroy, Center, for appellee.
WALKER, Justice.
The appeal is from an order overruling a plea of privilege. Plaintiff, the appellee, alleged that he had sold a quantity of poultry to Eastex Poultry Company, and he brought suit against Eastex Poultry Company for the price. A plea of privilege to be sued in Dallas County was filed in the name of Eastex Poultry Company and also in the name of one Joe Fechtel. It was alleged in this plea that Eastex Poultry Company was a partnership and that Joe Fechtel was a partner in this concern, and it was alleged further that the residence of said concern and of Fechtel was in Dallas County. Plaintiff filed a controverting affidavit and made his petition a part of this pleading. It was alleged in the controverting affidavit that Eastex Poultry Company was a partnership of Joe Fechtel and A. L. Hilkemeyer operating under the name of said concern; that Hilkemeyer resided in Missouri; that plaintiff resided in the county of suit; and that the trial court had venue of Hilkemeyer under Subdivision 3 of Article 1995, R.S. 1925, Vernon's Ann.Civ.St. art. 1995, subd. 3, and had venue of Fechtel and of the partnership under Subdivision 29a of Article 1995.
The issue of venue was tried before the court without a jury and evidence was adduced in support of the contentions of the parties. The trial court's order overruling the plea of privilege impliedly found all fact issues in favor of the plaintiff, and on the evidence these implied findings established the following facts: (1) At all material times the plaintiff was a resident of the county of suit and Eastex Poultry Company operated a place of business in said county. This place of business was a plant where chickens purchased by Eastex were prepared by said concern for sale on the public market. (2) Plaintiff as seller and Eastex Poultry Company as purchaser made a contract of purchase and sale as alleged in the petition, under which plaintiff was entitled to the relief prayed for by him; and this contract was made as a part of the business conducted by Eastex in the county of suit and was made in said county. (3) Eastex Poultry Company was a co-partnership of Joe Fechtel and A. L. Hilkemeyer. (4) Fechtel resided in Dallas County and Hilkemeyer resided in Missouri. *272 Other facts material to specific contentions are stated below.
An appeal from the order overruling the plea of privilege has been taken in the name of Eastex Poultry Company and in the name of Joe Fechtel, and said defendants have assigned five Points of Error for reversal. We shall discuss the contentions made without further reference to the Points.
Opinion
(1) Article 5924, R.S. 1925, requires all persons operating a business under an assumed name to file with the County Clerk of the county in which the business is to be conducted a certificate stating certain information, and the plaintiff put in evidence an original certificate filed in the county of suit in compliance with this statute. The trial court necessarily inferred, and under Art. 5926 was justified in inferring, that the certificate had been filed by or in behalf of the persons who made the certificate. This certificate purported to be signed by Fechtel and Hilkemeyer and it also contained a notary's certificate of acknowledgment by those persons. The statement required by the statute and also the notary's certificate of acknowledgment were dated September 1, 1952. The complete certificate was filed in the office of the County Clerk on May 13, 1953, before the contract sued on was made. As Article 5924 requires, it was stated in this certificate that the Eastex Poultry Company was a partnership and that the partners were Fechtel and Hilkemeyer; and that the post office address of Fechtel was Dallas, Texas, and the post office address of Hilkemeyer was Jefferson City, Missouri. It is contended that admission of this certificate was erroneous on the ground that execution of the certificate was not proved.
This contention is overruled. Execution of the certificate by Fechtel was proved by the witness Ruston, who identified Fechtel's signature. Article 5924 requires that the certificate of assumed name "be executed and duly acknowledged by the persons so conducting or intending to conduct said business in the manner provided for acknowledgment of conveyance of real estate"; and under Article 3723, the notary's certificate of acknowledgment, which complied with the requirement just quoted from Article 5924, proved the execution of the certificate by both Fechtel and Hilkemeyer. See: Smith v. Dozier Construction Co., Tex.Civ.App., 66 S.W.2d 744; Hughes v. Dopson, Tex.Civ.App., 135 S.W.2d 148; Stout v. Oliveira, Tex.Civ.App., 153 S.W. 2d 590; Thane v. Dallas Joint Stock Land Bank, Tex.Civ.App., 129 S.W.2d 795; Southwest Bitulithic Co. v. Martinez, 135 Tex. 347, 143 S.W.2d 116, at page 119; Norris v. Lancaster, Tex.Com.App., 280 S.W. 574.
(2) It is contended as error that plaintiff failed to prove that Hilkemeyer was a partner of Eastex Poultry Company when the plaintiff's cause of action arose. This contention is overruled. Concerning the certificate required by Article 5924, it is provided in Article 5926 that "A copy of such certificate duly certified to by the county clerk in whose office the same was filed shall be presumptive evidence in all courts in this State of the facts therein contained". The effect of Article 5926 is to make the original certificate on file with the clerk the real proof and to make this proof available in court by a certified copy. The original certificate put in evidence by the plaintiff was thus presumptive proof of the statements therein which Article 5924 required to be made, and thus was presumptive proof that Eastex Poultry Company was a partnership of Fechtel and Hilkemeyer. This evidence has not been rebutted. Further, Fechtel's execution of the assumed name certificate having been proved, this certificate was an admission by him of the facts stated therein, and this admission, being that a party to the suit, was substantive evidence of said facts as against him. See: McCormick & Ray's "Texas Law of Evidence", pp. 626 and 627, Sec. 489. This is also true concerning Hilkemeyer, whom plaintiff has alleged to be a partner and whose interest in the partnership the plaintiff is attempting to subject to his claim. Such admissions, being clearly established and having been made pursuant *273 to a positive requirement of law, are cogent evidence of the facts admitted. This evidence shows the nature and membership of the concern Eastex Poultry Company when the assumed name certificate was filed, since filing in behalf of the partnership is but a repetition of the statements made on the date of the certificate. As we have stated, this certificate was filed before plaintiff made the contract sued on. The certificate was filed on May 13, 1953. Plaintiff alleged that the contract was made on May 26th, and some of his testimony shows that the contract was made on the date alleged. There is no evidence of change in membership; and the membership of Eastex Poultry Company shown by the assumed name certificate presumptively continued to be the same at such dates later than the date when the assumed name certificate was filed as were material to the question of venue. It is held that a partnership proved presumptively continues, and even the lapse of time between the date of the certificate and the dates when the contract was made and this suit was filed was not great enough to effect the operation of this presumption. See: 32 Tex.Jur. 504, Sec. 180. See, also, Spolane v. Coy, Tex.Civ.App., 153 S.W.2d 672; Owl Taxi Service v. Saludis, Tex.Civ.App., 122 S.W. 2d 225. The evidence supported the trial court's implied findings concerning the nature and membership of the concern Eastex Poultry Company. It is, therefore, unnecessary for us to consider the effect to be given the failure of defendants Eastex and Fechtel to deny the allegations concerning partnership made in the controverting affidavit.
(3) It is contended as error that the evidence does not show that Hilkemeyer was a non-resident of the state. This contention is overruled. It is required by Article 5924 that the assumed name certificate state the post office addresses of the persons operating under the assumed name, and the certificate in proof states the post office addresses of Fechtel and Hilkemeyer. For reasons already stated it constituted evidence of these addresses. Only one post office address is given for Hilkemeyer, namely, Jefferson City, Missouri; and this address is some evidence that Hilkemeyer's residence was also in Missouri. The filing of the certificate was, as we have stated, a repetition of the statement made before the notary on the date of the certificate and the statement in the certificate was presumptively true as of the date of the filing. Further, it is held that residence once shown presumptively continues. In addition to the authorities cited by the plaintiff, see: 31 C.J.S., Evidence § 124-b, p. 739. Even the time elapsing between the date of the certificate and the dates when plaintiff made his contract and when he filed his suit was too short to affect the operation of this presumption.
(4) It is contended as error that neither Hilkemeyer nor Fechtel had been personally served with process, and that plaintiff must have sued Hilkemeyer as an individual, that is, must have attempted to enforce Hilkemeyer's individual liability for a debt of the partnership. It may be that in his amended petition plaintiff has done this, but the contentions are overruled. One can maintain an action against a partnership for a partnership debt without seeking to enforce the personal liability of all of the partners. See: Arts. 2033 and 2223, R.S. 1925. Thus the plaintiff had a right to sue Hilkemeyer only as a partner; and, if Hilkemeyer was a non-resident, it does not appear that plaintiff would accomplish anything by also suing him as an individual because the trial court could not acquire jurisdiction to render a personal judgment against him for the debt asserted unless he appeared. Inability to acquire jurisdiction over Hilkemeyer did not, however, prevent the acquisition of jurisdiction over the partnership at least to the extent of its property in this state. See: Goodrich, "Conflict of Laws", p. 209, Sec. 76; Beale's "The Conflict of Laws", Vol. 1, p. 365, Sec. 86.1, citing Sugg v. Thornton, 132 U.S. 524, 10 S.Ct. 163, 33 L.Ed. 447. This decision construed Arts. 1224 and 1346 of the Code of 1879. The substance of Art. 1224 is now expressed in Art. 2033, and Art. 1346 is now Art. 2223. The evidence before us on this appeal shows that one partner resided *274 in this state, that the partnership was conducting business at its place of business in the county of suit, and that the contract was made in said county, as a part of the partnership's business in said county. The proof therefore shows that the partnership was present in this state. Further, the trial court did acquire jurisdiction of the partnership by the proceedings now to be mentioned. Under Texas Rules of Civil Procedure, rule 28 the plaintiff had a right to sue the partners under their assumed name, and he did so. The parties have stipulated that only one citation was issued; this was directed to Eastex Poultry Company and it was served upon the manager of the place of business which Eastex maintained in the county of suit. Service of this citation was enough under Arts. 2033b and 2033c to give the trial court jurisdiction of the partnership. That is, this process gave the trial court jurisdiction to render a judgment against the partners which would subject the partnership's property to the payment of the plaintiff's debt. Matters already stated show that the requirements of Art. 2033b were met; the evidence showed that Eastex really was a partnership, and this action grew out of, or was connected with, the partnership's business in the county of suit and the partnership had a place of business in said county. So, as far as his interest in the partnership and its property was concerned, Hilkemeyer was sued and served with process and was before the court subject to judgment; and since plaintiff had the right to sue only the partnership, leaving off the personal liability of Hilkemeyer for a partnership debt, there was no other process to be served on Hilkemeyer. Plaintiff did not have to sue Hilkemeyer individually and serve him with individual process in order to maintain his suit against the partnership; and a partner in court to the extent of his interest in the partnership is as much a party defendant as he is when he is sued on a private debt. Of course, Fechtel had also been sued and served with process in the same sense as Hilkemeyer, and with the same consequences; but Fechtel had also appeared, and for that matter, so had the partnership. These appearances did not settle the matter of venue but they did settle the question of jurisdiction, at least of Fechtel.
(5) It is contended as error that plaintiff did not prove a cause of action against Eastex Poultry Company. This contention is overruled; plaintiff's testimony made out a prima facie case of liability in his favor, as we have already indicated.
(6) The facts gave the trial court venue of the suit. The suit was on a partnership obligation, against the partnership. Venue of a partnership depends on venue of the partners. Under subsection 3, Art. 1995, the trial court had venue of Hilkemeyer in his capacity as a partner because he was a non-resident of the state and a defendant to the suit. As we have pointed out a partner can be a party defendant to the suit, liable to the extent of his interest in the partnership, even though his individual liability for a partnership debt is not asserted. He is, in fact, an indispensable party, for if he is not a party the partnership is not in court. See: Frank v. Tatum, 87 Tex. 204, 25 S.W. 409; Glasscock v. Price, 92 Tex. 271, 47 S.W. 965; McManus v. Cash & Luckel, 101 Tex. 261, 108 S.W. 800; Duncan v. Smith Bros. Grain Co., 113 Tex. 555, 260 S.W. 1027. T.R. 28 and Art. 2033b do not change these rules; this rule and statute only provide a simple and effective way of suing all the partners and of bringing them into court. So sued and served they are before the court to the extent of their partnership property. The trial court had venue of Fechtel under Subdivision 29a of Art. 1995 because Fechtel was a necessary party to the cause of action asserted against Hilkemeyer as a partner, or rather, was an indispensable party to that cause of action. See: McDonald's "Texas Civil Practice", p. 333, Sec. 409; Clinginsmith v. Bond, Tex.Sup., 241 S.W.2d 616. The contentions of defendants Eastex and Fechtel seem to imply that venue cannot be acquired of a partnership under the combination of Subdivisions 3 and 29a if the partnership *275 is sued only in its assumed name under T.R. 28 and served only under Art. 2033b, but we think this conclusion wrong. Fechtel does not contend that the trial court did not have venue of plaintiff's claim against him as an individual for a partnership liability if the trial court had venue of the claim against the partnership.
These comments adjudicate the various contentions made by the defendants Eastex and Fechtel under their Points of Error. All Points of Error are overruled and the judgment of the trial court is affirmed.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7035
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GEORGE MATOS ROCHA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (1:99-cr-00326-JAB)
Submitted: November 6, 2006 Decided: November 16, 2006
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George Matos Rocha, 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:
George Matos Rocha appeals the district court’s order
denying his motion under Fed. R. Crim. P. 36. “Rule 36 authorizes
a court to correct only clerical errors in the transcription of
judgments.” United States v. Werber, 51 F.3d 342, 343 (2d Cir.
1995). Because the district court correctly determined that there
was no such clerical error in the transcription of the judgment in
this case, the court properly denied Rocha’s motion. Finding no
error, we affirm on the reasoning of the district court. See
United States v. Rocha, No. 1:99-cr-00326-JAB (M.D.N.C. May 19,
2006). 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
- 2 -
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 04-13646 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 23, 2006
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 03-20226-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FABIAN LENNOX JOHNSON,
a.k.a. Quinn Jeffery Johnson,
Defendant-Appellant.
----------------------------------------------------------------
Appeal from the United States District Court
for the Southern District of Florida
----------------------------------------------------------------
(May 23, 2006)
Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Defendant-Appellant Fabian Johnson appeals his cocaine conspiracy
conviction after his plea of guilty. Johnson contends the district court erred by
denying his request for leave to withdraw his guilty plea. No reversible error has
been shown; we affirm.
Johnson pleaded guilty pursuant to a written plea agreement to conspiracy
to possess with intent to distribute five kilograms or more of cocaine, in violation
of 21 U.S.C. § 846. At the Rule 11 proceedings held on 7 November 2004, among
other things, Johnson told the court that he had discussed the application of the
Sentencing Guidelines to his case with his lawyer, he acknowledged his
understanding of the minimum and maximum statutory penalties, and he
recognized that no guideline sentence could be determined until a PSI was
prepared. Johnson was also advised that both he and the government would have
an opportunity to challenge the PSI, and that the sentencing court could, in some
circumstances, impose sentence above or below the guidelines range.
After Johnson’s plea was accepted by the district court but before Johnson
was sentenced, the Supreme Court issued its opinion in Blakely v. Washington,
124 S.Ct. 2531 (2004). At his sentencing hearing, Johnson argued that the
sentencing court should apply Blakely to Johnson’s sentencing and calculate
Johnson’s guideline sentencing range only on facts included in the indictment. If
the sentencing court was unwilling to apply Blakely in this manner, Johnson
requested leave to withdraw his guilty plea. The sentencing court denied the
2
request: when Johnson entered his plea he understood that judicial fact-finding
would be determinative of the sentence imposed; Johnson was not misled.
Johnson filed an appeal raising two challenges to his sentence and also
claiming that the district court should have allowed him to withdraw his plea. The
government moved to dismiss the appeal based on a valid sentence appeal waiver
in his plea agreement. Based on the appeal waiver, by order of 24 August 2005,
we dismissed issues challenging the imposition of sentence. Even though Johnson
sought to withdraw his guilty plea based on a sentencing issue, the waiver of the
right to appeal “any sentence imposed” has no application to the denial of
Johnson’s request to withdraw his guilty plea; the plea withdrawal issue is distinct
from the calculation of sentence or the manner in which sentence was imposed.
See United States v. Copeland, 381 F.3d 1101, 1104-05 (11th Cir. 2004) (waiver of
right to appeal “any sentence imposed” did not preclude appeal of issue claiming
government breach of plea agreement). Johnson did not waive his right to appeal
the denial of his request to withdraw his plea.
We review the denial of a request to withdraw a guilty plea for an abuse of
discretion. United States v. Najjar, 283 F.3d 1306, 1307 (11th Cir. 2002). We will
reverse the district court under this standard only if its decision is “arbitrary and
unreasonable.” Id. After a guilty plea has been accepted but before sentence
3
imposed, the guilty plea may be withdrawn if “the defendant can show a fair and
just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). And,
when considering whether a defendant advances a fair and just reason for
withdrawal,
the district court evaluates the totality of the
circumstances, including (1) whether close assistance of
counsel was available; (2) whether the plea was knowing
and voluntary; (3) whether judicial resources would be
conserved; and (4) whether the government would be
prejudiced if the defendant were allowed to withdraw his
plea.
Najjar, 283 F.3d at 1309 (quotation and citation omitted).
In support of his contention that the district court abused its discretion,
Johnson cites no infirmity in the Rule 11 proceedings or the court’s acceptance of
his plea. Johnson makes no reference to the factors that are dispositive of this
issue. Instead, he says only that “the decision in Blakely has effected an enormous
change with regard to sentencing procedures,” and that his request was not
frivolous in the light of Blakely. But “a voluntary plea of guilty intelligently made
in the light of the then applicable law does not become vulnerable because later
judicial decisions indicate that the plea rested on a faulty premise.” Brady v.
United States, 90 S.Ct. 1463, 1473 (1970). Johnson sought to withdraw his plea
to take advantage of the possibility of a more lenient sentence. Johnson was
4
sentenced under the guidelines in the manner he expected when he entered his
plea. Absent an infirmity in the plea, a district court commits no abuse of
discretion when, as here, permission to withdraw is refused to a defendant who
seeks to take advantage of intervening changes in federal sentencing law.
The government’s motion to dismiss Johnson’s appeal of the denial of his
request to withdraw his plea based on the sentence appeal waiver is DENIED;
Johnson’s conviction is AFFIRMED.
5
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-305-CR
MOISES ANTONIO CARCAMO A/K/A APPELLANT
MOISES PORTILLO CARCAMO
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
Appellant Moises Antonio Carcamo a/k/a Moises Portillo Carcamo entered
an open plea of guilty to two counts of indecency with a child by contact.
After the trial court heard testimony from Appellant, his brother, a family friend,
and the victim’s mother, the trial court found Appellant guilty and sentenced
1
… See Tex. R. App. P. 47.4.
him to ten years’ confinement on each count, with the sentences to run
concurrently.
Appellant’s court-appointed appellate counsel has filed a motion to
withdraw as counsel and a brief in support of the motion. In the brief, counsel
avers that, in his professional opinion, this appeal is frivolous. Counsel’s brief
and motion meet the requirements of Anders v. California, 386 U.S. 738, 87
S. Ct. 1396 (1967), by presenting a professional evaluation of the record and
demonstrating why there are no arguable grounds for appeal. 2 We gave
Appellant an opportunity to file a pro se brief, and Appellant filed three letters
with this court arguing his sentence was unfair.
After an appellant’s court-appointed counsel files a motion to withdraw
on the ground that the appeal is frivolous and fulfills the requirements of
Anders, this court is obligated to undertake an independent examination of the
record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);
Mays v. State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no
2
… Acknowledging a potential failure to preserve error, counsel also
presented what he termed an “arguable” point of error that Appellant’s
sentence constitutes cruel and unusual punishment in violation of the United
States and Texas Constitutions. Appellant failed to preserve error by not raising
this argument at the time his sentence was imposed or in a motion for new
trial. See Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009,
pet. ref’d).
2
pet.). Only then may we grant counsel’s motion to withdraw. See Penson v.
Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).
We have carefully reviewed counsel’s brief, Appellant’s letters, and the
appellate record. We agree with counsel that this appeal is wholly frivolous and
without merit; we find nothing in the record that arguably might support any
appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App.
2005). Accordingly, we grant counsel’s motion to withdraw and affirm the trial
court’s judgment.
PER CURIAM
PANEL: GARDNER, J.; CAYCE, C.J.; and LIVINGSTON, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 15, 2009
3
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882 So.2d 864 (2003)
Lawrence H. BUNDRICK, Jr., M.D.
v.
Letitia Wyatt McALLISTER.
2020635.
Court of Civil Appeals of Alabama.
December 12, 2003.
*865 W. Stanley Rodgers and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellant.
Tommy H. Siniard and Brent H. Jordan of Siniard, Timberlake & League, P.C., Huntsville, for appellee.
PITTMAN, Judge.
After a jury trial, the Madison Circuit Court entered a judgment awarding $85,000 in damages to Letitia Wyatt McAllister in her action against Lawrence H. Bundrick, Jr., M.D., under the Alabama Medical Liability Act, § 6-5-480 et seq., Ala.Code 1975. McAllister subsequently filed a motion for an award of costs pursuant to Rule 54(d), Ala. R. Civ. P., in the amount of $45,064.88. Attached to that motion was an exhibit listing charges for particular classes of cost items claimed by McAllister, including charges for "medical records," "X-ray copies," "professional fees," "expert witness fees," "court costs" (such as filing and subpoena fees), "depositions," "investigative services," "travel expenses," and "trial exhibits." Dr. Bundrick opposed the motion for an award of costs, filing two briefs contesting various specific items and generally challenging the sufficiency of McAllister's motion. McAllister then filed an "evidentiary submission" in support of her motion, and Dr. Bundrick filed a motion to strike that submission.
After considering the parties' submissions, the trial court entered an order taxing *866 as costs all of the expenses identified by McAllister with the exception of "travel expenses" in the amount of $1,189.25, certain expenses for trial exhibits totaling $4,078.26, and certain professional fees totaling $1,465. Although the trial court ordered Dr. Bundrick to pay costs "in the amount of $38,332.87," the claimed expenses remaining after subtracting the expense items disallowed by the trial court actually total $38,332.37, i.e., 50 cents less than the amount awarded.
Dr. Bundrick has appealed from the trial court's order awarding costs. "[A] party aggrieved by an award of costs may appeal the propriety of such an award, even where the merits of the underlying case are not before the appellate court." Garrett v. Whatley, 694 So.2d 1390, 1391 (Ala.Civ.App.1997) (citing City of Birmingham v. City of Fairfield, 396 So.2d 692, 694 (Ala.1981)). However, our review of a trial court's order taxing costs pursuant to Rule 54(d) is limited to determining whether "a clear abuse of discretion" is present. Garrett, 694 So.2d at 1391.
Dr. Bundrick contends generally that the trial court abused its discretion in awarding any costs (other than "court costs" of $592.63, representing the filing fee and the trial court clerk's subpoena fees, that he does not contest on appeal) because they were "not substantiated by any competent evidence." Specifically, he argues that the documents attached to McAllister's supplemental submission were not "authenticated" pursuant to Rule 901, Ala. R. Evid.[1] We disagree. Each cost item alleged by McAllister and allowed by the trial court was supported by an official reporter's certificate (as to deposition costs) or law-firm checks representing payment of, and corresponding invoices evidencing, all other claimed expenses. Rule 901(b)(4), Ala. R. Evid., indicates that the "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances," will suffice to demonstrate that a document is what its proponent claims it to be. We therefore conclude that the trial court could have deemed McAllister's "evidentiary submission" in support of her motion for an award of costs sufficiently authenticated despite Dr. Bundrick's objection thereto.
We now turn to Dr. Bundrick's challenges to specific cost items allowed by the trial court. Dr. Bundrick contends that the trial court should not have awarded $20,600.02 that McAllister claimed as "deposition costs." We note that under Ala.Code 1975, § 12-21-144, as interpreted by our Supreme Court in Ex parte Strickland, 401 So.2d 33 (Ala.1981), a trial court may, in its discretion, tax all of the costs of any deposition taken in a case, regardless of whether the deposition was used at trial, if the deposition was reasonably necessary.
*867 In this medical-liability action, the parties took a number of depositions, including several videotaped depositions, of expert and other witnesses. By necessity, the services of the people who transcribed and recorded those depositions (and, in one instance, attended a scheduled videotaped deposition that was cancelled)[2] qualify as "costs" of those depositions. Likewise, the weight of authority indicates that the reasonable necessity of editing services with respect to depositions taken using videographic media is a matter for the trial court to determine. See United Int'l Holdings, Inc. v. The Wharf (Holdings) Ltd., 174 F.R.D. 479, 483 (D.Colo.1997) (finding editing costs to be "part and parcel" of court-reporting fees with respect to deposition); 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure: Civil § 2115, pp. 119-120 (2d ed.1994) ("the better view [is that] a videotape is regarded as a deposition-related expense ... so that the party may recover as costs the full amount for videotaping and showing the testimony"); compare Unif. Audio-Visual Deposition Act § 5, 12 U.L.A. 51 (1996) (reasonable expenses of recording, editing, and using an audio-visual deposition "may be taxed as costs").
The trial judge, who was present during the trial and witnessed the parties' presentations and arguments, is, in our view, in a far better position to determine the reasonable necessity of a particular deposition than an appellate court, especially where, as in this case, the full trial transcript does not appear in the record on appeal. We will therefore not disturb the award of costs to the extent that it taxed to Dr. Bundrick the amounts claimed by McAllister that represent charges assessed by stenographers and videographers for services rendered with respect to the depositions taken by the parties (i.e., $11,363.61).
On the other hand, we cannot conclude that all of the items classified by McAllister as "deposition costs" are allowable under Alabama law. Specifically, there are several items listed as "deposition fees" that are actually fees that McAllister paid to various expert witnesses in consideration for giving deposition testimony.[3] In addition to these items, which total $8,788.76, McAllister separately sought, and was awarded, $13,650 in "expert witness fees" with respect to charges assessed by Dr. Charles Vinnik, Dr. Steven Dick, and Dr. Rekha Vankineni for "professional fees," "professional services," "review" fees, and conferences, as well as $400 in "professional fees" charged by Dr. Carol Walker.
As Dr. Bundrick correctly notes, our Supreme Court held in 1946 that "[t]here is practically unanimity of authority in this country that compensation of experts cannot be allowed and taxed against the parties as costs in litigation unless so provided by statute." Hartley v. Alabama Nat'l Bank of Montgomery, 247 Ala. 651, 656, 25 So.2d 680, 683 (1946); accord, Garrett, 694 So.2d at 1391-92 (applying Hartley in reversing award of expert-witness fees while *868 noting that workers' compensation actions present exception to the rule stated in Hartley). While we are not unsympathetic to McAllister's contention that the expert-witness fees she has incurred are representative of the relatively high costs of prosecuting an action under the Alabama Medical Liability Act, neither the legislature nor our Supreme Court has seen fit to allow such fees to be recovered, and we must therefore conclude that the trial court abused its discretion in failing to exclude those items (which amount to $22,838.76) from its award of costs.
Finally, we address the remaining items that were claimed as taxable costs by McAllister that Dr. Bundrick has challenged on appeal. We cannot conclude that the trial court abused its discretion to the extent that its award of costs directs payment to McAllister of the costs she incurred in reproducing depositions, X-ray images, and other medical records that were used as exhibits and illustrations. Copying expenses have been recognized by the Alabama Supreme Court as appropriate for reimbursement. See Lewis, Wilson, Lewis & Jones, Ltd. v. First National Bank, 435 So.2d 20, 23 (Ala.1983). Those expenses that were listed by McAllister as "medical records," "X-ray copies," and "trial exhibits," as well as the $447.65 expense claimed under "depositions" for photocopies, were therefore proper costs; those expenses amounted to a total of $2,697.62.
However, McAllister has provided no authority under Alabama law, and we are aware of none, that would support the taxing to Dr. Bundrick of a $839.75 charge paid by McAllister for expenses incurred by private investigators that undertook service of various subpoenas on behalf of McAllister. Under current federal law, fees assessed by private process servers are taxable as costs only to the extent that a government official may charge a similar fee for performing the same duty. See EEOC v. W & O, Inc., 213 F.3d 600, 624 (11th Cir.2000) (vacating trial court's award of process-server fees as costs and remanding for determination whether requested fees "are commensurate with" statutory fees permitted to United States marshals for service). Although the Alabama Code specifies that the clerk is to be paid an $8 fee for issuing a subpoena in a civil case (see § 12-19-74, Ala.Code 1975), we have been directed to no authority from which we can conclude that any fee is properly assessed under Alabama law in a medical-liability action[4] for the service of a subpoena. We therefore conclude that the trial court abused its discretion in failing to except the "investigative services" fees claimed by McAllister from its award of costs.
Based upon the foregoing facts and authorities, we conclude that $14,653.86 of the amount taxed by the trial court to Dr. Bundrick as costs pursuant to Rule 54(d), Ala. R. Civ. P., was proper. However, items representing expert-witness fees incurred by McAllister in the amount of $22,838.76 and representing "investigative services" fees for service of process in the amount of $839.75 are not properly taxable under Alabama law to Dr. Bundrick. The trial court's order taxing costs is therefore reversed, and the cause is remanded for *869 the trial court to tax costs to Dr. Bundrick in the amount of $14,653.86.
REVERSED AND REMANDED WITH INSTRUCTIONS.
YATES, P.J., and CRAWLEY, THOMPSON, and MURDOCK, JJ., concur.
NOTES
[1] We note that Dr. Bundrick does not rely upon those portions of the Alabama Rules of Evidence pertaining to hearsay (see Rule 801 et seq., Ala.Code 1975) as a separate basis for challenging the propriety of McAllister's submissions in support of her motion for costs; rather, he contends solely that those submissions were unauthenticated under Rule 901. "When an appellant fails to argue an issue in its brief, that issue is waived." Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982). However, we caution the Bench and Bar that under Rule 803(6), Ala. R. Evid., for records of regularly-conducted activities to be admissible in evidence for the truth of the matters stated therein, "the proponent must call a witness to lay the prescribed foundation," i.e., "that the record was kept in the course of a regularly conducted business activity and that it was the regular practice of that business activity to make the record." Rule 803, Ala. R. Evid., Advisory Committee's Notes (emphasis added).
[2] See Papas v. Hanlon, 849 F.2d 702, 704 (1st Cir.1988) (affirming judgment taxing "no-show deposition costs" as incidental court-reporting fees).
[3] These include a $900 fee payment to "The Clinic for Neurology" for the deposition of Dr. Lee McDaris, fees of $1,000 and $1,013.76 paid to Dr. Carol Walker, a $2,000 fee paid to Dr. Charles Vinnik, fees of $600 and $375 paid to "Alabama Gastroenterology" for the deposition of Dr. Rekha Vankineni, a fee of $500 paid to "North Alabama Neurological" for a deposition of Dr. Joel Pickett, a fee of $1,500 paid to "North Alabama Neurology" for a videotaped deposition of Dr. Pickett, and a fee of $900 paid to Dr. Jeff Creasy.
[4] Although we affirmed an award of costs in Rayford v. Rayford, 456 So.2d 833 (Ala.Civ.App.1984), that included an allowance for expenses of a private investigator who was retained by a custodial parent to track down a noncustodial parent who had absconded with the parties' children, we expressly based our decision upon "the broad equity powers of the court in child custody matters to adjust the equities between the parties." 456 So.2d at 835. In contrast, McAllister sought and obtained an award of damages from Dr. Bundrick and in no way invoked the trial court's "equity powers."
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571 N.W.2d 221 (1997)
225 Mich. App. 132
GRAND BLANC CEMENT PRODUCTS, INC., Plaintiff-Appellee/Cross-Appellant,
v.
INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellant/Cross-Appellee, and
Artco Contracting, Inc., Defendant-Cross-Appellee, and
J. Moye Masonry, Inc., Defendant.
Docket No. 186152.
Court of Appeals of Michigan.
Submitted June 3, 1997, at Detroit.
Decided August 19, 1997, at 9:15 a.m.
Released for Publication November 6, 1997.
*223 Winegarden, Shedd, Haley, Lindholm & Robertson, P.L.C. by Alan F. Himelhoch, Flint, for Plaintiff-Appellee/Cross-Appellant.
Harvey, Kruse, Westen & Milan, P.C. by John F. Milan and Maurice A. Borden, Troy, for Insurance Company of North America and Artco, Contracting, Inc.
Before TAYLOR, P.J., and RICHARD ALLEN GRIFFIN and SAAD, JJ.
*222 RICHARD ALLEN GRIFFIN, Judge.
Defendant Insurance Company of North America (INA) appeals as of right a circuit court's order granting summary disposition in favor of plaintiff with respect to plaintiff's claim for recovery under a payment bond issued by INA pursuant to the public works bond act, M.C.L. § 129.201 et seq.; M.S.A. § 5.2321(1) et seq. (bond act). Plaintiff cross appeals the measure of damages and the trial court's order granting summary disposition in favor of defendant Artco Contracting, Inc. We affirm in part and reverse in part. We hold, inter alia, that subcontractors or materialmen that have failed to comply with M.C.L. § 129.207; M.S.A. § 5.2321(7) regarding a prior contract are not barred from protection under the bond act for labor and materials supplied pursuant to a second and independent contract for the same project if the general contractor is notified in accordance with the statute within thirty days of the claimant supplying labor or materials under the new contract.
I
Pursuant to the bond act, INA issued a payment bond to Artco, the general contractor on a construction project at Detroit Metropolitan Airport. On December 9, 1992, plaintiff began supplying masonry materials to defendant J. Moye Masonry, one of Artco's subcontractors. Because of nonpayment, plaintiff terminated its contract and stopped supplying Moye on March 1, 1993. After negotiations and an agreement for payment of the past due amount, a new supply contract was entered into on March 30, 1993. In what plaintiff has characterized as a "three-way contract,"[1] plaintiff agreed to supply materials in exchange for payment by *224 Artco in the form of checks issued jointly to plaintiff and Moye. Artco made payment for materials supplied by plaintiff by joint checks dated June 14 and July 2, 1993.
Earlier, on April 8, 1993, plaintiff notified Artco, Moye, and INA's local agent that it was relying on the payment bond as security for materials supplied under the second contract.[2] In August 1993, plaintiff terminated the second contract for nonpayment. Plaintiff notified defendants of the payment lapse in a letter dated August 13, 1993.
Plaintiff filed suit against INA under the payment bond. Plaintiff also sued Moye and Artco alleging contract-related claims as well as claims against Artco of negligence, promissory estoppel, and quantum meruit. The trial court entered a default judgment against Moye. The trial court also granted plaintiff's motion for summary disposition pursuant to MCR 2.116(C)(10) with respect to plaintiff's claim against INA under the payment bond. The trial court ruled that plaintiff had satisfied M.C.L. § 129.207; M.S.A. § 5.2321(7) and perfected its claim under the bond act by notifying defendants within thirty days of when it began supplying materials under the second contract. The trial court also granted summary disposition in favor of Artco pursuant to MCR 2.116(C)(10) on the basis that plaintiff's judgment against INA fully satisfied plaintiff's claims against Artco.
II
On appeal, defendant INA contends that the trial court erred in granting summary disposition for plaintiff with respect to its payment bond claim. We disagree. We review the trial court's ruling on a motion for summary disposition pursuant to MCR 2.116(C)(10) de novo to determine whether the pleadings or the uncontroverted documentary evidence establish that defendant is entitled to judgment as a matter of law. MCR 2.116(I)(1); Kennedy v. Auto Club of Michigan, 215 Mich.App. 264, 266, 544 N.W.2d 750 (1996); Porter v. Royal Oak, 214 Mich.App. 478, 484, 542 N.W.2d 905 (1995). The existence of either circumstance merits summary disposition. Kennedy, supra at 266, 544 N.W.2d 750; Porter, supra at 484, 542 N.W.2d 905.
A
The issue on appeal is whether a claimant that had failed to satisfy M.C.L. § 129.207; M.S.A. § 5.2321(7) regarding an earlier contract to provide materials for a public construction project is afforded bond act protection for materials supplied pursuant to a second and independent contract regarding the same project when proper notification to the general contractor is given within thirty days of supplying materials under the new contract. In addressing this question of first impression, we are mindful that "`[t]he fundamental purpose of any rule of statutory construction, of course, is to assist the court in discovering and giving effect to the intent of the Legislature.'" Terzano v. Wayne Co., 216 Mich.App. 522, 526-527, 549 N.W.2d 606 (1996), quoting In re Certified Question, 433 Mich. 710, 722, 449 N.W.2d 660 (1989). Once discovered, the Legislature's intent must prevail over any existing rule of construction to the contrary. Ansell v. Dep't of Commerce (On Remand), 222 Mich.App. 347, 355, 564 N.W.2d 519 (1997); Terzano, supra at 527, 549 N.W.2d 606. Where reasonable minds may differ about the meaning of a statute, we look to the objective of the statute and the harm it is designed to remedy and apply a reasonable construction that best accomplishes the Legislature's purpose. Ansell, supra at 355, 564 N.W.2d 519; Terzano, supra at 527, 549 N.W.2d 606; People v. Ward, 211 Mich.App. 489, 492, 536 N.W.2d 270 (1995). "[L]iteral constructions that produce unreasonable and unjust results that are inconsistent with the purpose of the act should be avoided." Rowell v. Security Steel Processing Co., 445 Mich. 347, 354, 518 N.W.2d 409 (1994); Salas v. Clements, 399 Mich. 103, 109, 247 N.W.2d 889 (1976).
B
The bond act requires principal contractors to provide performance bonds assuring payment to subcontractors and materialmen *225 furnishing supplies, labor, or equipment for public construction projects. W T Andrew Co., Inc. v. Mid-State Surety Corp., 450 Mich. 655, 658, 545 N.W.2d 351 (1996); Thomas Industries, Inc. v. C & L Electric, Inc., 216 Mich.App. 603, 606, 550 N.W.2d 558 (1996). To qualify for this statutory protection, M.C.L. § 129.207; M.S.A. § 5.2321(7) provides:
A claimant not having a direct contractual relationship with the principal contractor shall not have a right of action upon the payment bond unless (a) he has within 30 days after furnishing the first of such material ... served on the principal contractor a written notice, which shall inform the principal of the nature of the material being furnished or to be furnished, ... and identifying the party contracting for such... materials and the site for the ... delivery of such materials....
Although this notice requirement is strictly enforced, Tempco Heating & Cooling, Inc. v. A Rea Constr., Inc., 178 Mich.App. 181, 190, 443 N.W.2d 486 (1989); Charles W Anderson Co. v. Argonaut Ins. Co., 62 Mich.App. 650, 651-654, 233 N.W.2d 691 (1975), the remedial bond act is "liberally construed" to "protect contractors and materialmen in the public sector." W T Andrew Co, supra at 659, 545 N.W.2d 351; see also Adamo Equipment Rental Co. v. Mack Development Co., Inc., 122 Mich.App. 233, 236, 333 N.W.2d 40 (1982).
In drafting M.C.L. § 129.207, M.S.A. § 5.2321(7), the Legislature did not specify whether the thirty-day period is particular to each individual contract or whether it commences once and for all when the claimant begins performing its first contract to work for the public project. INA contends that, even if the initial contract to work on the public project is unrelated to the subsequent agreement, a subcontractor's or materialman's failure to serve notice within thirty days of beginning performance of the first contract precludes it from achieving bond act protection on any subsequent contract. Plaintiff argues that the thirty-day notice requirement is particular to each new endeavor to provide materials or labor to the project. Plaintiff thus contends that subcontractors or materialmen that fail to notify the principal regarding an earlier contract may gain bond act protection by notifying the principal within thirty days of providing materials or labor pursuant to a new or independent contract to work on the public project.
C
To ensure that "principal contractors [have] knowledge regarding any possible claims to which their bonds might later be subjected," M.C.L. § 129.207; M.S.A. § 5.2321(7) requires subcontractors and materialmen to "inform the principal of the nature of the material being furnished or to be furnished ... and identifying ... the site for... delivery of such materials." Pi-Con, Inc. v. A.J. Anderson Constr. Co., 435 Mich. 375, 383-384, 458 N.W.2d 639 (1990). Subcontractors or materialmen lacking a contractual relationship with the principal are accorded bond act protection only for "such material" or "such labor" that is identified in the notification. Absent this specificity requirement, the principal could be unaware of the nature of the materials or labor for which subcontractors or materialmen may claim recoupment under the payment bond. Thus, as opposed to simply requiring the claimant to notify the principal of its general affiliation with the project, subcontractors and materialmen must specifically identify the kind of materials or labor for which they seek bond act protection.
It follows from this particularity requirement that subcontractors and materialmen must notify the principal regarding each contractual arrangement for which they seek protection under the bond act. Otherwise, the notice requirement would lack consequence because the principal contractor could be subjected to bond act claims bearing little or no similarity to the labor or materials identified in the claimant's original notice. Indeed, the principal would hardly remain abreast of prospective claims on the surety if a claimant's notification regarding an agreement to supply bricks were deemed to cover a claimant's subsequent agreement to provide cement. However, the notice requirement applies only to new contracts that are *226 either distinct from or unrelated to an earlier contract. Subcontractors or materialmen engaged in ongoing relationships need not refile notice each time a new shipment is sent or where there is an immaterial modification in the original contractual arrangement.
Because each new contractual agreement requires independent, specific notice, there is no logical reason why defects in notice relative to earlier agreements should affect notice regarding subsequent contracts. In other words, there is no basis for making a subcontractor's or materialman's initial involvement in the project the bellwether for determining whether the principal is properly notified of an independent subsequent contract. Just as notifying the principal regarding a contract to supply bricks provides no warning of the subsequent arrangement to provide concrete, the failure to notify the principal about the supply of bricks should not affect the adequacy of notice regarding the supply of concrete. Thus, we construe the requirement that notice be within "30 days after furnishing the first of such material" as being specific to each agreement to provide materials or labor for the public project.
Additionally, permanently eliminating bond act protection for subcontractors and materialmen that failed to notify the principal regarding earlier contractual arrangements would violate public policy. Such a construction of the statute would return a class of subcontractors or materialmen on public projects to the plight they faced before the bond act, where they "were denied the security afforded when the identical work or materials were provided to the private sector." Adamo Equipment, supra at 236, 333 N.W.2d 40; see also Kammer Asphalt Paving Co., Inc. v. East China Twp. Schools, 443 Mich. 176, 182, n. 11, 504 N.W.2d 635 (1993). This result would be discordant with the overall purpose of the bond act, which is to "protect contractors and materialmen in the public sector to ensure that they do not suffer injury when other contractors default on their obligations." W T Andrew Co, supra at 659, 545 N.W.2d 351; see also Adamo Equipment, supra at 236, 333 N.W.2d 40; Milbrand Co. v. Dep't of Social Services, 117 Mich.App. 437, 440, 324 N.W.2d 41 (1982). Denying protection under these circumstances would discourage previously unprotected subcontractors or materialmen from bidding on or accepting subsequent contracts to perform more substantial work on public projects. The effect would likely be to raise public construction costs by reducing the field of subcontractors and materialmen willing to bid on new contracts.
For these reasons and consistent with the language and purpose of the bond act, we hold that the thirty-day notice period is specific to each new and independent contractual arrangement. Thus, even if a subcontractor or materialman failed to protect itself under an earlier agreement regarding a public project, the subcontractor or materialman may still protect itself under a new and independent agreement by notifying the principal contractor within thirty days of commencing performance on the new contract. However, because each contractual agreement is independent, the notification applies to the new contract only and does not relate back to establish bond act protection for earlier agreements for which the claimant failed to serve timely notice.
D
In the present case, plaintiff agreed to a new supply contract on March 30, 1993. Because this second contract represented plaintiff's decision to reenter the project after completely terminating its prior involvement, the second contract is independent of the first agreement. Therefore, by notifying the principal contractor within thirty days of supplying materials pursuant the March 30, 1993, contract, plaintiff perfected its bond act claim relative to materials supplied pursuant to this second contract. Accordingly, the trial court correctly granted summary disposition in plaintiff's favor on its claim under the payment bond.
III
Defendant INA further contends that, as Artco's surety, it cannot be liable to plaintiff where the trial court found no contract between plaintiff and Artco. However, INA waived this issue by failing to raise it *227 below. Swickard v. Wayne Co. Medical Examiner, 438 Mich. 536, 475 N.W.2d 304 (1991); Napier v. Jacobs, 429 Mich. 222, 227-228, 414 N.W.2d 862 (1987); McKelvie v. Mt. Clemens, 193 Mich.App. 81, 86, 483 N.W.2d 442 (1992). In any event, INA's claim is untenable because M.C.L. § 129.207; M.S.A. § 5.2321(7) specifically provides that, if the notice requirement is fulfilled, the surety is liable to claimants that lack a direct contractual relationship with the principal. See Pi-Con, Inc v. A.J. Anderson Constr. Co., supra.
IV
On cross appeal, plaintiff contends that the trial court erred in refusing to hold INA liable for time-price differential charges.[3] We disagree.
The March 30, 1993, contract between plaintiff and Moye provided that time-price differential charges would apply if Moye paid for the materials on credit. As a general rule, the surety under the bond act is liable to pay time-price differential service charges if such charges are integral to the underlying supply contract. Price Bros. Co. v. Charles J Rogers Constr. Co., 104 Mich.App. 369, 376-379, 304 N.W.2d 584 (1981); see also Price Bros. Co. v. Olin Constr. Co., Inc., 528 F.Supp. 716, 723 (W.D.N.Y., 1981); Erb Lumber Co. v. Homeowner Constr. Lien Recovery Fund, 206 Mich.App. 716, 721, 522 N.W.2d 917 (1994). Indeed, M.C.L. § 129.207; M.S.A. § 5.2321(7) entitles a claimant under the bond act to prosecute its suit for a judgment "for the amount, or the balance thereof, unpaid at the time of institution of the civil action, [and] prosecute such action to final judgment for the sum justly due him...."
However, in the present case, the $65,127.39 judgment plaintiff obtained against Moye did not include time-price differential damages. Further, "`[t]he liability of the sureties is coextensive with the liability of the principal in the bond, and can be extended no further than his.'" In re MacDonald Estate, 341 Mich. 382, 386, 67 N.W.2d 227 (1954), quoting Ward v. Tinkham, 65 Mich. 695, 703, 32 N.W. 901 (1887); see also Timmerman v. Hartford Accident & Indemnity Co., 243 Mich. 338, 342, 220 N.W. 752 (1928); Ackron Contracting Co. v. Oakland Co., 108 Mich.App. 767, 772, 310 N.W.2d 874 (1981). Accordingly, the trial court reached the correct result in ruling that under the circumstances of this case, plaintiff was not entitled to time-price differential damages.
V
Finally, plaintiff argues that the trial court committed error requiring reversal in dismissing its claims against Artco on the basis that plaintiff's losses will be fully satisfied by its judgment against INA. We agree. Although plaintiff may recover only one satisfaction of its losses, Stitt v. Mahaney, 403 Mich. 711, 725, 272 N.W.2d 526 (1978); Kaminski v. Newton, 176 Mich.App. 326, 328, 438 N.W.2d 915 (1989), it may pursue separate judgments against defendants that are jointly and severally liable to pay its damages. See MCR 2.206(A)(3); cf. Teodorescu v. Bushnell, Gage, Reizen & Byington (On Remand), 201 Mich.App. 260, 269, 506 N.W.2d 275 (1993); Verhoeks v. Gillivan, 244 Mich. 367, 371, 221 N.W. 287 (1928). Therefore, even if INA will fully reimburse plaintiff's losses by paying the judgment against it, plaintiff may still protect its interests by prosecuting its claims against each party that may be liable for its damages. Accordingly, we reverse the trial court's order dismissing plaintiff's claims against Artco.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.
NOTES
[1] The lower court agreed with Artco's assertion that it was not a party to the second contract. We express no opinion with regard to the correctness of this ruling. However, we reverse in total the summary disposition granted in favor of Artco and accordingly, on remand, all claims against Artco may be relitigated.
[2] Defendant INA does not contest the sufficiency of notice.
[3] A time-price differential charge is the difference between the cash and credit price, the latter being higher. Thelen v. Ducharme, 151 Mich.App. 441, 447, 390 N.W.2d 264 (1986); see Silver v. Int'l Paper Co., 35 Mich.App. 469, 470, 192 N.W.2d 535 (1971).
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992 F.2d 502
62 USLW 2015
UNITED STATES of America, Plaintiff-Appellant,v.William Robert RICH, Defendant-Appellee.
No. 92-8230.
United States Court of Appeals,Fifth Circuit.
May 21, 1993.
James Blankinship, Asst. U.S. Atty., Austin, TX, and Richard L. Durbin, Asst. U.S. Atty., San Antonio, TX, and Ronald F. Ederer, U.S. Atty., Austin, TX, for plaintiff-appellant.
R. James George, Austin, TX (court appointed), for defendant-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before GOLDBERG, JOLLY, and WIENER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
1
The question in this case is whether an individual's affirmative response to a police officer's request to "have a look in" the individual's automobile is the equivalent of a general consent to search the automobile and its contents, including the individual's luggage. With some reluctance, but drawing from precedent, we hold that the search does not violate the Fourth Amendment. We thus reverse the district court's suppression of the seized contraband.
2
* We write today because the light bulb for the license plate on William Robert Rich's pickup truck burned out. Thus, at 11:35 p.m. on the night of January 16, 1991, Texas Department of Public Safety Trooper August Crais stopped Rich on Interstate 35 in Williamson County to issue him a warning citation for the burned-out bulb.
3
In response to the trooper's request for his driver's license, Rich volunteered that he was travelling to Mesquite to purchase some automobiles. Trooper Crais asked Rich how long he would be staying in Mesquite, and Rich replied that he would be there "just for the day." Crais told Rich of the reason for the stop, and asked Rich for proof of insurance on the pickup. While Rich returned to the truck to get the insurance papers, Crais radioed Rich's driver's license number in to the police dispatcher, and requested a license check, a criminal history check, and a check for outstanding warrants. He returned to the truck where Rich was fumbling through an envelope, still searching for his insurance card.
4
Trooper Crais then walked up to the driver's side of the pickup truck. He shined his flashlight into the open driver's side window. He noticed a travel bag on the passenger side floorboard, some clothes hanging up on the passenger side, a hat on the passenger seat, and two suitcases that were behind the seat in the extended cab portion of the pickup. He also detected the odor of fabric softener, which he knew was often used by narcotics smugglers to mask the scent of marijuana. Crais returned to where Rich was standing and again asked him how long he planned on staying in Mesquite; this time, Rich replied that he would be there "a couple of days." When Rich handed Crais the insurance papers, Crais saw that Rich's hands were trembling so much that the papers rattled.
5
After taking the insurance papers, Trooper Crais returned to his patrol car to obtain the results of the license and warrant checks. The dispatcher informed him that the police computer was malfunctioning and that no checks could be run at that time. Crais returned to Rich, who asked if there was a problem. Crais told him that the computer was down, and that he had been unable to conduct a license check. After asking Rich to stand by the patrol car, Crais again approached the pickup truck and attempted to look through its back window, which was tinted. Crais was trying to determine what was underneath the two suitcases in the extended cab portion of the truck, but was unable to see through the tinting on the window. He again detected the odor of fabric softener emanating from the truck.
6
Trooper Crais then walked back to Rich and asked him whether he had any narcotics or weapons in the vehicle. Rich replied that he did not. Crais then asked Rich, "Can I have a look in your truck?" Rich looked at the ground while fumbling through his envelope. He did not respond. Crais repeated his question. Again Rich did not respond. For the third time, Crais asked Rich if he could look in the pickup, and then said "I either need a yes or a no." Rich said yes, and Crais instructed him to go stand back near the patrol car.
7
Trooper Crais opened the driver's side door, unlocked the passenger side door with the electric lock mechanism, walked around to the passenger side door and opened it. He immediately pulled out one of the suitcases resting behind the passenger seat and opened it. The suitcase contained marijuana packed in fabric softener tissues. Crais returned the suitcase to the truck and walked back to Rich, who was standing near the patrol car; Rich said, "You got me, didn't you?" Crais replied, "Yes." He then read Rich his Miranda warnings and arrested him. Ninety-two pounds of marijuana were eventually taken from the truck. Crais's report noted the time of arrest as 11:40 p.m., so apparently no more than five minutes elapsed from the time of the initial stop until the arrest.
8
After indictment, Rich moved to suppress. He asserted several constitutional claims, including the violation of his Fourth Amendment right to be free from unreasonable searches and seizures. At the hearing on the motion to suppress, the district court excluded evidence of Rich's criminal history as irrelevant, and granted the motion on the grounds that the search of the suitcase exceeded the scope of the consent given by Rich. 791 F.Supp. 1162. The government appeals, arguing that the district court erred in concluding that the scope of Rich's consent to search the truck did not include an unlocked suitcase that was in plain view inside the vehicle. The government also argues that the court further erred in refusing to admit the relevant evidence of Rich's criminal history. We now reverse the district court's decision to suppress the evidence.
II
9
Two distinct inquiries must be undertaken in analyzing an individual's consent to a search: whether his consent was voluntarily given, and whether the search was within the scope of his consent. United States v. Coburn, 876 F.2d 372, 374 (5th Cir.1989). Because the district court determined that the scope of the consent was exceeded, he did not rule on the voluntariness of the defendant's consent. Thus, our review is limited to the scope of the defendant's consent.1
10
The Supreme Court has instructed us on the standard for determining the scope of consent. "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness...." Florida v. Jimeno, --- U.S. ----, ----, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). The key inquiry focuses on what the "typical reasonable person [would] have understood by the exchange between the officer and the suspect." Jimeno, --- U.S. at ----, 111 S.Ct. at 1804 (citing Illinois v. Rodriguez, 497 U.S. 177, 183-84, 110 S.Ct. 2793, 2798-2802, 111 L.Ed.2d 148 (1990)). Objective reasonableness is a question of law that is reviewed de novo. United States v. Ibarra, 965 F.2d 1354, 1357 (5th Cir.1992) (en banc ) (7-7 decision); United States v. Harrison, 918 F.2d 469, 473 (5th Cir.1990).
11
The factual circumstances surrounding the consent may be important in determining the nature of the consent and how a reasonable officer would have understood the consent. Ibarra, 965 F.2d at 1357. The trial court's factual findings must be accepted unless they are "clearly erroneous or influenced by an incorrect view of the law." United States v. Muniz-Melchor, 894 F.2d 1430, 1433-34 (5th Cir.), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990); United States v. Lanford, 838 F.2d 1351, 1354 (5th Cir.1988).
III
12
The government does not dispute any of the district court's factual findings, but instead contests the court's conclusion as to how a reasonable person would understand the trooper's request to "look in" Rich's pickup. The government relies principally upon Florida v. Jimeno. In that case, the police officer overheard the defendant, Jimeno, arranging what seemed to be a drug transaction over a public telephone. The officer followed the defendant's car, and stopped him after he committed a traffic violation. The officer then told the defendant that he had reason to suspect that narcotics were in the car, and requested Jimeno's permission to search the car. Jimeno consented to the search, and the officer found a kilogram of cocaine in a closed paper bag that was located on the passenger side floorboard.
13
Jimeno argued that the scope of his consent to search the car did not extend to the search of a closed paper bag found within the car. The Supreme Court disagreed, holding that "it was objectively reasonable for the police to conclude that the general consent to search respondent's car included consent to search containers within that car which might bear drugs." Jimeno, --- U.S. at ----, 111 S.Ct. at 1804. The government argues that in the instant case, it was similarly reasonable for Trooper Crais to conclude that an affirmative response to his request to "look in" Rich's pickup included consent to "look in" closed containers found inside the truck.
14
Rich first argues that Trooper Crais's request to "have a look in" the truck was--under the objectively reasonable standard--only a request to "see inside" the vehicle. Rich argues that this interpretation is strengthened by the fact that Crais had previously attempted to "see inside" but was foiled by the truck's tinted window. Somewhat similarly, the district court based its decision to suppress the evidence in part on the failure of the officer to use the more precise term "search" in his request.
15
We decline the defendant's invitation to establish a list of specific terms from which an officer must select the most appropriate for each individual situation and/or defendant. To so hamper law enforcement officials in their everyday duties would be an unjustifiable extension of the Fourth Amendment's requirement that searches be "reasonable." Several other circuits have held that a request to "look in" or "look through" a vehicle is the equivalent of a request to "search" the vehicle.2 We take this opportunity to establish a similar rule for our own circuit: it is not necessary for an officer specifically to use the term "search" when he requests consent from an individual to search a vehicle. We hold that any words, when viewed in context, that objectively communicate to a reasonable individual that the officer is requesting permission to examine the vehicle and its contents constitute a valid search request for Fourth Amendment purposes. Thus, in the light of the factual circumstances in this case, we hold that Trooper Crais's request to "have a look in" Rich's truck effectively communicated to Rich that Crais was asking for his consent to search the vehicle. Rich had observed Crais shining his flashlight not only into the tinted window but into the open driver's side window of the truck and studying the truck's interior for at least thirty seconds; thus Crais had already "seen inside" the truck and an objectively reasonable person would assume at this point that Crais was requesting permission to look further.
16
Rich further argues that the facts in the instant case are inapposite to those presented in Jimeno, because there the officer expressly informed the defendant that he wanted to search the car for drugs. Jimeno reaffirmed the notion that "[t]he scope of a search is generally defined by its expressed object." Jimeno, --- U.S. at ----, 111 S.Ct. at 1804 (citing United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). Here, Rich asserts, the general request to search his truck was unaccompanied by an express declaration of the item or items that were being sought; thus, it was not objectively reasonable for the officer to assume that Rich had consented to the search of his luggage. In other words, Rich argues that because he did not know that the officer was searching for drugs, his general consent to search the vehicle could not be interpreted as extending to any "containers within that car which might bear drugs." Jimeno, --- U.S. at ----, 111 S.Ct. at 1804. Indeed, the district court judge decided to suppress, in part, because he concluded that Trooper Crais did not tell Rich that he wanted to search the vehicle for illegal drugs.
17
We do not agree with the district court. To the extent that this determination involves a factual finding on the part of the district court, we find that it is clearly erroneous. When the conversation between Crais and Rich is considered in toto, it is indisputable that Rich knew that the object of Crais's search was illegal weapons or narcotics. As the district court found, after the defendant handed his insurance papers to the officer, Trooper Crais asked him if he had any narcotics or weapons in the vehicle; the defendant answered "no." The officer then asked, for the first of three times, if he could "have a look in" the defendant's truck; the defendant did not respond to this inquiry. In the light of the fact that the entire scenario was played out in a matter of minutes--Trooper Crais's report stated that he pulled Rich over at 11:35 p.m., and that Rich was placed under arrest at 11:40 p.m.--it is unreasonable to assume a period of silence ensued that was long enough to disassociate the two sentences from each other. The district court's factual findings reconstruct the conversation as follows:
18
TROOPER CRAIS: Do you have any narcotics or weapons in your truck?
19
DEFENDANT RICH: No.
20
TROOPER CRAIS: Can I have a look in your truck?
21
We think that Trooper Crais's request to search the defendant's truck--certainly when taken in this context--was a request to search the truck for illegal narcotics or weapons. Obviously the officer's concern was focused on the possibility of the presence of such contraband; his search request was similarly focused. Again, we are unwilling to dictate to law enforcement officials the timing pattern of their conversations with suspects; if, as a result of the verbal exchange, an objectively reasonable individual would understand the object of the officer's search, then the object of the search has been sufficiently delineated for purposes of the Fourth Amendment. We are convinced that such delineation took place in this case.
22
The defendant additionally argues that Jimeno rests on the premise that "[a] suspect may of course delimit as he chooses the scope of the search to which he consents." Jimeno, --- U.S. at ----, 111 S.Ct. at 1804. He argues that he cannot claim the benefit of this Jimeno rationale because he was unable to observe the search as it was being conducted; thus, he did not have the opportunity to avail himself of the right to object to or limit the search of his luggage. He says that the search took place on the passenger side of the vehicle on the sloping shoulder of the interstate, and that he was standing (at the instruction of Trooper Crais) on the driver's side of the patrol car, which was parked several feet behind the truck. Even if he had been able to see what Trooper Crais was doing, he argues, the search took place so rapidly that he would not have had time to object to it.
23
The district court made no findings that support Rich's claim that his view was too limited or that things happened too fast for him to withdraw or limit his consent. Even if Rich was unable to see what was going on, however, we are unwilling to read Jimeno to hold, as Rich suggests, that enforcement officials must conduct all searches in plain view of the suspect, and in a manner slowly enough that he may withdraw or delimit his consent at any time during the search. When the court stated that "[a] suspect may of course delimit as he chooses the scope of the search to which he consents," it meant that Rich, knowing the contents of the vehicle and its various containers at the time he gave his consent, had the responsibility to limit the scope of the consent if he deemed it necessary to do so. Rich knew what containers were in the truck when he gave his consent to search; he had the ability at that time to impose any restrictions he saw fit on the scope of that consent. The fact that the search was not conducted in a manner that made it conducive or even possible for Rich to later withdraw or limit his consent does not automatically make that search violative of the Fourth Amendment. Under the facts of this case, we find that the scope of Rich's consent was not violated by this lack of opportunity to limit or withdraw his consent.3
24
In suppressing the evidence, the district court additionally relied upon the officer's failure to request specifically to search the suitcase. The Supreme Court in Jimeno, however, foreclosed the possibility of such a failure ever rising to the level of a Fourth Amendment violation. The Court stated:Respondent argues, and the Florida trial court agreed with him, that if the police wish to search closed containers within a car they must separately request permission to search each container. But we see no basis for adding this sort of superstructure to the Fourth Amendment's basic test of objective reasonableness. (Citation omitted.)
25
Jimeno, --- U.S. at ----, 111 S.Ct. at 1804.
26
Thus, we find that the Supreme Court's decision in Jimeno dictates both the controlling law and its application to the facts in this case. There, the Court held that "if [a suspect's] consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization." Jimeno, --- U.S. at ----, 111 S.Ct. at 1804. We think that under the facts of this case, it was objectively reasonable for Trooper Crais to conclude that Rich's consent to search the vehicle included his consent to search containers found within the vehicle that could hold illegal narcotics or weapons, the expressed object of Trooper Crais's search. The suitcase that Trooper Crais searched was such a container. Thus, the district court erred in holding that the scope of Rich's consent did not extend to his luggage.
IV
27
We therefore reverse the district court's decision granting the defendant's motion to suppress the evidence, because it was based on the erroneous determination that Rich's consent to search his vehicle did not include consent to search his luggage, which was inside the vehicle. Because the district court did not determine whether Rich's consent was voluntarily given, we must remand this case to the district court for this primarily factual determination, and for such other proceedings that may appropriately follow.
28
Accordingly, the judgment of the district court is REVERSED, and the case is REMANDED for further proceedings not inconsistent with this opinion.
29
REVERSED and REMANDED.
1
The government also urges us to reverse the district court's exclusion of evidence of Rich's prior criminal history from the suppression hearing. We decline to do so, because the standard for measuring the scope of a suspect's consent is objective reasonableness; the suspect's particular knowledge about the criminal justice system based upon his prior experiences is irrelevant to such a determination. Such knowledge could be important, however, when determining whether a suspect's consent was voluntary. We have no doubt that the district court will address this issue when it considers the voluntariness of Rich's consent on remand
2
See, e.g., United States v. Espinosa, 782 F.2d 888, 892 (10th Cir.1986) (removal of back seat and rear quarter panel of vehicle after permission was given to "look through" vehicle held to be within the scope of consent); United States v. Harris, 928 F.2d 1113, 1117 (11th Cir.1991) (search of unlocked zippered luggage found in trunk of vehicle after permission was given to "look" in vehicle to make sure there weren't any illegal drugs, weapons, or other contraband held to be within the scope of consent)
3
The situation where a suspect clearly withdraws or delimits his general consent to a search before an officer has begun the search, or a specific portion of the search, is not before us. We express no opinion on such a situation. In the instant case, Rich never attempted to withdraw or delimit his consent at any point prior to or during the search
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730 P.2d 821 (1987)
Scott AIKEN, Appellant,
v.
STATE of Alaska, Appellee.
No. A-1498.
Court of Appeals of Alaska.
January 9, 1987.
*822 Paul Malin, Asst. Public Defender, Dana Fabe, Public Defender, Anchorage, for appellant.
Valerie Van Brocklin, Asst. Dist. Atty., Victor C. Krumm, Dist. Atty., Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
OPINION
SINGLETON, Judge.
Scott Aiken pled no contest to the charge of driving while intoxicated. AS 28.35.030(a)(1) and (2). Prior to sentencing, Aiken argued that he should be allowed to withdraw his plea of no contest to a 1980 conviction for operating a motor vehicle while intoxicated. Aiken also argued, in the alternative, that his prior conviction be disregarded for purposes of the DWI mandatory minimum sentencing scheme. See AS 28.35.030(c). On appeal, Aiken contends that the court erred in denying his motion because the plea in the earlier case was taken in violation of Alaska Criminal Rule 11(c) and AS 47.10.010(b). We reverse.
In the November 18, 1980 proceeding, Aiken, who was a minor at the time, appeared before then District Court Judge John W. Bosshard, III. Aiken's attorney, William Bixby, appeared with him. Aiken's parents were not present at this proceeding, and it is unclear whether a parent was notified of the proceeding. The court asked Bixby, "Are you willing to waive, on behalf of your client, the full reading and advisement of rights and penalties?" The attorney answered yes, and entered a no contest plea to the charge of "operating a motor vehicle when there was 0.10 grams of alcohol per 210 liters of breath."
The court then personally addressed Aiken:
COURT: You heard the statement of your attorney that you wish to enter a no contest plea to this charge. That is tantamount to a guilty plea and the result is a conviction on your record. Is it your desire to enter that plea this afternoon?
AIKEN: Yes.
COURT: Has anyone made any threats or promises to you in order to get you to enter that plea?
AIKEN: No.
COURT: Do you understand the maximum and mandatory minimum penalties and the nature of the charge?
AIKEN: Yes.
COURT: And do you understand that by entering a no contest plea you give up your rights to a trial and the presumption of innocence?
AIKEN: Yes.
COURT: Very well. You may be seated.
During his sentencing argument Aiken's counsel mentioned that Aiken still was "in school," that this was his first offense, that he had no income, and that his conduct did not pose a menace to society, but did not otherwise indicate that Aiken was a minor.
On appeal, Aiken argues that the court failed to comply with Rule 11(c) in that the court did not tell Aiken that he had a right to a jury or court trial and to confront witnesses; did not explain the mandatory minimum and the maximum penalties; and, did not tell him he could persist in his not guilty plea.[1] Aiken also contends that the *823 court violated AS 47.10.010(b) which requires that a parent of a minor defendant be present at all court proceedings.[2]
In denying Aiken's motion to withdraw his plea, the court concluded that it had substantially complied with Rule 11 in the 1980 proceeding. The court also concluded that the violation of AS 47.10.010(b) was harmless error since Aiken's attorney had done at least as good a job of protecting Aiken's rights as his parents could have, had they been there.
With regards to the first issue on appeal, the state concedes that the court did not comply with the exact requirements of Rule 11(c). The state nevertheless argues that reversal is not required because the court correctly found that it had "substantially complied" with the rule in the 1980 proceeding. Lewis v. State, 565 P.2d 846 (Alaska 1977).
The state also argues that since the court did ask Aiken if he understood the maximum and mandatory minimum penalties for DWI, and Aiken responded affirmatively, the court substantially complied with Rule 11(c)(3)(i). In Williams v. State, 616 P.2d 881 (Alaska 1980), a court's inquiry as to whether the defendant understood what an attorney could do for him and the defendant's affirmative response was sufficient compliance with Rule 39(b)(3) (requiring that the court shall appoint counsel unless a defendant demonstrates that he understands and waives the benefits of counsel). Analogously, we find that the court's inquiry in this case was sufficient, taking into account the simplicity of the charges, Aiken's response that he understood the penalties, and the fact that he was represented by counsel, who had in all likelihood informed him of the penalties flowing from a conviction. We therefore conclude that Aiken has not demonstrated that the court's noncompliance affected his substantial rights. Lewis, 565 P.2d at 851-53.
Next, Aiken contends that the court failed to advise him that he had a right to persist in his plea of not guilty. Alaska R. Crim. P. 11(c)(3)(ii). The court clearly did not comply with this requirement so the question on appeal is whether Aiken can show that his substantial rights were affected by the court's failure to so advise him. Lewis, 565 P.2d 846. Aiken argues that this defect in the proceeding did have an impact, suggesting that the case against Aiken was not that strong. Nevertheless, Aiken has not argued or submitted any proof that he would have persisted in his plea of not guilty but for the advice of counsel. Compare Fulton v. State, 630 P.2d 1004, 1006-07 (Alaska App. 1981) (defendant produced evidence of his attempt to withdraw plea; state failed to offer evidence of substantial compliance to Rule 11, and case was remanded). Therefore, we cannot find that this error affected Aiken's substantial rights.
Finally, Aiken argues that since AS 47.10.010(b) requires that parents of a minor defendant be present at all criminal proceedings, including those pertaining to traffic offenses, Aiken must be allowed to withdraw his plea. Judge Bosshard found that although there had been a technical violation of the statute, Aiken's rights had been sufficiently protected by his attorney, an experienced trial counsel.[3] Below and on appeal, Aiken argues that an attorney *824 will not necessarily protect a minor's rights because the parents' concerns may not necessarily be "legal concerns."
The legislature has not indicated a sanction for a violation of this statute. In the absence of a showing that Aiken's rights were substantially impaired by his parents' absence, we hesitate to find that, as a matter of law or fact, Judge Bosshard's finding that Aiken's interests as a minor were adequately protected by experienced trial counsel was clearly mistaken. Nevertheless, AS 47.10.010(b) provides that the parent or a guardian ad litem "shall be present."[4] We therefore conclude that parental presence is a prerequisite to conviction. In the absence of anything in the record establishing substantial compliance with the parental presence requirement, we hold that Aiken's prior conviction was void and could not be considered by the trial court as a prior conviction mandating enhanced penalties.[5]
The judgment of the district court is REVERSED.
NOTES
[1] Alaska Criminal Rule 11(c) states:
Pleas of Guilty or Nolo contendere. The court shall not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally and
(1) determining that he understands the nature of the charge; and
(2) informing him that by his plea of guilty or nolo contendere he waives his right to trial by jury or trial by a judge and the right to be confronted with the witnesses against him; and
(3) informing him:
(i) of the mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered, and
(ii) that the defendant has the right to plead not guilty or to persist in that plea if it has already been made, or to plead guilty.
[2] Alaska Statute 47.10.010(b) provides in relevant part:
When a minor is accused of violating a traffic statute or regulation ... the procedure prescribed in AS 47.10.020-47.10.090 may not be followed, except that a parent, guardian or legal custodian shall be present at all proceedings. The minor accused of a traffic offense ... shall be charged, prosecuted, and sentenced in the district court in the same manner as an adult (emphasis added).
[3] The state cites Wagstaff v. Superior Court, Family Court Division, 535 P.2d 1220 (Alaska 1975), for the proposition that a juvenile may be entitled to counsel over parental objection. We agree but conclude that the right to counsel and the right to parental presence are independent.
[4] Nothing in the record purports to establish a waiver of Aiken's parents' presence or his parents' refusal to attend. If Aiken's parents were unavailable, the court could appoint a guardian ad litem. In the absence of proof that Aiken's parents were unavailable and that Aiken's attorney was specifically informed he should act as guardian ad litem, we are unable to say that the legislature would have viewed Aiken's lawyer as an acceptable substitute for his parents. Our concern is that this record does not explain the parents' absence or indicate that Aiken with the advice of counsel explicitly waived his parents' presence.
[5] Vacating Aiken's conviction would preclude its use for purposes of mandatory second offender DWI penalties. Parental absence is not, however, the conceptual equivalent of an uncounseled plea. See U.S. v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) (court may not consider prior conviction for purposes of sentence enhancement if obtained in violation of defendant's rights). Verified information concerning the circumstances of the prior DWI could thus still be considered by the sentencing court in determining an appropriate sentence. Cf. Lee v. State, 673 P.2d 892 (Alaska App. 1983) (court may consider prior conviction as verified information for sentencing purposes even though conviction does not trigger presumptive sentencing).
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Case: 17-10782 Date Filed: 05/24/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-10782
________________________
D.C. Docket No. 8:16-cv-01456-MSS-JSS
ALVIN SEIGER,
by and through his Attorney-In-Fact and Next Friend Marsha Seiger,
Plaintiff - Appellant,
versus
TORRENCE O. PHILIPP,
WEST END PUB, LLC,
a.k.a. West End Pub,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 24, 2018)
Case: 17-10782 Date Filed: 05/24/2018 Page: 2 of 8
Before TJOFLAT and ROSENBAUM, Circuit Judges, and UNGARO, *
District Judge.
UNGARO, District Judge:
Plaintiff-Appellant, Alvin Seiger, appeals from an order denying his
motion for leave to file a second amended complaint following the dismissal
of his first amended complaint with prejudice. For the reasons discussed
below, we reverse.
Background
In June, 2016, Plaintiff, Mr. Seiger, a disabled individual, through his
wife and next friend, Mrs. Seiger, sued the West End Pub, LLC, and its
owner, Torrence Philipp, for violating Title III of the Americans with
Disabilities Act (“ADA”). Mr. Seiger requires a wheelchair to ambulate,
and he alleged that the Pub was not wheelchair accessible. Mr. Seiger also
suffers from dementia, and Mrs. Seiger holds his durable power of attorney.
The district court dismissed Mr. Seiger’s initial complaint without
prejudice because he failed to allege that he had knowledge of the premises
or an intent to return there. Before entering the order of dismissal, the court
required Mr. Seiger to answer interrogatories. One of them asked Mr. Seiger
to describe the nature of his disability. His wife responded that her husband
*
Honorable Ursula Ungaro, United States District Judge for the Southern District of
Florida, sitting by designation.
2
Case: 17-10782 Date Filed: 05/24/2018 Page: 3 of 8
“has a neurological disorder that renders him with physical and mental
disabilities . . . . A doctor has rendered him incompetent to handle his legal
affairs.” Additionally, the Court requested that Mrs. Seiger file documents
establishing her legal status as Mr. Seiger’s Next Friend. In response, she
filed a note from Mr. Seiger’s doctor stating that he was “not competent to
handle any personal affairs.”
The court then held a hearing on the motion to dismiss where Mrs.
Seiger testified that she understood the doctor’s note to mean that Mr. Seiger
was incompetent to handle his legal affairs, but was competent to handle
other matters. Mrs. Seiger elaborated, “I wouldn’t even [use the] term
mentally incompetent. He’s—he knows everybody, he knows me, he knows
where he is and what he is, he is just forgetful. That’s the kind of dementia
he has.”
After the hearing, the court dismissed the complaint for lack of
standing because it did not allege that Mr. Seiger had knowledge of the
premises or an intent to return. The court explained that Mrs. Seiger could
not aver the personal knowledge and intent of Mr. Seiger even though she
holds his durable power of attorney. The court allowed Mr. Seiger to file an
amended complaint based on the personal knowledge of Mr. Seiger. But the
district court directed that if Mr. Seiger were to file an amended complaint,
3
Case: 17-10782 Date Filed: 05/24/2018 Page: 4 of 8
he would also need to simultaneously file updated answers to the court’s
interrogatories.
In accordance with the court’s directive, Mr. Seiger filed updated
answers to the court’s interrogatories that were substantially similar to the
first responses, but this time, Mr. Seiger signed the responses on his own
behalf. Mr. Seiger also filed an amended complaint. In the amended
complaint, Mr. Seiger alleged that he intended to return to the Pub. But he
also alleged that Mrs. Seiger must “undertake all decisions on [his] behalf.”
The court granted Defendants’ motion to dismiss the amended complaint
with prejudice, explaining that “[t]he likelihood of Mr. Seiger visiting the
Subject Premises is not dependent on Mr. Seiger’s own intention, but rather,
is wholly dependent on Mrs. Seiger’s will.”
While the motion to dismiss was pending, Mr. Seiger moved for leave
to amend, and he included a proposed second amended complaint. In it, Mr.
Seiger contradicted the first amended complaint and alleged that Mrs. Seiger
made “some decisions on [his] behalf, but not all.” The second amended
complaint also alleged “[d]espite [Mr. Seiger’s] disabilities, on most
occasions, he is still able to articulate his views and thoughts, speak fluidly,
and formulate/express intent to, inter alia, visit an establishment.” In the
4
Case: 17-10782 Date Filed: 05/24/2018 Page: 5 of 8
same order dismissing the amended complaint with prejudice, the court
denied the motion to amend, stating:
Plaintiff’s Motion to File A Second Amended Complaint, (Dkt.
34), to allege facts directly contrary to facts alleged twice
before is DENIED. Notably, in support of the demand to allow
Plaintiff to proceed through a Next Friend and Attorney-In-Fact
in this matter, Plaintiff filed a doctor’s note that Plaintiff
described as ‘indicating Alvin Seiger’s incompetency’ in which
the doctor expressly states that Plaintiff is ‘not competent to
handle any personal affairs.’ (Dkt. 22, Ex 1)
Mr. Seiger now appeals that order. He does not argue that the district
court erred in dismissing the amended complaint, but only that it abused its
discretion in denying leave to amend.
Discussion
We review a district court’s denial of a motion to file an amended
complaint for abuse of discretion. Green Leaf Nursery v. E.I. DuPont De
Nemours & Co., 341 F.3d 1292, 1300 (11th Cir. 2003). Federal Rule of
Civil Procedure 15 provides that district courts “should freely give leave
when justice so requires.” Fed. R. Civ. P. 15(a)(2). But the court’s
discretion to deny leave is not unfettered. Rather, the court should consider
factors such as “‘undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the
5
Case: 17-10782 Date Filed: 05/24/2018 Page: 6 of 8
amendment, and futility of amendment.’” Equity Lifestyle Properties, Inc. v.
Fla. Mowing And Landscape Serv., Inc., 556 F.3d 1232, 1241 (11th Cir.
2009) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
Here, the district court did not base its denial of leave to amend on
any of these factors. Instead, the district court denied leave to amend for
two reasons. First, it found the second amended complaint contradicted the
previous two complaints. And second, it pointed to the doctor’s note, which
stated that Mr. Seiger was incompetent to handle any personal affairs.
Neither suffices as a basis for denial of leave to amend.
As to the first, the Federal Rules do not prohibit contradictory
pleadings. “As a general matter, an amended pleading supersedes the former
pleading; the original pleading is abandoned by the amendment, and is no
longer a part of the pleader’s averments against his adversary.” Pintado v.
Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (quotation
omitted) (alteration accepted).
Here, the proposed second amended complaint did not incorporate by
reference the earlier complaints. It would have superseded the previous
complaints and rendered null their contradictory allegations. The district
court thus abused its discretion by denying leave to amend on the basis that
the complaints contradicted each other.
6
Case: 17-10782 Date Filed: 05/24/2018 Page: 7 of 8
As to the second reason—the doctor’s note—it does not provide a
basis to deny leave to amend where, as here, the district court did not
determine that amendment was futile. The court did not, for example,
determine, as a factual matter, that Mr. Seiger lacked standing and dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(1). Although the court
heard evidence about Mr. Seiger’s mental capacity, it neither weighed the
evidence nor made any findings of fact. Rather, it decided the motion to
dismiss under Rule 12(b)(6) and so appears to have concluded that Mr.
Seiger lacked standing as a matter of law based solely on the allegations in
the amended complaint.
In the second amended complaint, Mr. Seiger alleged that he was able
to form the intent to return to the Pub and that he, in fact, intends to return to
the Pub. These allegations are sufficient to establish standing. See, e.g.,
Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1336 (11th Cir. 2013)
(“a plaintiff seeking an injunction under Title III either must ‘have attempted
to return’ to the non-compliant building or at least ‘intend to do so in the
future.’”) (quoting Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001)).
Therefore, the court abused its discretion in denying leave to file the second
amended complaint.
7
Case: 17-10782 Date Filed: 05/24/2018 Page: 8 of 8
For these reasons, we reverse the denial of the motion to amend and
remand with instructions to vacate the dismissal with prejudice1 and grant
leave to file the proposed second amended complaint.
REVERSED AND REMANDED.
1
Although we necessarily reverse the dismissal to permit leave to amend, we
would reverse the dismissal regardless because it was made with prejudice, and
dismissals for lack of standing are jurisdictional and thus usually made without prejudice.
McGee v. Solicitor Gen. of Richmond Cty., Ga., 727 F.3d 1322, 1326 (11th Cir. 2013)
(per curiam) (“Typically, where standing is lacking, a court must dismiss the plaintiff’s
claim without prejudice.”).
8
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Order Michigan Supreme Court
Lansing, Michigan
September 24, 2012 Robert P. Young, Jr.,
Chief Justice
145258 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra,
Plaintiff-Appellee, Justices
v SC: 145258
COA: 306780
Saginaw CC: 11-011988-AR
RENEE MAE AMERSEY,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the April 27, 2012 order
of the Court of Appeals is considered, and it is DENIED, because we are not persuaded
that the questions presented should be reviewed by this Court.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 24, 2012 _________________________________________
p0917 Clerk
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27 N.J. 278 (1958)
142 A.2d 262
JAT COMPANY, INC., ET AL., PLAINTIFFS-PETITIONERS,
v.
DIVISION OF TAX APPEALS, ET AL., DEFENDANTS-RESPONDENTS.
The Supreme Court of New Jersey.
April 8, 1958.
Messrs. Chandless, Weller & Kramer for the petitioners.
Mr. Guy W. Calissi and Mr. Charles L. Bertini for the respondents.
Denied.
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309 F.Supp.2d 780 (2003)
Johnnie Lang EDWARDS, a/k/a Samuel Jones, Plaintiff,
v.
Meyera E. OBERNDORF, individually and in her official capacity as Mayor of the City of Virginia Beach, A.M. Jacocks, Jr., individually and in his capacity as Chief of Police of the Virginia Beach Police Department, Scott E. Wichtendahl, in his official capacity as Police Officer in and for the Virginia Beach Police Department, R. Lamb, in his official capacity as Police Officer in and for the Virginia Beach Police Department, Paul Lanteigne, individually and in his official capacity as Sheriff of the Virginia Beach Correctional Department Jail, Robert J. McCabe, individually and in his official capacity as Sheriff of the Norfolk Correctional Department-Jail, and Richard D. Holcomb, individually and in his capacity as Commissioner of the Virginia Department of Motor Vehicles, Defendants.
No. 02-CV-347.
United States District Court, E.D. Virginia, Norfolk Division.
February 6, 2003.
*781 *782 *783 Johnnie Lang Edwards, Norfolk, VA, for Plaintiff.
Leslie Louis Lilley, Kimberly Rouse Van Essendelft, S. Lawrence Dumville, Norris & St. Clair PC, Virginia Beach, VA, Eric Karl Gould Fiske, Richmond, VA, for Defendants.
OPINION AND ORDER
BRADBERRY, United States Magistrate Judge.
This matter is before the Court on defendants' motions to dismiss and motions for summary judgment. On May 8, 2002, plaintiff brought this action pursuant to 42 U.S.C. § 1983, in the United States District Court for the Eastern District of Virginia, Norfolk Division. On September 6, 2002, Richard D. Holcomb filed a motion for summary judgment, and Robert J. McCabe filed a motion to dismiss. On September 10, 2002, Meyera E. Oberndorf, A.M. Jacocks, Jr., Scott E. Wichtendahl, and R. Lamb filed a motion to dismiss, or in the alternative, a motion for summary judgment. On October 4, 2002, Paul Lanteigne filed a motion for summary judgment. On January 6, 2003, the matters came on for hearing. For the following reasons, defendants' respective motions are GRANTED.
I. STATEMENT OF THE CASE
A. Background
On May 8, 2000, plaintiff was arrested for driving under the influence in the City of Virginia Beach by Officer Scott E. Wichtendahl. On June 28, 2000, petitioner was tried and convicted, as charged, in the Virginia Beach General District Court. Petitioner appealed to the Circuit Court of Virginia Beach, and the case was tried, de novo, on October 19, 2000, and again resulted in plaintiff's conviction. Plaintiff appealed to the Virginia Court of Appeals, arguing that his conviction was invalid because he was not offered a breathalyzer or blood test. On September 24, 2001, the court affirmed the conviction. Plaintiff's subsequent appeal to the Supreme Court of Virginia was dismissed on April 4, 2002. Plaintiff then filed a petition to set aside the judgment of the Supreme Court of Virginia, but the petition was denied on June 7, 2002.
Plaintiff alleges that his due process rights were violated because he was arrested without being offered a breathalyzer or blood test. Plaintiff further alleges that his due process rights were violated and that he was subjected to cruel and unusual punishment, when he was held in an "administrative strip cell," without notice of a charge or an opportunity to be heard, while the Virginia Beach City Jail (VBCJ) determined the status of plaintiff's outstanding capias issued by the Norfolk General District Court.[1]
*784 On September 6, 2002, defendant Holcomb filed a motion for summary judgment, and defendant McCabe filed a motion to dismiss. On September 10, 2002, defendants Oberndorf, Jacocks, Wichtendahl, and Lamb filed a motion to dismiss, or in the alternative, a motion for summary judgment. On October 4, 2002, defendant Lanteigne filed a motion for summary judgment. The issues were argued before the Court on January 6, 2003, and the matters are now ripe for consideration.
B. Issues
1. Whether plaintiff's claims against McCabe survive a motion to dismiss standard;
2. Whether plaintiff's claims against Holcomb and Lanteigne survive a motion for summary judgment standard; and
3. Whether plaintiff's claims against Oberdorf, Jacocks, Wichtendahl, and Lamb survive a motion to dismiss, or in the alternative, a motion for summary judgment standard.
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Motion to Dismiss Standard
In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the complaint is construed in the light most favorable to plaintiff, and her allegations are taken as true. See Brower v. County of Inyo, 489 U.S. 593, 598, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)); Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Higgins v. Medical Coll. of Hpt. Rds., 849 F.Supp. 1113, 1117 (E.D.Va.1994). The complaint should not be dismissed unless it appears to a certainty that plaintiff can prove no facts in support of her claim which would entitle her to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); GE Inv. Private Placement Partners II v. Parker, 247 F.3d 543, 548 (4th Cir.2001); Martin Marietta Corp. v. Int'l Telecommuns. Satellite Org., 991 F.2d 94, 97 (4th Cir.1992); Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.1969). The courts must construe the complaint liberally in favor of plaintiffs, even if recovery appears remote and unlikely. See Jenkins, 395 U.S. at 421, 89 S.Ct. 1843. In ruling on a 12(b)(6) motion, the court primarily considers the allegations in the complaint but may consider attached exhibits and documents incorporated by reference. See Simmons v. Montgomery County Police Officers, 762 F.2d 30, 31 (4th Cir.1985); Wolford v. Budd Co., 149 F.R.D. 127, 129-32 (W.D.Va.1993).
B. Motion for Summary Judgment Standard
As set forth in Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate when the moving party can show by affidavits, depositions, admissions, answers to interrogatories, the pleadings, or other evidence, "that there is no genuine issue as to any material fact and that the moving party is entitled to a *785 judgment as a matter of law." F ED.R.CIV.P. 56(c). Rule 56 mandates entry of summary judgment against a party who "after adequate time for discovery and upon motion ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The moving party is not entitled to summary judgment if there is a genuine issue of material fact in dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of fact exists if a reasonable jury could return a verdict for a nonmoving party. See id. In other words, summary judgment appropriately lies only if there can be but one reasonable conclusion as to the verdict. See id.
Finally, as the Fourth Circuit explained, [w]e must draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion. Summary judgment is appropriate only where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, such as where the non-moving party has failed to make a sufficient showing on an essential element of the case that the non-moving party has the burden to prove.
Tuck v. Henkel Corp., 973 F.2d 371, 374 (4th Cir.1992) (citations omitted).
C. Defendants and Their Respective Motions
1. Meyera E. Oberndorf
Plaintiff brings this action against Oberndorf, Mayor of the City of Virginia Beach, individually and in her official capacity. Oberndorf has moved to dismiss, or in the alternative, for summary judgment.
Plaintiff only mentions Oberndorf once in his original complaint. Specifically, plaintiff states that Oberndorf "oversees the Municipal Offices/Departments and is legally responsible for the overall operation of the Virginia Beach Police Department/Division under her jurisdiction." (Compl.¶ 3.) Plaintiff alleges no personal action against Oberndorf. Furthermore, the doctrine of respondeat superior does not exist under 42 U.S.C. § 1983. Monell v. Dep't of Social Servs., 436 U.S. 658, 663, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Court finds that plaintiff has failed to state a claim upon which relief can be granted against Oberndorf, individually or in her official capacity. Accordingly, Oberndorf's motion to dismiss is GRANTED.
2. A.M. Jacocks, Jr.
Plaintiff brings this action against Jacocks, Chief of Police in the City of Virginia Beach, individually and in his official capacity. Jacocks has moved to dismiss, or in the alternative, for summary judgment.
Again, plaintiff only mentions Jacocks once in his original complaint. Specifically, plaintiff states that Jacocks "is legally responsible for the opverall [sic] operations of the Police Department and each sub-division thereof." (Compl.¶ 4.) Plaintiff alleges no personal action against Jacocks. Further, the doctrine of respondeat superior is not a basis for liability under 42 U.S.C. § 1983. Monell v. Dep't of Social Servs., 436 U.S. 658, 663, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Court finds that plaintiff has failed to state a claim upon which relief can be granted against Jacocks, personally or in his individual capacity. Accordingly, Jacocks' motion to dismiss is GRANTED.
3. Scott E. Wichtendahl
Plaintiff brings this action against Scott E. Wichtendahl, a Virginia Beach *786 police officer, individually and in his official capacity.[2] Wichtendahl moved to dismiss, or in the alternative, for summary judgment.
Plaintiff alleges that he was wrongfully arrested for driving under the influence and subsequently convicted of the offense by the improper conduct of Wichtendahl, who refused to grant plaintiff's demand for a blood or breath test. Plaintiff argues that section 18.2-268.2, of the Virginia Code, mandates that a breathalyzer or blood test be given before one can be arrested for DUI. The courts of the Commonwealth of Virginia disagree, at least under the circumstances of this case. Section 18.2-268.2 is an implied consent rule; that is, section 18.2-268.2 gives arresting officers the right to request that operators of motor vehicles consent to a blood or breath test when the operator is suspected of being under the influence of alcohol. Licensed drivers, in Virginia, impliedly consent to such tests or face the loss of their driving privileges for a period of time for their refusal, without regard to the results of trial on a charge of driving under the influence of alcohol. However, the absence of a blood or breath test does not preclude prosecution for driving under the influence. The observations made by the arresting officer of an individual's speech, coordination, alertness, and ability to follow instructions may be sufficient to carry the burden. Furthermore, in this case, plaintiff was stopped in the parking lot of a restaurant, not on a highway. As the Court of Appeals noted:
We conclude that since the "implied consent" statute, Code § 18.2-268.2, is restricted by its terms to a "highway," [plaintiff]'s contention that the section affords him a right to a breathalyzer test fails. Since Code § 18.2-268.2 does not apply under the facts of this case, we do not address whether that statute affords a suspect such an entitlement.
(Mem. in Support of Mot. to Dismiss, etc. on Behalf of "City Defendants," Ex. 2 at 9.) Active consent by the operators of motor vehicles is not necessary. However, section 18.2-268.2 does not, as plaintiff alleges, give the operator of a motor vehicle the right to request a breathalyzer or blood test.
Plaintiff also alleges that the Virginia Beach Police Department's "DUI Check Sheet," completed by Wichtendahl in reference to plaintiff's arrest, "amounts to age-discrimination." (Compl.¶ 8.) Specifically, plaintiff states that "Step E" on the check sheet discriminates on the basis of age because it states: "Implied Consent: (Must be offered to persons under 21 years of age who are suspected of operating a motor vehicle after illegally consuming alcohol/DUI.)" (Compl., Ex. C.) The Court finds that plaintiff's allegation of age discrimination in the Virginia Beach Police Department's "DUI Check Sheet" does not constitute an individual cause of action against Wichtendahl simply because Wichtendahl used the "DUI Check Sheet," when arresting plaintiff. In fact, plaintiff's age discrimination allegation is not a proper cause of action against any party in the case before the Court. The Court finds that plaintiff has failed to state a claim upon which relief can be granted against Wichtendahl, individually or in his individual capacity. Accordingly, Wichtendahl's motion to dismiss is GRANTED.
*787 4. R. Lamb
Plaintiff brings this action against Lamb, a Virginia Beach police officer, individually and in his official capacity.[3] Lamb has moved to dismiss, or in the alternative, for summary judgment.
Plaintiff alleges that Lamb was present during his arrest on May 8, 2000. According to plaintiff, Lamb acted "under color of law." (Compl.¶ 5.) However, plaintiff directs all of his allegations concerning his arrest toward Wichtendahl only. In fact, plaintiff does not even request any relief from Lamb.[4] The Court finds that plaintiff has failed to state any claim upon which relief can be granted against Lamb, individually or in his official capacity. Accordingly, Lamb's motion to dismiss is GRANTED.
5. Paul Lanteigne
Plaintiff brings this action against Lanteigne, Sheriff of the City of Virginia Beach, individually and in his official capacity. Lanteigne has moved for summary judgment.
Plaintiff was arrested on May 8, 2000, and remained in the custody of the VBCJ until June 29, 2000, the day following his conviction for drunk driving in the Virginia Beach General District Court. The basis of all of plaintiff's allegations arise during the period from May 8, 2000, until June 29, 2000. Plaintiff attempts to impose liability on Lanteigne in his role as Sheriff of the City of Virginia Beach.[5] However, Lanteigne was not appointed Sheriff until August, 2000, after plaintiff's trial and release from custody. Lanteigne cannot be held responsible for events that occurred prior to his appointment. Even if he could, the doctrine of respondeat superior is not a basis for liability under 42 U.S.C. § 1983. Monell v. Dep't of Social Servs., 436 U.S. 658, 663, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Furthermore, the Court finds that plaintiff's claims of cruel and unusual punishment present no issues of triable fact. On June 28, 2000, the Virginia Beach General District Court ordered plaintiff's release. In anticipation of his release, the VBCJ moved plaintiff out of his detention cell and into a lock-up cell, normally used for short-term detention. However, on May 17, 2000, plaintiff was served with a surety capias, issued by the Norfolk General District Court. Therefore, before releasing plaintiff, the Virginia Beach Sheriff's Department sent a FAX to the Norfolk Sheriff's Office to determine if a detainer was still lodged against plaintiff. During the wait for a reply, plaintiff was not returned to his detention cell but was left in the lock-up cell.[6] Plaintiff remained there until the *788 morning of June 29, 2000, when the Virginia Beach Sheriff's Department was informed that the capias had been released. According to plaintiff, he was in the holding cell for a total of "pretty close to 20 hours." (Hrg. Tr. at 27.) The record reflects otherwise. Plaintiff argues that the twenty hours he spent in the holding cell constituted cruel and unusual punishment.[7] The Court disagrees.
The VBCJ did not err in holding plaintiff while awaiting information on his status in the Norfolk General District Court. As explained to plaintiff during the hearing, the Virginia Beach judge ordered plaintiff released from Virginia Beach custody, but the order did not alter plaintiff's status in any other court. The minimal length of time plaintiff was continued in custody does not rise to the level of a due process violation, especially when no evidence of negligence or malice exists. See generally Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) (holding that a wrongful detention for three days due to mistaken identity did not amount to a deprivation of liberty without due process of law). The Court finds that no triable issues of fact against Lanteigne exist, and accordingly, Lanteigne's motion for summary judgment is GRANTED.
6. Robert J. McCabe
Plaintiff brings this action against McCabe, Sheriff of the Norfolk Correctional Department, individually and in his official capacity. McCabe has moved to dismiss.
Plaintiff only mentions McCabe twice in his amended complaint. First, plaintiff states that McCabe "is legally responsible for the overall operation of [the Norfolk City Jail], including the Record Division thereof." (Am.Compl. ¶ 4.) Second, plaintiff alleges that McCabe's "staff told plaintiff that they have no record of a `hold' or `detainer' issued to the Sheriff of the City of Virginia Beach." (Am.Compl.¶ 7.) Plaintiff alleges no personal action against McCabe. Furthermore, the doctrine of respondeat superior is not a basis for liability under 42 U.S.C. § 1983. Monell v. Dep't of Social Servs., 436 U.S. 658, 663, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Court finds that plaintiff has failed to state a claim upon which relief can be granted against McCabe, individually or in his official capacity. Accordingly, McCabe's motion to dismiss is GRANTED.
7. Richard D. Holcomb
Plaintiff brings this action against Holcomb, Commissioner of the Virginia Department of Motor Vehicles, individually and in his official capacity. Holcomb has moved for summary judgment.
Plaintiff alleges supervisory, as well as personal, claims against Holcomb, but the claims present no triable issues of fact. First, plaintiff states that Holcomb "is legally responsible for the overall operation of the Virginia Department of Motor Vehicles and each subdivision under his jurisdiction." (Am.Compl.¶ 5.) As the Court has reiterated numerous times, the doctrine of respondeat superior is not a basis for liability under 42 U.S.C. § 1983. Monell v. Dep't of Social Servs., 436 U.S. 658, 663, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Therefore, Holcomb cannot be held liable in his supervisory role as Commissioner of the Virginia Department of Motor Vehicles.
Plaintiff also alleges that Holcomb: (1) wrongfully included information in plaintiff's driving record; (2) should *789 have known that plaintiff was wrongfully convicted and, therefore, should not have required plaintiff to meet certain conditions for reinstatement of his license; and (3) revoked plaintiff's driver's license for more than one year. (Pl. Br. in Opp. ¶¶ 2-6.) The Court finds that Holcomb properly acted at all times pursuant to Virginia statutory authority.[8] Assuming, arguendo, that plaintiff was wrongfully convicted and Holcomb knew or should have known such, Holcomb had no authority to stray from the provisions set forth in the Virginia Code. Therefore, no triable issues of fact exist against Holcomb.
Finally, Holcomb is entitled to rely upon plaintiff's conviction in the Virginia Beach General District Court; the retrial and reconviction, de novo, in the Circuit Court of Virginia Beach; and the affirmation of conviction in the Virginia Court of Appeals. Plaintiff has had ample opportunity to be heard. Holcomb's motion for summary judgment is GRANTED.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS the motions to dismiss of Oberndorf, Jacocks, Wichtendahl, Lamb, and McCabe. The Court also GRANTS the motions for summary judgment of Lanteigne and Holcomb.
NOTES
[1] Plaintiff seeks monetary damages, as well as injunctive relief. Specifically, plaintiff has demanded compensatory damages from Oberndorf, Jacocks, and Wichtendahl; nominal damages from Lanteigne and McCabe; and punitive damages from Oberndorf, Jacocks, Wichtendahl, Lanteigne, and McCabe. Plaintiff seeks to have the Court declare that defendants, through their actions, policies, and practices, violated plaintiff's constitutional rights. Furthermore, plaintiff has requested a preliminary and permanent injunction which requires Holcomb: (1) to rescind the policy concerning confiscation of plaintiff's driver's license and privilege to drive; (2) to not impose any sanctions against plaintiff concerning his DUI arrest and conviction while plaintiff's appeals are pending; and (3) to not require plaintiff to attend an alcohol program and driver's improvement clinic.
[2] In the style of the complaint, plaintiff named Wichtendahl as a defendant in his official capacity. However, in the body of the complaint, plaintiff states he has brought this action against Wichtendahl "individually and in [his] official capacity." (Compl.¶ 5.) The Court construes plaintiff's complaint liberally and assumes that plaintiff wishes to sue Wichtendahl individually and in his official capacity.
[3] In the style of the complaint, plaintiff named Lamb as a defendant in his official capacity. However, in the body of the complaint, plaintiff states he has brought this action against Lamb "individually and in [his] official capacity." (Compl.¶ 5.) The Court construes plaintiff's complaint liberally and assumes that plaintiff wishes to sue Lamb individually and in his official capacity.
[4] Plaintiff "seeks compensatory damages in the amount of $1,000, from each defendant, except defendant R. Lamb." (Compl.¶ 10.) Furthermore, plaintiff "seeks punitive damages in the amount of $5,000, from each defendant, except defendant R. Lamb." (Compl.¶ 11.)
[5] Plaintiff alleges that Lanteigne is "legally responsible for the overall operation of [the VBCJ], and for the welfare of each inmate in that Jail" that he was in Lanteigne's "custody and control." (Am. Complaint at ¶¶ 3, 6.) Furthermore, plaintiff alleges that Lanteigne promulgated the jail rules, policies, and regulations, etc., that were violated by Lanteigne's staff and that Lanteigne should have known that his staff was in violation of the rules, policies, and regulations, etc. (Am.Compl.¶ 6.)
[6] Plaintiff refers to the holding cell as an "administrative strip cell."
[7] Specifically, plaintiff stated: "That's cruel and unusual punishment to take me from my regular assigned cell, with toothpaste, deodorant, showers every day, TV, whatever, in the general population, and put me in an administrative strip cell they call a drunk tank, a holding tank, after I had been in jail 50 something days." (Hrg. Tr. at 26.)
[8] See Va.Code §§ 46.2-383 (requirement that clerk of circuit court forward to DMV a copy of plaintiff's conviction); 46.2-389 (driving penalties and requirements necessitated a conviction of section 18.2-266 of the Virginia Code); 46.2-414 (dates used to calculate time period for revocation of plaintiff's license); and 46.2-498 (requirement that plaintiff attend driver improvement clinic before reinstatement of his driver's license.)
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133 F.Supp.2d 465 (2000)
Pleas M. NORRIS and William Scott Hodges d/b/a New Age Components, Plaintiff
v.
KRYSTALTECH INTERNATIONAL, INC.; Intel Corporation; D & D Specialty Parts; CPU International, Inc.; Oscar Ramos, Individually; Glenn Real d/b/a Logan Trading; and Certain Doe Defendants, Defendants.
Civil Action No. 3:97CV643LN.
United States District Court, S.D. Mississippi, Jackson Division.
August 28, 2000.
*466 Dale Hubbard, Michael S. Allred, David W. Baria, Jackson, MS, for Plaintiffs.
Suzanne N. Saunders, Jackson, Eric D. Isicoff, Miami, FL, Richard L. Jones, Thomas H. Suttle, Jr., Frank W. Trapp, Jackson, MS, for Defendants.
MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
This cause is before the court on the motion of defendants CPU International, Inc. and its owner, Oscar Ramos, brought pursuant to Federal Rule of Civil Procedure 12(b)(2), to dismiss for lack of personal jurisdiction or, in the alternative, for summary judgment pursuant to Rule 56. Plaintiffs Pleas M. Norris and William Scott Hodges d/b/a New Age Components have responded in opposition to the motion *467 and have also filed an alternative motion to transfer venue in the event this court concludes that it lacks jurisdiction over the movants. The court has considered the parties' memoranda of authorities, together with attachments, submitted in connection with the motions, and for the reasons that follow, concludes not only that it lacks personal jurisdiction over defendants Ramos and CPU, but that summary judgment should be entered for these defendants.
Plaintiff New Age, a Mississippi partnership with its principal place of business in Canton, Mississippi, is engaged in the business of brokering and distributing computer parts and electronic components. Defendant CPU is a Florida corporation with its principal place of business in Florida, and Ramos, its owner, is a resident citizen of Florida which also brokers and distributes computer parts. Plaintiffs filed this lawsuit against a number of defendants, including Ramos and CPU, asserting claims relating to a number of shipments of allegedly defective computer chips which New Age had obtained from distributors in Florida for resale to a New York company, Krystaltech, a former defendant in this lawsuit.
Briefly, according to the complaint, the chips in question were manufactured by Intel Corporation, and thereafter sold to a number of unidentified persons named as Doe defendants; the Doe defendants fraudulently "re-marked" or relabeled the chips to reflect a higher chip speed and quality than the chips actually possessed; the Doe defendants then sold the chips to Ramos and CPU, which in turn sold them to defendant Logan Trading, which sold them to D & D Specialty Parts, which sold them to plaintiffs for resale to Krystaltech. According to plaintiffs, with the exception of New Age, everyone involved in all of these transactions, including plaintiffs' buyer, Krystaltech, knew the chips were fraudulently labeled. Plaintiffs allege that they were damaged as a result of their purchase and resale of the defective chips, not just financially, but also due to their emotional distress. This court has previously dismissed Krystaltech and Intel from this lawsuit on separate motions by those parties, and now concludes that CPU and Ramos are also due to be dismissed.
Personal jurisdiction may be exercised over a nonresident defendant in a diversity action if the defendant is amenable to service of process under the relevant state long-arm statute and if due process is satisfied under the fourteenth amendment to the United States Constitution. Cycles, Ltd. v. W.J. Digby, Inc., 889 F.2d 612, 616 (5th Cir.1989) (citing DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1265 (5th Cir.1983)). Since Mississippi's long-arm statute is not coextensive with federal due process, an analysis of the scope of the reach of Mississippi's long-arm statute is usually required when a challenge is made to this court's exercise of personal jurisdiction. Allred v. Moore & Peterson, 117 F.3d 278, 282 (5th Cir.1997); see also Cycles, 889 F.2d at 616 (observing that Mississippi's long-arm statute has a "relatively restrictive scope"). Mississippi's long-arm statute provides in relevant part:
Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the Constitution and laws of this state as to doing business herein, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident or nonresident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi and shall thereby be subjected to the jurisdiction of the courts of this state.
Miss.Code Ann. § 13-3-57 (Supp.1997).
In this case, plaintiffs alleged in their complaint that Ramos and CPU have "conducted a regular and continuous course of business within Mississippi" by engaging *468 in "[a] regular and continuous course of dealings in the sale and purchase of computer chips and other goods to Plaintiffs in Mississippi; by contracts made and performed in whole or in part in Mississippi ... for the sale, purchase, transportation and delivery of computer chips from said Defendant[s] in Florida to Plaintiffs by shipments received in Jackson, Mississippi; and [o]therwise." They similarly charged that these defendants "made contracts for the sale, transportation and delivery of certain computer chips to the Plaintiffs within the State of Mississippi" which "were performed in substantial part in Mississippi." In response to defendants' motion, plaintiffs have effectively conceded that there is no factual basis for these allegations since Ramos and CPU, as established by Ramos's uncontroverted affidavit, had no contact with plaintiffs or with Mississippi of any sort at any time until after plaintiffs had purchased the subject chips from D & D and Logan Trading and resold them to Krystaltech, and after plaintiffs had learned, from Krystaltech, that the chips were not as represented by their labeling.[1] Jurisdiction can thus only be properly exercised as to Ramos and CPU if the tort prong of the long-arm statute is satisfied and plaintiff alleges that it is. Specifically, in addition to the unsupported charge in their complaint that CPU and Ramos did business in Mississippi and contracted with a Mississippi resident, plaintiffs have alleged that these defendants "committed frauds and other torts in whole or in part within Mississippi, and conspired with other co-defendants and other persons including the Doe Defendants to perpetrate frauds by overt acts within Mississippi, which proximately resulted in damages to Plaintiffs within Mississippi." Plaintiffs have not made a prima facie showing that a tort was committed in whole or in part in Mississippi for purposes of establishing personal jurisdiction, nor, in response to these defendants' alternative request for summary judgment, have they come forward with evidence that these defendants committed any tort against plaintiffs, in Mississippi or elsewhere.
On the subject of fraud, plaintiffs recite in their complaint that the "Vendor Defendants" (which description includes Ramos and CPU) represented to Plaintiffs that the computer chips in question were correctly marked with the minimum microprocessor speed of each computer chip; concealed from plaintiffs the fact that the chips were "re-marks," i.e., had been fraudulently re-labeled or re-marked so as to appear to be a higher speed chip than they actually were; "misrepresented to Plaintiffs that the Vendor Defendants and the Doe Defendants were reliable and trustworthy suppliers of computer chips"; and misrepresented to Plaintiffs "that the computer chips in question were properly valued as computer chips having the processing speed for which they were marked." Despite plaintiffs' allegations in this regard, however, it is an undisputed fact that Ramos and CPU made no representations of any sort whatsoever to the Mississippi plaintiffs (or for that matter made misrepresentations to anyone anywhere or concealed information from anyone regarding the chips). Ramos's and *469 CPU's dealings were exclusively with Logan and/or D & D, not the plaintiffs; and there is nothing to suggest that Ramos or CPU misrepresented or concealed anything from either of those parties. The only contact of any sort that Ramos and CPU had with plaintiffs in Mississippi occurred after plaintiffs first learned, through Krystaltech, that the chips were not as represented by their labeling; and nothing of a tortious nature occurred in those dealings. From these facts, it is undeniable that Ramos and CPU did not themselves commit the tort of fraud, or any part of such tort, in Mississippi;[2] and neither is there proof that they did so elsewhere.
That leaves plaintiffs' cause of action for conspiracy as the sole potential basis for liability on the part of Ramos and CPU, as well as the sole potential basis for an exercise of jurisdiction by this court over Ramos and CPU. Mississippi recognizes a cause of action for conspiracy, which it has described as "`a combination of persons for the purpose of accomplishing an unlawful purpose or a lawful purpose unlawfully.'" Black v. Carey Canada, Inc., 791 F.Supp. 1120, 1124 (S.D.Miss.1990) (quoting Shaw v. Burchfield, 481 So.2d 247, 255 (Miss.1985)). A review of the complaint herein, though, discloses that plaintiffs' allegations of conspiracy are entirely conclusory, unsupported by any factual allegation and thus are not sufficient to state a cause of action, see Guidry v. United States Tobacco Co., Inc., 188 F.3d 619, 631-32 (5th Cir. 1999) (while pleading of civil action for conspiracy need only comply with general requirement of Federal Rule of Civil Procedure 8, "a general allegation of conspiracy without a statement of facts constituting that conspiracy, is only an allegation of a legal conclusion and is insufficient to state a cause of action"), and are not a sufficient predicate for an exercise of jurisdiction. Cf. Thomas v. Kadish, 748 F.2d 276 (5th Cir.1984) ("neither ... conclusory allegations of conspiracy between California defendants based upon their acts in California, nor the alleged effects of this conspiracy in Texas, show[ed] a claim of sufficient minimum contacts with Texas that would support personal jurisdiction of Texas courts against these defendants for their acts in California"); J.C. Hawkins v. Upjohn Co., 890 F.Supp. 601 (E.D.Tex. 1994) (conclusory allegations that nonresident RICO defendants having no contact with forum state conspired with another defendant which did have minimum contacts with forum state were not sufficient to establish jurisdiction over the nonresident RICO defendants).
For the foregoing reasons, the court concludes that plaintiffs have failed to satisfy their burden to make a prima facie showing that Ramos and CPU committed a tort in whole or in part in Mississippi and the court thus concludes, for this reason,[3] that it lacks personal jurisdiction *470 over defendants Ramos and CPU. Furthermore, the bases upon which the court has concluded that it lacks jurisdiction over Ramos and CPU are also bases upon which the court concludes that plaintiffs' claims against these defendants should be dismissed via summary judgment. To reiterate, plaintiffs' conspiracy allegations against Ramos and CPU do not state a cause of action, and there is no evidence in the record, including in plaintiff Hodges' affidavit, that either of these defendants made any representations or misrepresentations at any time of any sort the plaintiffs.
Accordingly, it is ordered that defendants' motion to dismiss for lack of personal jurisdiction or, in the alternative, for summary judgment, is granted. Plaintiffs' alternative motion to transfer venue is therefore denied as moot.
NOTES
[1] That this is so is confirmed by the complaint, which alleges that Krystaltech purchased the subject chips from plaintiffs, who purchased them from D & D, which purchased them from Logan, which purchased them from CPU and Ramos, which purchased them from the Doe defendants, which purchased them from Intel. The complaint recites that when Krystaltech would telephone plaintiffs in Mississippi and ask to be supplied with a certain amount and type of Pentium chips, plaintiffs would then telephone D & D and ask D & D to supply to plaintiffs the indicated amount and type of chips to be purchased, following up with a purchase order, and D & D would then purchase chips from a supplier "later identified as Defendants Ramos [and] CPU." Plaintiffs thus did not contract with or do business with Ramos and CPU, but rather contracted with D & D, and in fact plaintiffs did not even know the identity of D & D's supplier until after they learned of problems with the chips.
[2] This conclusion stands, regardless of whether plaintiffs may have relied on alleged misrepresentations by D & D and/or Logan, and regardless of whether plaintiffs suffered injury in Mississippi as a result of D & D's and/or Logan's alleged misrepresentations. While "[j]urisdiction over any entity, if it exists, must arise out of the entity's contacts with the forum," Home-Stake Prod. Co. v. Talon Petroleum, C.A., 907 F.2d 1012, 1020 (10th Cir. 1990), it has been recognized that "[w]hen one defendant completely controls another, the latter's contacts with the forum may fairly be imputed or attributed to the former," id. In his affidavit submitted with plaintiffs' response to defendants' motion, Scott Hodges declares, without elaboration or explanation of any basis for the assertion, that Logan and D & D were "front companies" for CPU and Ramos. Such a conclusory assertion regarding corporations that have separate governing bodies and at least facially appear wholly unrelated will not suffice to satisfy plaintiffs' burden to make a prima facie showing of jurisdiction.
[3] In light of this conclusion, the court need not reach the further issue of whether or not an exercise of jurisdiction by this court over Ramos and CPU would offend the requirements of due process. The court would note, though, that it considers it highly unlikely that due process would be satisfied were this court to exert jurisdiction over these defendants. Due process requires both that the nonresident defendant have minimum contacts with the forum state and that the exercise of jurisdiction over him be fair, fairness being judged by reference to certain prescribed factors. See Bullion v. Gillespie, 895 F.2d 213, 216 n. 5 (5th Cir.1990) ("The fairness prong for personal jurisdiction requires federal courts to consider (1) the burden upon the nonresident defendant; (2) the interests of the forum state; (3) the plaintiff's interest in securing relief; (4) `the interstate judicial system's interest in obtaining the most efficient resolution of controversies'; (5) `the shared interest of the several States in furthering fundamental substantive social policies.'" (citing Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 113-15, 107 S.Ct. 1026, 1033, 94 L.Ed.2d 92 (1987) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 288-90, 100 S.Ct. 559, 563, 62 L.Ed.2d 490 (1980)))). Neither requirement is met with respect to CPU or Ramos. On this point, the court would simply note that in addition to the plaintiffs' failure to adequately allege the existence of a conspiracy, there is no allegation or proof that Ramos or CPU intended that the subject computer chips were to be sold to a Mississippi resident, or knew that they were to be sold to a Mississippi resident, or even that they knew that it was likely that the subject computer chips were to be sold by D & D and/or Logan to anyone in Mississippi. See J.C. Hawkins v. Upjohn Co., 890 F.Supp. 601 (E.D.Tex.1994) (allegations of tort occurring outside forum state which had effects in forum state not sufficient to meet purposeful availment requirement, for "it must be shown that the alleged tortfeasor's intentional actions were purposefully directed toward the forum state and the tortfeasor had knowledge that the brunt of the injury would be felt by a ... resident of the forum state" (citing Southmark Corp. v. Life Investors, 851 F.2d 763, 772 (5th Cir.1988))).
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866 P.2d 484 (1994)
125 Or. App. 591
Carolyn L. ATTERBURY, Appellant,
v.
Rulon WELLS, Respondent.
92CV1575CC; CA A78184.
Court of Appeals of Oregon.
Argued and Submitted October 8, 1993.
Decided January 5, 1994.
Mike Stebbins argued the cause for appellant. With him on the briefs was Stebbins & Coffey.
George A. Burgott argued the cause for respondent. With him on the brief was Atherly, Butler & Burgott.
Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ.
ROSSMAN, Presiding Judge.
Plaintiff appeals a judgment for defendant, based on the trial court's holding that defendant was not adequately served with summons and complaint. We affirm.
*485 On July 5, 1990, plaintiff was injured in an automobile accident. On June 30, 1992, plaintiff filed a complaint alleging that her injuries were the result of defendant's negligence. The facts relating to service of summons are undisputed. On June 30, 1992, plaintiff's attorney sent a copy of the complaint to defendant's insurance carrier by regular mail. On that same date, plaintiff's attorney requested the Curry County Sheriff to serve summons and complaint on defendant at his residence in Brookings. Defendant was attending a family reunion in Washington. A deputy sheriff tried unsuccessfully on two occasions to serve defendant at his residence.
Pamela Mitchell, defendant's adult daughter, lives in Crescent City, California. On July 9, 1992, she happened to be visiting a friend in Brookings and stopped at defendant's house to check on his mail. There she learned that a sheriff's deputy had been to defendant's house looking for him. She went to the Curry County Sheriff's branch office in Brookings to inquire. After learning that Mitchell was defendant's daughter, but without making any further inquiry, a deputy sheriff handed her a copy of the summons and complaint. She told the deputy that defendant was out of state, but that she would see that he received the papers. On August 31, 1992, plaintiff's attorney sent by regular mail a true copy of the summons and complaint to defendant at his Brookings address.
Defendant moved for summary judgment on the ground that he had not been adequately served with summons and complaint. The court ruled:
"Well, my feeling about it is this: That unless there is some evidence to show that the daughter was authorized to accept service on behalf of the father, that is, by the father or authorized to make a service on the father by the plaintiff, or additional information was obtained from her by the sheriff, such as what was her relationship to her father, how close were they, how often did she see him, since she was returning to California that night when would she be returning to Oregon and when would she actually physically see her father or when would she be talking to him by telephone, was she aware of what the papers were that were served on her and the importance of those being given to her father promptly, when did she intend to actually physically deliver the papers if at all to her father? None of this information was obtained by the sheriff. Apparently he just handed the daughter the papers and that was the end of it. I don't think that that is service reasonably calculated to give a person that is being sued notice of the lawsuit and therefore I will grant the defendant's motion."
The first issue in determining whether service is adequate under ORCP 7 is whether the method of service was one of the methods described in ORCP 7D(2). If so, service is presumed to be reasonable and no further inquiry need be made unless there is something in the record to overcome the presumption of reasonableness. If service was not made by one of the methods described in ORCP 7D(2), then the inquiry is whether the manner of service employed by the plaintiff satisfies the "reasonable notice" standard of adequate service set forth in ORCP 7D(1). Baker v. Foy, 310 Or. 221, 228, 797 P.2d 349 (1990). On appeal, plaintiff does not claim that service was made pursuant to any of the methods described in ORCP 7D(2). She contends only that the methods chosen together constitute service reasonably calculated to give defendant notice of the action, pursuant to ORCP 7D(1).
We conclude that each of the methods chosen fails separately to meet the standard set forth in ORCP 7D(1). In mailing a copy of the complaint to defendant's insurance company, plaintiff did not purport to accomplish service. The document was not accompanied by a summons and did not contain notice of service on defendant. See Campos v. Chisholm, 110 Or.App. 158, 161, 821 P.2d 1121 (1991). It could not constitute service.
The delivery of the complaint and summons to Mitchell at the courthouse was also insufficient. As plaintiff correctly notes, what the process server knew at the time of delivery is relevant for the purpose of evaluating whether service was reasonably calculated *486 to give notice of the lawsuit. See Duber v. Zeitler, 118 Or.App. 597, 601, 848 P.2d 642, rev. den. 316 Or. 527, 854 P.2d 939 (1993). We agree with the trial court that here, in contrast with Duber, aside from Mitchell's expressed intention to deliver the documents to defendant, the deputy sheriff knew so little about Mitchell's contacts with defendant that it was not reasonable for plaintiff to expect that the handing of papers to Mitchell would result in defendant receiving notice of the action. The deputy did not even inquire as to defendant's whereabouts, the frequency or regularity of Mitchell's contact with him, or when Mitchell might deliver the papers to him. We conclude that the delivery of the papers to Mitchell was not reasonably calculated to apprise defendant of the lawsuit.
Finally, we conclude that plaintiff's subsequent mailing of the summons and complaint to defendant's last known address is insufficient to constitute service reasonably calculated to give notice. The Supreme Court has said that service on an individual by mail, although not presumed adequate under ORCP 7D(2), may be considered as a factor under the "reasonable notice" standard of ORCP 7D(1), if the requirements for service by mail contained in ORCP 7D(2)(d) are satisfied, including certified, return receipt. Edwards v. Edwards, 310 Or. 672, 679, 801 P.2d 782 (1990). Delivery by regular mail is not sufficient.
Plaintiff contends that, although each of the three wrongly chosen methods of service was inadequate in and of itself, together they accomplished service reasonably calculated to give defendant notice of the action. We reject the contention.
Affirmed.
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997 So.2d 628 (2008)
LLP MORTGAGE, LTD.
v.
FOOD INNOVISIONS, INC., Leon J. Cabes & Cheryl S. Cabes.
No. 08-CA-422.
Court of Appeal of Louisiana, Fifth Circuit.
October 28, 2008.
Mark C. Landry, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
David F. Waguespack, Attorney at Law, New Orleans, LA, for Defendants/Appellees.
Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
WALTER J. ROTHSCHILD, Judge.
This is an appeal from a trial court ruling granting defendants' exception of prescription. For the reasons which follow, we affirm.
On May 25, 2006, LLP Mortgage, Ltd., filed the present petition against Food Innovisions, Leon Cabes, Jr., and Cheryl Cabes, alleging that plaintiff was the holder of certain notes which were executed by defendants in 1995.[1] These notes were *629 secured by two mortgages executed by Leon and Cheryl Cabes. Plaintiff alleged that the notes were in default and prayed for acceleration of all sums due thereon. Defendants filed an answer generally denying the allegations of the petition. Thereafter, defendants brought a peremptory exception of prescription. Following a hearing on November 26, 2007, the trial court maintained the exception and dismissed plaintiffs petition. This appeal followed.
The trial court ruled in favor of defendants that the promissory notes were prescribed pursuant to federal law, and plaintiff does not challenge this ruling. The sole issue presented for our review is whether the mortgages executed by Leon and Cheryl Cabes remain viable and enforceable notwithstanding the prescription of the underlying promissory notes.
At the exception hearing at the trial level, LLP argued that even assuming the promissory notes are prescribed under federal law, the mortgages are enforceable, as there is no federal rule for prescription of a mortgage. LLP relied on Farmers Home Administration v. Muirhead, 42 F.3d 964 (5th Cir.Miss.1/24/95), which held that a federal lien on property is not subject to state law statutes of limitations and is not subject to any prescriptive periods. Thus, LLP argued that pursuant to federal law the mortgages in this case are imprescriptable.
However, in the present case, defendants are not arguing that the mortgages are prescribed or are barred by a statute of limitations. Rather, defendants argue that the mortgages have been extinguished and are therefore unenforceable because the underlying notes have prescribed under both state and federal law. In support of this argument, defendants cite La. C.C. art. 3282, which provides:
Mortgage is accessory to the obligation that it secures. Consequently, except as provided by law, the mortgagee may enforce the mortgage only to the extent that he may enforce any obligation it secures.
The trial court agreed with defendants and found the mortgages to be unenforceable. By judgment dated November 26, 2007, the court granted defendants exception of prescription and dismissed plaintiff's suit for the reasons orally assigned. It is from this judgment that plaintiff now appeals.
The mortgages in this case are entitled "Louisiana Combination Mortgage" and each purport to contain all of the statutory requisites of a Louisiana mortgage. Although the mortgages were initially executed in 1995 in favor of the Small Business Administration, an agency of the United States Government, they were subsequently assigned to plaintiff by the SBA following a purchase of the loans which were in default.
Louisiana law clearly provides that a mortgage is an accessory to the obligation it secures and can only be enforced to the extent of the obligation. There is no dispute in the present case that the obligation (i.e., the promissory notes) secured by the mortgages is no longer enforceable. In light of the facts of the present case, we must consider whether state law regarding the accessory nature of a mortgage is applicable to these mortgages which were originally executed in favor of a federal agency.
*630 In support of its contention that the mortgages are valid and enforceable notwithstanding the prescription of the underlying notes, LLP relies on Farmers Home Admin. v. Muirhead, supra, 42 F.3d at 967, for the holding that the United States and its agencies are not subject to a statute of limitations unless Congress has provided otherwise. LLP recognizes that 28 U.S.C. Section 2415(a), which provides that actions for money damages brought by the United States "shall be barred unless the complaint is filed within six years after the right of the action accrues ...." contains an authorized prescriptive period for enforcement of promissory notes. However, 28 U.S.C. Section 2415(c) provides that there is no time limit under federal law for bringing an action to establish the title to, or right of possession of, real or personal property. Citing a line of federal cases, LLP contends that as there is no congressional action providing for a prescriptive period for mortgages, mortgages are imprescriptable under federal law. See, LLP Mortg. Ltd. v. Hotaling, 497 F.Supp.2d 1217, 1219 (D. Colo.2007); U.S. v. Succession of Siddon, 812 F.Supp. 674 (W.D.La. 1993); General Financial Services v. Thompson, 987 F.Supp. 505 (M.D.La. 1997); U.S. v. Oliver, 2008 WL 215398 (W.D.La.1/24/08).[2]
We have reviewed each of the cases cited by LLP in its brief, and we fail to find this line of cases controlling of the present cause of action. Several of these cases refer to statutes from other states which clearly provide prescriptive period for enforcement of a mortgage. Even assuming that the prescriptive period contained in 28 U.S.C. Section 2415(a) is not applicable to foreclosure actions pursuant to the terms of Section 2415(c), we fail to find that the Louisiana statutory provisions violate federal law. La. C.C. art. 3282 is not a prescriptive period or a statute of limitations. Unlike the statutes relied upon in the jurisprudence cited by LLP, the Louisiana statute does not provide that the mortgages have prescribed, but rather provides that mortgages are accessories to the obligations they secure. We fail to interpret this statute as providing for an impermissible time limit for bringing an action to establish title to real property.
Accordingly, as La. C.C. art. 3282 does not confer a limitation or prescriptive period, we fail to find that it is supplanted by federal statutory and jurisprudential law. See, United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979). Rather, we find that the provisions of La. C.C. art. 3282 are applicable to the factual situation in the present case, and that LLP can only enforce the mortgages to the extent it can enforce the obligation it secured. As there is no dispute that the promissory notes secured by the mortgages have prescribed under both state and federal law, we find no error in the trial court's determination that the mortgages in this case are unenforceable.
For these reasons, the judgment of the trial court is affirmed. LLP is to bear all costs of this appeal.
AFFIRMED.
NOTES
[1] Plaintiff alleges that the notes were payable to the order of the United States Small Business Administration and were endorsed to the order of plaintiff on July 27, 2001. Plaintiff further alleges that on June 20, 2002 the Small Business Administration assigned the notes and mortgage to plaintiff.
[2] The court in this case held that La. C.C. art. 3285 and La. C.C. art. 3498, when read together, provide an impermissible prescriptive period for enforcement of a mortgage in favor of a federal agency. However, the court in that case miscited and misquoted La. C.C. art. 3285, and we decline to apply the holding to an interpretation of La. C.C. art. 3282, which is at issue herein.
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FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 15, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 06-2360
v.
(D.C. No. CR-06-1454-JP)
(D. N.M.)
JORGE ALBERTO ALVARADO-
MOLINA,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, EBEL, and MCCONNELL, Circuit Judges.
Defendant-Appellant Jorge Alvarado-Molina (“Alvarado”) pled guilty to re-
entering the United States illegally after a previous deportation. See 8 U.S.C. §
1326(a)(1)-(2), (b)(2). The district court sentenced Alvarado to a 46-month term
of imprisonment, at the bottom of the range prescribed by the U.S. Sentencing
Guidelines (“Guidelines”). Alvarado challenged the substantive reasonableness
*
After examining appellant’s brief and the 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) and 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.
of his sentence on appeal and we affirmed. See United States v. Alvarado-
Molina, 250 Fed. Appx. 905 (10th Cir. 2007) (unpublished). Thereafter, the
Supreme Court vacated our judgment and remanded the matter to us for further
consideration in light of Gall v. United States, 552 U.S. ___, 128 S. Ct. 586
(2007).
Gall reaffirmed that sentencing is a discretionary task; as such, the
appellate courts “must review the sentence under an abuse-of-discretion
standard.” Gall, 128 S. Ct. at 597. The Gall Court also reiterated that Rita v.
United States, 551 U.S. ___, 127 S Ct. 2456 (2007), authorized the appellate
courts to accord within-Guidelines sentences a presumption of reasonableness.
Gall, 128 S. Ct. at 597.
Here, the district court imposed a sentence at the bottom of Alvarado’s
Guidelines range. Alvarado appealed, asserting that the court failed to give
sufficient consideration to two factors that, in his estimate, warranted a below-
Guidelines sentence. Having reviewed the record and Gall, we have identified
nothing that persuades us that the district court abused its discretion in imposing
the 46-month sentence. Moreover, there is nothing in the record that suggests that
the district court failed to realize the extent of its discretion in sentencing
-2-
Alvarado. As such, for the reasons set forth in our original order and judgment,
see Appendix 1, we AFFIRM Alvarado’s sentence.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
-3-
FILED
United States Court of Appeals
Tenth Circuit
October 12, 2007
Elisabeth A. Shumaker
APPENDIX 1 Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 06-2360
v. (D.C. No. CR 06-1454 JP)
(D.N.M.)
JORGE ALVARADO-MOLINA,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, EBEL, and MCCONNELL, Circuit Judges.
Defendant-Appellant Jorge Alvarado-Molina (“Alvarado”) pled guilty to re-
entering the United States illegally after a previous deportation. See 8 U.S.C. §
1326(a)(1)-(2), (b)(2). The district court sentenced Alvarado to a 46-month term
of imprisonment. Alvarado appeals, arguing that the sentence is substantively
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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.
unreasonable. Specifically, Alvarado contends that the sentencing judge
disregarded Alvarado’s rationale for re-entering the United States after remaining
in Mexico for approximately five and a half years. Because we cannot say that
the sentence imposed is unreasonable, we affirm.
I. Background
Alvarado, a Mexican citizen, originally entered the United States in 1990.
After a few prior brushes with the law, he was arrested in March 1998 with 150
pounds of marijuana in the trunk of the car he was driving. Alvarado plead guilty
to Conspiracy to Possess with Intent to Distribute Marijuana. Alvarado received
a sentence of 27 months’ imprisonment, served his sentence, and was deported to
Mexico in September 2000. In April 2006, U.S. Border Patrol agents
apprehended Alvarado near Santa Teresa, New Mexico. Immigration records
revealed that Alvarado had previously been deported and that he had not been
granted permission to reenter the United States. As such, he was indicted for
illegally re-entering the United States and pled guilty to the charge.
Alvarado’s presentencing report (“PSR”), prepared by the U.S. Probation
Office, factored in Alvarado’s previous drug trafficking offense. See U.S.S.G. §
2L1.2(a) (base offense level); U.S.S.G. § 2L1.2(b)(1)(A)(I) (enhancement). The
PSR also credited Alvarado for accepting responsibility for his action, see
-2-
U.S.S.G. § 3.E1.1, because he had submitted a statement noting that he had
reentered only because he had learned that his father was to undergo surgery in
Phoenix. When combined with his criminal history category of III, Alvarado’s
offense level provided for an advisory guideline sentencing range of 46 to 57
months in prison.
At his sentencing hearing, Alvarado assented to the PSR’s statement of
facts. 1 The judge decided on a 46-month sentence, stating “I don’t see a basis
under [18 U.S.C. § 3553(a)] to vary from the guideline sentencing range.” In
response, Alvarado’s counsel asked the judge to consider the fact that Alvarado
had not reentered the United States earlier, after having been deported over five
years beforehand. Alvarado also requested leniency, advancing his argument
regarding his father’s surgery.
II. Discussion
We review a challenge to the sentence imposed by the district court for its
“reasonableness.” United States v. Booker, 543 U.S. 220, 261-62 (2005); United
States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). The reasonableness
1
At sentencing, Alvarado did dispute the classification of his prior
conviction, contending that it was for simple possession of marijuana and, thus,
should not be considered a “drug trafficking offense” for purposes of U.S.S.G. §
2L1.2(b)(1)(A)(I). Advised of this challenge at the sentencing hearing, the
district court noted that “no one simply possesses 150 pounds of marijuana
without the intent to distribute it.” The district court also admitted as evidence
Alvarado’s guilty plea for this prior felony, which confirms that the offense was
an aggravated felony.
-3-
inquiry encompasses “both procedural and substantive components.” United
States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006). 2
“A substantively reasonable sentence ultimately reflects the gravity of the
crime and the § 3553(a) factors as applied to the case.” United States v. Atencio,
476 F.3d 1099, 1102 (10th Cir. 2007). Accordingly, we must simply ask whether
the sentence is reasonable in light of the factors set forth in 18 U.S.C. § 3553(a).”
United States v. Sanchez-Juarez, 446 F.3d 1109, 1114 (10th Cir. 2006). We
presume the sentence is reasonable if it falls within the sentencing guidelines
range. Kristl, 437 F.3d at 1054. 3
Alvarado argues that his sentence is substantively unreasonable because the
district court failed to consider his reason for reentering the United States. See
18 U.S.C. § 3553(a)(1) (instructing sentencing judge to consider offense and
offender characteristics). However, the sentencing transcript shows that the judge
listened to Alvarado’s two intertwined arguments at the hearing. More
importantly, the judge had reviewed the PSR, which also highlights Alvarado’s
2
Because Alvarado has not challenged the procedural reasonableness of the
sentence, we do not address that component of the inquiry.
3
We may do so because the sentence rests on the reasoned judgment of both
the Commission–as incorporated into the sentencing guidelines–and the
sentencing judge. See Rita v. United States, 127 S. Ct. 2456, 2463 (2007).
-4-
story regarding his father’s surgery. 4 The PSR’s statement of the facts, to which
Alvarado did not object, provides ample evidence that the sentence imposed was
reasonable.
First, the PSR states that Alvarado had not had any contact with his father
since he was an adolescent. Throughout the course of this case, Alvarado offered
no evidence that would confirm his story about his father’s surgery. 5 Although
the sentencing judge did not directly address the story, he likely discounted it–and
reasonably so in our view. A defendant’s mere “say-so” regarding an illness in
the family should not suffice to tilt the sentencing scales.
Alvarado also argues that the five-and-a-half-year hiatus that followed his
prior deportation demonstrates that deterrence is not a grave concern in his case.
See 18 U.S.C. § 3553(a)(2) (instructing sentencing judge to consider basic aims
of sentencing). However, Alvarado has been deported twice before. Given
Alvarado’s apparent willingness to reenter and his criminal history, the
sentencing judge’s decision to abide by the guidelines was reasonable.
4
Alvarado detailed the circumstances of his decision to reenter the United
States as part of a submission that the Commission credited as an acceptance of
responsibility. This acceptance of responsibility resulted in a three-point
reduction in his offense level.
5
Alvarado’s counsel conspicuously avoided advancing this argument as
well.
-5-
III. Conclusion
Nothing Alvarado adduced persuades us that his case is outside the
heartland of cases of similarly situated defendants. Because his sentence is not
unreasonable, we AFFIRM.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
-6-
| {
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES ALLEN HYDRICK; DAVID
LANPHERE; SHAUNDALE GRIFFIN;
FRANK CISNEROS; PAUL PEDERSON;
STEVEN ROBERT CERNIGLIA; GARY
PRICE; DANIEL MROWICI; KENNETH
CIANCIO; MICHAEL MCCLURE; JAMES
MATA; RICHARD BISHOP; MELVIN
FIELDS; RON LEE; LEONARD PIERRE;
THOMAS PRICE; JIMMY GUTHRIE;
BRIAN KELLY; WOODROW JONES; No. 03-56712
VASHON JACKSON; BRUCE RILEY;
FRED SCOTT; DEAN DANFORTH; D.C. No.
CV-98-07167-TJH
SAMMY PAGE; JAMES PETERS;
GRAYLING MITCHELL; CARLOS OPINION
SAUCEDO; ANTHONY DACAYONA;
CHARLES SALAS, et al.,
Plaintiffs-Appellees,
v.
MELVIN E. HUNTER, aka/Jon
DeMorales; CRAIG NELSON;
GRENDA ERNST,
Defendants-Appellants,
5921
5922 HYDRICK v. HUNTER
and
ROBERT MCDANIEL; JERRY
REYNOLDS; ROBERT PENATE;
SAMUEL ROBINSON; MARK
MAHHONEY; STEPHEN MAYBERG;
ANITA JUDD; MICHAEL HUGHES; JIM
VESS; JACK TOWNSEND; MARK
PALMER; ROCKY SPURGEON; ARNIE
GOBBELL; JIM WILEY; MARK
KALIONZES; ELAINE SHERRILL; GLAN
MIKEL; JAN MAIRE ALARCON;
BARUCH MARGALIT; WILLIAM
KNOWLTON; DIANE IMRAM; CARMEL
MULLER; DALE ARNOLD; GABRIELLA
PALADINO; JEAN DANSEREAU et al.;
WILLIAM CHARLES THIEL; ROBERT
DOUGLAS LEFORT; ARNOLD
SCHWARZENEGGER, Governor of
California,
Defendants.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Chief District Judge, Presiding
Argued and Submitted
April 5, 2005—Pasadena, California
Filed June 1, 2006
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson
and Stephen S. Trott, Circuit Judges.
Opinion by Judge Pregerson;
Partial Concurrence and Partial Dissent by Judge Trott
5928 HYDRICK v. HUNTER
COUNSEL
Randall R. Murphy, Deputy Attorney General, Los Angeles,
California, for the defendants-appellants.
Kathryn M. Davis, Latham & Watkins, Los Angeles, Califor-
nia, for the plaintiffs-appellees.
OPINION
PREGERSON, Circuit Judge:
Plaintiffs-Appellees represent a class of approximately 600
civilly committed persons and those awaiting commitment at
Atascadero State Hospital pursuant to California’s Sexually
Violent Predators Act (“SVP Act”). In this suit, Plaintiffs
allege that the conditions of their confinement violate their
constitutional rights. They request declaratory and injunctive
relief, as well as monetary damages. Defendants filed a
HYDRICK v. HUNTER 5929
motion to dismiss based largely on qualified immunity, but
their motion was summarily denied by the district court. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm in
part, and reverse in part.
FACTUAL BACKGROUND1
1. California’s Sexually Violent Predators Scheme
The SVP Act defines an SVP as a person “convicted of a
sexually violent offense against two or more victims for
which he or she received a determinate sentence and who has
a diagnosed mental disorder that makes the person a danger
to the health and safety of others” i.e., is “likely [to] engage
in sexually violent criminal behavior.” See Cal. Welf. & Inst.
Code § 6600(a).2 At least six months before a person who has
committed the predicate offenses is to complete his sentence,
he is evaluated by the Department of Corrections and Depart-
ment of Mental Health. Id. § 6601. If those two departments
agree that the person evaluated may be an SVP, a petition for
commitment may be filed by the district attorney or counsel
for the county in which the evaluated person was convicted.
Id. § 6601(i). If that person is found by a jury to be an SVP
who poses a danger to the health and safety of others, he is
civilly committed for an indefinite period to commence
after his criminal sentence is fulfilled. Id. §§ 6602-6604.
Once civilly committed, Plaintiffs undergo a five-phase
treatment program. Phase One comprises group sessions that
educate the SVP about California’s SVP Act. During Phase
One, the SVP is required to attend and participate in the treat-
ment sessions. If he does not, his access level3 is reduced and
1
The following facts are taken from the complaint and are assumed to
be true for purposes of reviewing this motion to dismiss.
2
Although the SVP Act is gender-neutral, there was only one female
SVP at the time of the filing of this complaint. She was not housed at
Atascadero, and was, therefore, not included as part of the Plaintiffs’ class.
3
As explained in the complaint, all persons at Atascadero are assigned
an Access Level that dictates access to various facilities and privileges. A
5930 HYDRICK v. HUNTER
he is not allowed to advance to Phase Two of the treatment
program. In addition, an SVP’s failure to attend or participate
in the treatment sessions is used against him at future proba-
ble cause and confinement hearings. The SVP cannot advance
beyond Phase One unless he signs a statement in which he
acknowledges that he has an “illness” that requires “treat-
ment.” Plaintiffs allege that the signed statements are often
used against the SVP in future probable cause and confine-
ment hearings.
Phases Two through Five of the treatment plan involve
“cognitive” treatment. This treatment includes viewing videos
that depict violent or other inappropriate sexual activities
while a repugnant odor or other unpleasant sensation is
applied to elicit a negative association.
Each year, a committed person has a right to a show cause
hearing to determine whether his commitment should be con-
tinued. Id. § 6605(a)-(b). If it is found that the SVP continues
to be a danger to the health or safety of the community, the
person is committed for two years from the date of the find-
ing. Id. § 6605(e). These successive periods of commitment
can be continued indefinitely, or until the SVP completes all
five phases of treatment. Upon successful completion of
Phase Five, the SVP is conditionally released under the super-
vision of the California Mental Health Department. According
to Plaintiffs, “only a handful of SVPs have been allowed into
Phase Four and no SVP has progressed to Phase Five or ha[s]
been found to be ready for release under the treatment protocol.”4
Level 1 patient may not leave his unit without an escort, a Level 2 patient
may leave his unit, but cannot go to the courtyard or canteen, a Level 3
patient may have some access to the law library, canteen and courtyard,
etc.
4
At oral argument it was alleged that, since the time Plaintiffs filed their
complaint, three (of the over seven hundred) people committed under the
Sexually Violent Predators Act have been released into their communities.
HYDRICK v. HUNTER 5931
2. The Current Lawsuit
On September 2, 1998, Plaintiffs filed a pro se class action,
under 42 U.S.C. § 1983, in district court against Defendants-
Appellants Stephen Mayberg (Director of the California
Department of Mental Health), Cal A. Terhune (Director of
the California Department of Corrections), Jon DeMorales
(former Executive Director at Atascadero State Hospital),
Grenda Ernst (Clinical Administrator at Atascadero State
Hospital), and Craig Nelson (Senior Psychologist Specialist at
Atascadero State Hospital) (collectively “Defendants”). Plain-
tiffs sought injunctive and declaratory relief, as well as mone-
tary damages, on the grounds that the policies and procedures
that govern Plaintiffs’ confinement and treatment at Atas-
cadero State Hospital violate Plaintiffs’ constitutional rights.
In March 1999, the district court appointed pro bono coun-
sel for Plaintiffs. Counsel filed an amended complaint approx-
imately five months later. Defendants filed a motion to
dismiss. The motion to dismiss raised Eleventh Amendment
and qualified immunity defenses. The district court denied
Defendants’ motion in a one line order.
Plaintiffs filed a second amended complaint on August 14,
2002.5 Both the first and second amended complaints alleged
that Defendants violated Plaintiffs’ rights by, inter alia: (1)
force-medicating Plaintiffs in non-emergency situations; (2)
reducing Plaintiffs’ access levels and other privileges as a
form of punishment for refusing to participate in treatment
sessions or as retaliation for filing lawsuits; (3) putting Plain-
tiffs in restraints for nonthreatening and/or nondisruptive con-
duct, including the refusal to participate in treatment or
therapy; (4) subjecting Plaintiffs to public strip-searches
(sometimes while in four-point restraints); (5) failing to pro-
5
The second amended complaint substituted Melvin Hunter, the current
Executive Director at Atascadero State Hospital, for Jon DeMorales, the
former Executive Director, but contained no substantive alterations.
5932 HYDRICK v. HUNTER
tect Plaintiffs from abuse of other patients or of Atascadero
employees; (6) failing to provide Plaintiffs with constitution-
ally satisfactory conditions of confinement; (7) forcing Plain-
tiffs to participate in treatment; and (8) denying Plaintiffs
adequate treatment, thereby converting Plaintiffs’ civil con-
finement to a de facto extension of their prison sentence.
Once again, Defendants moved to dismiss the second
amended complaint, on the same grounds presented in their
first motion to dismiss. The district court again denied Defen-
dants’ motion to dismiss in a one line order. Defendants
timely filed their notice of appeal. Defendants contend that
the district court erred by failing to rule that the Eleventh
Amendment, state abstention doctrine, or qualified immunity
barred Plaintiffs’ suit.
ANALYSIS
A. Standard of Review
We review de novo the district court’s denial of a motion
to dismiss. Decker v. Advantage Fund, Ltd., 362 F.3d 593,
595-96 (9th Cir. 2004). Immunity under the Eleventh Amend-
ment presents a question of law, which we review de novo.
See Demshki v. Monteith, 255 F.3d 986, 988 (9th Cir. 2001).
To determine if Defendants are entitled to qualified immunity,
we review de novo whether governing law was clearly estab-
lished at the time of the alleged violation and whether the spe-
cific facts alleged constitute a violation of established law.
See Mabe v. San Bernardino County Dept. of Pub. Soc.
Servs., 237 F.3d 1101, 1106 (9th Cir. 2001).
Although a district court’s denial of a motion under Federal
Rule of Civil Procedure 12(b)(6) is not ordinarily appealable,
the denial of a claim for immunity is appealable before final
judgment under the collateral order doctrine and is reviewed
de novo. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir.
1999). All allegations of material fact are accepted as true and
HYDRICK v. HUNTER 5933
should be construed in the light most favorable to Plaintiffs.
See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). The
“complaint should not be dismissed [under Rule 12(b)(6)]
unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of the claim that would entitle the plain-
tiff to relief.” Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.
2002).
We note, again, the special difficulty of deciding the
motion to dismiss a Defendant on qualified immunity grounds
at this stage. Under the notice pleading standard of the Fed-
eral Rules, plaintiffs are only required to give a “short and
plain statement” of their claims. Fed. R. Civ. Pro. 8(a)(2).
Thus, “[w]hen a federal court reviews the sufficiency of a
complaint, before the reception of any evidence either by affi-
davit or admissions, [our] task is necessarily a limited one.
The issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support
the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
As we recognized in Kwai Fun Wong v. United States, 373
F.3d 952 (9th Cir. 2004), a motion to dismiss on qualified
immunity grounds puts the court in the difficult position of
deciding “far-reaching constitutional questions on a non-
existent factual record.” Id. at 957. We strongly suggested
that, while “government officials have the right . . . to raise
. . . qualified immunity defense on a motion to dismiss, the
exercise of that authority is not a wise choice in every case.”
Id. We find that especially true here. The policy justifying
qualified immunity motions at this stage is to protect officers
against the burden of discovery and pre-trial motions. Behrens
v. Pelletier, 516 U.S. 299, 308 (1996). In this case, the parties
had already engaged in discovery for several years, and it
appears that discovery was almost complete. Defendants
could have presented this as a motion for summary judgment,
and we would have a more developed factual record to guide
our decision. Because Defendants’ motion is framed as a
motion to dismiss, we must evaluate the merits of Defendants’
5934 HYDRICK v. HUNTER
qualified immunity defense before we know the full extent of
the alleged abuses at Atascadero, or the reason behind Atas-
cadero policy, or the level of involvement Defendants had in
creating the conditions at Atascadero. As we decide Defen-
dants’ motion, however, we are cautious not to eviscerate the
notice pleading standard in suits where qualified immunity is
at issue. See Galbraith v. County of Santa Clara, 307 F.3d
1119, 1125-26 (9th Cir. 2002).6
B. The Law of the Case Doctrine Does Not Apply
Plaintiffs argue that under the law of the case doctrine, we
should not reach the merits of Defendants’ appeal because
Defendants’ second motion to dismiss was barred by the dis-
trict court’s ruling that denied Defendants’ first motion to dis-
miss. The relevant facts are as follows: after Plaintiffs filed
their first amended complaint, Defendants filed a motion to
dismiss on the grounds of failure to state a claim and qualified
immunity. The district court denied Defendants’ motion in a
summary order, and Defendants did not appeal. Plaintiffs filed
a second amended complaint, in which they changed only the
name of one of the Defendants. Defendants then filed a
motion to dismiss on grounds substantially similar to those
stated in the first motion to dismiss. The district court again
denied the motion to dismiss in a summary order. Plaintiffs
argue that Defendants’ second motion to dismiss is an imper-
6
With all respect to our dissenting colleague, Plaintiffs’ complaint states
more than “violations of extremely abstract rights.” See Dissent at 5962
(citing Anderson v. Creighton, 483 U.S. 635, 639-40 (1987)). Maybe
Plaintiffs can support these claims with evidentiary support and maybe
they can’t. Maybe Defendants can justify their behavior, or at least con-
vince us that their conduct was not clearly in violation of Plaintiffs’ rights.
But the point of the Rule 12(b)(6) motion is not to evaluate the veracity
of Plaintiffs’ allegations, or to speculate as to Defendants’ justifications
for their actions. Rather, unless it is “beyond doubt” that the plaintiff can-
not prove facts that would entitle him to relief, the Rule 12(b)(6) motion
must be denied. See Navarro v. Block, 250 F.3d 729 (9th Cir. 2001). The
standard is no different for a civil rights claim than for any other claim.
See Galbraith, 307 F.3d at 1125-26.
HYDRICK v. HUNTER 5935
missible “second bite at the apple” and should be dismissed
under the law of the case doctrine.
[1] “Under the ‘law of the case’ doctrine, a court is ordinar-
ily precluded from reexamining an issue previously decided
by the same court, or a higher court, in the same case.” Rich-
ardson v. United States, 841 F.2d 993, 996 (9th Cir. 1988)
(citations omitted). For the law of the case doctrine to apply,
“the issue in question must have been ‘decided explicitly or
by necessary implication in [the] previous disposition.’ ”
United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th
Cir. 2000) (citing Liberty Mutual Ins. Co. v. EEOC, 691 F.2d
438, 441 (9th Cir. 1982)); United States v. Cote, 51 F.3d 178
(9th Cir. 1995) (“[T]he law of the case acts as a bar only when
the issue in question was actually considered and decided by
the first court.”).
[2] The district court denied Defendants’ first motion to
dismiss and their second motion to dismiss in a summary
order. Thus the district court’s grounds for rejecting Defen-
dants’ two motions are not explicit. Nor can we say that any
issue was decided by implication in the first summary order
denying Defendants’ first motion to dismiss. Either motion
could have been denied for any number of procedural or tech-
nical reasons unrelated to the substance of the motions. It is
possible that Defendants’ second motion was denied based on
the law of the case doctrine, or that the district court decided,
in its discretion, not to apply the law of the case doctrine due
to subsequent changes in the law, or the “manifest injustice”
that would result given the new party to the suit. See United
States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997).
Because it is impossible for us to determine the basis of denial
of either motion, we conclude that the “law of the case” does
not apply and address the appeal on the merits.
C. Eleventh Amendment Immunity and the
Abstention Doctrine Do Not Bar Plaintiffs’ Claims
[3] Defendants concede that suits for injunctive or declara-
tory relief do not violate the Eleventh Amendment under Ex
5936 HYDRICK v. HUNTER
parte Young, 209 U.S. 123 (1908). Defendants contend,
instead, that Plaintiffs’ request for monetary damages against
them is barred by the Eleventh Amendment to the Constitu-
tion. Defendants are correct that Plaintiffs cannot seek mone-
tary damages against state officials in their official capacity.
See Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836,
839 (9th Cir. 1997). But the Eleventh Amendment does not
bar suits seeking damages against state officials in their per-
sonal capacity. See Hafer v. Melo, 502 U.S. 21, 30 (1991);
Ashker v. Cal. Dep’t of Corr., 112 F.3d 392, 394-95 (9th Cir.
1997).
[4] The second amended complaint states that Defendants
acted in and are being sued in their individual and official
capacities. This creates a presumption that Plaintiffs are seek-
ing monetary damages against defendants in their personal
capacity. See Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir.
1999) (stating a strong presumption in favor of a personal
capacity suit where an official capacity suit for damages
would be barred). Accordingly, the Eleventh Amendment
does not bar Plaintiffs’ claim for damages against Defendants
in their individual capacities.
[5] Defendants also argue that they are immune from Plain-
tiffs’ suit because Plaintiffs attempt to enforce pendent state
law claims in federal court. Plaintiffs refer, in their first, sec-
ond, and tenth claims for relief, to provisions in the California
Constitution that parallel the applicable provision in the
United States Constitution. Plaintiffs concede that they could
not prevail on a § 1983 claim based on a violation of state
law, because § 1983, by its own terms, protects only viola-
tions of federal law. See Ybarra v. Bastian, 647 F.2d 891, 892
(9th Cir. 1981). Instead, they cite California law only where
it is legitimate to do so, e.g., where there is a state-created lib-
erty or property interest at stake. See, e.g., Paul v. Davis, 424
U.S. 693, 710-12 (1976). Accordingly, Plaintiffs’ claims are
not barred on this ground, and we need not consider Defen-
HYDRICK v. HUNTER 5937
dants’ arguments that Plaintiffs’ state law claims are “novel
and complex” under 28 U.S.C. § 1367(c).7
D. Plaintiffs’ Section 1983 Claims
[6] Defendants’ first substantive argument is that Plaintiffs
have not properly pled a claim under Section 1983, in that
they are not proper defendants for a suit. “To sustain an action
under section 1983, a plaintiff must show (1) that the conduct
complained of was committed by a person acting under color
of state law; and (2) that the conduct deprived the plaintiff of
a federal constitutional or statutory right.” Wood v. Ostrander,
879 F.2d 583, 587 (9th Cir. 1989).
There is no question that all Defendants were acting under
the color of California law when they engaged in the alleged
unconstitutional conduct. Defendants argue, instead, that their
conduct did not cause Plaintiffs any deprivation of their con-
stitutional or statutory rights.
“A person ‘subjects’ another to the deprivation of a consti-
tutional right, within the meaning of [§] 1983, if [that person]
does an affirmative act, participates in another’s affirmative
acts, or omits to perform an act which [that person] is legally
required to do that causes the deprivation of which complaint
is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.
7
Defendants also suggest that the federal courts should “abstain” under
the “Abstention Doctrine.” They appear to confuse abstention with denial
of pendent jurisdiction under the “novel and complex” clause of 28 U.S.C.
§ 1367(c). If they meant abstention proper, they waived that argument
because they failed to raise abstention before the District Court. See Conn.
Gen. Life Ins. v. New Images of Beverly Hills, 321 F.3d 878, 882 (9th Cir.
2003). Nor do we see any reason that the federal courts would abstain in
this situation. Pullman abstention is not appropriate because the driving
force behind each of Plaintiffs’ claims is a right guaranteed by the United
States Constitution, and state court clarification of state law would not
make a federal court ruling unnecessary. See R.R. Comm. of Tex. v. Pull-
man Co., 312 U.S. 496, 499-501 (1941).
5938 HYDRICK v. HUNTER
1978). Indeed, the “requisite causal connection can be estab-
lished not only by some kind of direct personal participation
in the deprivation, but also by setting in motion a series of
acts by others which the actor knows or reasonably should
know would cause others to inflict the constitutional injury.”
Id. at 743-744.
In limited circumstances, a person can also be subject to
§ 1983 liability for the acts of others. Although there is no
pure respondeat superior liability under § 1983, a supervisor
is liable for the constitutional violations of subordinates “if
the supervisor participated in or directed the violations, or
knew of the violations and failed to act to prevent them.” Tay-
lor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
[7] Plaintiffs proceed on both of these theories: (a) that
Defendants created policies and procedures that violated
Plaintiffs’ constitutional rights; and (b) that Defendants were
willfully blind to constitutional violations committed by their
subordinates. Because Defendants were directors and policy-
makers for Atascadero State Hospital, we believe Plaintiffs
have sufficiently alleged that the constitutional violations they
suffered were “set in motion” by Defendants’ policy decisions
or, at the very least, that Defendants knew of these abuses and
demonstrated a deliberate indifference to the SVPs’ plight.
[8] Defendants are correct that, under Leer v. Murphy, 844
F.2d 628, 633-34 (9th Cir. 1988), Plaintiffs will need to show
how the deliberate indifference or affirmative actions of each
defendant caused a constitutional violation before they can
seek monetary damages against any individual defendant. At
this stage of pleading, however, they need not specifically
delineate how each Defendant contributed to the violation of
their constitutional rights. Indeed, we do not see how, prior to
discovery, they could plead the individual roles of each state
officer with any more specificity. Taking the statements in the
complaint in the light most favorable to the Plaintiffs, Plain-
tiffs may be able to state a claim against all of the named
HYDRICK v. HUNTER 5939
Defendants, each of whom played an instrumental role in
policy-making and enforcement at Atascadero State Hospital.
Therefore, we hold that Plaintiffs have sufficiently alleged
Defendants’ role in the alleged constitutional violations
against SVPs to survive this motion to dismiss.
E. Defendants’ Qualified Immunity Defense
Defendants also argued that the district court erred when it
denied them qualified immunity. As Defendants have con-
ceded, qualified immunity is only an immunity from a suit for
damages, and does not provide immunity from suit for declar-
atory or injunctive relief. See Los Angeles Police Protective
League v. Gates, 995 F.2d 1469, 1472 (9th Cir. 1993). Defen-
dants instead argue that they are entitled to qualified immu-
nity from all of Plaintiffs’ claims to the extent that Plaintiffs
seek monetary damages.
In analyzing Defendants’ qualified immunity defense, we
must determine, taking the facts in the light most favorable to
Plaintiffs: (1) what right has been violated; (2) whether that
right was so “clearly established” at the time of the incident
that a reasonable official would have been aware that the con-
duct violated constitutional bounds; and (3) whether a reason-
able public official could have believed that the alleged
conduct was lawful. See Newell v. Sauser, 79 F.3d 115, 117
(9th Cir. 1996).
[9] In order to withstand Defendants’ claims of qualified
immunity, then, Plaintiffs must first allege a violation of a
right that was clearly established in 1998 — the time the
alleged constitutional violations first took place. See Anderson
v. Creighton, 483 U.S. 635, 639-40 (1987); Sorrels v. McKee,
290 F.3d 965, 970 (9th Cir. 2002). To defeat qualified immu-
nity, “the right allegedly violated must be defined at the
appropriate level of specificity before a court can determine
if it was clearly established.” Wilson v. Layne, 526 U.S. 603,
615 (1999).
5940 HYDRICK v. HUNTER
But Plaintiffs need not establish that Defendants’ “behavior
had been previously declared unconstitutional.” Blueford v.
Prunty, 108 F.3d 251, 254 (9th Cir. 1997). In fact, “precedent
directly on point is not necessary to demonstrate a clearly
established right.” Id. at 255. Rather, “[i]f the only reasonable
conclusion from binding authority were that the disputed right
existed, even if no case had specifically so declared, [Defen-
dants] would be on notice of the right and [officials] would
not be qualifiedly immune if they acted to offend it.” Id. If the
occasion has not risen for our circuit to reach a question, we
may draw clearly established law from other circuits. Prison
Legal News v. Lehman, 397 F.3d 692, 701 (9th Cir. 2005); see
also Jacobs v. City of Chicago, 215 F.3d 758, 767 (7th Cir.
2000) (finding a violation of clearly established law where
there is “such a clear trend in the case law” that recognition
of the right is “only a matter of time”).
[10] Before we consider Plaintiffs’ claims individually to
determine whether they were clearly established, we address
a threshold question that applies to Plaintiffs’ claims more
generally. Defendants argue, as a broad proposition, that dam-
ages are not appropriate in this suit because the law applicable
to SVPs is still evolving. We acknowledge that this suit is
unique, in that it is one of the first widespread class actions
to challenge the conditions of detention for civilly confined
SVPs. Nonetheless, we believe Defendants may have trans-
gressed some clearly established boundaries, or at least, that
their claims cannot be dismissed at this stage of litigation.
First, civilly detained persons must be afforded “more consid-
erate treatment and conditions of confinement than criminals
whose conditions of confinement are designed to punish.”
Youngberg v. Romeo, 457 U.S. 307, 322 (1982); see also
Sharp v. Weston, 233 F.3d 1166, 1172 (9th Cir. 2000). It fol-
lows logically, then, that the rights afforded prisoners set a
floor for those that must be afforded SVPs, and that where
Defendants violate a standard that is clearly established in the
prison context, the violation is clearly established under the
HYDRICK v. HUNTER 5941
SVP scheme.8 Second, where there is a clearly established
body of law that applies to all civilly committed persons,
there is no reason that the law should not apply to SVPs as
well. For, as we have previously held:
The state cannot have it both ways. If confinement
of a sexually violent predator is civil for the pur-
poses of evaluation under the Ex Post Facto clause,
that confinement is civil for the purposes of defining
the rights to which the detainee is entitled while con-
fined. Civil status means civil status, with all the . . .
rights that accompany it.
Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004). Thus,
there are two bodies of law from which we might draw
“clearly established” law for qualified immunity purposes:
first, where the SVPs claim a violation of a right that is
clearly established even in the prison context, and second,
where the SVPs claim a violation of a right that is clearly
established for all civilly detained persons.
At the same time, we acknowledge at the outset that it is
not always clearly established how much more expansive the
rights of civilly detained persons are than those of criminally
detained persons. As discussed below, the rights afforded civ-
illy detained persons are flexible enough to take into account
the circumstances of detention. The law generally requires a
careful balancing of the rights of individuals who are detained
for treatment, not punishment, against the state’s interests in
institutional security and the safety of those housed at the
8
Contrary to our dissenting colleague’s analysis, we see this as a very
minor analytical step. The State detains prisoners for the purpose of pun-
ishment. It detains SVPs for the purpose of treatment, and its treatment has
no punitive element to it. It seems entirely unremarkable, then, to say that
the State cannot treat SVPs worse than prisoners. The “only reasonable
conclusion from binding authority” is that the conditions of confinement
for SVPs cannot be more harsh than those under which prisoners are
detained. Blueford, 108 F.3d at 255.
5942 HYDRICK v. HUNTER
facility. See, e.g., Youngberg, 457 U.S. at 319-322. In weigh-
ing those interests, it cannot be ignored that, unlike the plain-
tiff in Youngberg who was civilly committed because of
mental infirmities, SVPs have been civilly committed subse-
quent to criminal convictions and have been adjudged to pose
a danger to the health and safety of others. Therefore, the
rights of SVPs may not necessarily be coexistensive with
those of all other civilly detained persons.9
With these threshold issues in mind, we review each of
Plaintiffs’ claims to determine whether Plaintiffs have suffi-
ciently pleaded a violation of clearly established rights.
1. Plaintiffs’ First and Fourteenth Amendment
Rights
Plaintiffs contend that Defendants have retaliated against
them for filing lawsuits regarding conditions at Atascadero
State Hospital. Specifically, Plaintiffs claim that, as a result of
preparing this suit and other complaints about the conditions
at Atascadero, Plaintiffs have been subjected to access-level
reductions, harassment by Atascadero personnel, excessive
room search and seizures of property, and that they have been
denied access to the library.
[11] It is clear that the Fourteenth Amendment right to
9
We thus agree with our dissenting colleague that context is critical in
constitutional claims. Nonetheless, this admission — that it is not clear
how much more extensive the rights of SVPs are — does not inexorably
lead to the conclusion that there can be no violation of clearly established
law. It may not be clear exactly what due process rights are to be afforded
SVPs, but surely it is clear that certain actions — forcing Plaintiffs to live
in squalid conditions, turning a blind eye to physical attacks against SVPs,
and forcing SVPs to take medication as punishment or in retaliation for fil-
ing a lawsuit or for refusing to speak during treatment sessions — trans-
gressed the boundary. Surely it would not require “law train[ing]” or
clairvoyance to recognize that these actions, as alleged by Plaintiffs, do
not comport with due process.
HYDRICK v. HUNTER 5943
access the courts survives detention. Bounds v. Smith, 430
U.S. 817, 821-22 (1977) (“It is now established beyond doubt
that prisoners have a constitutional right of access to the
courts.”); Cornett v. Donovan, 51 F.3d 894, 898 (9th Cir.
1995) (holding that “right of access [to the courts] is guaran-
teed to people institutionalized in a state mental hospital
regardless of whether they are civilly committed after crimi-
nal proceedings or civilly committed on grounds of danger-
ousness”). Similarly, punishment in retaliation for exercising
one’s right to access the courts may constitute a First Amend-
ment violation. Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th
Cir. 1985). We have held that the prohibition against retalia-
tory punishment is “ ‘clearly established law’ in the Ninth
Circuit, for qualified immunity purposes.” Pratt v. Rowland,
65 F.3d 802, 806 & n.4 (9th Cir. 1995). Given the facts alleged,10
we believe Plaintiffs may be able to prove that they have been
punished in retaliation for the exercise of their First and Four-
teenth Amendment rights to file grievances about the condi-
tions of their confinement. Accordingly, their claims should
not be dismissed at the Rule 12(b)(6) stage.
Plaintiffs also allege that Defendants force them to partici-
pate in treatment that violates their First Amendment rights.
Specifically, Plaintiffs allege that Defendants bar SVPs from
progressing beyond Phase One until they sign a contract
admitting that they have an illness and need treatment. The
decision to sign the contract is the ultimate “Catch-22”: dur-
ing re-commitment hearings, the contract is used against those
who sign it as an admission of illness, and used against those
who do not sign it as a refusal to be amenable to treatment.
10
We note that Plaintiffs’ original pro se complaint contains particularly
persuasive narratives on this issue. Specifically, it details how Atascadero
personnel responded when they caught wind of this suit, altering schedules
so that the coordinators of this action would not be able to work together,
telling Plaintiffs that their meeting in the library was an “illegal assem-
bly,” limiting law library time, scheduling mandatory group sessions dur-
ing the SVPs’ library time, and refusing to give SVPs drafting paper
because it was “only for the mental patients to draft appeals.”
5944 HYDRICK v. HUNTER
Plaintiffs also allege that SVPs who attend but do not vocally
participate in group treatment sessions are found by Defen-
dants to be “not progressing”; accordingly, these SVPs do not
advance to higher levels and are subjected to access level
restrictions. Plaintiffs argue that they have a First Amendment
right to refrain from saying that they have an illness and to
refuse to participate in treatment, and that Defendants may not
punish them for exercising their rights.
We note that there may be a First Amendment right not to
participate in treatment, a right respected by the language of
California’s SVP Act, if not in its implementation. Specifi-
cally, the SVP Act directs:
Amenability to treatment is not required for a finding
that any person is a person described in Section
6600, nor is it required for treatment of that person.
Treatment does not mean that the treatment be suc-
cessful or potentially successful, nor does it mean
that the person must recognize his or her problem
and willingly participate in the treatment program.
Cal. Welf. & Inst. Code § 6606(b) (emphasis added). While
it may be in Plaintiffs’ interest to participate in treatment, and
the State may create incentives to encourage such participa-
tion, it is clear that “[t]he right of freedom of thought and of
religion as guaranteed by the Constitution against State action
includes both the right to speak freely and the right to refrain
from speaking at all.” W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624, 645 (1943) (Murphy, J., concurring). As is the
case with prisoners, civilly committed persons certainly retain
those First Amendment rights not inherently inconsistent with
the circumstances of their detention. See Turner v. Safley, 482
U.S. 78, 89 (1987). The language of the above statute strongly
suggests that refusal to recognize one’s “illness” or affirma-
tively participate in treatment is not inherently inconsistent
with the purposes for which SVPs are detained.
HYDRICK v. HUNTER 5945
Granted, Plaintiffs are not actually forced to speak. But in
this case, the stakes for refusing to speak are so high that
Plaintiffs’ participation in treatment is almost compulsory.
Indeed, an SVP who exercised his right not to admit his ill-
ness could be detained indefinitely: he would never advance
past Phase One and his refusal could be used against him at
his re-commitment hearing as a sign that he was not suffi-
ciently “rehabilitated” to re-enter society.
Several inmates who are criminally detained raised analo-
gous arguments, on Fifth Amendment grounds, that programs
that force sexual offenders to admit and discuss those offenses
violate their rights against self-incrimination. In McKune v.
Lile, 536 U.S. 24 (2002), the Supreme Court found that a pro-
gram did not violate the Fifth Amendment where the program
“did not extend his term of incarceration . . . [or] affect his eli-
gibility for good-time credits or parole,” and the only adverse
consequence was that he was moved to the less desirable non-
treatment area of the prison. Id. at 38-39.
But McKune explicitly left open the question of whether a
greater deprivation of liberty might run afoul of the Constitu-
tion by essentially compelling detainees to incriminate them-
selves. At least one court, reading McKune, allowed an inmate
to proceed past pre-trial motions on First Amendment grounds
where the right to parole was conditioned on participation in
treatment. See Wolfe v. Penn. Dep’t of Corrections, 334 F.
Supp. 2d 762, (E.D. Pa. 2004). Similarly, in this case, where
the stakes for participation in treatment are so high, the depri-
vations involved in refusing to participate in treatment may
rise to the level of compulsion that might violate the First
Amendment.
[12] The question at this stage, however, is not whether the
right exists, but whether such a right is clearly established
under the First Amendment. Given the volatility of the law on
this point, we cannot say that it is. The challenged programs
are facially related to the purposes for which the SVPs are
5946 HYDRICK v. HUNTER
detained, and while SVPs may have a right to refuse to partic-
ipate in such treatment, it is not yet clear the extent to which
the State can condition privileges or advancement on partici-
pation in such treatment. As such, we believe these claims
may be more appropriately considered for declaratory or
injunctive relief.
[13] Thus, we hold that Plaintiffs’ First Amendment claims
were based on clearly established law insofar as they chal-
lenge action in retaliation for filing lawsuits. To the extent
that the claim relies on a First Amendment right not to partici-
pate in treatment sessions, Defendants have qualified immu-
nity, because the law on this point is not clearly established.
2. Plaintiffs’ Fourth Amendment Rights
Plaintiffs allege that Defendants’ policies and practices
subject Plaintiffs to unreasonable searches, seizures, and
unnecessary use of force. According to Plaintiffs, they are
subjected to public strip searches; to retaliatory searches of
their possessions; and to arbitrary seizure of their personal
belongings upon arrival at Atascadero. SVPs are also placed
in shackles during transport to Atascadero and during visits
from family and friends. When they refuse to participate in
treatment, they are subjected to “red light alarms” even if they
do not post any physical risk.11 Moreover, they are force-
medicated as a means of intimidation and punishment, and for
the convenience of staff.
Accepting these allegations as true, we believe Plaintiffs
may be able to state a “clearly established” violation of their
Fourth Amendment rights, and thus, the claims are not appro-
priate for dismissal at the Rule 12(b)(6) stage. The watchword
of the Fourth Amendment in every context is reasonableness.
As this court held in Thompson v. Souza, 111 F.3d 694 (9th
11
As explained in the complaint, a “red light alarm” is when ten to
twenty staff members surround and restrain the patient.
HYDRICK v. HUNTER 5947
Cir. 1997), “the Fourth Amendment right to be secure against
unreasonable searches and seizures ‘extends to incarcerated
prisoners.’ ” Id. at 699. Thus, this protection certainly extends
to SVPs.
[14] Of course, “the reasonableness of a particular search
[or seizure] is determined by reference to the [detention] con-
text.” Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir.
1988). As with any detained person, there are concerns that
mirror those that arise in the prison context: i.e., “the safety
and security of guards and others in the facility, order within
the facility and the efficiency of the facility’s operations.”
Andrews v. Neer, 253 F.3d 1052, 1061 (8th Cir. 2001). But
even so, qualified immunity does not protect a search or sei-
zure that is arbitrary, retaliatory, or clearly exceeds the legiti-
mate purpose of detention.
[15] Under this framework, we cannot dismiss Plaintiffs’
claim at this stage. The “reasonableness” of a search or sei-
zure is a fact-intensive inquiry that cannot be determined at
this stage. See, e.g., Thompson, 111 F.3d 694 (9th Cir. 1997)
(evaluating the reasonableness of a strip search based on the
manner and scope of the search, the place, and the justifica-
tion). It is impossible to make such a fact-specific determina-
tion when the precise circumstances of the searches or
seizures are not before the court and when the Defendants
have not yet had a chance to explain their justification for the
alleged searches or seizures. We cannot say, then, that Plain-
tiffs cannot possibly state a “clearly established violation”
based on any facts consistent with their pleadings.12 There-
fore, Defendants do not have a right to qualified immunity
under Federal Rule of Civil Procedure 12(b)(6).
12
The excessive force claims under the Fourth and Fourteenth Amend-
ment — e.g., forced medication, excessive use of red light alarms, and use
of shackles — largely duplicate Plaintiffs’ excessive force claims under
the Eighth and Fourteenth Amendments, and their claims for Substantive
Due Process. We will consider all these claims together, below.
5948 HYDRICK v. HUNTER
3. Double Jeopardy and Ex Post Facto Clauses
Plaintiffs allege violations of the double jeopardy clause
and ex post facto clause. While Plaintiffs concede that these
two clauses have punishment as an essential prerequisite, and
that the SVP Act is a civil detention statute, they claim that
the SVP Act is punitive as applied to them. As such, they
argue that their double jeopardy and ex post facto claims are
not barred.
[16] In upholding a law similar to California’s SVP Act,
the Supreme Court held that “[a]n Act, found to be civil, can-
not be deemed punitive ‘as applied’ to a single individual in
violation of the Double Jeopardy and Ex Post Facto Clauses
and provide cause for release.” Seling v. Young, 531 U.S. 250,
267 (2001). Similarly, the California Supreme Court stressed
the civil nature of a sexually violent predator commitment and
rejected challenges to California’s SVP Act based on the Ex
Post Facto and Double Jeopardy clauses of the federal consti-
tution. See Hubbart v. Superior Court, 19 Cal. 4th 1138, 1171
(Cal. 1999). We believe Plaintiffs’ claims based on the Dou-
ble Jeopardy and Ex Post Facto Clauses of the federal consti-
tution are foreclosed.13
[17] Plaintiffs argue that Seling does not control because
they are not “seeking release” as was the habeas petitioner in
Seling. They raise a purely artificial difference. The court in
Seling made it abundantly clear that the civil nature of the
SVP scheme “cannot be altered based merely on the vagaries
in implementation of the authorizing statute.” Id. at 263.
Accordingly, we find that the civil nature of California’s SVP
13
Seling did not, however, alter our authority to consider implementa-
tion of the SVP Act on Plaintiffs’ other claims. See Seling, 531 U.S. at 266
(“This case gives us no occasion to consider how the civil nature of a con-
finement scheme relates to other constitutional challenges, such as due
process, or to consider the extent to which a court may look to actual con-
ditions of confinement and implementation of the statute to determine in
the first instance whether a confinement scheme is civil in nature.”).
HYDRICK v. HUNTER 5949
Act is not altered because of the remedy sought and we
reverse the district court’s order denying Defendants’ motion
to dismiss as to the Ex Post Facto and Double Jeopardy
Clause related claims.
4. Plaintiffs’ Eighth and Fourteenth Amendment
Claims
[18] Plaintiffs allege in their complaint that the “restrictive
and denigrating conditions” at the Atascadero State Hospital
constitute cruel and unusual punishment in violation of the
Eighth Amendment. The Eighth Amendment has, as an essen-
tial prerequisite, the right to punish. DeShaney v. Winnebago
County Dept. of Soc. Servs., 489 U.S. 189, 199 n.6 (“The
State does not acquire the power to punish with which the
Eighth Amendment is concerned until after it has secured a
formal adjudication of guilt in accordance with due process of
law.”). Here, SVPs are detained for the purpose of treatment,
and the state’s power to punish them expires at the end of
their sentence. Accordingly, the Eighth Amendment is not the
proper vehicle to challenge the conditions of civil commit-
ment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979).
[19] The thrust of Plaintiffs’ claim here is that because the
conditions of confinement amount to punishment, they should
be permitted to argue that this “punishment” is cruel and
unusual. Once again, this “punitive as applied” argument is
foreclosed by Seling. Therefore, we find that the district court
erred when it failed to dismiss the Eighth Amendment claim
against Defendants.
Of course, this is a small victory for Defendants, because
the same claims for inhumane treatment and failure to protect
may be raised under the Fourteenth Amendment. The stan-
dard applicable to SVPs under the Fourteenth Amendment are
at least coextensive with that applicable to prisoners under the
Eighth Amendment. See, e.g., Munoz v. Kolender, 208 F.
Supp. 2d 1125 (S.D. Cal. 2002) (applying Fourteenth Amend-
5950 HYDRICK v. HUNTER
ment standards to SVPs because “comparable standards apply
to both prisoners’ Eighth Amendment cruel and unusual pun-
ishment and Fourteenth Amendment substantive due process
analyses, with Fourteenth Amendment analysis borrowing
from Eighth Amendment standards.”); Frost v. Agnos, 152
F.3d 1124, 1128 (9th Cir. 1998) (applying Eighth Amendment
standards to evaluate pretrial detainees’ Fourteenth Amend-
ment claims). Moreover, the Eighth Amendment provides too
little protection for those whom the state cannot punish. See
Jones v. Blanas, 393 F.3d 918, 931-34 (9th Cir. 2004);
Andrews v. Neer, 253 F.3d 1052 (8th Cir. 2001). Plaintiffs
apparently recognize this, because their Eighth Amendment
claims largely duplicate those raised under the substantive due
process clause of the Fourteenth Amendment. Accordingly,
we consider, below, under the Fourteenth Amendment Plain-
tiffs’ allegations that Defendants’ actions violate their due
process rights.
5. Plaintiffs’ Procedural Due Process Rights Under
the Fourteenth Amendment
Plaintiffs raise a number of procedural due process viola-
tions against Defendants. Plaintiffs allege that Defendants
force them to participate in the five-phase treatment program
at Atascadero; force them to take medication in non-
emergency situations; and subject them to privilege reduc-
tions, access level reductions, and reclassifications. Plaintiffs
allege that these deprivations occur without adequate notice of
or opportunity to respond to accusations of alleged sanction-
able conduct.
[20] The Fourteenth Amendment requires that no person be
deprived of life, liberty, or property without due process of
law. That is, even if Defendants may deprive SVPs of certain
privileges, those deprivations may not be carried out without
notice and an opportunity to be heard. Defendants do not
challenge, at least at this stage, that Plaintiffs were deprived
of certain privileges, or that these deprivations did not carry
HYDRICK v. HUNTER 5951
with them the attendant due process required under the Four-
teenth Amendment. Rather, Defendants argue that Plaintiffs
have not adequately pleaded the loss of an established liberty
or property interest when they are force-medicated, when
their access-levels are reduced, or when they lose other privi-
leges.
[21] We disagree. Convicted prisoners, pretrial detainees,
and parolees all possess a liberty interest in avoiding the
unwanted administrations of antipsychotic drugs. See, e.g.,
Washington v. Harper, 494 U.S. at 221-22 (holding that pris-
oners possess “a significant liberty interest in avoiding the
unwanted administration of antipsychotic drugs under the Due
Process Clause of the Fourteenth Amendment” and identify-
ing procedures which comported with due process). Thus, at
a minimum, an individual civilly committed under Califor-
nia’s SVP Act has a right to procedural due process before
being force-medicated in non-emergency situations.
Next, Plaintiffs allege that reduction of their access levels
decreases, or in some cases eliminates, the opportunity to
move around the facility without escorts and that it affects
their right to other privileges. The reduction of an SVP’s
access level is similar to the transfer of prisoners from the
general prison population to administrative segregation. Such
a transfer may deprive the prisoner of a state-created liberty
interest. See Sandin v. Connor, 515 U.S. 472, 484 (1995)
(holding that a state-created liberty interest in one’s classifica-
tion may exist where classification imposes “atypical and sig-
nificant hardship”); see also Barnett v. Centoni, 31 F.3d 813,
815-16 (9th Cir. 1994) (holding that a prison inmate was
deprived of liberty and property because he was reclassified
thereby losing certain privileges). Thus, Plaintiffs may have
a liberty interest in their access levels and classifications that
affect their privileges.
[22] In sum, it is clearly established that an inmate has a
state-created liberty interest and a right to be free from restric-
5952 HYDRICK v. HUNTER
tions that “impose[ ] atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
Sandin, 515 U.S. at 483-84. Where Defendants have trans-
gressed a line clearly established even in the prison context,
we have no trouble deeming the line clearly established for
SVPs. Therefore, we hold that Plaintiffs’ Fourteenth Amend-
ment Procedural Due Process claims are based on clearly
established rights.
6. Plaintiffs’ Fourteenth Amendment Substantive
Due Process Claims
Plaintiffs contend that Defendants have violated their sub-
stantive due process rights because Defendants have failed to
protect them from the abuse of other detainees and employ-
ees. Their claims can be broken down into three general cate-
gories: (a) claims that Defendants failed to protect Plaintiffs
from the abuses of other persons detained at Atascadero; (b)
claims that Defendants failed to provide constitutionally ade-
quate conditions of detention; and (c) claims that Defendants
use excessive force against them.14
First, Plaintiffs claim that Defendants have turned a blind
eye to the conduct of other persons detained at Atascadero
State Hospital. Specifically, Plaintiffs allege that they are
intentionally exposed to feces, urine, vomit, spit, and blood in
Atascadero’s courtyards, bathrooms, hallways, dining rooms,
and gymnasium, and that other detainees contaminate their
food with spit and other unsanitary taint. Plaintiffs allege that
they are subjected to verbal harassment, physical abuse, and
sexual assaults by other patients at the Hospital, and indeed
that they are targeted because they are sex offenders.
The patient population at Atascadero State Hospital com-
14
Here we consider Plaintiffs’ substantive due process allegations from
their Second Alleged Claim, their Fifth Alleged Claim and their Seventh
Alleged Claim.
HYDRICK v. HUNTER 5953
prises males who are civilly or penally committed. The indi-
viduals committed at the Hospital are confined under a variety
of statutes. See Cal. Penal Code § 1026 (covering patients
“not guilty by reason of insanity”); Cal. Penal Code § 1370
(covering patients “incompetent to stand trial”); Cal. Penal
Code §§ 2962, 2964 (covering “mentally disordered offend-
ers” serving their parole time); Cal. Welfare and Institutions
Code § 6316 (covering “mentally disordered sex offenders”);
Cal. Penal Code § 2684 (covering mentally ill prisoners trans-
ferred to Atascadero State Hospital for psychiatric stabiliza-
tion). According to Plaintiffs, their forced integration as
openly labeled “sexually violent predators” has subjected
them to verbal harassment, physical abuse, and sexual assaults
from the rest of the Atascadero population.
[23] Plaintiffs’ right to be protected and confined in a safe
institution are clearly established. See Youngberg, 457 U.S. at
319-22 (stating that individuals who are involuntarily civilly
committed have constitutionally protected rights under the
Due Process Clause to reasonably safe conditions of confine-
ment and freedom from unreasonable bodily restraints). The
right is clearly established for civilly committed persons and
prisoners alike. See Farmer v. Brennan, 511 U.S. 825, 833
(1994) (“[P]rison officials have a duty . . . to protect prisoners
from violence at the hands of other prisoners.” (internal cita-
tions omitted)); Neely v. Feinstein, 50 F.3d 1502, 1508 (9th
Cir. 1995) (finding “clearly established” that patients have a
“constitutional right to be safe in the state institutions to
which they are committed”). Assuming Plaintiffs can prove
the allegations in their complaint and Defendants’ blindness
to such conditions in Atascadero, qualified immunity would
not be appropriate on these claims.
[24] Second, Plaintiffs allege that the conditions of confine-
ment are constitutionally inadequate, that they are forced to
live in squalid conditions that are inhumane and pose a seri-
ous health risk. Plaintiffs have a clearly established right not
to be exposed to such unsanitary conditions. See Anderson v.
5954 HYDRICK v. HUNTER
County of Kern, 45 F.3d 1310, 1314-15 (9th Cir. 1995) (col-
lecting cases in prison context); Youngberg, 457 U.S. at 315-
16 (establishing a right to “personal security” for involuntarily
committed persons).15 Given the allegations in the Second
Amended Complaint, Plaintiffs’ claims as to the unsanitary
and unsafe conditions of confinement cannot be dismissed
under Federal Rule of Civil Procedure 12(b)(6).
[25] Plaintiffs also allege several claims of excessive force,
i.e., that (a) “red light alarms” are used when Plaintiffs orally
refuse to participate in treatment, even if they pose no threat
of physical violence; (b) that shackles are used during trans-
portation and during visits with family and friends; and, more
generally, (c) that Plaintiffs are subjected to “excessive pun-
ishment . . . [and] excessive use of force and physical
restraints.” It is well-established that detained persons have a
right to be free from excessive force. While excessive force
claims by prisoners are reviewed under the Eighth Amend-
ment’s malicious and sadistic standard, Hudson v. McMillian,
503 U.S. 1 (1992), the more generous Fourteenth Amendment
standard applies to those who are civilly confined. As we pre-
viously stated:
If confinement of a sexually violent predator is civil
for the purposes of evaluation under the Ex Post
Facto clause, that confinement is civil for the pur-
poses of defining the rights to which the detainee is
entitled while confined [in a treatment facility]. Civil
status means civil status, with all the Fourteenth
Amendment rights that accompany it.
Jones, 393 F.3d at 933.
15
In the prison context, claims of unsanitary conditions are evaluated
under the Eighth Amendment. See Anderson, 45 F.3d at 1314. Although
the Eighth Amendment does not apply here, similar standards may apply
to SVPs under the Fourteenth Amendment. See Munoz v. Kolender, 208
F. Supp. 2d 1125, 1146 (S.D. Cal. 2002).
HYDRICK v. HUNTER 5955
The Fourteenth Amendment requires that civilly committed
persons not be subjected to conditions that amount to punish-
ment, Bell, 441 U.S. at 536, within the bounds of professional
discretion, Youngberg, 457 U.S. at 321-22. Moreover, the
“due process requires that the conditions and duration of con-
finement [for civilly confined SVPs] bear some reasonable
relation to the purpose for which persons are committed.” Sel-
ing, 531 U.S. at 265; see also Jones, 393 F.3d at 931. While
the nature of an SVP’s confinement may factor in this balance
of what is reasonable, it is clearly established that the substan-
tive due process protections of the Fourteenth Amendment
apply to SVPs. See Andrews v. Neer, 253 F.3d 1052, 1061
(8th Cir. 2001) (applying the Fourteenth Amendment’s “ob-
jective reasonableness” standard to excessive force claims
brought by civilly committed SVPs).16
[26] We also reiterate that SVPs must, at a minimum, be
afforded the rights afforded prisoners confined in a penal
institution. Thus, the Eighth Amendment still provides a floor
for the level of protection that SVPs must receive under the
Fourteenth Amendment, and because the contours of the
Eighth Amendment are more defined, Eighth Amendment
jurisprudence may provide helpful guidance as to the stan-
dards to be applied. Under the Eighth Amendment, the unnec-
essary and wanton force standard takes into account such
facts as the need for the application of force, the relationship
between the need and the amount of force used, the threat per-
ceived by the officer, any effort to temper the severity of the
forceful response, and the extent of the injury inflicted, and
whether the force was applied for a legitimate purpose. Hud-
16
While Jones, Neer, and Seling are more recent cases, they do little
more than restate the contours of law clearly established in Youngberg v.
Romeo, a 1982 case, and Bell v. Wolfish, a 1979 case. Seling essentially
restates the Youngberg test, and Jones does little more than connect the
line between Youngberg and SVPs based on California’s argument that the
statute should be construed as a civil confinement statute. We believe a
reasonable official reading Youngberg would have sufficient notice that
they would be held to Youngberg’s standards of due process.
5956 HYDRICK v. HUNTER
son v. McMillian, 503 U.S. 1, 7 (1992). If Plaintiffs allege
conduct that sinks below those protections afforded prisoners
under the Eighth Amendment, then their claim certainly states
a violation of their rights under the Fourteenth Amendment.
[27] Plaintiffs have alleged that force is used in retaliation
for exercising legitimate rights and that the amount of force
used is often a gross overreaction to the situation. Such use of
force, if proved, is not reasonable and failure to curtail such
abuses cannot be said to be within Defendants’ professional
discretion. We affirm, then, the district court’s denial of the
motion to dismiss on these grounds.
On each of these three grounds — failure to protect, inade-
quate conditions of confinement, and excessive force — we
believe that Plaintiffs may be able to state a “clearly estab-
lished” Fourteenth Amendment Substantive Due Process vio-
lation, and we cannot, at the Federal Rule 12(b)(6) stage,
dismiss these substantive due process claims.
7. Plaintiffs’ Equal Protection Rights Under the
Fourteenth Amendment
According to Plaintiffs, they are being treated more restric-
tively than other civilly committed patients. They allege that
their conditions are more punitive than those under which all
other civilly committed persons are held. For one example,
they allege that other civilly-committed persons are given pri-
ority in hiring for remunerative positions.
[28] Even though Plaintiffs do not constitute a suspect
class, heightened scrutiny may be required where fundamental
interests are at issue. See Harper v. Va. State Bd. of Elections,
383 U.S. 663, 670 (1966); Police Dept of City of Chicago v.
Mosley, 408 U.S. 92 (1972). This court upheld application of
a “heightened scrutiny standard” when evaluating an equal
protection violation under Washington State’s Sexually Vio-
lent Predator Statute. See Young v. Weston, 176 F.3d 1196,
HYDRICK v. HUNTER 5957
1201 (9th Cir. 1999), rev’d on other grounds, Seling, 531 U.S.
250. While Young was decided in 1999, it rested on a firmly
established principle in existence at the time of events in
question: that heightened scrutiny will be applied where a
fundamental liberty interest is at stake. See Skinner v. Okla-
homa, 316 U.S. 535, 541 (1942). Plaintiffs may be able to
claim violations of several clearly established fundamental
rights: a liberty interest in freedom from bodily restraint and
personal security, Youngberg, 457 U.S. at 315-316, and a fun-
damental right to access the courts, as described below.
Accordingly, we agree with Plaintiffs that heightened scrutiny
is the standard for equal protection claims implicating these
fundamental rights. And we further observe that Plaintiffs, in
line with their allegations, may be able to show that the differ-
ential treatment between them and other civilly committed
persons violates equal protection because such treatment does
not meet heightened scrutiny.
[29] At the same time, we cannot say that it is firmly estab-
lished that every condition of an SVP’s confinement is subject
to heightened scrutiny. In the prison setting, we have made
clear that prison officials need latitude in deciding how to run
their prison, and we have refused to subject each classification
drawn by prison officials to heightened scrutiny. Rather, a
prisoner cannot challenge the conditions of his confinement
on equal protection grounds unless the discrimination against
him is irrational or arbitrary. See McGinnis v. Royster, 410
U.S. 263, 276 (1973). That is, in so far as Plaintiffs’ claims
rely on classifications not related to fundamental liberty inter-
ests, Defendants will have qualified immunity unless there is
no rational basis for the classification.
[30] Even under the rational basis standard, we cannot dis-
miss Plaintiffs’ equal protection claims at this stage. Plain-
tiffs’ pleadings raise several questionable classifications. For
example, it seems arbitrary that SVPs should be treated more
harshly that other civilly committed persons in job placement
and privileges. Based on the pleadings, we believe that Plain-
5958 HYDRICK v. HUNTER
tiffs may be able to prove a violation of clearly established
law congruent with the facts alleged. Admittedly, at this stage,
Defendants have not fully developed and presented the ratio-
nale for their actions and there may be differences between
SVPs and other civilly committed persons that warrant differ-
ential treatment. But we leave it to the district court, on a
more full factual record, to consider whether the classifica-
tions Plaintiffs present are irrational and arbitrary.
8. Plaintiffs’ Sixth Amendment Right to Counsel
and Fourteenth Amendment Right of Access to
Courts
Plaintiffs claim that they cannot privately correspond with
counsel, have telephone conversations with counsel, and are
otherwise hindered in their ability to prepare for their proba-
ble cause and commitment hearings. According to Plaintiffs,
“[t]his inability to prepare for upcoming hearings would
clearly hinder Plaintiffs’ access to the courts and counsel.”
[31] Plaintiffs have a statutory right to counsel in probable
cause proceedings and in commitment hearings. Cal. Welfare
& Institutions Code §§ 6602, 6603, 6605(d). To protect the
right to counsel, “a [detainee] must be given a reasonable
opportunity to employ and consult with counsel; otherwise,
the right to be heard by counsel would be of little worth.”
Chandler v. Fretag, 348 U.S. 3, 10 (1954). While the Sixth
Amendment, by its express language, protects those in crimi-
nal proceedings, the Fourteenth Amendment protects all
detainees against governmental interference in their right of
access to courts. See Procunier v. Martinez, 416 U.S. 396,
419-20 (1974) (overruled on other grounds); Cornett v. Dono-
van, 51 F.3d 894, 897 & n.4 (9th Cir. 1995). The right of
access to courts has been found to encompass the right to talk
in person and on the telephone with counsel in confidential
settings, Procunier, 416 U.S. at 419; Ching v. Lewis, 895 F.2d
608, 609 (9th Cir. 1990), and to use available law library
resources, Kennan v. Hall, 3 F.3d 1083 (1996), subject to
HYDRICK v. HUNTER 5959
legitimate restrictions related to the purpose and circum-
stances of detention. See Turner v. Safley, 482 U.S. 78, 89
(1987). Where such rights have been upheld in the prison con-
text, there is no question that SVPs must be afforded rights
that are at least as broad.
[32] Such a fact specific inquiry can hardly be undertaken
at this point, when it is not clear what Defendants have done
to impede access to the courts, or why they have done so, or
how the Defendants’ actions have affected Plaintiffs’ right of
access. We believe, nonetheless, that Plaintiffs may be able to
state a violation of clearly established law congruent with
their allegations and we affirm the district court’s order deny-
ing Defendants’ Rule 12(b)(6) motion to dismiss as to Plain-
tiffs’ Tenth claim based on access to courts.
9. Plaintiffs’ Right to Privacy under the Fourteenth
Amendment
[33] Plaintiffs allege that Defendants’ policies do not allow
for privacy when showering, sleeping, using the toilets or par-
ticipating in therapy sessions. It is clearly established that the
Fourteenth Amendment protects a sphere of privacy, and the
most “basic subject of privacy . . . the naked body.” Grummett
v. Rushen, 779 F.2d 491, 494 (9th Cir. 1985). While the cir-
cumstances of institutional life demand that privacy be lim-
ited, it is clearly established that gratuitous invasions of
privacy violate the Fourteenth Amendment. Id. Once again,
we reach a highly factual inquiry where the facts are not fully
developed: in Grummett, for example, we considered the gen-
der of those prison officials who viewed inmates, the angle
and duration of viewing, and the steps the prison had taken to
minimize invasions of privacy. Id. at 494-95. Such facts are
simply not available to us at this stage of proceedings.17 We
17
Moreover, we note that it is not, as Defendants hinted in their briefs
to this court, the burden of the SVPs to show that there is no compelling
justification for the regulations, but rather the burden of the State to show
that there is such a justification. See Walker v. Sumner, 917 F.2d 382, 385-
87 (9th Cir. 1990).
5960 HYDRICK v. HUNTER
believe, nonetheless, that Plaintiffs may possibly be able to
state a violation of clearly established law congruent with
their allegations, and as such we will not dismiss their claim
under Federal Rule of Civil Procedure 12(b)(6).
***
In sum, we affirm the district court’s decision to deny qual-
ified immunity on Plaintiffs’ first, second, sixth, seventh,
eighth, ninth, and tenth causes of action to the extent noted
above. We reverse and hold that Defendants have qualified
immunity from suit on Plaintiffs’ Ex Post Facto, Double Jeop-
ardy, and Eighth Amendment claims.
F. Defendants’ Belief That Their Conduct Was Lawful
Was Not Objectively Reasonable
[34] Even if Plaintiffs have alleged violations of a clearly
established right, a government official is entitled to qualified
immunity if he or she “could . . . have reasonably but mis-
takenly believed that his or her conduct did not violate a
clearly established constitutional right.” Jackson v. City of
Bremerton, 268 F.3d 646, 651 (9th Cir. 2001); see also Alford
v. Haner, 333 F.3d 972, 977 (9th Cir. 2003). This is a limited
exception, however: if the law is clearly established, the
immunity defense “ordinarily should fail, since a reasonably
competent public official should know the law governing [the
official’s] conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 818-
19 (1982).
[35] Whether Defendants’ conduct was reasonable involves
a factual analysis of the circumstances surrounding Defen-
dants’ actions and a determination of whether a reasonable
official similarly situated would have been aware that his/her
actions violated the law, an inquiry difficult to conduct at this
stage. Based on the facts in front of us, however, we do not
believe Defendants can claim that their conduct was objec-
tively reasonable. Again, Defendants argue that the volatile
HYDRICK v. HUNTER 5961
nature of the law surrounding SVPs entitles them to escape
liability entirely. We do not adhere to the theory that “every
dog is entitled to one bite.” Defendants could not have been
so completely in the dark about the standards that would
apply to their conduct as it related to SVPs. As explained
above, SVPs are not entirely dissimilar from other groups of
civilly committed persons. Moreover, Plaintiffs’ complaint
alleges practices that would be unconstitutional if directed at
any prisoner. Accordingly, Defendants cannot escape liability
based on a “reasonable but mistaken” belief about the consti-
tutionality of their conduct.
CONCLUSION
For the foregoing reasons, we AFFIRM in part and
REVERSE in part the district court’s order denying Defen-
dants’ second motion to dismiss under Rule 12(b)(6). Each
side to bear its own costs.
TROTT, Circuit Judge, concurring in part and dissenting in
part:
My disagreement with my colleagues is limited to one
issue. We agree that plaintiffs cannot seek damages in this
lawsuit against state officials in their official capacities, and
that plaintiffs cannot seek damages from the State either. So,
what is left where the officials are concerned? A lawsuit
against them for acts and omissions alleged to have been
taken in the discharge of their official duties, but as individu-
als, not officials. It is here that I part company.
On this record, and under these circumstances, I conclude,
with all respect to my colleagues, that these officials as indi-
viduals are clearly entitled to qualified immunity against both
suit and damages — now, not later. In my view, the particu-
lars and the contours of the alleged constitutional rights upon
5962 HYDRICK v. HUNTER
which the plaintiffs rely were not so clearly established at the
times under scrutiny and at the level of specificity required
such that a reasonable official hired by the state to cope with
lawfully confined sexually violent predators subject to reme-
dial treatment would have been aware that the conduct alleged
violated constitutional bounds. Given the unsettled nature of
the law in this area, a reasonable official could certainly have
believed otherwise.
We decide this appeal with clear analytical guidance from
the Supreme Court:
Somewhat more concretely, whether an official pro-
tected by qualified immunity may be held personally
liable for an allegedly unlawful official action gener-
ally turns on the “objective legal reasonableness” of
the action, assessed in light of the legal rules that
were “clearly established” at the time it was taken.
The operation of this standard, however, depends
substantially upon the level of generality at which
the relevant “legal rule” is to be identified. For
example, the right to due process of law is quite
clearly established by the Due Process Clause, and
thus there is a sense in which any action that violates
that Clause (no matter how unclear it may be that the
particular action is a violation) violates a clearly
established right. Much the same could be said of
any other constitutional or statutory violation. But if
the test of “clearly established law” were to be
applied at this level of generality, it would bear no
relationship to the “objective legal reasonableness”
that is the touchstone of Harlow. Plaintiffs would be
able to convert the rule of qualified immunity that
our cases plainly establish into a rule of virtually
unqualified liability simply by alleging violation of
extremely abstract rights. Harlow would be trans-
formed from a guarantee of immunity into a rule of
HYDRICK v. HUNTER 5963
pleading. Such an approach, in sum, would destroy
“the balance that our cases strike between the inter-
ests in vindication of citizens’ constitutional rights
and in public officials’ effective performance of their
duties,” by making it impossible for officials “rea-
sonably [to] anticipate when their conduct may give
rise to liability for damages.” It should not be sur-
prising, therefore, that our cases establish that the
right the official is alleged to have violated must
have been “clearly established” in a more particu-
larized, and hence more relevant, sense: The con-
tours of the right must be sufficiently clear that a
reasonable official would understand that what he is
doing violates that right. This is not to say that an
official action is protected by qualified immunity
unless the very action in question has previously
been held unlawful, but it is to say that in the light
of pre-existing law the unlawfulness must be appar-
ent.
Anderson v. Creighton, 483 U.S. 635, 639-40 (1987) (empha-
sis added) (alteration in original) (internal citations omitted).
As my colleagues acknowledge, “this suit is unique, in that
it is one of the first widespread class actions to challenge the
conditions of detention for civilly confined SVPs.” It is not
only unique, but it requires us to answer questions never
before squarely addressed in this context. This factor alone
should be enough to entitle these individual defendants to dis-
missal.
My colleagues hang their analytical hat on Youngberg v.
Romeo, 457 U.S. 307, 322 (1982) for the proposition that
“civilly detained persons must be afforded ‘more considerate
treatment and conditions of confinement than criminals whose
conditions of confinement are designed to punish.’ ” This is
a nice general quote mined out of context from that case, but
it gets us nowhere in pursuit of an answer to the central ques-
5964 HYDRICK v. HUNTER
tion of whether we have in this lawsuit violations of clearly
established rights. Why? Because Youngberg dealt with the
confinement for their own good of mentally defective per-
sons. In contrast, and as recently recognized by the Supreme
Court, sexually violent predators are confined in order to pro-
tect “the public from dangerous individuals with treatable as
well as untreatable conditions.” Seling v. Young, 531 U.S.
250, 262 (2001). In addition, the Court said that the case
before it for decision “gives us no occasion to consider how
the civil nature of a confinement scheme relates to other chal-
lenges, such as due process . . . .” Id. at 266. It is little won-
der, therefore, that my colleagues admit in connection with
Youngberg that “it is not always clearly established how much
more expansive the right of civilly detained persons are than
those of criminally detained persons.” I disagree with my col-
leagues’ claim that “it follows logically [from Youngberg],
then, that the rights afforded prisoners set a floor for those
[rights] that must be afforded SVPs, and that where Defen-
dants violate a standard that is clearly established in the
prison context, the violation is clearly established under the
SVP scheme.” Where does this come from? It sounds new to
me. Certainly it is not a proposition clearly established and
controlling at the time relevant to this lawsuit. Prisoners have
constitutional rights flowing from certain constitutional guar-
antees that do not apply out of the criminal context. Which
clearly established “prisoner rights” are they talking about? I
cannot find my colleagues’ bold assertion anywhere in any
case before this one. Where is the required level of specificity
required to hold these individuals constitutionally and mone-
tarily responsible for their acts? It is nowhere to be found.
Where is the fair warning to them as to the constitutional lim-
its of their compulsory treatment programs? Expanding and
extending some rights from other contexts and extrapolating
others defies the purpose of the doctrine of qualified immu-
nity.
The courts have yet to clarify how the Constitution protects
sexually violent predators from various confinement and
HYDRICK v. HUNTER 5965
treatment modalities. Context is critical to the determination
of whether a constitutional right has been established. This
principle was confirmed by the Supreme Court in Washington
v. Harper, 494 U.S. 210 (1990), a lawsuit filed by a mentally
ill state prisoner complaining against treatment with anti-
psychotic drugs against his will and without a judicial hear-
ing. In holding that such treatment did not violate either sub-
stantive or procedural due process, the Court said, “The extent
of a prisoner’s right under the Clause to avoid the unwanted
administration of antipsychotic drugs must be defined in the
context of the inmate’s confinement.” Id. at 222.
We read the same message in Parham v. J.R., 422 U.S.
584, 608 (1979): “What process is constitutionally due cannot
be divorced from the nature of the ultimate decision that is
being made.” See also Morrissey v. Brewer, 408 U.S. 471,
481 (1972) (“[D]ue process is flexible and calls for such pro-
cedural protections as the particular situation demands.”).
Noteworthy in Washington v. Harper was a holding by the
Washington Supreme Court that the individual defendants
were entitled to qualified immunity, 494 U.S. at 218 n.5. The
case was allowed to proceed, but only to consider claims for
injunctive and declaratory relief under § 1983 as well as state
law — which is precisely what should happen here. It seems
that we are now requiring doctors and other staff to consult
not just with lawyers before they devise a procedure or treat-
ment for a sexually violent predator, but with the courts.
The Supreme Court warned against this result in Parham,
saying, “Due process has never been thought to require that
the neutral and detached trier of fact be law trained or a judi-
cial or administrative officer. Surely, this is the case as to
medical decision, for neither judges nor administrative hear-
ing officers are better qualified than psychiatrists to render
psychiatric judgements. . . . The mode and procedure of medi-
cal diagnostic procedures is not the business of judges.” Id. at
607-08 (internal citations and quotations omitted).
5966 HYDRICK v. HUNTER
The penalty for not anticipating a court ruling will be indi-
vidual liability. This unfortunate situation is precisely what
the doctrine of qualified immunity is designed to avoid.
I take issue also with my colleagues’ assertion that because
the facts are not yet developed, it is too early in this lawsuit
to dismiss on qualified immunity. This claim misses the mark.
As held repeatedly by the Supreme Court, qualified immunity
is immunity from being sued, not just from damages. This
principle explains (1) why the Court warned in Anderson
against non-specific pleadings that allege violations of “ex-
tremely abstract rights,” 483 U.S. at 639; and (2) the Court’s
holding in Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) that,
“[u]nless the plaintiff’s allegations state a claim of violation
of clearly established law, a defendant pleading qualified
immunity is entitled to dismissal before the commencement of
discovery.” The Court revisited this issue again in Behrens v.
Pelletier, 516 U.S. 299 (1996). In the course of overruling a
mistaken opinion by the First Circuit, the Court said,
The source of the First Circuit’s confusion was its
mistaken conception of the scope of protection
afforded by qualified immunity. Harlow and Mitch-
ell make clear that the defense is meant to give gov-
ernment officials a right, not merely to avoid
“standing trial,” but also to avoid the burdens of
“such pretrial matters as discovery . . . , as
‘[i]nquiries of this kind can be peculiarly disruptive
of effective government.’ ”
Id. at 308 (quoting Mitchell, 472 U.S. at 526 (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 817 (1982))) (alterations in origi-
nal). The Court, in reversing us in 1991 on this very issue,
said, “[W]e repeatedly have stressed the importance of resolv-
ing immunity questions at the earliest possible stage in litiga-
tion.” Hunter v. Bryant, 502 U.S. 224, 227 (1991).
Finally, my colleagues express their caution “not to evis-
cerate the notice pleading standard” that the system generally
HYDRICK v. HUNTER 5967
uses to commence a lawsuit. I do not believe this caution is
well suited to this context. Again, I reiterate that the question
of qualified immunity requires prompt resolution. Anderson
would seem to require pleadings more specific than the usual
“notice” standard. At the very least, pleadings against state
officials in their individual capacities must demonstrate an
alleged violation of a particularized and relevant constitu-
tional right which has been clearly established. Hunter v. Bry-
ant also would seem to so require. To hold otherwise is to
disserve a doctrine that calls for resolution at the “earliest pos-
sible stage” in litigation. Id. at 227.
The question remains, how specific must the right allegedly
violated be defined in order to answer the question whether it
was clearly established? Wilson v. Layne, 526 U.S. 603
(1999) gives us a good example of the degree of specificity
required. In Wilson, the Court concluded first that officers
who took members of the media into a homeowner’s home to
observe and to record the execution of an arrest warrant did
so in clear violation of the Fourth Amendment. Nevertheless,
the Court concluded also that the officials who did so were
entitled to qualified immunity. The Court said that the appro-
priate question “is . . . whether a reasonable officer could have
believed that bringing members of the media into a home dur-
ing the execution of an arrest warrant was lawful . . . .” Id. at
615. Concluding that at the time of the violation the law was
“at best undeveloped,” the Court said, “Given such an unde-
veloped state of the law, the officers in this case cannot have
been ‘expected to predict the future course of constitutional
law.’ ” Id. at 617 (quoting Procunier v. Navarette, 434 U.S.
555, 562 (1978)).
From these precedents, I conclude that the proper question
in this case is whether it was clearly established at the time
of the events in this case that the Constitution prohibited these
individual officials from engaging in any of the actionable
behaviors attributed to them in connection with the manage-
ment and treatment of sexually violent predators civilly con-
5968 HYDRICK v. HUNTER
fined under state law for treatment and for the protection of
the public. After reviewing all the relevant cases and authori-
ties, I answer this question in the negative.
Viewed in this light the analytical error made by my col-
leagues becomes quite apparent when they say,
Thus, there are two bodies of law from which we
might draw “clearly established” law for qualified
immunity purposes: first, where the SVPs claim a
violation of a right that is clearly established even in
the prison context, and second, where the SVPs
claim a violation of a right that is clearly established
for all civilly detained persons.
What this acknowledges is that we cannot find any clearly
established substantive rights in the SVP context, so we have
to borrow them from other areas, such as prison rights and the
rights of persons civilly detained for their own good and who
pose a demonstrated threat to society. An approach like this
certainly works well when the question is what constitutional
rights might these sexually violent predators have in this sys-
tem, but it fails utterly when the issue is whether we hold
individuals liable ex post facto for their actions.
This lawsuit should proceed so that specific answers can be
found to the constitutional questions raised by the plaintiffs,
but it should proceed only in connection with possible declar-
atory or injunctive relief. To do otherwise will deter govern-
ment officials in the future from doing anything not to the
liking of a sexually violent predator. The penalty for making
a good faith mistake in an area of undeveloped law may be
the costs of a lawsuit and the potential personal liability aris-
ing out of the official performance of a state job.
| {
"pile_set_name": "FreeLaw"
} |
437 F.3d 208
Luis Humberto ESTRADA-CANALES, et al., Petitioners,v.Alberto R. GONZALES, Attorney General of the United States, Respondent.
No. 03-1692.
United States Court of Appeals, First Circuit.
Heard January 9, 2006.
Decided February 21, 2006.
Roberto Gonzalez, with whom Audette, Bazar, Berren & Gonzalez, Inc. was on brief, for petitioners.
Jennifer L. Lightbody, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Peter D. Keisler, Assistant Attorney General, Civil Division, and Mark C. Walters, Assistant Director, were on brief, for respondent.
Before LYNCH, Circuit Judge, BOWMAN,* Senior Circuit Judge, and HOWARD, Circuit Judge.
LYNCH, Circuit Judge.
1
The lead petitioner in this immigration case is Luis Humberto Estrada-Canales ("Estrada"); the six others are his children. The case involves aspects of the ABC Agreement, concerning special procedures for certain Salvadorans and Guatemalans who enter the United States. See Am. Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D.Cal.1991). It raises one legal issue about interpretation of 8 U.S.C. § 1155 (1994).
2
The petitioners are natives and citizens of Guatemala, who entered the United States illegally. The Immigration Judge ordered them excluded and deported, deemed their applications for asylum and withholding of deportation abandoned, and determined that they were ineligible for waivers of inadmissibility and suspension of deportation. The Board of Immigration Appeals denied petitioners' appeal from that decision. This is a petition for review of that order of the BIA.
3
This case raises two sets of issues. One set arises over the question of whether the petitioners are eligible for benefits under the ABC Agreement. The government denies this court has jurisdiction over such claims. We do not decide those jurisdictional issues. Rather, we find petitioners have waived their claim by strategic decisions on their part.
4
As to the second set of issues, the usual petition for review claims (pertaining to petitioners' excludability as charged and to asylum), the respondent agrees that this court has jurisdiction. We deny the petition for review. In doing so, we also uphold the interpretation by the BIA and the IJ of 8 U.S.C. § 1155 (1994) that aliens who present themselves at a point of entry in the United States based on visa petitions fraudulently obtained in circumstances such as these are inadmissible and not entitled to entry.
I.
5
The basic facts of this case are not in dispute. Estrada first entered the United States without inspection in 1985. On October 9, 1985, Estrada became an employee of P & B Manufacturing ("P & B") in Rhode Island; he worked as a jewelry polisher. In 1989, P & B filed with the Department of Labor, on Estrada's behalf, an Application for Alien Employment Certification. Later, P & B also filed with the INS1 a Petition for Prospective Immigrant Employee (Form I-140). This petition was approved on April 26, 1993. By then, in fact since August 9, 1991, Estrada had been laid off, but he did not notify the INS. After being laid off, Estrada did not work at P & B other than as a subcontractor.
6
Meanwhile, in July 1991, Estrada filed a form with the INS in order to register as a class member under the ABC Agreement. The ABC Agreement is a class action settlement agreement that was approved in American Baptist Churches, 760 F.Supp. 796. "The ABC litigation arose out of systemic challenges by certain Salvadorans and Guatemalans in the United States to the processing of asylum claims filed under ... 8 U.S.C. § 1158(a)." Matter of Morales, 21 I. & N. Dec. 130, 132 (BIA 1996). The ABC agreement "contemplates a special procedure under which alien class members are entitled, under certain specified conditions, to new proceedings before the [INS] to determine their right to asylum or any other rights and benefits established under the agreement." Id. The ABC Agreement provides that during those special new proceedings, the pending case before the IJ is to be administratively closed. Id. at 134.
7
In March 1992, Estrada applied for asylum, listing his children on the application.2
8
In June 1995, Estrada went to Guatemala. He says his trip "was taken solely to bring his children" back to the United States, and that claim does not seem to be in dispute. Estrada went to the United States Consulate in Guatemala City to obtain his immigrant visa. There, he presented a forged letter, purportedly from P & B, indicating that he continued to be employed full-time by P & B. Of course, Estrada had not been so employed since 1991. Unaware of the fraud, the consulate issued the visa on September 12, 1995, on the basis of an approved labor certification. Estrada and his children then attempted to enter the United States on October 1, 1995, but the INS detained them because the INS inspector could not find an approved labor certification among the documents. The INS paroled Estrada and his children into the United States for deferred inspection by the INS office in Providence, Rhode Island.
9
On October 24, 1995, an immigration inspector sent a letter to P & B, requesting, inter alia, information regarding Estrada's employment. A representative of P & B replied with a letter stating that the letter Estrada had presented to the consulate was a forgery, and that Estrada had not been employed by P & B since 1991. On November 8, 1995, P & B withdrew the Petition for Prospective Immigrant Employee (Form I-140) that it had previously filed on Estrada's behalf. A week later, on November 15, 1995, the INS placed the Estradas in exclusion proceedings.3
10
There was an initial hearing before an IJ on October 1, 1996. The INS alleged that the Estradas were excludable on two grounds: first, they lacked a valid labor certification, see 8 U.S.C. § 1182(a)(5)(A)(i); and second, they were immigrants without valid unexpired immigrant visas, see id. § 1182(a)(7)(A)(i)(I). The Estradas denied that they were excludable as charged, and they indicated that they sought the opportunity to apply for admission as lawful permanent residents, termination of the proceedings, asylum, withholding of deportation, suspension of deportation, and waivers of excludability under § 212(d)(3) and (k) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(d)(3), (k).
11
At a hearing on January 7, 1997, before a second IJ, the parties agreed to stipulate to the historical facts just described. The IJ noted that in addition to the question of excludability on the grounds charged, there was a question of whether the proceedings should be administratively closed pursuant to the ABC Agreement, as the Estradas had requested. The IJ reset the proceedings on the latter question, and on other issues not pertinent here, for a later date.
12
On February 4, 1997, an INS asylum office director sent a letter to Estrada. The letter stated:
13
Information submitted to this office by INS Litigation Unit, Boston reflects that you attempted to enter the United States at Miami International Airport on October 1, 1995, without valid immigration documents.
14
The Settlement Agreement in American Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D.Cal.1991) (ABC), provides that class members apprehended at the time of entry after December 19, 1990, shall not be eligible for its benefits. See Paragraph 2 of the Settlement Agreement. Based on the above facts, it is determined that you are ineligible for benefits under the ABC Settlement Agreement.
15
That is, the INS' position was that while Estrada may have originally been within the ABC class, he was not "eligible for its benefits."
16
On March 4, 1997, Estrada brought an action in the District Court for Rhode Island. He sought a declaration that he was entitled to ABC benefits, and he sought an injunction against continuation of the regular exclusion proceedings until his rights under the agreement were honored.
17
On September 2, 1997, the IJ issued a written decision resolving several of the issues in the case. She held that exclusion proceedings were appropriate and that the Estradas were excludable as charged; in so holding, she rejected the Estradas' argument that, because they had already begun their journey to the United States when the visa petition was withdrawn, they had valid visas, they were entitled to enter the United States, and they were entitled to lawful permanent resident status. The IJ also held that the family was not entitled to administrative closure of the case before her under the ABC Agreement so that a special ABC Agreement hearing could be held.4
18
The IJ held that the Estradas were properly in exclusion proceedings because "[o]nce the [INS] determined that the validity of [Estrada's] underlying labor certification was at issue, it had the right to deny [the Estradas] entrance to the United States and place [them] in exclusion proceedings." P & B did not withdraw the petition it had earlier filed on Estrada's behalf until after Estrada had already commenced his journey to the United States, and therefore, the IJ reasoned, the withdrawal did not serve to automatically revoke Estrada's employment-based visa. See 8 C.F.R. § 205.1(3). Nonetheless, the IJ found that the withdrawal by the employer was still "significant." The mere fact that there was no automatic revocation did not mean that the Estradas' visas were in fact valid and that the family was in fact entitled to seek lawful permanent resident status. The IJ noted that under former INA § 221(h), 8 U.S.C. § 1201(h) (1994), nothing in the Immigration and Nationality Act entitled an alien, even one who had an approved visa at the time he commenced his journey, to enter the United States, if upon arrival, he is found inadmissible.
19
The IJ sustained the two charges of excludability. First, the IJ analyzed the validity of Estrada's visa, taking into account the underlying visa petition and the employment relationship on which it depended. The IJ noted that the visa was based on an approved labor certification purportedly filed by P & B, and that as part of that process, Estrada submitted to the consulate a forged letter stating that he was a full-time employee of P & B. The IJ also noted that P & B's representative had, in fact, refused to write for Estrada a letter stating that Estrada was still employed by P & B, and had instead written a letter explaining that Estrada had been laid off on August 9, 1991, and the IJ found that "[i]f such a letter had been submitted in support of the labor certification and the employment-based visa, . . . neither would have been granted." The IJ concluded that P & B was unwilling to serve as petitioner on Estrada's behalf, that Estrada "was not entitled to the status accorded to him by the visa petition," and that "the labor certification was improvidently issued." The IJ held that "the visa issued to [the Estradas] was invalid and . . . [they are] excludable" as charged.
20
As for administrative closure under the ABC Agreement, the IJ noted that neither she nor the BIA had jurisdiction to review the INS' determination of an alien's eligibility for benefits under the ABC agreement. Here, the INS had already determined that the Estradas were not entitled to benefits under the agreement, as shown in the February 4, 1997 letter. In light of that determination, the IJ concluded that administrative closure was not appropriate. The IJ noted that, aside from the ABC agreement, the Estradas could still pursue applications for asylum and withholding of deportation before the Immigration Court.
21
The IJ's September 2, 1997 decision concluded with two orders: (1) the charges of excludability were sustained, and (2) the motion to administratively close the proceedings was denied.
22
The exclusion proceedings resumed on September 25, 1997. During that proceeding, the IJ orally incorporated her September 2 written decision. She gave the Estradas until January 12, 1998 to either apply for asylum or advise the Immigration Court that they were not seeking such relief.
23
The final proceedings before the IJ occurred on January 22, 1998.5 Counsel for the Estradas informed the IJ that the Estradas were not going to file applications for asylum because they felt that to do so "would be giving up procedural due process rights that they have to an administrative political asylum hearing as they are registered ABC class members." The IJ concluded the January 22 proceedings by issuing oral rulings resolving the remaining issues in the case: she incorporated her prior written decision of September 2 and her oral decision of September 25; she deemed the Estradas' applications for asylum and withholding of deportation abandoned; and she ordered the Estradas excluded as charged and deported. That same day, the IJ's final oral decision was also embodied in written form.6
24
The Estradas appealed the IJ's orders to the BIA. They argued that they were not excludable because the visa petition was withdrawn after they arrived in the United States, and the withdrawal was consequently not valid and did not work a revocation of the visa petition underlying their visas. "[I]t follows [that the Estradas] have valid visa petitions and they should therefore be admitted as . . . lawful permanent residents."
25
The Estradas also argued that Estrada was a registered ABC class member who was entitled to administrative closure of the proceedings before the IJ in favor of the ABC Agreement special proceedings. Citing Matter of Morales, 21 I. & N. Dec. 130, they argued that Estrada's departure from the country and his apprehension upon reentry did not divest him of his rights under the ABC Agreement. They added that the asylum office's determination of Estrada's ineligibility for ABC benefits had been made without a hearing or other "due process safeguards." The Estradas mentioned the ABC-related action they had brought in the federal district court, but they stated that that court had not yet decided the matter. The Estradas' brief on appeal to the BIA was dated August 31, 1998.
26
The Estradas also argued that the IJ erred in deeming their applications for asylum and withholding of deportation abandoned, because being forced to apply for such relief in exclusion proceedings would have violated their rights under the ABC Agreement.
27
On September 16, 1999, during the pendency of the Estradas' appeal to the BIA, the district court decided the case Estrada had earlier filed. The government had moved to dismiss Estrada's claim for injunctive relief and moved for summary judgment on Estrada's claim for declaratory relief. The court granted the government's motion to dismiss with respect to Estrada's claim for injunctive relief, finding that 8 U.S.C. § 1252(g) had divested the court of jurisdiction to enjoin the exclusion proceeding. The government conceded the court had jurisdiction over the declaratory judgment part of the case. The court, however, noted that it had discretion whether to issue a declaratory judgment. The court declined to exercise its jurisdiction, noting that "adjudicating Estrada's claim for a declaratory judgment. . . would result in parallel litigation in which issues arising from a single dispute would be litigated in different fora, thereby resulting in duplication of effort and either piecemeal litigation or the possibility of inconsistent results or both." The court denied the government's motion for summary judgment with respect to Estrada's claim for declaratory relief, and it gave Estrada twenty days to show cause as to why his claim for declaratory judgment should not be dismissed without prejudice. On October 14, 1999, the court dismissed Estrada's complaint without prejudice, stating that he had failed to show cause. Estrada had not filed anything in the district court after the September 16 order, nor did he file anything after October 14, 1999.
28
Nothing in the certified administrative record indicates that the Estradas ever brought the district court's decision to the attention of the BIA, even though their appeal was still pending before the BIA.
29
On April 15, 2003, the BIA dismissed the Estradas' appeal from the IJ's decision. The BIA agreed with the IJ on the appropriateness of exclusion proceedings and on excludability as charged, for essentially the same reasons as those cited by the IJ. The BIA stated that administrative closure under the ABC Agreement would not have been appropriate, because the INS had already made a determination that Estrada had no right to benefits under the agreement. The BIA did not mention Estrada's suit in the district court, which had been brought to the BIA's attention, or the district court's ultimate decision, which had not. Finally, the BIA noted that the IJ gave Estrada numerous opportunities to apply for asylum and withholding, but he refused to apply, and held that the IJ did not err in determining that those applications were abandoned. This petition for review followed.
30
The issues are whether, in light of the standards of review, the BIA erred in refusing to allow administrative closure of the exclusion proceedings, whether it erred in determining that the Estradas were excludable as charged, and whether it erred in deeming the asylum applications abandoned. We deny the petition.
II.
A. Standard of Review
31
A deferential standard of review applies in this case. "[A] decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law." 8 U.S.C. § 1252(b)(4)(C). Moreover, the BIA's "interpretations of the statutes and regulations it administers are accorded substantial deference"; where a statute is "silent or ambiguous," we uphold the BIA's interpretation, so long as it is "`reasonable' and consistent with the statute." Elien v. Ashcroft, 364 F.3d 392, 396-97 (1st Cir.2004).
32
Finally, in a petition for review of a final order of removal, the "administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). This standard of review as to factual questions is commonly known as the "substantial evidence test," and substantial evidence exists where the decision is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Katebi v. Ashcroft, 396 F.3d 463, 466 (1st Cir.2005) (internal quotation marks omitted) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).7
33
B. Administrative Closure under the ABC Agreement
34
The Estradas' first challenge to the exclusion and deportation order is that the exclusion proceedings should not even have been allowed to continue: they say that they were eligible ABC class members entitled to administrative closure of their immigration proceedings, and that the proceedings should only have been reopened once it was determined at a "hearing conducted in accordance with the mandates of the ABC agreement" that they were not entitled to ABC benefits.
35
Under Paragraph 1 of the ABC Agreement, the settlement class includes only "all Salvadorans in the United States as of September 19, 1990," and "all Guatemalans in the United States as of October 1, 1990." Am. Baptist Churches, 760 F.Supp. at 799. Paragraph 2 states which class members are eligible for a "de novo, unappealable asylum adjudication before an Asylum Officer, including a new interview." Id. First, the class member must not have been convicted of an aggravated felony as defined in the INA. Id. Second, for Guatemalans, the class members must "indicate to the INS in writing their intent to apply for a de novo asylum adjudication before an Asylum Officer, or otherwise to receive the benefits of this agreement, within the period of time commencing July 1, 1991 and ending on December 31, 1991." Id. at 800. Finally, "[c]lass members apprehended at time of entry after the date of preliminary approval of this agreement shall not be eligible for the benefits hereunder." Id. The district court provisionally approved the agreement on December 19, 1990. Id. at 797.
36
Paragraph 17 of the Agreement states that "[t]he INS may only detain class members, eligible for relief under paragraph 2, who are otherwise subject to detention under current law and who: (1) have been convicted of a crime involving moral turpitude for which the sentence actually imposed exceeded a term of imprisonment in excess of six months; or (2) pose a national security risk; or (3) pose a threat to public safety." Id. at 804.
37
Paragraph 19 provides for administrative closure pending the new asylum adjudication. It states, in pertinent part: [A]ny class member whose deportation proceeding . . . was commenced after November 30, 1990 . . . may ask the Immigration Court or the BIA to administratively close his or her case and the case will be administratively closed unless the class member has been convicted of an aggravated felony or is subject to detention under paragraph 17.
38
Id. at 805. Under Paragraph 20, "[i]f the asylum application is finally denied under the procedures set forth in this agreement," a case pending before an IJ shall, upon notice from the INS, be recalendared. Id. at 806.
39
Under Paragraph 35,
40
[i]f an individual class member who has sought the benefits or rights of this agreement raises any claim regarding the denial of any such right or benefit (including a dispute over membership in the class) . . ., such individual is entitled to seek enforcement of the provisions hereof by initiating a separate proceeding in any federal district court, and the Defendants will not contest the jurisdiction of such court to hear any such claim. . . .
41
Id. at 809-10.
42
The crux of the Estradas' complaint is that they were not afforded a hearing before an asylum officer or otherwise given a chance to make their case for continued eligibility for benefits under the ABC Agreement. They say they were deprived of due process, because the INS reached the determination in its letter of February 4, 1997, without giving the family notice or an opportunity to present evidence. Because the INS' determination that Estrada was not entitled to ABC benefits was procedurally unsound, it amounted, the Estradas say, to "nothing" — essentially no determination at all — and the IJ and BIA erred in refusing to allow administrative closure.
43
The Estradas stress that none of the Paragraph 17 disqualifiers apply. Their case for eligibility is that the "apprehended at time of entry after" December 19, 1990 provision does not apply to them: once Estrada registered and filed an asylum request which listed his children, they say, their "rights under the ABC agreement were vested." In the Estradas' view, once their rights vested, nothing in the ABC Agreement provides for the loss of their rights simply because Estrada departed and the family subsequently came to the United States.
44
The government responds that the INS determined that Estrada was ineligible for ABC benefits, that this determination was not reviewable by the IJ or by the BIA, see Matter of Morales, 21 I. & N. Dec. at 134-35, and that this court has no jurisdiction to consider any of the Estradas' ABC-related challenges.8
45
The government says the ABC Agreement "specifically provides for determination of [eligibility for ABC benefits] in a district court, not pursuant to a petition for review in a court of appeals." In the government's view, jurisdiction once existed in the district court, but Estrada squandered his chance there by failing to respond to the show-cause order and/or to appeal the district court's decision. The government also stresses that the Estradas never advised the BIA of the district court's decision, and that they never moved to reopen while the case was pending. The government says that in the posture of this case — a petition for review of the BIA's decision, and not an appeal from the district court — this court lacks jurisdiction to consider the Estradas' eligibility for ABC benefits.
46
At oral argument, this court raised the possibility of transferring the present ABC issue to the District Court for the District of Rhode Island. The government opposes such a transfer on two grounds. First, it says, the petition for review of the BIA decision could not have been brought in the district court in the first instance, so transfer is improper under 28 U.S.C. § 1631, which states:
47
Whenever a civil action is filed in a court . . . or an appeal, including a petition for review of administrative action, is noticed for or filed with . . . a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed . . . .
48
28 U.S.C. § 1631 (emphasis added). The government's second argument is that it is not "in the interest of justice" to transfer this issue to the district court, because Estrada failed to respond to the show-cause order, did not appeal the district court's decision, and did not even advise the BIA of the district court's decision. The Estradas counter that jurisdiction in the district court would be proper, and that transfer would be in the interest of justice; they say they "have raised and preserved the ABC issue throughout the course of the litigation."
49
We do not delve into the merits of the government's various jurisdictional challenges on the ABC issues. Instead, we rest on the ground that, on these facts, the petitioners have waived consideration of the ABC issue by this court or by the district court (even assuming a transfer).
50
Estrada never showed cause to the district court as to why his case based on a claim for ABC benefits should not be dismissed, and he never appealed the decision of the district court. The Estradas argued before the BIA that they were entitled to administrative closure under the ABC Agreement, noted that they had not received a hearing before an asylum officer on the matter, and alerted the BIA to the fact that Estrada had filed a case in the district court. But they never told the BIA how that case was decided or that the district court could have been viewed as deferring the ABC issue back to the agency. They had ample opportunity to do so.
51
The district court issued its memorandum and show-cause order on September 16, 1999, and it dismissed Estrada's complaint for failure to show cause on October 14, 1999, but the BIA did not decide the Estradas' appeal from the IJ's decision until April 15, 2003. The BIA did not address the proper response to the district court's decision because it was not asked to. Cf. Xu v. Gonzales, 424 F.3d 45, 48-49 (1st Cir.2005) (where point was not argued in appeal from IJ's decision, BIA was under no obligation to address point, and issue was waived and would not be considered by this court). Rather, the Estradas chose to cause delay, which benefitted them by keeping them in the United States. The dismissal of Estrada's action in the district court was more than six years ago. Estrada is not entitled to reopen it now. Taken together, the various omissions amount to waiver, and we will neither consider the ABC issue nor transfer it to the district court for further proceedings.
C. Conventional Petition for Review Claims
1. Excludability as Charged
52
The Estradas' second line of attack goes to the IJ/BIA determination that they were in fact excludable as charged: they say that Estrada was not attempting a new entry and that the government did not properly revoke their immigrant visas before they commenced their journey to the United States. This presents the mixed standard of review: the factual determinations are reviewed under the substantial evidence test, see Ang v. Gonzales, 430 F.3d 50, 54-55 (1st Cir.2005); the BIA's interpretations of law are reviewed with deference, see Elien, 364 F.3d at 396-97.
53
a. New Entry
54
As to the "new entry" issue, the Estradas say that once Estrada was "accorded protected registered class status under the ABC agreement after his initial entry in 1985, he kept that status intact when entering the United States subsequent to the ABC agreement preliminary approval date of December 19, 1990." The Estradas say that in light of Estrada's status as a registered ABC class member, his "first and only entry" was in October 1985, his 1995 arrival should not have been deemed a new entry, and the children's status is the same. They say their situation involved merely an "innocent, casual, and brief" departure. Rosenberg v. Fleuti, 374 U.S. 449, 462, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963). Whatever the merits of this argument, the government points out that it was not raised before the BIA. Although the Estradas clearly invoked the ABC Agreement before the BIA, they did so only as to administrative closure, and they did not articulate an "innocent, casual, and brief" argument before the BIA. The argument is therefore waived. See Chen v. Gonzales, 415 F.3d 151, 154 (1st Cir.2005).
55
b. Timing of Withdrawal of Visa Petition
56
The Estradas also argue that because their visas were not revoked prior to the commencement of their journey to the United States, they should have been allowed entry, and the BIA erred in holding them excludable as charged.9 They say that once the government discovered that the letter presented to the consulate was a forgery, the appropriate response was to put the family in deportation proceedings; they also say this would have made them eligible for relief that was not available in exclusion proceedings.
57
i. Appropriateness of Exclusion Proceedings
58
The Estradas base their argument on former INA § 205, which, before the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, Div. C, 110 Stat. 3009, 3009-546 (1996), provided that revocation of the approval of any visa petition will not have effect unless there is notice prior to the petition beneficiary's commencement of travel to the United States. See 8 U.S.C. § 1155 (1994). Their argument is that the fact that withdrawal of the visa petition occurred after their journey had commenced (and indeed, not until well after they had been paroled into the United States) means that the withdrawal was not valid and did not result in revocation of the approval of their visa petition, and that they should have been put into deportation proceedings.
59
The Estradas' conclusion is contrary to the BIA's reasonable interpretation of the statutory text.10 The last sentence of § 1155 then provided that "[i]f notice of revocation is not so given, and the beneficiary applies for admission to the United States, his admissibility shall be determined in the manner provided for by sections 1225 and 1226 of this title." Id. The pre-IIRIRA versions of §§ 1225 and 1226 dealt with exclusion, not deportation, procedures. See 8 U.S.C. §§ 1225, 1226 (1994). It was reasonable for the BIA to conclude that the only consequence of failure to notify before travel was that the right to admission would be adjudicated in exclusion proceedings.
60
Furthermore, INA § 221(h) provided at the time that "[n]othing in this chapter shall be construed to entitle any alien, to whom a visa or other documentation has been issued, to enter the United States, if, upon arrival . . . he is found to be inadmissible." 8 U.S.C. § 1201(h) (1994). The IJ found that this is what happened here, and quoted this exact language. The BIA agreed with the IJ. We see no reason for overturning the BIA's decision that exclusion proceedings were proper.
61
ii. Grounds of Excludability
62
The BIA's ultimate determination that the Estradas were excludable was, far from being "manifestly contrary to law," based on reasonable statutory interpretations and ample factual support. The charged grounds of excludability were 8 U.S.C. § 1182(a)(5)(A)(i)11 and (a)(7)(A)(i)(I).12 The BIA reasonably interpreted § 1155 and concluded that nothing about the timing of P & B's withdrawal of the petition rendered the Estradas' labor certifications or immigrant visas automatically valid. The BIA cited its decision in Matter of Alarcon, 17 I. & N. Dec. 574, which rejected the argument that "since [the alien] was not notified that her visa petition was revoked before she came to this country, her visa petition and, therefore, her visa were still valid." Id. at 575. Instead, the BIA said, the IJ should "examine[] the applicant's visa to determine its validity," reaching a decision "inherently involv[ing] scrutiny of the underlying visa petition and the relationship on which it depends." Id. at 576. "If [the IJ] determines that a flaw exists in that relationship such that the alien was not actually entitled to the status which was accorded to him by the visa petition, the [IJ] may conclude that the visa is invalid." Id. This can hardly be said to be an unreasonable interpretation of the immigration statutes.
63
The Estradas fare no better with respect to the BIA's factual findings and application of law to facts. The BIA agreed with the IJ that the visas, visa petition, and labor certification were based on fraudulent information and were invalid. Estrada conceded that he forged the letter from P & B stating that he was employed, and the IJ found that if the true information about Estrada's employment situation had been submitted to the consulate, neither the labor certification nor the employment-based visas would have issued. We are hardly "compelled to conclude to the contrary" on this record, and we see no basis for saying that the decision that the Estradas were ineligible for admission to the United States was "manifestly contrary to law." The Estradas' theory implies that one whose fraud goes undetected for a short while is entitled, simply because the INS did not detect the matter right away, to enter the United States and stay here indefinitely with an unrevokable visa, whatever its actual invalidity. We reject this theory.
2. Denial of Various Forms of Relief
64
Finally, the Estradas say that they did not voluntarily waive their right to apply for "non-ABC" asylum, and they seek leave to apply for this relief now. They say there is a difference between a "defensive" asylum claim raised before an IJ and an ABC asylum claim, and that if had they filed claims for defensive asylum before the IJ, they "would have certainly acquiesced in the IJ's ruling" on administrative closure and would have been waiving their ABC claim. We see no basis for the argument.
65
Whether or not "defensive" asylum is different from ABC asylum, the INS had determined that Estrada was ineligible for benefits under the ABC Agreement, and the IJ had decided that administrative closure was improper, in deference to the INS' determination. The Estradas were required to seek from the IJ whatever relief they hoped to get. Indeed, they did seek suspension of deportation and waivers of inadmissibility. Those forms of relief are clearly different from what the Estradas call "ABC asylum," and it is not clear how seeking "defensive asylum," which the Estradas say is also different, would have been any more of a waiver of their rights under the ABC Agreement. As the Estradas concede, they were provided numerous opportunities to continue to apply for asylum after they indicated at the commencement of their exclusion proceedings that they would be seeking such relief, and they refused to do so.13 It was not error for the BIA to deem the applications for asylum abandoned.14
III.
66
The petition for review is denied.
Notes:
*
Of the Eighth Circuit, sitting by designation
1
On March 1, 2003, the relevant functions of the INS were transferred to the Department of Homeland Security, and the INS subsequently ceased to existSee Homeland Security Act of 2002, Pub.L. No. 107-296, § 471(a), 116 Stat. 2135, 2205 (codified at 6 U.S.C. § 291(a)). For the sake of simplicity, we use the term "INS" throughout the opinion.
2
The asylum application lists only five children (Brenda, Beatriz, Lazaro, Luis, and Kimberly), omitting Silvia. The exclusion proceedings involved all six of Estrada's children
3
Estrada was the lead applicant for relief. The IJ and the BIA, as well as the parties, have treated the claims of Estrada and his children collectively, focusing primarily on Estrada himself
4
The IJ also held that pursuant to § 244 of the INA, 8 U.S.C. § 1254 (1994) (repealed 1996), the Estradas were statutorily ineligible for suspension of deportation, a ruling she reiterated in later proceedings. Also in later proceedings, the IJ found that waivers of inadmissibility under INA § 212(d)(3) and (k) did not apply. The BIA affirmed the IJ's decisions on these points. In their petition for review of the BIA's decision, the Estradas do not discuss suspension of deportation or waivers of inadmissibility, so they have waived any argument they might have made as to these forms of relief
5
On January 9, 1998, the Estradas requested a continuance, in part because the Rhode Island district court had not yet decided Estrada's case, and "should [it] decide [the issue of eligibility for benefits under the ABC Agreement] in favor of [Estrada] then Exclusion Proceedings should be administratively closed." The government opposed the continuance, and the IJ denied the continuance on January 14, 1998
6
On January 22, 1998, the IJ issued for each petitioner a written order summarizing her final oral decision. Each written order stated that the IJ's final oral decision was the official opinion in the case
7
The REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, 302-23, does not affect our analysis of the issues in this petition for review. At oral argument, the government agreed that in general, district courts can review the question of entitlement to benefits under the ABC Agreement, and that this was unchanged by the REAL ID Act. The government argues that in the particular context of this case, transfer of the ABC issue to the district court would be improper, because under 8 U.S.C. § 1252, as amended by the REAL ID Act of 2005, district courts lack jurisdiction over petitions for review. We do not reach this jurisdictional question, and the REAL ID Act does not affect any other issues in this case
8
The government argues in the alternative that if we have jurisdiction over the issue of the Estradas' eligibility for ABC benefits, we should find the Estradas ineligible, because they were "apprehended at time of entry" after the cut-off date
9
The Estradas' argument on excludability is based on the statutory scheme in effect before the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, Div. C, 110 Stat. 3009, 3009-546 (1996). We use the pre-IIRIRA versions of the statutesSee id. § 309(c)(1), 110 Stat. at 3009-625, amended by Act of Oct. 11, 1997, § 2, Pub.L. No. 104-302, 110 Stat. 3656, 3657; Goncalves v. Reno, 144 F.3d 110, 116 (1st Cir. 1998).
10
Both the BIA and the IJ cited the BIA's decision inMatter of Alarcon, 17 I. & N. Dec. 574 (BIA 1980). In that case, an alien was held to be excludable at entry where she entered the United States with an immigrant visa "accorded to her as the unmarried daughter of a lawful permanent resident," although in fact she had been married before she entered the United States. Id. at 575. The BIA, interpreting § 1155, dismissed her appeal. The BIA stated that "if revocation was not effective and the beneficiary applies for admission, his admissibility is to be determined in exclusion proceedings," id. at 576, and that "excludability was appropriately charged," id. at 577.
11
This section then provided that "[a]ny alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is excludable," absent a labor certification. 8 U.S.C. § 1182(a)(5)(A)(i) (1994)
12
This section then provided that, "[e]xcept as otherwise specifically provided in this chapter," an immigrant who at the time of application for admission "is not in possession of a valid unexpired immigrant visa . . . or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required [under certain regulations]," is excludable. 8 U.S.C. § 1182(a)(7)(A)(i)(I) (1994)
13
By expressly telling the IJ that he would not be pursuing an asylum application, Estrada also effectively withdrew the application for asylum he had filed in 1992
14
In the September 25, 1997 proceeding before the IJ, counsel for the petitioners also expressed hesitation in filing an asylum application in light of the penalties for frivolous applications
The Estradas make no argument in their petition for review as to withholding of removal, so any such argument is waived, and in any case fails for the abandonment reason discussed above. As already stated, the Estradas have also waived any argument they might have had as to suspension of deportation and waivers of inadmissibility.
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126 B.R. 974 (1991)
In re Stephen J. SILLS, Debtor.
Bankruptcy No. 2-89-06117.
United States Bankruptcy Court, S.D. Ohio, E.D.
April 17, 1991.
*975 Lee C. Mittman, Columbus, Ohio, for Debtor.
Ralph E. Dill, Columbus, Ohio, for Ameritrust Co.
Frederick L. Ransier, Columbus, Ohio, Chapter 7 Trustee.
OPINION AND ORDER ON MOTION TO REOPEN
DONALD E. CALHOUN, Jr., Bankruptcy Judge.
This matter is before the Court on the Debtor's Motion to Reopen this case in order to value the security interest of Ameritrust in the Debtor's residential real estate, and Ameritrust's Memorandum Contra thereto. A hearing was held on this Motion on December 17, 1990. Present were Lee Mittman representing the Debtor, and Ralph Dill representing Ameritrust. The Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this district. This case is a core proceeding arising under 28 U.S.C. § 157(b)(2)(o).
STATEMENT OF FACTS
The Debtor, Stephen Sills, filed a Chapter 7 bankruptcy petition on October 30, 1989 and was examined by Ameritrust Company N.A., pursuant to Bankruptcy Rule 2004 on January 15, 1990. The Debtor and Ameritrust engaged in negotiations concerning the valuation of the Debtor's residential real estate from March 26, 1990, until August, 1990, when their negotiations broke down.
The real estate consists of the residence of the Debtor and his non-filing spouse. The real estate is alleged by the Debtor to have a fair market value of $89,000. The property is subject to a first mortgage with an amount due of $69,418.60 as of April 15, 1990. There is a tax lien against the property for delinquent Franklin County Real estate taxes in the amount of approximately $1700. The real estate is also subject to a judgment lien in the amount of $220,911.54 which Ameritrust obtained on June 14, 1989.
The Court closed the case on October 16, 1990, after the trustee filed his account and report reflecting that this was a no-asset case, thereby effecting abandonment of the Debtor's residence. The Debtor contends that at that time, he was engaged in drafting a motion for the valuation of the claim of Ameritrust under 11 U.S.C. § 506, with the intent to avoid the undersecured portion under 11 U.S.C. § 506(d). The Debtor promptly filed the Motion to Reopen on October 22, 1990.
DISCUSSION
Ameritrust objects to the Motion to Reopen under the doctrine of laches. The rule accepted by an overwhelming majority of courts today is that, pursuant to § 350(b) and B.R. 5010, the avoidance of liens is grounds for reopening a case unless the creditor has been unduly prejudiced by delay on the debtor's part. 2 COLLIER ON BANKRUPTCY, para. 350.03, (15th ed. 1990). In Hawkins v. Landmark Finance Co., 727 F.2d 324 (4th Cir.1984), the Fourth Circuit Court of Appeals held that the creditor was prejudiced by the debtor's failure to reopen the case for eight months, by which time the creditor had incurred court costs and counsel fees pursuing foreclosure proceedings in state court. The Fourth Circuit was specifically unimpressed with the argument that prejudice would accrue solely by virtue of the creditor losing its security interest as a result of reopening. Id., at 327.
Unlike the Hawkins case, Ameritrust has not shown prejudice. Because of the Debtor's prompt filing of the Motion to reopen, Ameritrust has not incurred any additional costs in reliance on the Debtor's failure to previously challenge the viability of Ameritrust's lien. Furthermore, Hawkins specifically decries the loss of a security interest as being prejudicial. Realistically, Ameritrust does not even suggest that it has been prejudiced, but rather Ameritrust seems to rely on some sort of *976 variant of the equitable doctrine of laches where, because the debtor "chose to sit upon his rights, . . . he should now lose them." Memorandum Contra, p. 1. But laches is not a temporal limitation. Rather, it is a question of inequities founded upon some change in the condition or relations of the parties. Matter of Swanson, 13 B.R. 851, 855 (Bankr.D.Idaho 1981). In the present case there has been no such change. Therefore, it is within the discretion of this Court to reopen the case.
The second argument that Ameritrust proffers is that it is pointless to reopen the case because the relief requested by the Debtor under § 506 cannot be granted. The Court agrees with this proposition; therefore, it is of prime importance to determine whether lien valuation and avoidance under § 506 is a remedy which can be invoked by the Debtor.
The remedy sought by this Debtor is generally sought under § 522(f) of the Bankruptcy Code. However, the Sixth Circuit Court of Appeals held that lien avoidance under § 522(f) is unavailable to Ohio Debtors in absence of some form of involuntary execution by the lien holder. Ford Motor Credit Corp. v. Dixon, 885 F.2d 327 (6th Cir.1989). Therefore, local practitioners have pursued lien avoidance under § 506(a). Consequently, the Court's analysis requires a comparison of § 506 and § 522 of the Bankruptcy Code to discern if lien avoidance under § 506 is analogous to lien avoidance under § 522(f).
A comparison of the property interests involved in § 506(a) and § 522(f) reveals why they should be treated differently. Those sections provide:
§ 506. Determination of secured status
(a) An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditors' interest in the estate's interest in such property, or to the extent of the amount subject to setoff as the case may be, and is an unsecured claim to the extent that the value of such creditor's interest or the amount so subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor's interest.
§ 522. Exemptions
(f) Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is
(1) a judicial lien;. . . .
Section 522(f) deals with "the interest of the debtor in property", while § 506(a) concerns itself with "property in which the estate has an interest." This difference is of substantial import when considering whether abandoned property can be addressed under the respective Code sections.
The effect of abandonment by a trustee, whether accomplished by affirmative act under 11 U.S.C. § 554(a) or (b) or by failure of administration under subparagraph (c), is to divest the trustee of control over the property because once abandoned, property is no longer a part of the bankruptcy estate.
4 COLLIER ON BANKRUPTCY para. 554.02 at pp. 554-57, 554-8. When property is abandoned, it ceases to be property of the estate and reverts to the debtor. See Brown v. O'Keefe, 300 U.S. 598, 602, 57 S.Ct. 543, 546, 81 L.Ed. 827 (1937). Therefore, abandoned property, being property of the debtor, is the specific type of property contemplated under § 522(f). Similarly, § 506(a) would seem, by negative implication, to specifically exclude abandoned property (i.e., property which is no longer part of the estate).
Recent cases which have considered whether the avoidance of liens under § 506 is appropriate with abandoned property, are split as to the role of § 506(d) lien avoidance in a chapter 7 liquidation. See Gaglia v. First Fed. Savings & Loan Asso., 889 F.2d 1304 (3rd Cir.1989); Dewsnup *977 v. Timm (In re Dewsnup), 908 F.2d 588 (10th Cir.1990).
The Gaglia court observed that, under the majority view, § 506(d) authorizes a chapter 7 debtor to avoid liens on real property, citing In re Garnett, 88 B.R. 123 (Bankr.W.D.Ky.1988); aff'd, 99 B.R. 757 (W.D.Ky.1989). See also In re O'Leary, 75 B.R. 881 (D.Or.1987); In re Worrell, 67 B.R. 16 (C.D.Ill.1986); In re Clevering, 52 B.R. 56 (N.D.Iowa 1985); In re Lyons, 46 B.R. 604 (N.D.Ill.1985); In re Gibbs, 44 B.R. 475 (D.Minn.1984); In re Bracken, 35 B.R. 84 (E.D.Pa.1983); In re Brace, 33 B.R. 91 (S.D.Ohio 1983); In re Tanner, 14 B.R. 933 (W.D.Pa.1981). Gaglia went one step further, allowing the avoidance of liens by the debtor on abandoned property. See also In re Richardson, 121 B.R. 546 (Bankr.S.D.Ill.1990); In re Zlogar, 101 B.R. 1 (Bankr.N.D.Ill.1989).
The Gaglia court noted that no court of appeals had dealt directly with this issue. Gaglia, therefore, was the first court of appeals to pass on the breadth of § 506 in light of the phrase "property in which the estate has an interest." The court rejected the creditor's argument that the overall statutory scheme indicated Congress did not intend for § 506 to apply to property which is not administered by the estate:
We do not read this limitation into § 506. On its face, that section contains no such restriction. Congress was surely aware that some estates would contain overencumbered property with nothing available for unsecured creditors. It certainly realized that in many such cases the trustee might decide not to liquidate the property. Yet Congress did not limit § 506 to cases in which it aids the administration of the estate.
889 F.2d at 1309.
The Gaglia court rejected three other arguments in deciding to permit the avoidance of liens on abandoned property by the debtor. First, that the use of § 506 to strip down abandoned property is inconsistent with redemption under § 722; second, that § 506 lien avoidance would discourage the use of the rehabilitative chapters; and finally, that it was inequitable to allow Chapter 7 debtors to avoid liens. 889 F.2d at 1310-11.
By contrast, the Dewsnup court stated that a strong minority views such lien avoidance as "inconsistent with the intended purpose of the section and is unfair to lienholders." 908 F.2d at 589, citing In re Shrum, 98 B.R. 995 (Bankr.W.D.Okla. 1989); In re McLaughlin, 92 B.R. 913 (Bankr.S.D.Cal.1988); In re Dewsnup, 87 B.R. 676 (Bankr.D.Utah 1988); In re Maitland, 61 B.R. 130 (Bankr.E.D.Va.1986). See also In re Verma, 91 B.R. 17 (W.D.Pa. 1987); In re Smith, 79 B.R. 650 (D.Md. 1987); In re Cordes, 37 B.R. 582 (C.D.Cal. 1984); In re Mahaner, 34 B.R. 308 (W.D.N.Y.1983); In re Harvey, 3 B.R. 608 (M.D. Fla.1980). The Dewsnup court felt it essential to recognize that abandoned property is property not administered by the estate. 908 F.2d at 590. Dewsnup rebutted several of the arguments the Gaglia court relied upon to conclude that § 506 can be applied to abandoned property. The most relevant distinction is the opposing view as to Congressional intent. Dewsnup explicitly rejected the court's interpretation of § 506 in Gaglia:
We reject this approach for two reasons. First, we reject the notion that section 506(d) must be read in isolation. It is a fundamental precept of statutory construction that `[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.' Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed. 309 (1956) (quoting United States v. Boisdore's Heirs, 8 How. 113, 121, 12 L.Ed. 1009 (1850)). Second, the Third Circuit's rationale does not adequately recognize the affect of abandonment with its resulting consequences, including reversion of the property to prebankruptcy status. The reasoning in Gaglia might apply if the language in the statute was `property of the estate' rather than `property in which the estate has an interest.' It is true that pursuant to 11 U.S.C. § 541, all property in which the debtor has a legal or equitable *978 interest becomes part of the bankruptcy case at the time a petition is filed. See In re Harvey, 3 B.R. 608, 609 (Bankr.M.D.Fla.1980). In this case, however, the operative phrase is `interest of the estate.' Following abandonment, the estate no longer has an interest, even though it did at one time. To construe this section otherwise would defeat the purpose behind the abandonment provision and run counter to the plain language of the Code.
908 F.2d at 591.
The Court finds the Tenth Circuit's decision to be the better reasoned one. The Dewsnup court conducted a more thorough analysis of the overall statutory scheme and the peculiar terminology of § 506(a). The mere conclusory statements of Gaglia raise questions whether the analysis by the Gaglia court is thorough enough to warrant reliance on it.
As the Dewsnup court indicated, the court is bound by the language of § 506, which is plain. When the statutory language is clear, it is conclusive, absent "clearly expressed legislative intent to the contrary." Dewsnup, 908 F.2d at 591, quoting Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). The estate has no interest in abandoned property; therefore § 506 cannot be utilized to avoid a lien on abandoned property. Since the resolution of this case turns upon the peculiar phraseology of "property in which the estate has an interest" in § 506, the other arguments which Gaglia rejected would not change this result. Even if we were to assume, arguendo, that the Gaglia court was correct in concluding that § 506 can be read in pari materia with § 722, that the suggested use of § 506 would not discourage the use of the rehabilitative chapters, and that it is equitable to allow chapter 7 debtors to avoid liens, the result is unchanged. None of these arguments impacts the application of § 506 on abandoned property.
In accordance with the foregoing, the Court find the remedies of valuation and avoidance of liens on abandoned property under § 506 are not available to the Debtor. Therefore, the Debtor's Motion to Reopen hereby is DENIED.
IT IS SO ORDERED.
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434 F.Supp. 163 (1976)
Edwards McARTHUR, a/k/a McArthur Edwards, Petitioner,
v.
UNITED STATES BOARD OF PAROLE et al., Respondents.
No. TH 76-49-C.
United States District Court, S. D. Indiana, Terre Haute Division.
November 15, 1976.
*164 *165 Stephen L. Trueblood, Terre Haute, Ind., for Mr. Edwards.
James B. Young, U. S. Dist. Atty., Indianapolis, Ind., for respondents.
ENTRY
HOLDER, District Judge.
This matter came before the Court on the petition of Edwards McArthur, a/k/a McArthur Edwards, for writ of habeas corpus and Respondents' Motion to Dismiss or in the Alternative for Summary Judgment. The Court having read and examined said petition and the brief in support thereof and Respondents' Motion and brief, now finds that said Motion to Dismiss should be granted.
Petitioner was indicted by a grand jury on September 2, 1972. Count I charged Petitioner with Bank Robbery by Use of Dangerous Weapons, in violation of 18 United States Code, Section 2113(a) and (d) (1970); Count II charged Petitioner and four co-defendants with Conspiracy to Commit Armed Robbery by Use of Dangerous Weapons, in violation of 18 United States Code, Section 371 (1970). Petitioner was convicted by a jury on both counts of the indictment on December 1, 1972. He was thereupon sentenced to serve a period of imprisonment for 25 years on Count I, such sentence to run consecutively to any other sentence defendant was then serving or might thereafter serve. He was sentenced on Count II to a period of five years imprisonment, said sentence to run concurrently with the sentence from Count I. Both sentences were made subject to the provisions of 18 United States Code, Section 4208(a)(2) (1970), permitting immediate eligibility for consideration for parole. Petitioner's conviction was reversed on grounds not relevant to the present litigation on January 28, 1974, by the Fifth Circuit Court of Appeals. United States v. Edwards, 488 F.2d 1154 (5th Cir. 1974). The Petitioner was retried and again convicted on April 24, 1974, and sentenced that day to the same sentence imposed as under the previous conviction.
Petitioner had an initial hearing at the United States Penitentiary, Terre Haute, Indiana on April 20, 1973. By order of May 23, 1973, he was continued for an institutional review hearing in April, 1976. He received a review hearing on August 27, 1974 due to the fact that he was re-sentenced after the original sentence was vacated. By order dated September 24, 1974, the Petitioner was continued for institutional review hearing in December, 1975.
On December 6, 1975, Petitioner came before the parole board at the Terre Haute Penitentiary for a review hearing. At that time, he was informed by the hearing examiner that his offense severity rating would be increased, because the offense involved kidnapping. The panel recommended a release date of March 2, 1976, due to "subject's adjustment and the fact that he has accepted his guilt ..." This recommendation was referred to the National Board of Parole for reconsideration by Lawrence A. Carpenter, Regional Director, North Central Region, United States Board of Parole, pursuant to applicable regulations. 28 C.F.E. § 2.24 (1975). The National Appellate Board reversed, and continued Petitioner's case until December, 1977, giving the following reasons:
Your offense behavior has been rated as greatest severity because the offense included *166 kidnapping. You have a salient factor score of six. You have been in custody a total of 41 months. Guidelines established by the Board for adult cases which consider the above factors, indicate a range of more than 45 months to be served before release for cases with good institutional program performance and adjustment. Board guidelines for greatest severity cases do not specify a maximum limit. Therefore, the decision in your case has been based in part upon a comparison of the relative severity of your offense behavior with offense behavior examples listed in the very high severity category.
It is this ruling that Petitioner seeks judicial review of in this action.
In his brief filed shortly after his petition, the Petitioner through his counsel lists three (3) issues for review.
"A) Whether the decision of the parole board was arbitrary and capricious in finding Petitioner's offense `included kidnapping' contrary to the government's own `official version'.
"B) Whether the decision of the National Appellate Board raising for the first time such allegations that his alleged offense `involved kidnapping' and `auto theft' without permitting Petitioner reasonable opportunity to contradict and to rebut these allegations has the effect of depriving Petitioner of due process of law.
"C) Whether the decision of the National Appellate Board, upon the facts of this case, render the use of the (a)(2) sentence by the trial court meaningless as such is applied to Petitioner."
A
Petitioner does not claim that the reasons given him for denial of parole were in themselves inadequate. Cf. King v. United States, 492 F.2d 1337 (7th Cir. 1974). Instead, he claims that the parole board erred in classifying his offense as "highest severity" because "the offense included kidnapping". In support of this claim, Petitioner alleges that he personally was never charged with nor convicted of the offense of kidnapping, and that he personally did not participate in a kidnapping. He does not deny that a kidnapping did in fact take place in the course of the bank robbery in which he participated and, indeed, was the leader.
The question is whether the parole board was justified in considering the circumstances surrounding the bank robbery to support its conclusion that the offense did indeed "involve kidnapping". In this regard, the board is vested with a great amount of discretion.
The inquiry is not whether the Board is supported by the preponderance of the evidence, or even by substantial evidence; the inquiry is only whether there is a rational basis in the record for the Board's conclusions embodied in its statement of reasons.
Zannino v. Arnold, 3 Cir., 531 F.2d 687, 691.
The facts are indisputable. Of the five participants indicted in the robbery and conspiracy theme, three "waylaid [a cab driver] and stole his cab shortly before the robbery . . .." Edwards, supra, 488 F.2d at 1156. The cab driver was locked in the trunk of the vehicle and was left there when the vehicle was abandoned.
The board's decision clearly has a rational basis. Petitioner concedes that the board may take into consideration alleged offenses in determining the severity of the offense. It could not be argued otherwise. Lupo v. Norton, 371 F.Supp. 156 (D.Conn. 1974); Manos v. United States Board of Parole, 399 F.Supp. 1103, 1105 (M.D.Pa. 1975); Zannino v. Arnold, supra. Thus, the only question is whether the board acted "rationally" in holding Petitioner responsible for the kidnapping, whether or not he was charged with that offense. The simple fact is that the Petitioner must bear responsibility, both under the criminal law and before the board of parole, for actions of his confederates in furtherance of their conspiracy. This is not simply an issue of vicarious liability. The scheme disclosed by the record is a particularly heinous one, *167 involving a total disregard for human life. Petitioner and his confederates were certainly prepared to do whatever was necessary to effectuate their purpose. In this case, it became "necessary" for certain members of the conspiracy to abduct a cab and its driver, and to later abandon the cab, leaving the driver helpless and in peril of his life. Petitioner cannot escape responsibility by hiding his head in the sand and blaming others. He was a full participating member of the conspiracy and shared in its gains. The Board of Parole could justly conclude that one who participated in such a scheme is of particular concern to society. The function of the board is not limited to search for indictments and convictions, but it must determine whether a prisoner is a fit subject for release. It is vested with broad discretion in order that it may examine all aspects of an individual's character.
B
Petitioner argues that the alleged offense of kidnapping was raised for the first time at the National Appellate Board level and that he was not given an opportunity to contradict the assertions at his first hearing. The record discloses otherwise. By the sworn affidavit of Charles G. Wright, one of the two Parole Board hearing examiners who conducted the Petitioner's primary hearing at the prison, Petitioner was asked about the kidnapping aspect of the offense and that Petitioner admitted the offense involved kidnapping.
It is interesting to note that, although the Petitioner vehemently denies that his offense "included kidnapping", that denial is undermined not only by his statement at the original parole board hearing, but by findings both by the trial court and by the Fifth Circuit Court of Appeals regarding his credibility.
Petitioner complains of the use of his pre-sentence report by the Parole Board, claiming it is hearsay. Although the board clearly relied on more than the pre-sentence report alone, this contention is inherently frivolous. Rules of evidence proscribing the introduction of hearsay apply to criminal trial proceedings only, not sentencing proceedings, and not parole board proceedings. Federal Rules of Evidence, 1101. A parole board hearing is not an adversary proceeding. Its purpose is not to determine whether a prisoner has committed a crime, but, in light of the facts and circumstances of the case, to determine whether a prisoner should be released from custody. In fact, virtually all evidence considered in parole proceedings must of necessity be hearsay. Otherwise, parole board hearings would become retrials of the criminal offense itself.
C
Petitioner was sentenced under the provisions of 18 United States Code, Section 4208(a)(2) (1970), which permits a prisoner to be eligible for consideration of parole at any time during his sentence. Petitioner extrapolates the bare language of the statute to the incredible proposition that the (a)(2) provision places a mandatory, reviewable duty on the parole board. An (a)(2) sentence permits early consideration for parole and nothing more. It does not alter administrative guidelines for release. 28 C.F.R. § 2.13(b) 1975.
Petitioner assumes that an (a)(2) sentence requires release at the earliest opportunity for all prisoners exhibiting good institutional adjustment. This may be appropriate for some prisoners, but in Petitioner's case, the record at sentencing shows that the intention of the sentencing judge was to keep Petitioner incarcerated for as long as possible.
The determination that Petitioner could not live at liberty without violating the law is well supported by the evidence. It might be added that release of Petitioner after serving only 41 months of a twenty-five (25) year sentence would deprecate the seriousness of his crime.
IT IS THEREFORE ORDERED that said cause is dismissed with prejudice.
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740 F.2d 969
U.S.v.Martin
83-5818
United States Court of Appeals,Sixth Circuit.
7/2/84
1
M.D.Tenn.
AFFIRMED
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894 F.2d 1334
Lafayette Savingsv.Nat'l Bank*
NO. 89-3025
United States Court of Appeals,Fifth Circuit.
JAN 24, 1990
1
Appeal From: E.D.La.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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742 F.2d 1445
V & V Propertiesv.Carlson
83-7133
United States Court of Appeals,Second Circuit.
6/17/83
1
S.D.N.Y.
AFFIRMED
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8319
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DWAYNE FERGUSON,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:04-cr-00013-REP-1)
Submitted: January 13, 2009 Decided: January 20, 2009
Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Dwayne Ferguson, Appellant Pro Se. Stephen David Schiller,
Olivia N. Hawkins, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwayne Ferguson appeals the district court order
denying his Fed. R. Crim. P. 33 motion for a new trial. We have
reviewed the record and find no reversible error.
Ferguson filed his motion for a new trial over four
years after the jury returned its guilty verdict and more than
three years after the judgment of conviction was entered. A
motion for a new trial based on newly discovered evidence must
be filed within three years after the finding of guilt.
Ferguson exceeded the time limit provided by Fed. R. Crim. P.
33. Therefore, the district court properly denied the motion.
Accordingly, we affirm for the order of the district
court. 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
2
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11TH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
Leonardo Lopez, * From the 106th District Court
of Dawson County,
Trial Court No. 13-7306.
Vs. No. 11-14-00357-CR * December 30, 2016
The State of Texas, * Memorandum Opinion by Wright, C.J.
(Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.)
This court has inspected the record in this cause and concludes that
there is no error in the judgments below. Therefore, in accordance with this
court’s opinion, the judgments of the trial court are in all things affirmed.
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768 S.W.2d 219 (1989)
Morty LEBEDUN, M.D., Western Missouri Mental Health Center, Appellants,
v.
Geraldine ROBINSON, et al., Respondents.
No. WD 41072.
Missouri Court of Appeals, Western District.
March 28, 1989.
*220 William L. Webster, Atty. Gen., Nancy K. Yendes and P. Ann Dirks, Asst. Attys. Gen., Kansas City, for appellants.
Michael T. Murphy, Kansas City, for respondents.
Before KENNEDY, C.J., and LOWENSTEIN and GAITAN, JJ.
GAITAN, Judge.
Plaintiff-appellant, Morty Lebedun, Western Missouri Mental Health Center, appeals the trial court's decision upholding the Personnel Advisory Board's order reversing the dismissal of defendant-respondent, Geraldine Robinson. The Honorable James McHenry of the Cole County Circuit Court found that the Board's decision is lawful in all respects and is supported by competent and substantial evidence upon the record as a whole. We affirm.
On March 22, 1987, defendant was employed as a Cook II at the Western Missouri Mental Health Center. Prior to that date, in either January or February 1987, an attempted theft of ten pounds of bacon, cans of orange juice and a large number of chicken ribs was apparently thwarted when the food was found on the premises prior to its removal. This led to a crackdown on employees taking food which included all employees attending a speech on facility policy about taking food. This speech was in addition to an employee orientation and the posting of a Standard Operating Procedure on policy and procedure on food use in the food service department. This Standard Operating Procedure was in effect on March 22, 1987.
On March 22, 1987 Ronald Hervey, a Cook II, was working in the kitchen area of Western Missouri Mental Health Center. *221 Mr. Hervey worked his entire shift that day with defendant.
Mr. Hervey testified that he observed defendant open a refrigerator where State food was kept, remove parts of chicken, and prepare the chicken and dressing. He also testified that he saw defendant use various chicken parts in the chicken and dressing including chicken necks, breasts, legs, quarters and thighs. The dressing was prepared in a full two-inch lined pan.
Although chicken and dressing was not on the menu for March 22, 1987, Mr. Hervey said nothing to defendant because he thought a supervisor, Mrs. Ida Mae Cox, was able to observe the preparation of the chicken dressing. However, Mrs. Cox could not see defendant. Mrs. Cox was a Cook III and was in charge of the kitchen on Sundays when no other supervisor was present.
During the lunch break, defendant invited two others, Lisa Farrell and Catherine Williams, to dine with her on the chicken and dressing prepared during her shift. Although there was a facility regulation against fixing one's own food in the kitchen, Lisa Farrell partook of the dressing when offered by defendant. Ms. Farrell testified that she noted a flavor of chicken in the dressing, however, she testified that she did not see any chicken in the dressing itself offered to her and did not know where defendant got the dressing.
Mr. Hervey testified that he saw defendant with the chicken and dressing again about 12:45 p.m. or 1:00 p.m. on that day, when he observed her scoop the dressing from the pan into a plastic bag. At the end of his shift, he testified that he saw defendant with the bag of dressing she had prepared as she walked out of the kitchen. He did not see her leave the hospital grounds.
Defendant testified that she had seen many chicken necks thrown away in the eight years she had worked at Western Missouri Mental Health Center. Both Mr. Hervey and Ms. Farrell also testified to the same. Defendant also testified that she thought the chicken necks were garbage since she had been told to throw away the chicken necks.
Mr. Hervey reported defendant's actions in preparing the dressing by giving a written statement to Joan Eggers, the Department Head in Dietary. After receiving the written report, Mrs. Eggers contacted Charles Edward Lidge, Chief of Security at Western Missouri Mental Health Center, and the two interviewed defendant on March 24, 1987. The interview lasted five (5) minutes. Defendant voluntarily provided Chief Lidge and Mrs. Eggers with a written statement in which she admitted using only chicken necks to make a dressing and feeding herself and two others, Lisa Farrell and Catherine Williams, lunch on March 22, 1987.
Because it was suggested that Mrs. Cox may have given permission to defendant to use chicken necks to make a dressing on March 22, 1987, Mrs. Eggers spoke to Mrs. Cox. Mrs. Cox denied giving permission to anyone to use chicken necks to make a dressing and provided Mrs. Eggers with a written statement to this effect which was admitted without objection at the hearing before the Personnel Advisory Board after it was established that Mrs. Cox was an invalid and no longer employed by appellant.
By letter dated April 13, 1987, defendant was informed that she would be dismissed from her employment effective April 20, 1987, unless she could show reasons why the dismissal should not be effected. Defendant met with Marcella Ridlen Ray, Director of Human Resources at Western Missouri Mental Health Center, on April 20, 1987. Mrs. Ray prepared a memorandum to the superintendent of the facility setting forth the points defendant wanted him to consider in deciding whether or not her dismissal should be effected. She admitted to Mrs. Ray that she had boiled chicken necks and made dressing with cornbread in a container twelve inches square without asking for permission. Mrs. Ray provided defendant with a copy of this memorandum and an accompanying sketch by way of letter dated April 27, 1987. Defendant's employment was terminated *222 pursuant to Department Operating Guidelines on Discipline, Section VIII, b and f.
Defendant testified that on March 22, 1987, she did in fact take chicken, which she described as necks, from a refrigerator area. However, she stated that she was told to throw the necks away. She therefore considered them to be garbage and not food meant for the patients. Defendant prepared a dressing in a 5 X 8 small pan with ingredients brought from home and the necks. Defendant also testified that she and the other two ladies consumed all of the chicken and dressing. She denies putting any leftovers in a plastic bag as stated by Mr. Hervey.
Defendant testified that she had never taken any food in the kitchen area before to eat and that chicken necks were not used for broth in the eight years she had been employed at Western Missouri Mental Health Center. She stated that chicken stock was used to make broth. The chicken stock is bought.
On November 13, 1987, the Board issued its Findings of Fact, Conclusion of Law, Decision and Order. In its Findings of Fact, the Board found that defendant did remove parts of chicken from the refrigerator and prepare chicken and dressing which she consumed herself and fed to two others in the cafeteria. The Board also found that the Standard Operating Procedure was posted in the kitchen area where defendant could have seen it. Although the Board found a breach of the plaintiff's rules, it did not find that defendant's infraction was sufficient to justify a disciplinary action so severe as dismissal because plaintiff had failed to show that defendant removed food from the premises of the facility. The Board then reversed the dismissal of defendant, and Western Missouri Mental Health Center filed a timely Petition for Review with the Circuit Court of Cole County.
Appellate review of an administrative decision is limited to the agency's decision and not the circuit court's. Cunningham v. Board of Aldermen of Overland, 691 S.W.2d 464, 466 (Mo.App.1985).
In the review of an administrative decision, the court is to consider whether the agency's decision exceeded its statutory authority, was unsupported by competent or substantial evidence on the whole record, is authorized by law, is arbitrary, capricious or unreasonable, or involves any abuse of discretion. § 536.140, RSMo 1986. This Court may not substitute its own judgment on the facts for that of the administrative agency. Kunz v. Personnel Advisory Board, 740 S.W.2d 395, 397 (Mo. App.1987). If the evidence would support either of two findings, the Court is bound by the agency's decision and has no authority to determine credibility of witnesses. Rockenfield v. Missouri Department of Corrections and Human Resources, 740 S.W.2d 230, 231-32 (Mo.App.1987); see also Ferrario v. Baer, 745 S.W.2d 193, 195 (Mo. App.1987).
The Personnel Advisory Board is vested with the authority to review dismissals of employees by the Appointing Authority. § 36.390, RSMo 1986. After the hearing and consideration of the evidence, the Board may either approve or disapprove the employee dismissal. § 36.390.5(1)-(3), RSMo 1986.
In the case at bar, the Board heard and weighed testimony from several persons. Three witnesses testified that chicken necks were often thrown away. Defendant testified that she was told to throw the chicken necks away. Defendant denied that any scraps of chicken or the dressing were taken from the premises. No witness or evidence refuted any of the aforementioned testimony.
The evidence on judicial review of an agency's decision must be viewed in the light most favorable to that decision. Ferrario, 745 S.W.2d at 195. If two conclusions are possible, the courts are bound by the agency's findings. Id. The Board, in finding that defendant's breach of the Appointing Authority's rules was not sufficient to justify dismissal, could have come to the conclusion that there was not an unauthorized removal or usage of state property for her own use, or theft. Based *223 upon the evidence and testimony, the Board could also have found that the past practices by the Appointing Authority supported defendant's assertion that the chicken necks were garbage at the time she used them. These findings led the Board to the conclusion held that the dismissal of defendant was not for the good of the service. Contrary to appellant's claim, there was no redefinition of defendant's employment contract or employer/employee expectations by the Board.
The Board's ruling does state that defendant's actions were in violation of the Appointing Authority's regulations, although the ruling does not indicate which regulation defendant violated. Defendant's violation, however, did not warrant dismissal. This is to say that defendant could have been charged with a lesser violation of the Appointing Authority's regulations such as consumption of food intended for client use. Therefore, based upon the record as a whole, the Board's ruling was supported by competent and substantial evidence.
The last point raised on appeal is that defendant should be awarded damages on the ground that this appeal is frivolous. Rule 84.19. We disagree. Generally, a frivolous appeal is one which presents no justiciable question and is one so readily recognizable as devoid of merit on the face of the record that there is little prospect that the appeal can succeed. O'Dell Plumbing, Heating, and Cooling, Inc. v. Clayton Greens Nursing Center, Inc., 676 S.W.2d 528, 532 (Mo.App.1984); Holman v. Ace Glass Co., 687 S.W.2d 562, 563-64 (Mo. App.1984). The remedy of damages is drastic and should be assessed only when issues and questions are presented in bad faith or are not fairly debatable. Forms Manufacturing, Inc., v. Edwards, 705 S.W.2d 67, 70 (Mo.App.1985); Doran, Inc. v. James A. Green, Jr. & Co., 654 S.W.2d 106, 110 (Mo.App.1983). Good faith is shown even by the presence of some slight merit. Breshears v. Malan Oil Co., 671 S.W.2d 402, 404 (Mo.App.1984).
In the case at bar, Western Missouri Mental Health Center raised a viable claim that the Board exceeded its jurisdiction and authority in its ruling by allegedly redefining defendant's employment contract and the meaning of "theft". Although this Court has found otherwise, when a claim of error is valid as a matter of law, the appeal should not be determined to be frivolous. Smith v. Normandy School District, 734 S.W.2d 943, 949 (Mo.App.1987).
Although damages are considered on a case-by-case basis, they are generally assessed to prevent appellate dockets from becoming swamped with unmeritorious appeals and to provide compensation for respondent's costs in such matters. Doran, 654 S.W.2d at 110. The appeals process has not been purposefully delayed in its submission, having filed all stages within the appropriate timelines. The Court has the power to assure that Rule 84.19 is allowed to correct abuses rather than intimidate prospective appellants. Id. at 111. Therefore, defendant's request for damages under Rule 84.19 is denied.
The respondent, Personnel Advisory Board, has submitted a motion to be dismissed from this appeal. Pursuant to Section 36.390.5, RSMo 1986, the Personnel Advisory Board conducts hearings in cases where a merit system agency of the State of Missouri dismisses, involuntarily demotes or suspends an employee for more than five working days. The Board hears the case to determine whether or not the employee is correct in his assertion that the action taken against him was for political, religious or racial reasons or was not for the good of the service. The Board does not have an independent role in these proceedings but acts only as an impartial hearing officer to conduct and decide the contested case between the agency and the employee. The Board, as an agency, has no interest in the outcome of the case before it. In a similar manner, except where the Board's procedures or rules are directly attacked, the Board has no true interest in protecting its decision on appeal.
In this regard, the Board's role is very similar to that of the Administrative Hearing Commission. The Administrative Hearing Commission is not a proper party *224 to an appeal from one of its decision. Geriatric Nursing Facility, Inc. v. Department of Social Services, 693 S.W.2d 206 (Mo.App.1985). In Geriatric, this Court stated that "[i]t is the agency and the outside party who contend for their respective positions. From the decision, either the agency or the affected party may appeal, and the Administrative Hearing Commission has no part in that review." Id. at 209. The above-quoted statement would be equally true if the Board was substituted for the Administrative Hearing Commission, the appointing authority (employer) were substituted for the agency and the employee was substituted for the outside party.
This Court revisited this issue in Baer v. Civilian Personnel Division, St. Louis Police Officers Association, 714 S.W.2d 536 (Mo.App.1986). Citing its decision in Geriatric, this Court found that the Board of Mediation was not a necessary party to review a proceeding arising from a case in which the Board had no interest in the outcome of the litigation. Id. at 538. The Court elaborated on its reasoning in Geriatric regarding the inappropriateness of including the quasi-judicial agency as a party on review of the agency's decision. Id. The role of the Board in the case at bar was no greater than the role of the Administrative Hearing Commission in Geriatric. Therefore, the Board's Motion to Dismiss is granted.
The judgment of the Personnel Advisory Board is affirmed.
LOWENSTEIN, J., concurs in separate opinion.
LOWENSTEIN, Judge, concurring.
There can be no quarrel with Judge Gaitan's opinion and result as to the merits of this case. It is difficult to read and hear the argument in this case without smiling. What takes this appeal out of the category of being a laughing matter is the fact the employee has had to retain counsel to argue the case in the circuit court in Jefferson City and again here in this court. The employee is a cafeteria worker who, at best was the subject of overkill by one of the institutions of one of our largest state agencies. After the fact finder held in her favor, Western Missouri with the free aid of the fine staff of the attorney general, and without having to pay costs, has prosecuted this appeal. The time and expense of this appeal to the state, to the judicial system and to one of our citizens cannot be justified nor laughed away. The state, and particularly Western Missouri owes a duty to be firm but fair, but not to flout their power and might. This appeal comes perilously close to an abuse of that might.
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555 S.W.2d 189 (1977)
PROCHEMCO, INC., Appellant,
v.
CLAJON GAS CO. and West Texas Gas, Inc., Appellees.
No. 6606.
Court of Civil Appeals of Texas, El Paso.
August 10, 1977.
*190 Shafer, Gilliland, Davis, Bunton & McCollum, Inc., Lucius D. Bunton, Odessa, for appellant.
Bullock, Scott & Neisig, Tom R. Scott, Russell W. Neisig, Midland, for appellees.
OPINION
OSBORN, Justice.
This is a declaratory judgment and injunction suit filed to determine the validity of an option in a Gas Sales Contract covering irrigated farmland in Pecos County. The case was tried to the Court on an agreed statement of facts, pursuant to Tex. R.Civ.P. 263. The trial Court refused to extend the contract under the terms of the option and entered judgment for Appellees. We reverse and remand the case to the trial Court for entry of a judgment for the Appellant.
On August 17, 1970, Coyanosa Land & Cattle Company, a wholly owned subsidiary of Prochemco, Inc., owned the surface of 1,673 acres of farmland in Pecos County. On that date, Coyanosa entered into a Gas Sales Contract with Clajon Gas Co., under the terms of which Coyanosa agreed for itself, its heirs and assigns:
"* * * to purchase natural gas from Company, for utilization as the total power requirements (particularly, but without limitation, for the operation of internal combustion engines) necessary for the lifting of water for use in the irrigation of the following described land in Pecos County, Texas * * *."
The agreement provides that the terms of the contract are and shall be deemed covenants running with the described land and shall extend to all wells utilized in irrigating said land. Gas was sold at a price of 30¢ per mcf for a term of five years beginning August 1, 1970.
The contract granted to Prochemco, but not to its assigns or successors, the option to extend the contract for an additional five years at a price of 34¢ per mcf with notice of exercise of the option to be given 90 days prior to August 1, 1975. Such notice was given by Prochemco.
In May, 1974, Coyanosa conveyed a 99% interest in the land in question to G. Merwyn Eiland. At the same time, Coyanosa executed a bill of sale to convey all of its interest in any personal property on the land to Eiland. Coyanosa also assigned to Eiland an Operating Agreement and Lease Contract with its tenant, Mike Burkholder. On July 19, 1974, Prochemco quitclaimed to Eiland all of its right, title and interest in the Pecos County land. Coyanosa Land & Cattle Company was voluntarily dissolved on July 2, 1975, having made no further transfers of any interest in the land in question.
In reply to the letter exercising the option, Clajon replied that since Prochemco's subsidiary had conveyed a 99% interest in the land, the option could not be exercised by Prochemco. This suit resulted.
The Appellant presents a single point of error complaining of the trial Court's failure to recognize the option and extend the contract for an additional five years. Appellant urges that since the option, which was not assignable, was personal to Prochemco, it could exercise the option even though its subsidiary had sold a 99% interest *191 in the land covered by the gas contract. Appellees contend that the rights of Prochemco were assigned with the land and that there could be no strict compliance with the terms of the option by one not owning an interest in the land.
There is no contention by either party that the contract is ambiguous. The general rule of contracts is that where the contract is unambiguous, the Courts will give effect to the intention of the parties as expressed in the writing. City of Pinehurst v. Spooner Addition Water Company, 432 S.W.2d 515 (Tex.1968).
"The chief consideration in deciding whether a covenant runs with the land is whether it is so related to the land as to enhance its value and confer a benefit upon it * * *." 20 Am.Jur.2d Covenants, Conditions, etc. Sec. 37, p. 607 (1965). One of the types of contracts that may run with the land is one to furnish gas. 20 Am. Jur.2d Covenants, Conditions, etc., Sec. 38, p. 608 (1965); Slife v. Kundtz Properties, Inc., 40 Ohio App.2d 179, 318 N.E.2d 557 (1974); Alderson v. Empire Natural Gas Co., 116 Kan. 501, 227 P. 347 (1924); Harbert v. Hope Natural Gas Co., 76 W.Va. 207, 84 S.E. 770 (1915). It is obvious that it was the intention of the parties to this Gas Sales Contract that the covenant to buy and sell natural gas for irrigation purposes be one running with the land, and they expressly so stated in the gas contract. We hold that the contract did, as the parties intended, create a covenant running with the land and when Eiland purchased all but one percent of the land, the contract right (to purchase gas for utilization as the total power requirements for the lifting of water for use in the irrigation of the land), which was assignable, passed with the land.
But as to the option, it must be remembered that it was not assignable. At the time the option was given, Prochemco had no title to the land, record title being in Coyanosa. Thus, the option was personal to one who was not even a party to the contract and had no record title to the land. It is recognized that "by the express terms of the option the right may be made personal to one to whom it is given." Williston on Contracts, Sec. 415, p. 73 (3rd ed. 1960). Williston on Sales, Vol. 1, Sec. 10-7, p. 431 (4th ed. 1973), notes that "the parties to an irrevocable option may specifically provide that the right to exercise that option is a personal one and nonassignable." In Fulton v. Messenger, 61 W.Va. 477, 56 S.E. 830 (1907), the Court said:
"* * * An optional contract, giving the right to purchase property within a certain time, and upon certain conditions, is often a valuable right; but, under the authorities cited, it is a personal privilege, limited to the optionee, where there is no provision for its assignment. * * *"
Following a Texas Supreme Court decision, the Supreme Court of Iowa in Myers v. J. J. Stone & Son, 128 Iowa 10, 102 N.W. 507 (1905), recognized the right of parties to a contract to determine the personal nature of an option in a lease agreement. The Court said:
"* * * In its very nature an option is subject to such limitations as the owner may impose. He may make its exercise dependent upon the performance of conditions precedent contained in the same contract, as of a lease; or, for reasons appearing sufficient to himself, he may restrict the privilege of buying to a single individual. The right to discriminate between purchasers freely is one of the attributes of private ownership of property, and the reasons which lead to it are not the proper subjects of judicial inquiry. They inhere in the right to freedom of contract. * * * But in the instant case the very nature of the option obviated the possibility of its transfer to another. It was granted to the lessee named, but to no other person, and this necessarily excluded all others, and constituted it merely a personal privilege, which was no more assignable than rights arising out of contracts involving relations of personal confidence. See Menger v. Ward, 87 Tex. 622, 30 S.W. 853; Hosford v. Metcalf, 113 Iowa 240, 84 N.W. 1054."
*192 If Prochemco could exercise an option when "X" owns the land, should it not be able to do likewise when "Y" owns the land? If we are to assume that the parties intended that the option clause had some meaning and purpose when inserted into the gas contract, and we are to give effect to all the clauses within the four corners of the instrument, we must conclude that the bargain as originally struck gave Prochemco a valid option at the time the contract was made in August, 1970, when Coyanosa owned the land. Since, the option was unassignable, it could be exercised only by Prochemco. If it could be exercised when the land was owned by Coyanosa, and Prochemco had no record title to the land, should it not be exercisable when Eiland owned record title and Prochemco apparently had a one percent interest in the land? If one concludes that the option could not be exercised in 1975 when Prochemco owned only a one percent interest, what was intended when the option was given in 1970 at a time when Prochemco had no ownership in the land?
We conclude that Prochemco properly exercised a personal option which it retained even after its subsidiary sold the land described in the Gas Sales Contract. To reach any other result, we must conclude that when the parties agreed in 1970 upon an assignable contract, they in fact meant that an option was given only if the contract was assigned to Prochemco. The parties did not so restrict the assignment of the contract, and we may not now add such a restriction.
Prochemco is entitled to a declaratory judgment in its favor. We reverse the judgment of the trial Court and remand the case to the trial Court for the entry of a declaratory judgment in favor of Prochemco in accordance with this opinion.
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882 F.Supp. 1401 (1995)
Jeffrey H. SADO, Plaintiff-Intervenor,
v.
Robin ELLIS, Robert Morrison and Robin Ellis Productions, Ltd., Plaintiffs,
v.
Steven ISRAEL and One Times Square Associates Limited Partnership, One Times Square Management Corp., Old Country Management Corp. and Marc Washington, Defendants.
No. 90 Civ. 1634 (RO).
United States District Court, S.D. New York.
April 18, 1995.
*1402 Jacobson & Colfin, New York City, for plaintiffs (Bruce Colfin, of counsel).
Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, New York City, for defendants (Daniel Hughes and Michelle Sullivan, of counsel).
Plaintiff-Intervenor Jeffrey Sado, pro se.
OPINION AND ORDER
OWEN, District Judge.
Plaintiffs and defendants each move for summary judgment against plaintiff-intervenor Jeffrey Sado.[1] Summary judgment is appropriate when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The non-moving party "cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (citations omitted). Rule 56(e) mandates:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Fed.R.Civ.P. 56(e) (emphasis supplied). Sado has failed to oppose the motions, despite being given ample opportunity, and indeed being prodded, to do so. According to the summary judgment briefing schedule, Sado had two weeks to respond to the motions. When Sado failed to do so, I sua sponte granted him a further week's extension. Sado once again failed to respond, inexplicably choosing instead to use that time to prepare a twenty-six page, thirty-four exhibit motion for reargument of an earlier denied perjury motion, the validity of which had already been greatly questioned by me on the record at a conference.[2] This is also *1403 to be viewed against earlier hearings, especially one involving the claim that Mr. Sado had threatened a lawyer in the case which, after hearing from the participants, I found he had, because Mr. Sado, under oath, basically acknowledged the threats in his phone call to the lawyer. Based not only on Mr. Sado's failure to oppose the motion, but also upon an assessment of the entire record, I conclude that summary judgment must be granted in favor of the moving parties.
Facts
This action arises out of a dispute over a corporate marketing proposal titled "Countdown 2000." The proposal was developed to garner corporate sponsorship of the Times Square New Year's Eve ball-drop ceremonies leading up to the year 2000. Defendant One Times Square Associates Limited Partnership ("OTSALP") was, during the time relevant to this litigation, the owner of One Times Square, the site of the ball-drop ceremony.[3] Defendant One Times Square Management Corp. managed the building, and defendant Old Country Management Corp. was the building's broker. Defendant Steven Israel was an OTSALP partner.[4] Israel met Sado in April of 1988, and the two orally agreed that Sado would work at One Times Square to lease office space within the building and to market the building as a location for television commercials and films. Later, Sado's role changed to include selling signage on the building's exterior. Israel provided Sado with a desk, secretary, telephone and information about One Times Square. Sado was to function as an independent contractor, receiving $500 per week as a draw against any commissions earned.
When OTSALP purchased One Times Square in 1985, the building was subject to a pre-existing lease held by Van Wagner Advertising Corporation. Under the terms of that lease, Van Wagner had the right to sell signage on certain portions of the building's exterior. When Israel attempted to negotiate a signage deal with Pepsi-Cola, a dispute arose between Israel and Van Wagner over who had the rights to sell signage for the seventeenth floor terrace (alternatively referred to as the seventeenth floor setback). Israel claimed that the terrace was reserved for the building's owner, while Van Wagner maintained it was covered by its lease. In January of 1989, Van Wagner brought suit in New York State Supreme Court, claiming that OTSALP was violating the lease by soliciting Pepsi advertising. Van Wagner was granted a temporary restraining order enjoining OTSALP from displaying Pepsi ads. The order was subsequently lifted and Van Wagner was denied a preliminary injunction, because the judge found the lease to be ambiguous as to who had the signage rights to the terrace. See infra p. 1406. Van Wagner and OTSALP settled their differences by entering into an amended lease agreement which gave OTSALP a greater percentage of commissions for signs on the seventeenth floor terrace. Ultimately, Van Wagner entered into a signage contract with *1404 Pepsi pursuant to the amended lease agreement.
Plaintiffs Robin Ellis and Robert Morrison, producers of live media events, entered the picture in March of 1989. At that time, Sado introduced them to Israel to discuss the production of a special event centering on the Times Square New Year's Eve ball-drops leading up to the year 2000. Israel provided Sado, Ellis and Morrison with information about One Times Square, such as diagrams and demographic studies, and Ellis and Morrison wrote a corporate marketing proposal. Although the proposal, known as Countdown 2000, was used by all the parties in an effort to obtain corporate sponsorship, no income was ever generated by it. Ellis and Morrison copyrighted the proposal in their names, leading to a dispute with Israel and OTSALP that resulted in the current litigation.
In March 1990, plaintiffs brought suit against defendants alleging copyright infringement, unfair competition, breach of contract and unjust enrichment. In May 1991, Sado sought and was granted leave to intervene, claiming that he initiated Countdown 2000 and was entitled to commissions allegedly generated by the proposal. He originally asserted five causes of action, but he later amended his complaint to withdraw two of the claims. Three causes of action remain. First, Sado alleges that plaintiffs fraudulently registered his original intellectual property and failed to give him credit for it. Second, he alleges that defendants fraudulently induced him to enter into a co-brokerage agreement to sell signage when they knew that Van Wagner had a restrictive covenant on new signage. Finally, Sado alleges that plaintiffs and defendants conspired to deprive him of rights deriving from the Countdown 2000 proposal. Plaintiffs and defendants eventually settled their case in 1993. Although Sado was invited to take part in the settlement negotiations, he declined to do so. Plaintiffs and defendants now move for summary judgment, and, for the reasons set forth below, the motions are granted.
Count One
Plaintiffs move for summary judgment on count one of Sado's amended complaint. Count one alleges that Sado conceived of Countdown 2000 and that plaintiffs "wrongfully, maliciously, intentionally and fraudulently, without Sado's authorization and in wanton disregard of Sado's rights, registered Sado's original intellectual property in copyright application PAN 130-6-62 listing only the plaintiffs as authors and owners and failed to give Sado the credit to which he is entitled as author/owner." Sado claims he is entitled to damages reflecting his equity interest, as well as a declaratory judgment declaring him a 33 1/3 owner of the Countdown 2000 proposal and directing plaintiffs to file an amended registration form crediting him as the author/owner of the proposal. It is unclear what legal claim Sado is putting forth with these allegations. Plaintiffs construe count one as a claim of conversion and for declaratory judgment of co-authorship. Regardless of what formal construction is placed on Sado's allegations, count one must fail because Sado has failed to adduce any evidence of the facts he asserts.
Sado alleges that he was the "author/owner" of the Countdown 2000 proposal. However, his own words contradict these assertions. The following are excerpts from Sado's October 1994 deposition.
Q: I'm going to make this easy. What I want you to do, Jeffrey [Sado], is I want you to go through the corporate sponsorship proposal and show me the pages that you wrote, okay? Show me what you wrote and you can also include the photographs that you own, okay? I do not want you to mention the pages that belong to other people that you provided. I just want to know exactly what you own.
A: My intellectual property would encompass ... input.
Q: I'm looking at his proposal. I want to see in his proposal what you wrote. I don't want to talk about generalities as to intellectual property.
A: Everything came off Robin Ellis' computer. I did not write this document.
Plaintiffs' Exhibit A at 155.
Q: But you never wrote your own proposal?
*1405 A: I did not copyright and plagiarize like Robin Ellis did. I did not.
Plaintiffs' Exhibit A at 162.
Q: In the last five years, is it true you did not write a proposal to exploit your idea?
A: It is true I have not written a Countdown 2000 proposal specifically for Times Square because it is under a court case right now and I'm not going to waste my time.
Plaintiffs' Exhibit A at 165. See also Plaintiffs' Exhibit A at 130, 134, 137-38, 142, 147.
Sado also asserts in count one that Countdown 2000 was his "original intellectual property." Nevertheless, he has stated several times that the Countdown 2000 concept originated with the Millennium Society and that he believed it to be in the public domain.
Q: You developed an idea of this New Year's Eve?
A: Right, Countdown 2000.
Q: Where did you take that idea? Because obviously you claim it was stolen from you, so who did you take it to?
A: To give you further background, I want to be honest with you, it wasn't originally mine. I was working with the Millennium Society.
Plaintiffs' Exhibit B at 10.[5]
Q: It is your understanding then that the name Countdown 2000 was in the public domain [in the summer of 1988]?
A: It is my understanding it was in the public domain.
Plaintiffs' Exhibit A at 100. Sado has also stated that he never had any intention of copyrighting the proposal. See Plaintiffs' Exhibit A at 130. Additionally, Sado has not demonstrated any damages flowing from the acts alleged in count one. See Plaintiffs' Exhibit A at 98, 103-04.
Thus, Sado's own words belie the assertions he makes in count one. Because there is no factual basis for Sado's allegations, plaintiffs are entitled to judgment as a matter of law as to count one.
Count Four
Defendants move for summary judgment on count four of Sado's amended complaint. In count four, Sado alleges that defendants "knowingly, intentionally, maliciously and fraudulently, and with intent to deceive [him], concealed the existence of the Van Wagner lease from [him] and fraudulently induced [him] to enter into the co-brokerage agreement ... and to expend time and effort to sell signage."[6] Sado is thus alleging the tort claim of fraudulent inducement. Under New York law, which is controlling on the issue of fraud,[7] Sado must prove the following elements of fraudulent inducement: misrepresentation of a material fact, falsity, scienter, reliance and injury. Channel Master Corp. v. Aluminum Ltd. Sales, 4 N.Y.2d 403, 406-07, 176 N.Y.S.2d 259, 261, 151 N.E.2d 833, 835 (1958); Browning Ave. Realty v. Rubin, 207 A.D.2d 263, 615 N.Y.S.2d 360, 363 (1st Dep't 1994). These elements must be established by clear and convincing evidence, Simcuski v. Saeli, 44 N.Y.2d 442, 452, 406 N.Y.S.2d 259, 264, 377 N.E.2d 713, 718 (1978), and failure to prove any of the elements will nullify the claim.
The misrepresentation Sado charges is one of concealment. That is, Sado claims that Israel concealed the existence of the Van Wagner lease and induced him to enter into a signage agreement precluded by the lease. Where concealment, as opposed to an affirmative misrepresentation, forms the basis of a fraudulent inducement claim, the inquiry turns on whether there was a duty to disclose. See East 15360 Corp. v. Provident Loan Soc'y, 177 A.D.2d 280, 575 N.Y.S.2d 856, 857 (1st Dep't 1991). A duty to disclose will exist where there is a fiduciary relationship. Id. 575 N.Y.S.2d at 857. Sado has *1406 adduced no evidence of such a relationship; in his own words, he was an independent contractor with OTSALP. See Defendants' Exhibit H at 15; Exhibit 3 at 2.
Even assuming the concealment to be a misrepresentation, Sado must prove that it was false. Lovett v. Allstate, 86 A.D.2d 545, 446 N.Y.S.2d 65, 67 (1st Dep't 1982), aff'd 64 N.Y.2d 1124, 490 N.Y.S.2d 187, 479 N.E.2d 823 (1985). In other words, he must prove that Israel concealed from him a lease which precluded him selling signage.[8] Sado has not met this burden. In fact, the lease was ambiguous as to who had the right to sell signage on certain portions of the building. The findings of the state court in the Van Wagner litigation, while not binding on this court, are instructive. Van Wagner brought suit, alleging that Israel was violating the lease by attempting to sell signage to Pepsi. Although State Supreme Court Justice Cohen initially granted Van Wagner a temporary restraining order, he later denied a motion for preliminary injunction, stating:
[Van Wagner] claims that the provisions of the lease are clear and unambiguous and demonstrate its likelihood of success on the merits. This court disagrees. Section 2.01 of the lease specifically reserves to the defendant lessor the roofs of the Building.... Section 16.01 of the lease forbids the defendant lessor from placing advertising displays on the roof or any part of the exterior walls of the Building. It is silent, however, as to the window areas and open landings on the Building, which pursuant to Section 2.01 are reserved for the lessor. Defendant contends that the alleged Pepsi Cola display which plaintiff claims defendant is going to place on the 17th floor falls into this exception.
Defendants' Exhibit S at 5. The ambiguity is further evidenced by the fact that Van Wagner and OTSALP settled their differences by entering into an amended lease agreement which gave OTSALP a greater percentage of commissions for signs on the 17th floor terrace.[9] The lease was ambiguous and did not, on its face, prevent Israel (or Sado as his representative) from securing signage for the seventeenth floor terrace. Thus, even if Israel concealed the Van Wagner lease from Sado, such concealment could not form the basis of a fraudulent inducement claim.
Failure to prove a triable issue of false representation is dispositive of the fraudulent inducement claim. Nevertheless, I will briefly address the other elements of the claim scienter, reliance and damages. Scienter, or knowledge that a representation is false, is an essential element of a fraud claim. Browning, supra, 615 N.Y.S.2d at 363. Sado has failed to adduce evidence that Israel believed the Van Wagner lease covered the seventeenth floor terrace.[10] In fact, Sado spoke to the contrary during a deposition taken in the course of the Van Wagner litigation:
Q: Were you told by Mr. Israel or anyone else on behalf of One Times Square that there might be restrictions applicable to [the seventeenth floor setback]?
A: No, [Israel] firmly believed all along that this setback was not a conflict.
*1407 Defendants' Exhibit G. Moreover, Sado stated during the same deposition that he himself did not think the seventeenth floor setback was in conflict with the Van Wagner lease.[11]
Sado has also failed to adduce evidence of reliance. Even assuming that Israel concealed the Van Wagner lease from Sado, Sado's own statements demonstrate that he knew of its existence.[12] Moreover, under New York law, a party cannot claim reliance on a misrepresentation where he could have discovered the truth with ordinary diligence. Provident, supra, 575 N.Y.S.2d at 857. In this case, the Van Wagner logo was displayed prominently on the Minolta sign which dominated the facade of One Times Square. See Defendants' Exhibit K. Sado could have ascertained the existence of the lease simply by viewing the Minolta sign. In fact, Sado has admitted to examining and photographing the Minolta sign.[13] In sum, there is no issue of reliance.
Finally, Sado has not demonstrated damages. By alleging fraudulent inducement to enter into a co-brokerage agreement, Sado is asserting an independent tort claim and not a contract claim. Thus, he is required to allege damages distinct from contract damages. See Tesoro Petroleum v. Holborn Oil, 108 A.D.2d 607, 484 N.Y.S.2d 834, 835 (1st Dep't 1985). He has not. In his complaint, Sado alleges damages "in the amount of at least $195,000 or at least 10% of the value of any contract related to sponsorship of the ball-lowering, New Year's Eve ceremony, at least 8 1/3 % of the value of any Pepsi contract for permanent signage or at least an amount in excess of $660,000, and ... punitive damages." When asked during deposition how the alleged concealment of the Van Wagner lease resulted in these damages, Sado replied: "I'm damaged, you know, financially. I lost hundreds of thousands of dollars because Pepsi did their deal.... I was promised eight and a third percent of 16 and two-thirds percent commission." Defendants' Exhibit I at 81.[14] In essence, Sado is claiming that Israel broke his promise and breached the co-brokerage agreement. The damages alleged thus flow from a contract, and not from a fraud.[15] Contract damages *1408 cannot form the basis of injury for Sado's fraud action, putting to one side the fact that no contract has even been pled in this action.[16]
Sado has adduced no evidence of fraudulent inducement and thus count four fails as a matter of law.
Count Five
Sado's fifth cause of action alleges that plaintiffs and defendants "knowingly, intentionally, maliciously and tortiously conspired together to deprive Sado of his rights in the Countdown 2000 proposal, the copyright related thereto, and his rights to the Pepsi commission." This claim is governed by New York law,[17] which does not recognize an independent tort of civil conspiracy. See Green v. Davies, 182 N.Y. 499, 75 N.E. 536 (1905); Legion Lighting Co. v. Switzer Group, Inc., 171 A.D.2d 472, 567 N.Y.S.2d 52 (1st Dep't 1991). Under New York law, "a mere conspiracy to commit a [tort] is never of itself a cause of action." Alexander & Alexander v. Fritzen, 68 N.Y.2d 968, 510 N.Y.S.2d 546, 503 N.E.2d 102 (1986) (citations omitted). An independent tort must form the basis of a claim of civil conspiracy. See Demalco v. Feltner, 588 F.Supp. 1277, 1278 (S.D.N.Y.1984); Smukler v. 12 Lofts Realty, 156 A.D.2d 161, 548 N.Y.S.2d 437, 439 (1st Dep't 1989), app. den., 76 N.Y.2d 701, 557 N.Y.S.2d 878, 557 N.E.2d 114 (1990). Sado has adduced no evidence that plaintiffs and defendants were joint tortfeasors.[18] In fact, he has not even alleged a joint tort in his complaint. Count one of the complaint asserts that plaintiffs registered Sado's original intellectual property in their own names and failed to give him credit. Count four of the complaint alleges that defendants fraudulently concealed the Van Wagner lease and induced Sado to enter into a co-brokerage agreement.[19] Count five, which alleges the conspiracy, neither links up counts one and four nor alleges an independent tort committed jointly by plaintiffs and defendants. It is clear that Sado's fifth cause of action must fail as a matter of law.
In closing this opinion which rules against Mr. Sado on an assessment of the facts as established in the main from his own admissions at prior hearings and depositions, I can now note that his willful and deliberate default in responding to this motion appears in a less puzzling light than at first. Accordingly, plaintiffs' motion for summary judgment on counts one and five of the amended complaint and defendants' motion for summary judgment on counts four and five is granted, and plaintiff-intervenor Sado's complaint is dismissed in its entirety, together with costs and disbursements to be taxed by the clerk.[20]
The foregoing is so ordered.
NOTES
[1] Sado is pro se at this time, having parted with his lawyer without cause, as I determined after holding an evidentiary hearing.
[2] The following is an excerpt from a January 20, 1995 conference.
THE COURT: I want to do this now, because Mrs. Sado, I am including you now here as a spokesperson. I am very, very troubled by the sweeping broad brush statements that everybody involved with this case, clients and every single lawyer that has been here has committed perjury. In this world, anything is possible. But the likelihood of what you have said about every single participant in this case committing perjury is highly improbable.
MR. SADO: Really.
THE COURT: It is. It is highly improbable and
MR. SADO: And the fact they owe me a couple of million dollars
THE COURT: No. Accordingly, what I want to get here, before I go into dealing with this sweeping document that does not have specifics, and, frankly this is against a background of letters such as the one of November 28th which speaks of something leading to Mr. Hughes and Ms. Sullivan's false statements and a considerable number of these documents.
I, as the judge in this case am very troubled at what has the surface appearance of being irresponsible writing under the protection of immunity from suit for defamation because you happen to be a party and your own lawyer.
MR. HUGHES: It is qualified.
MR. SADO: I don't know why they haven't sued me if I made defamatory statements.
THE COURT: As you know, I have gotten complaints. I got a complaint from Ms. Shapiro, we held a hearing and it turned out on that hearing you practically admitted that you said to her what she claimed you said to her. I was phrasing it appropriately without sounding over-reaching I had Ms. Sullivan come up to me when I am getting in the elevator last week about your blocking her from leaving the courtroom the other day.
MR. SADO: More lies. I'm the bad guy, your Honor.
THE COURT: I am now met with a set of motion papers in which you have charged every single participant in this case being a perjurer. And I find this to be sort of like there is a garden hose out here that all you have to do is turn on the "perjury nozzle" and then you spray it.
MR. SADO: I don't do that, your Honor. This happened.
[3] OTSALP purchased the building in 1985.
[4] Marc Washington, a defendant in the original action, is no longer a party to this litigation, as Sado's complaint specifically exempts Washington.
[5] May 6, 1994 hearing before the Court.
[6] The logic of this claim has always escaped the Court. Why would Israel, et. al, have furnished Sado office space and services and given him advances against commissions and then assigned him, among others, a task he could not accomplish and have done so fraudulently? It appears it did not happen, as the now-developed facts hereafter spell out.
[7] See 28 U.S.C. § 1652; Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, cert. denied, 305 U.S. 637, 59 S.Ct. 108, 83 L.Ed. 410 (1938).
[8] When asked during his deposition what misrepresentations he relied upon to his detriment, Sado replied in part: "[Israel] actively encouraged me on a daily basis to deliver signage tenants for his available locations as he told me they were all immediately available.... He withheld the entire Van Wagner file and lease in conflict during that whole time frame.... He had no right whatsoever to sell signage during that time frame. They were all tied up with Van Wagner. So I feel withholding of that information was vital. I wouldn't have wasted my time for all those months prior to bring in a sign tenant." Defendants' Exhibit I at 80-81.
[9] Under the original lease, Van Wagner received 75% of advertising revenue in excess of $400,000, and OTSALP received 25 per cent. In contrast, the new lease provided that OTSALP would receive 72.5% of revenue generated by the seventeenth floor terrace, as well as the right to approve the advertiser. The adjusted schedule also applied to revenues generated by two other disputed areas.
[10] In contrast, Israel has presented evidence indicating that he believed the terrace to be excluded from the Van Wagner lease. In a letter to Van Wagner's president dated December 6, 1988, Israel wrote: "[P]ursuant to Article 2 of your Lease, you have absolutely no right to locate a sign on any setbacks of One Times Square." Defendants' Exhibit N.
[11] Sado stated: "It's my belief then that the seventeenth floor setback was not a problem.... It's not in conflict with Van Wagner's lease." Defendants' Exhibit G at 14.
[12] The following are excerpts from the deposition of Sado taken during the Van Wagner litigation.
Q: At any time starting in May of 1988 going forward, were you told by Mr. Israel or anyone else as to what rights, if any, Van Wagner had concerning exterior space at the building?
A: No, I was never aware of I never read the Van Wagner lease. I don't know for sure.
Q: You were never told by Mr. Israel or anyone else as to what restrictions, if any, might be in that lease?
A: I was aware that there might have been restrictions. The details of the restrictions, I don't know.
Q: How were you aware?
A: Just from being in the office, hearing discussions, you know; and I did know that he had wished to maybe come to some kind of settlement of this, aside from going to court.
Defendants' Exhibit G at 12.
* * * * * *
Q: You knew, did you not, that the Minolta sign was a sign that had been placed there under an arrangement with Van Wagner advertising?
A: Yes.
Defendants' Exhibit G at 34.
[13] The following exchange is from Sado's deposition of October 1994.
Q: From April of '88 to the end of November of '88 about how many different pictures did you take of the Minolta sign, would you guess?
* * * * * *
A: Many pictures. I would, you know, guess you are asking to pin me down to something I have no idea. It was many pictures; many rolls of film.
[14] Sado is referring to a contract Pepsi entered into with OTSALP to sponsor the New Year's Eve ball-drop for five years. Pepsi paid $400,000.00 to sponsor the ball-drop for one year, but then elected to terminate the contract, making a penalty payment of $200,000.00. Defendants received $90,000.00 in commissions.
[15] Sado's confusion over fraud and contract claims was apparent during a March 17, 1993 hearing.
Q: No damages flowed from that fraud if it was a fraud, because even if he didn't have the rights he ended up getting the rights and you ended up getting the clients, right?
A: He's been denying that I got the clients.
Q: That's another matter.
A: It just appeared to be to be fraud.
[16] I note that the alternative to interpreting Sado's alleged damages as contract damages similarly defies logic. See also note 6 supra. Sado would be claiming simultaneously that Israel's fraud precluded him from bringing in clients and that he was being cheated out of commissions for clients he brought in.
[17] See note 7 supra.
[18] In his deposition, Sado points not to torts, but to lawful acts, as the basis for his conspiracy claim.
Q: Other than the tolerance of the litigation for four and a half years, the settlement of the litigation between Ellis and Israel and this [profile of the Countdown 2000 producers, naming Ellis, Morrison and Israel], do you have any other evidence of conspiracy by my clients to deprive you of your rights to Countdown 2000, the copyright thereto and your right to the Pepsi commission?
A: I think that I don't want to limit and say that that's everything at this moment, because it might not be, but I think that pretty much covers it.
Defendants' Exhibit H at 211.
[19] Counts two and three were withdrawn on motion by Sado.
[20] In the procedural and factual context of this motion, the denial on July 7, 1994, of plaintiff Ellis' summary judgment motion is no bar to the result reached here. The result there reached was based on Sado's unsworn responses and explanations as to some otherwise very damaging admissions, in the setting of Sado being a pro se intervenor.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-7176
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY CLIVE REID,
Defendant - Appellant.
Appeal from the United States District Court for the Western Dis-
trict of Virginia, at Roanoke. Samuel G. Wilson, Chief District
Judge. (CR-96-108, CA-99-458-7)
Submitted: December 16, 1999 Decided: December 29, 1999
Before MURNAGHAN and MOTZ, Circuit Judges, and BUTZNER, Senior Cir-
cuit Judge.
Dismissed by unpublished per curiam opinion.
Anthony Clive Reid, Appellant Pro Se. Sharon Burnham, OFFICE OF
THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Anthony Clive Reid seeks to appeal the district court’s order
denying his motion filed under 28 U.S.C.A. § 2255 (West Supp.
1999). We have reviewed the record and the district court’s opin-
ion and find no reversible error. Accordingly, we deny a certif-
icate of appealability and dismiss the appeal on the reasoning of
the district court. See United States v. Reid, Nos. CR-96-108; CA-
99-458-7 (W.D. Va. June 24, 1999). We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
DISMISSED
2
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 17 1999
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4046
(D. Utah)
JESUS JOSE MACIAS, (D.Ct. No. 98-CR-355-01-K)
Defendant-Appellant.
____________________________
ORDER AND JUDGMENT *
Before SEYMOUR, BALDOCK, and BRORBY 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.
Appellant Jesus Jose Macias entered a conditional plea of guilty to one
*
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.
count of possession of a controlled substance with intent to distribute in violation
of 21 U.S.C. § 841(a)(1), and was sentenced to seventy-eight months
imprisonment and sixty months supervised release. Mr. Macias now appeals the
trial court’s denial of his motion to suppress. We exercise jurisdiction under 28
U.S.C. § 1291 and affirm.
BACKGROUND
On February 27, 1998, Deputy Salt Lake County Sheriff Dave Broadhead
supervised several deputies in an attempted undercover purchase of marijuana.
The officers made arrangements to purchase twenty pounds of marijuana from two
men, neither of whom was Mr. Macias. After meeting with the officers, the two
suspects were eventually followed to a location later determined to be Mr.
Macias’ residence. The suspects were observed entering Mr. Macias’ residence,
then returning to their vehicle carrying a large orange garbage bag which
appeared to be full. After leaving Mr. Macias’ residence, the suspects realized
they were being followed. A high-speed chase ensued resulting in the
apprehension and arrest of the two men. During the chase, the orange garbage
bag was thrown from the suspects’ vehicle. The bag was subsequently recovered
by officers and determined to be full of marijuana.
-2-
Approximately thirty minutes after the suspects were observed leaving Mr.
Macias’ residence, Deputy Broadhead led a group of officers back to the
residence, where he knocked on the door and announced his presence. Mr.
Macias’ girlfriend, Angelica Munoz, answered the door. 1 The testimony of Ms.
Munoz and Deputy Broadhead differs substantially as to what happened next, but
the district court determined Ms. Munoz allowed the officers to enter the
residence, either through express words of consent, or through her actions by
stepping back and opening the door after Deputy Broadhead asked for permission
to enter. Upon entering the home, Deputy Broadhead smelled marijuana and
asked Ms. Munoz if there was marijuana in the home, to which she replied “there
could be.” During a subsequent protective search of the home, Deputy Broadhead
observed numerous orange bags full of marijuana in the basement. Deputy
Broadhead then left the residence to obtain a search warrant while the other
officers remained at the house. The search warrant was issued, and Deputy
Broadhead returned to the house to participate in the search. The officers
ultimately seized several firearms in addition to the marijuana from the basement.
Mr. Macias filed a motion to suppress the evidence seized from his home
1
Ms. Munoz married Mr. Macias prior to the suppression hearing, but we will
refer to her herein as Ms. Munoz.
-3-
on the grounds “the information which forms the basis of the affidavit in support
of the search warrant[] was obtained as a result of a search of the premises
without consent and without a search warrant, in violation of the Fourth
Amendment to the United States Constitution.” The district court, after briefing
by the parties and an evidentiary hearing, denied Mr. Macias’ motion. The court
determined the officers had at least implied consent to enter the home; the
protective sweep constituted an illegal search; the warrant was valid based on the
probable cause the officers had prior to entering the home and conducting the
illegal protective sweep; and despite its initial discovery during the illegal search,
the marijuana was admissible under the “inevitable discovery” doctrine. After
issuance of the court’s order, Mr. Macias entered a conditional plea of guilty to
one count of possession of a controlled substance with intent to distribute in
violation of 21 U.S.C. § 841(a)(1), preserving his right to appeal the trial court’s
denial of his motion.
DISCUSSION
This case presents two basic issues as they relate to the district court’s
denial of Mr. Macias’ motion to suppress: (1) whether the warrant, when stripped
of evidence obtained through the illegal protective search, was supported by
sufficient probable cause; and (2) whether the fruits of the illegal protective
-4-
search – the orange garbage sacks full of marijuana – can be saved through the
doctrines of good faith, inevitable discovery, or independent source. 2
When reviewing a district court’s denial of a motion to suppress, we accept
the court’s factual findings unless they are clearly erroneous and consider the
evidence in the light most favorable to the government. However, we review de
novo the reasonableness of a search and seizure under the Fourth Amendment.
See United States v. Flores, 149 F.3d 1272, 1277 (10th Cir. 1998), cert. denied,
119 S. Ct. 849 (1999). When reviewing a finding of probable cause for the
issuance of a search warrant, we “must consider the totality of the circumstances
and determine whether the affidavit established the probability that evidence of
criminal activity would be located in the desired search area.” United States v.
2
Mr. Macias spends a good deal of energy in his brief arguing the protective
sweep doctrine does not apply in this case. This issue is not before us on appeal because
the district court agreed with Mr. Macias and held the search of the home was an illegal
search and did not qualify as a protective sweep. In addition, the government does not
argue the point in its brief. Therefore, our decision assumes, without deciding, the search
of the home was not a valid protective search.
We take a similar position with Mr. Macias’ argument that the officers’ initial
entry into his home was not consensual. We need not decide this issue in order to uphold
the district court’s determination the warrant was supported by probable cause based on
evidence obtained prior to the entry into the house. As such, we refuse to reach the issue
of consent. We ignore the evidence concerning the aroma of marijuana, and Ms.
Munoz’s statement to the officers that marijuana might have been in the house.
-5-
Wittgenstein, 163 F.3d 1164, 1171 (10th Cir. 1998), cert. denied, 119 S. Ct. 2355
(1999). The issuing magistrate judge’s determination that probable cause exists is
entitled to “great deference such that we ask only whether the issuing magistrate
had a substantial basis for determining probable cause existed.” Id. at 1172
(quotation marks and citations omitted).
The affidavit supporting the search warrant in this case contained
information the district court determined was illegally obtained pursuant to the
improper “protective search.” The affidavit also included information the officers
obtained prior to entering Mr. Macias’ home. “An affidavit containing erroneous
or unconstitutionally obtained information invalidates a warrant if that
information was critical to establishing probable cause. If, however, the affidavit
contained sufficient accurate or untainted evidence, the warrant is nevertheless
valid.” United States v. Snow, 919 F.2d 1458, 1460 (10th Cir. 1990) (citing
United States v. Karo, 468 U.S. 705, 719 (1984)).
The affidavit in this case, when stripped of the inappropriately obtained
information, provided sufficient probable cause to support issuance of the
warrant. The affidavit meticulously detailed Deputy Broadhead’s training and
experience in law enforcement and the facts surrounding the attempted
-6-
undercover purchase of marijuana. Specifically, the affidavit makes the following
assertions: (1) the suspects offered to sell undercover officers twenty pounds of
marijuana; (2) the suspects were later observed entering Mr. Macias’ home; (3)
the suspects then exited the residence carrying a large plastic orange trash bag;
(4) when officers attempted to stop the suspects’ vehicle, a short chase ensued,
during which time the orange bag was thrown from the vehicle; (5) officers
recovered the bag and determined it contained a large amount of marijuana.
Deputy Broadhead stated in the affidavit that “[b]ased on the previous
observations of the orange plastic bag coming from the residence sought to be
searched, detectives felt that there was a strong possibility that additional
narcotics were being stored at the residence.” We have no difficulty in
determining, given the untainted evidence listed in the affidavit, the issuing
magistrate or judge had a “substantial basis” for finding probable cause, and
therefore the warrant was valid. 3 Cf. United States v. Anderson, 981 F.2d 1560,
3
Because we hold the warrant was valid, we do not reach Mr. Macias’ arguments
in relation to the good-faith exception to the exclusionary rule. Mr. Macias also argues
the search warrant affidavit intentionally or recklessly omitted material facts in violation
of Franks v. Delaware, 438 U.S. 154 (1978). While this issue was very briefly raised at
the district court in the context of the good- faith argument, Mr. Macias raises it as an
independent ground for holding the warrant facially invalid for the first time on appeal.
In support of his position, Mr. Macias relies primarily on the fact the affidavit did not
mention the suspects rendezvoused with a vehicle and exchanged a package with the
occupants of said vehicle prior to driving to Mr. Macias’ residence. This is not a material
fact as to the probable cause to search the residence – regardless of what occurred prior to
arriving at Mr. Macias’ home, the suspects were observed entering the residence, then
-7-
1569 (10th Cir. 1992) (probable cause did not exist to search residence when
officers did not see suspect leave residence with bowl later determined to hold
marijuana); United States v. Shomo, 786 F.2d 981, 984 (10th Cir. 1986) (officers
did have probable cause to search residence for gun when resident seen leaving
home with gun).
Having decided all the evidence from Mr. Macias’ home was ultimately
seized pursuant to a valid warrant, we now turn to whether the marijuana evidence
was admissible despite the illegal origins of its discovery. This evidence “is not
automatically subject to suppression under the exclusionary rule.” United States
v. Eylicio-Montoya, 70 F.3d 1158, 1164-65 (10th Cir. 1995). We have “identified
several circumstances in which evidence obtained following a Fourth Amendment
violation is not subject to suppression,” including situations where “illegally
seized evidence ... was also lawfully obtained through an independent source” and
“‘when ... the evidence in question would inevitably have been discovered
without reference to the police error or misconduct.’” Id. at 1165 (quoting Nix v.
Williams, 467 U.S. 431, 448 (1984)) (internal citations omitted). Citing Nix, the
district court determined the evidence was admissible under the inevitable
leaving with a large bag of what turned out to be marijuana. Mr. Macias’ argument in
this regard has no merit – the facts omitted from the affidavit are immaterial.
-8-
discovery doctrine. We exercise our discretion “to affirm a district court decision
on any grounds for which there is a record sufficient to permit conclusions of law,
even grounds not relied upon by the district court,” United States v. Sandoval, 29
F.3d 537, 542 n.6 (10th Cir. 1994), and hold the evidence was admissible under
the closely-related independent source doctrine.
“The independent source doctrine permits the introduction of ‘evidence
initially discovered during, or as a consequence of, an unlawful search, but later
obtained independently from activities untainted by the initial illegality.’” United
States v. Griffin, 48 F.3d 1147, 1150 (10th Cir.) (quoting Murray v. United States,
487 U.S. 533, 537 (1988)), cert. denied, 515 U.S. 1168 (1995). This doctrine
rests “upon the policy that, while the government should not profit from its illegal
activity, neither should it be placed in a worse position than it would otherwise
have occupied.” Murray, 487 U.S. at 542. Given Deputy Broadhead’s
independent knowledge that a large garbage bag full of marijuana had been taken
from Mr. Macias’ residence, which created sufficient probable cause to search the
residence prior to the improper protective sweep, the evidence seized pursuant to
the valid warrant was admissible. See United States v. Hogan, 38 F.3d 1148,
1150-51 (10th Cir. 1994), cert. denied, 514 U.S. 1008 (1995).
-9-
Accordingly, we AFFIRM the district court’s denial of the suppression
motion.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
-10-
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678 So.2d 1190 (1996)
Kerry C. IVIE
v.
WINFIELD CARRAWAY HOSPITAL.
2941198.
Court of Civil Appeals of Alabama.
June 14, 1996.
*1191 Richard E. Fikes of Tweedy, Jackson & Beech, Jasper, for Appellant.
Crawford S. McGivaren, Jr. and Melanie M. Bass of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for Carraway Methodist Health Systems.
*1192 THIGPEN, Judge.
This is a workmen's compensation case.[1]
In April 1991, Kerry C. Ivie filed a complaint seeking workmen's compensation benefits from Winfield-Carraway Hospital (Carraway), by alleging that she was injured in March 1988, during the course of her employment, and that as a result, she was permanently and totally disabled. Following ore tenus proceedings, the trial court found that Ivie was not disabled, and it entered a judgment in favor of Carraway. Ivie appeals.
Our review in this case is limited to determining whether there is any legal evidence to support the trial court's findings, and, if so, whether any reasonable view of that evidence supports the trial court's judgment. Ex parte Eastwood Foods, Inc., 575 So.2d 91 (Ala.1991). Further, "[w]here one reasonable view of the evidence supports the trial court's judgment, the judgment must be upheld, even if another, perhaps better reasoned, view of the evidence might have dictated a different outcome." Ex parte Veazey, 637 So.2d 1348, 1349 (Ala.1993).
In its lengthy and detailed order, the trial court made the following pertinent findings of fact:
"Mrs. Ivie claimed that she injured her lower back when she was attempting to move a patient on March 28, 1988. She claimed further that her back injury had caused her to develop a condition or syndrome known as fibromyalgia, which the Court understands to involve total body pain. She claimed to be totally and permanently disabled as a result of her fibromyalgia.
". . . .
"At the trial of this case, Mrs. Ivie testified that she suffers from constant pain. She described her physical limitations in some detail, testifying that she has constant pain which limits her ability to function. She said that her pain is so severe that she cannot stand to be touched, that she has episodes of severe pain in her hips and shoulders, chest and back, that she cannot lift or even sit for long periods of time. She said that on a scale of one to ten, at best her pain is a five, and at worse it is a ten. Having heard and observed her as a witness and for the reasons hereafter set forth, the Court did not believe Mrs. Ivie's testimony concerning her limitations and complaints of pain.
"[Carraway] presented the testimony of Terry Holder, who testified that he had had Mrs. Ivie under surveillance for nearly a month since her claimed injury and just prior to trial. Mr. Holder testified that the films he presented to the Court were excerpts from several consecutive days of surveillance of Mrs. Ivie. The Court understands that all of the surveillance tapes were made available to [Ivie] and her counsel prior to trial, and no objection was made by [Ivie] that the tape offered into evidence was not comprised of excerpts from the many surveillance films. [Carraway] offered the surveillance film and it was admitted into evidence over [Ivie]'s objection. Mrs. Ivie admitted that the person in the film was her.
"The film clearly demonstrated that Mrs. Ivie could in fact do the very things that she testified that she could not do.... The film specifically belied Mrs. Ivie's claim that she is in constant pain.
"Mrs. Ivie called Dr. Timothy Jordan, an emergency room physician who has over the course of years since Mrs. Ivie's incident had occasion to see her numerous times in the Emergency Department of [Carraway].... Dr. Jordan opined that... Mrs. Ivie was 100% disabled due to her fibromyalgia, and that her fibromyalgia had been caused by the March 28, 1988 incident. His opinion was based solely on Mrs. Ivie's complaints to him of pain. He had not seen the videotape.
"The Court has also considered the deposition testimony of many physicians who had treated Mrs. Ivie. These include the depositions of Dr. David McLain; Dr. Randall Stewart; Dr. George Hill; and Dr. Jasper Moore. The Court finds that the *1193 testimony is conflicting amongst the physicians as to whether or not Mrs. Ivie's fibromyalgia was or could have been caused by the back injury which she described. At least two of her physicians, [McLain and Stewart], believed her to be employable.
"The Court further finds that the physicians who diagnosed Mrs. Ivie's condition as fibromyalgia did so based solely upon her physical complaints and not upon any objective tests or procedures. Moreover, none of the physicians had had the benefit of viewing the videotape of Mrs. Ivie functioning when she did not think she was being observed.... The Court finds Mrs. Ivie's testimony regarding her physical complaints to be completely refuted by the surveillance video offered by [Carraway].
"Finally, both parties offered the deposition testimony of vocational experts. [Ivie]'s expert, Mr. William A. Crunk, assigned [her] a 100% disability rating. Mr. Crunk had not seen the surveillance video tape which demonstrated what Mrs. Ivie actually could do, and like many of the physicians, based his opinions exclusively on Mrs. Ivie's complaints, and medical records. [Carraway]'s expert, Marcia Schulman, testified that according to her review of Mrs. Ivie's records, a personal interview with her, and the surveillance tape, that Mrs. Ivie was essentially not disabled at all. The Court agrees with Ms. Schulman's assessment of Ms. Ivie."
(Emphasis added.)
Ivie first contends that the trial court erred by failing to find that she is totally disabled. She argues that a reasonable view of the evidence does not support the judgment and that one is not required to be completely helpless in order to be totally disabled within the meaning of the workmen's compensation statute, citing Asplundh Tree Expert Co. v. Latham, 656 So.2d 839 (Ala.Civ.App.1995). Ivie also argues that an injured worker's own complaints of pain are legal evidence which can support a finding regarding disability, again citing, Asplundh Tree Expert Co., supra. While these are both correct statements of the law, it is also true that the trial court, which has the duty of determining the extent of one's disability, is not bound by expert testimony, but must consider all of the evidence before it, including its own observations, and interpret it to its own best judgment. Genpak Corp. v. Gibson, 534 So.2d 312 (Ala.Civ.App.1988). Moreover, the trial court is free to choose which evidence it believes, and when conflicting evidence is presented, the findings of the trial court are conclusive, if supported by the evidence. Acustar, Inc. v. Staples, 598 So.2d 943 (Ala.Civ.App.1992). Also, the determination of the extent of the disability is a discretionary function of the trial court, and its determination will not be disturbed on appeal if there is evidence to support it. M.C. Dixon Lumber Co. v. Phillips, 642 So.2d 477 (Ala.Civ.App.1994). A thorough review of the record discloses ample evidence supporting the trial court's determination, and at least one reasonable view of that evidence supports the trial court's judgment. Veazey, 637 So.2d 1348.
Next, Ivie contends that the trial court erred by allowing the surveillance videotapes into evidence, because, she says, they had not been produced prior to trial in accordance with Rule 34, A.R.Civ.P. It is disputed, however, as to exactly when, and how many of the tapes were offered to Ivie's counsel. Carraway asserts that it had advised Ivie's counsel that it had the tapes prior to the trial, that it made the tapes available for review, and that it even supplied one of the tapes to Ivie's counsel. Ivie concedes in brief that one of the tapes was delivered to her counsel four days before the trial, but she argues that several other tapes, which were admitted into evidence, were never made available. Moreover, the trial court specifically found that "[a]ll of the surveillance tapes were made available ... prior to trial, and no objection was made by [Ivie] that the tape offered into evidence was not comprised of excerpts from the many surveillance films." A videotape "is admissible if it is relevant and if it is properly authenticated and identified." C. Gamble, McElroy's Alabama Evidence, § 123.06 (4th ed. 1991); see also Large v. Board of Managers of the City of Birmingham Retirement and Relief System, 623 So.2d 1174 (Ala.Civ.App.1993); and *1194 Marlar v. Humana Medical Corp. of Alabama, 611 So.2d 1089 (Ala.Civ.App.1992). Holder, the security employee for Carraway who filmed the videotapes, testified regarding his observations of Ivie and the authenticity of the videotaped excerpts offered into evidence. Ivie has simply failed to show error in this regard.
Finally, Ivie contends that the trial court erred by finding that she is not entitled to future medical or vocational benefits; however, in light of the trial court's finding that Ivie was not entitled to receive permanent disability benefits, the trial court correctly refused to award any future medical benefits. See Raines v. Browning-Ferris Industries of Alabama, Inc., 638 So.2d 1334 (Ala.Civ.App.1993).
For the foregoing reasons, the judgment of the trial court is due to be, and it is hereby, affirmed.
AFFIRMED.
ROBERTSON, P.J., and MONROE, J., concur.
NOTES
[1] The review of this case is governed by Ala.Code 1975, § 25-5-1 et seq., the Workmen's Compensation Act, which was in effect before the amendments of May 19, 1992.
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Case: 18-20053 Document: 00514882806 Page: 1 Date Filed: 03/21/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-20053 March 21, 2019
Lyle W. Cayce
SHIRLEY DAVIS, Clerk
Plaintiff - Appellant
v.
TEXAS HEALTH AND HUMAN SERVICES COMMISSION,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CV-1579
Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.
PER CURIAM:*
Shirley Davis appeals the district court’s dismissal of her fourth attempt
to plead discrimination and retaliation claims against her former employer,
the Texas Health and Human Services Commission. We affirm the district
court’s dismissal.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-20053 Document: 00514882806 Page: 2 Date Filed: 03/21/2019
No. 18-20053
I.
A.
Davis is a sixty-three-year-old African American woman, residing in
Houston, Texas. Beginning in 2007, she worked as an Independent Living
Worker for the Texas Health and Human Services Commission’s (THHSC)
Department of Assistive and Rehabilitative Services. In 2014, Davis was
assigned a new supervisor, who Davis alleges “continuously subjected Davis to
disparate treatment in comparison to her similarly situated counterpart.”
Beginning in January 2016, Davis “filed multiple grievances” within THHSC
“complaining of [her supervisor’s] discriminatory conduct.”
In the summer of 2016, THHSC was reorganizing its Department of
Assistive and Rehabilitative Services, and Davis alleges that her supervisor
and “other management officials, denied Davis transfer and reassignment for
a new position” as part of that reorganization. Davis was not selected for
positions within the agency, did not receive communications regarding pending
applications, and throughout the summer, her supervisor “conceal[ed]” new
positions from Davis. Her supervisor meanwhile transferred Davis’s colleague
to a “new assignment,” “instead of Davis.” Like Davis, this colleague was an
Independent Living Worker under the same supervisor; unlike Davis, he was
a Hispanic male in his thirties. Davis allegedly was “more qualified than [her
colleague] because she had more experience and qualifications.”
After working at THHSC for almost ten years with “a satisfactory or
above performance record,” Davis was terminated. Following Davis’s
termination, her supervisor falsely communicated to state agencies that Davis
had retired. Davis is currently jobless.
B.
Davis filed her original complaint on May 23, 2017. In the following
months, the district court three times granted Davis leave to amend her
2
Case: 18-20053 Document: 00514882806 Page: 3 Date Filed: 03/21/2019
No. 18-20053
complaint to cure pleading deficiencies. Her Third Amended Complaint
purports to bring claims against THHSC for discrimination on the basis of race
and sex as well as unlawful retaliation, in violation of Title VII of the Civil
Rights Act of 1964, seeking damages and attorney’s fees.
THHSC moved to dismiss the Third Amended Complaint for failure to
state a claim upon which relief could be granted. The district court granted the
motion. In a memorandum order, the district court explained that Davis’s
“scant descriptions of the allegedly discriminatory actions fail to include any
details about how the events she alleges were discriminatory” or that she faced
retaliation for Title VII protected activity. Rather than alleging facts, Davis
relied on conclusory legal statements. In light of the unsuccessful efforts to
plead sufficiently, the court deemed continued attempts futile, and dismissed
Davis’s complaint with prejudice. Davis appeals the district court’s dismissal
of her sex- and race-discrimination claims and her retaliation claim.
II.
We have appellate jurisdiction over this appeal from a final judgment of
the district court. 1 The complaint raises a federal question, alleging violations
of Title VII of the Civil Rights Act of 1964. We review the district court’s order
on a Rule 12(b)(6) motion de novo, 2 and accept the well-pleaded facts as true
and consider them in the light most favorable to the plaintiff. 3
A.
To begin, Davis argues the district court erred in applying an
“evidentiary standard” when evaluating the sufficiency of her Third Amended
1 28 U.S.C. § 1291.
2 Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (per curiam).
3 Id.
3
Case: 18-20053 Document: 00514882806 Page: 4 Date Filed: 03/21/2019
No. 18-20053
Complaint. Davis instead invokes a “notice pleading standard,” arguing “there
is no requirement that specific facts are necessary,” but that she nonetheless
pleaded sufficient facts to state plausible claims for Title VII discrimination
and retaliation. We disagree. The district court applied the correct standard,
citing Bell Atlantic Corporation v. Twombly for the requirement that to survive
a Rule 12(b)(6) motion, a complaint must allege sufficient “facts to state a claim
to relief that is plausible on its face.” 4
B.
Title VII of the 1964 Civil Rights Act prohibits an employer from
“fail[ing] or refus[ing] to hire or . . . discharg[ing] any individual, or otherwise
to discriminate against any individual with respect to his [or her]
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 5 While at this
juncture, a plaintiff need not submit evidence to establish the prima facie case
for discrimination, she must plead sufficient facts on all of the ultimate
elements of the claim to make her case plausible. 6 For a claim of disparate
treatment, she must at least include facts giving rise to a reasonable inference
of plausibility that (1) she belongs to a protected class; (2) she applied for and
was qualified for a position for which applicants were being sought; (3) she was
rejected; and (4) a person outside of her protected class was hired for the
position. 7 When the plaintiff made no application, she must plead facts “that
such an application would have been a futile gesture.” 8
4 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
5 42 U.S.C. § 2000e–2(a)(1).
6 Chhim, 836 F.3d at 470.
7 Id.
8 Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 406 (5th Cir. 1999).
4
Case: 18-20053 Document: 00514882806 Page: 5 Date Filed: 03/21/2019
No. 18-20053
Davis cannot survive the motion to dismiss because she has not pleaded
facts giving rise to a reasonable inference that she applied for and was qualified
for the position that ultimately went to her colleague. Davis alleges she applied
for positions within THHSC but without specifying when and for what
positions. She alleges that during the agency’s reorganization she was denied
reassignment and was not selected for positions within THHSC, again without
alleging the positions for which she was not selected. Davis alleges that during
the period she was applying for positions within the agency, her supervisor
transferred her colleague—a Hispanic male—to a “new assignment” “instead
of Davis”—an African American woman. But Davis does not identify the
position nor whether Davis and her colleague both applied for it. Davis alleges
no facts from which the district court could plausibly infer she had applied for
the unnamed position, or alternatively that her application would have been
futile. Davis’s pleading leaves the key relations between applications,
positions, and decisions ambiguous—where addressed at all.
Davis was given multiple chances to plead her claim adequately, with
the district court specifically instructing counsel to include “specific allegations
on the dates and positions the plaintiff applied for and did not receive.” On her
fourth attempt Davis still fails to plead the bare minimum to sustain her claim.
The district court did not err in granting the motion to dismiss this claim.
C.
Title VII also prohibits employers from retaliating against an employee
who opposes, complains, or files a charge raising her employer’s discrimination
on the basis of race, color, religion, sex, or national origin. 9 The prima facie
elements for retaliation are that (1) the plaintiff engaged in activity protected
9 42 U.S.C. § 2000e-3(a).
5
Case: 18-20053 Document: 00514882806 Page: 6 Date Filed: 03/21/2019
No. 18-20053
by Title VII; (2) that she was subject to an adverse employment action; and
(3) a causal connection between her participation in the protected activity and
the adverse employment decision. 10 “‘[A] vague complaint, without any
reference to an unlawful employment practice under Title VII, does not
constitute protected activity.’” 11 To survive a Rule 12(b)(6) motion, the plaintiff
must at least plead facts giving rise to a reasonable inference of the claim’s
plausibility.
Davis’s Third Amended Complaint alleges she was an employee of the
THHSC’s Department of Assistive and Rehabilitative Services. Davis alleges
her supervisor subjected her “to disparate treatment in comparison to her
similarly situated counterpart,” and that beginning in January 2016 Davis
“filed multiple grievances” complaining of her supervisor’s “discriminatory
conduct.” Davis does not allege facts regarding the alleged discrimination (note
that the alleged discriminatory hiring decision occurred later, in the summer
of 2016). Nor does she plead facts demonstrating “disparate treatment” relative
to her “similarly situated counterpart” nor how this differential treatment
relates to Title VII discrimination (i.e. the characteristics with respect to which
Davis and her counterpart were similarly situated but differentially treated).
The complaint requires more to plausibly describe Title VII discrimination.
The district court did not err in dismissing this claim.
III.
We AFFIRM the district court’s dismissal of Davis’s discrimination and
retaliation claims.
10 Shackelford, 190 F.3d at 407–08.
11Paske v. Fitzgerald, 785 F.3d 977, 986 (5th Cir. 2015) (quoting Davis v. Dall. Indep.
Sch. Dist., 448 F. App’x. 485, 493 (5th Cir. 2011) (per curiam)).
6
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-1533
JOSEPH SCOTTO, Individually and as Personal
Representative of the Estate of Joyce Scotto;
THEODORE JOSEPH SCOTTO, Individually and as a
minor through his natural father and guardian
Joseph Scotto,
Plaintiffs - Appellants,
and
MELINA BELLE SCOTTO; THERESA SCOTTO ROSETTE;
GIA JOYCE SCOTTO MCDANIEL,
Plaintiffs,
versus
MAFCO WORLDWIDE CORPORATION; MACANDREWS &
FORBES GROUP, INCORPORATED; M.F. NEAL &
COMPANY,
Defendants - Appellees,
and
GUY ALLEN DIETRICH,
Defendant.
No. 99-1585
JOSEPH SCOTTO, Individually and as Personal
Representative of the Estate of Joyce Scotto;
THEODORE JOSEPH SCOTTO, Individually and as a
minor through his natural father and guardian
Joseph Scotto; MELINA BELLE SCOTTO; THERESA
SCOTTO ROSETTE; GIA JOYCE SCOTTO MCDANIEL,
Plaintiffs,
versus
GUY ALLEN DIETRICH,
Defendant - Appellant,
versus
MAFCO WORLDWIDE CORPORATION; MACANDREWS &
FORBES GROUP, INCORPORATED; M.F. NEAL &
COMPANY,
Defendants - Appellees.
Appeals from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CA-96-3891-AW)
Submitted: February 24, 2000 Decided: March 1, 2000
Before MOTZ and KING, Circuit Judges, and BUTZNER, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
2
Henry R. Lord, PIPER & MARBURY, L.L.P., Baltimore, Maryland;
Charles S. Fax, Baltimore, Maryland; Michael B. Green, Towson,
Maryland, for Appellants. Janet M. Truhe, MILLER & TRUHE, L.L.C.,
Westminster, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
3
PER CURIAM:
Plaintiffs Joseph and Theodore Scotto are joined by Defendant
Guy Allen Dietrich in appealing the district court’s order granting
summary judgment to Defendants MAFCO Worldwide Corporation,
MacAndrews & Forbes Group, Inc., and M.F. Neal & Co (the “MAFCO
Defendants”) in the Plaintiffs’ civil suit for a survival action,
negligence and wrongful death resulting from an automobile
accident. Appellants and Cross-Appellant allege that the district
court erred in finding that the MAFCO Defendants were not
vicariously liable for the negligence of the individual Defendant
Dietrich because he was not within the scope of employment when the
accident in question occurred. We have reviewed the record and the
district court’s opinion and find no reversible error. According-
ly, we affirm on the reasoning of the district court. See JA 376-
84. 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
4
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14 F.Supp.2d 1315 (1998)
UNITED STATES
v.
Daniel M. PARADIES, Defendant.
Criminal Action No. CR 193-310.
United States District Court, N.D. Georgia, Atlanta Division.
February 20, 1998.
*1316 Sally Quillian Yates, Office of the U.S. Attorney, Atlanta, GA, for Plaintiff.
Roger C. Appell, Birmingham, AL, Robert Klonoff, Jones, Day, Reavis & Pogue, Washington, DC, for Defendant.
ORDER
ALAIMO, District Judge.
Defendant, Daniel M. Paradies ("Paradies"), was convicted by a jury on January 22, 1994 of eighty-three counts of mail fraud in violation of Title 18 U.S.C. §§ 1341 and 1346, and one count of conspiracy in violation of Title 18 U.S.C. § 371 by making corrupt payments to public officials in violation of Title 18 U.S.C. § 666. The charges arose out of Defendant's participation in fraudulent schemes involving the concessions at the Atlanta Hartsfield International Airport ("Atlanta Airport"). On April 19, 1994, the Court sentenced Paradies to thirty-three months in prison, which was at the low end of the range determined by the application of the Federal Sentencing Guidelines.
Paradies then embarked on a lengthy appellate process. He directly appealed his conviction to the Eleventh Circuit Court of Appeals, where both his conviction and sentence were affirmed. United States v. Paradies, 98 F.3d 1266 (11th Cir.1996). Following this decision, Paradies filed a petition for rehearing and suggestion of rehearing en banc, which the Eleventh Circuit unanimously denied on December 26, 1996. On February 21, 1997, Paradies filed a petition for certiorari. The United States Supreme Court denied certiorari on December 8, 1997. *1317 Paradies v. United States, ___ U.S. ___, 118 S.Ct. 598, 139 L.Ed.2d 487 (1997). Paradies then filed an emergency motion with the Eleventh Circuit for leave to file a second petition for rehearing and a motion for stay contending that there had been an intervening change in the law since the Eleventh Circuit affirmed his conviction. The Eleventh Circuit denied the motion. Throughout the appellate process, Paradies has remained free on an appeal bond.
Currently before the Court are Defendant's Motion for Re-sentencing pursuant to 28 U.S.C. § 2255 and his Motion for Extension of Reporting Date. On January 22, 1998, the Court held a plenary evidentiary hearing on these motions. For the reasons set forth below, Defendant's Motion for Re-Sentencing is GRANTED and his Motion for Extension of Reporting Date is DENIED.
FACTS
I. Conviction
Prior to his conviction, Paradies was the President, Chief Executive Officer, and principal shareholder of The Paradies Shops, Incorporated ("Paradies Shops"), a chain of gift shops located in major airports throughout the United States. Paradies also was the President of Paradies Midfield Corporation ("Midfield"), a company that operated gift shops exclusively in the Atlanta Airport. Paradies Shops owned sixty-five percent of Midfield's stock. The remaining thirty-five percent of Midfield's stock was owned by minority-controlled businesses. In 1979, when Midfield first contracted to operate gift shops in the Atlanta Airport, its other stockholders included three corporations, each wholly-owned by African-Americans. Mack Wilbourn ("Wilbourn") held 18.3 percent of Midfield stock, Nathaniel Goldston ("Goldston") held 13.7 percent, and Joanne McClinton ("McClinton") held three percent of the stock. The ownership of Midfield complied with a minority participation requirement.[1]
The alleged wrongdoing began in 1985, when Ira Jackson ("Jackson"), a member of the Atlanta City Council, made a "loan" to Goldston of fifty thousand dollars through Jackson's wife.[2] The Government produced evidence at trial that the purported loan actually was the purchase of Goldston's interest in Midfield. After Jackson made the "loan," he requested an opinion from the City's Board of Ethics whether it would be permissible for his wife to purchase Goldston's interest in Midfield. The Board concluded that the purchase would violate Jackson's fiduciary duty to the city. Despite the Board's opinion, Jackson not only retained Goldston's interest, but also acquired the interests of Wilbourn and McClinton.[3]
Paradies denied any knowledge of Jackson's interest in Midfield. The Government, however, proved at trial that Paradies and Jackson conspired to use Jackson's influence, first as an Atlanta City Council member, and later as the Commissioner of Aviation in Atlanta, to reduce rents for Paradies' concessions at the Atlanta Airport.[4] In exchange *1318 for Jackson's assistance, Paradies paid Jackson in the form of management fees and dividends.
Paradies also was involved in a separate fraudulent scheme. Paradies had an agreement with Harold Echols ("Echols"), another concessionaire at the Atlanta airport, concerning direct payoffs to Atlanta City Council members. Echols made routine payments to Jackson and other City Council members for favorable votes in matters before the Council, and Paradies reimbursed him for the payments.
II. Evidentiary Hearing
Paradies has filed a Motion for Re-sentencing pursuant to 28 U.S.C. § 2255 and a Motion for Extension of Reporting Date. On January 22, 1998, the Court held a plenary evidentiary hearing on these motions. The Court's findings of fact are set forth in detail below.
At seventy-seven years of age, Paradies presently suffers from severe osteoarthritis in his knees, hands, spine, and neck. This aliment significantly limits his activities. Once an avid golfer and tennis player, Paradies was forced to stop participating in both activities several months ago. He now is unable to walk more than two blocks at a time. His regular physician, Dr. Andrew A. Abernathy, III ("Dr. Abernathy"), predicts that the arthritis will worsen with time and, eventually, will be crippling.[5] In addition to the arthritis, Paradies experiences pain in his left shoulder due to a torn rotator cuff. He takes Ibuprofen for his pain and Donnatel, an antispasmodic drug, to sleep.
Paradies also has an enlarged prostate. Because of this condition, he cannot empty his bladder completely and, as a result, must get up several times a night to urinate. To ease his discomfort, Paradies takes Hytrin. Prior to the evidentiary hearing, he underwent a Prostate Specific Antigen test, which is used to detect carcinoma.[6] He received an 8.4 on that test, twice the normal result. Dr. Abernathy testified that the results "may or may not indicate a cancerous condition of the prostate." No follow-up test for this condition has been performed, nor has any conclusive medical diagnosis been made at this time.
Additionally, in April of 1994, while in Florida, Paradies experienced pain in his chest. A cardiologist diagnosed the pain as a pinched nerve, and Dr. Abernathy concurred in that diagnosis.[7] Paradies did not see a cardiologist about his pain at this time. Paradies testified that he has continued to experience periodic chest pain since April of 1994. He did not, however, inform Dr. Abernathy of this pain during his annual visits in 1995 and 1996.[8]
On January 5, 1998, Paradies saw Dr. John Hurst ("Dr.Hurst"), a cardiologist. Dr. Hurst ran an electrocardiogram, which showed only a minor abnormality in Paradies' heart. Additionally, the results of the electrocardiogram showed no definitive change from those run annually by Dr. Abernathy, over the previous four years. Dr. Hurst also performed a routine exercise stress test on Paradies. The results of the test, however, were inconclusive because Paradies could not get his heart rate up to the appropriate level.[9] Dr. Hurst then performed an Adenosine stress test on Paradies. The results of this test showed disease in one major vessel and one minor vessel leading to the heart, but did not show occlusion in any vessels. Dr. Hurst testified that based on *1319 the Adenosine test results, he did not find Paradies' heart condition to present a significant health concern.[10]
In addition to his physical aliments, Paradies has experienced depression since his trial and conviction. However, he has not seen a psychiatrist. Instead, he testified that he confides in his friend, Richard Stern, on a daily basis. On January 19, 1998, a few days prior to the evidentiary hearing, Dr. Reid prescribed Prozac for Paradies.
One factor that has contributed significantly to Paradies' depression is his lack of involvement in his business. After his conviction, Paradies resigned from his position as President of Paradies Shops, and Richard Dixon ("Dixon") assumed this position. Currently, Paradies has no involvement in any aspect of the business. He speaks to Dixon once a month. The two, however, do not discuss the company. Paradies still owns forty-eight percent of the stock in Paradies Shops, but it is held in an irrevocable blind trust. He does not control, nor is he allowed to vote the stock.
Prior to the trial, Paradies was active in serving his country and his community. He was an officer in the Air Force from 1942 until 1945. While in the service, he was involved in a mid-air collision and was the only survivor of the crash. He has participated in several charitable causes. Paradies was an active member of the Rotary Club and the Kiwanis. He also served on the boards of the YMCA and the Lakewood Boys Club. Furthermore, he established and contributed to the Paradies/Ruffen scholarship for underprivileged children and was the chairman of the Georgia chapter of the Marines' Toys for Tots for several years.
DISCUSSION
Defendant contends that the Supreme Court's decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), provides the Court with authority to re-examine his thirty-three month sentence imposed on April 19, 1994. Defendant claims that a number of factors in this case warrants a downward departure from the Federal Sentencing Guidelines ("Guidelines"). The Government, however, contends that a downward departure is not warranted under these circumstances. Additionally, the Government contends that Defendant's Motion for Re-sentencing does not present a claim cognizable under Title 28 U.S.C. § 2255. For the purposes of this Order, the Court will assume, without expressly determining, that Defendant's motion presents a cognizable claim. See Smullen v. United States, 94 F.3d 20, 23 (1st Cir.1996) (holding that a defendant may raise Federal Sentencing Guideline issues in a § 2255 motion if he can show cause for his failure to raise the issue previously and actual prejudice). See also Oliver v. United States, 90 F.3d 177, 179 (6th Cir.1996); Box v. United States, 42 F.3d 1388 (6th Cir.1994); United States v. Allen, 16 F.3d 377 (10th Cir.1994).
Under the Guidelines, sentencing courts ordinarily are required to impose sentences within the applicable Guideline range. 18 U.S.C. § 3553(a) (1985). The sentencing court should treat each guideline as carving out a "heartland;" that is, "a set of typical cases embodying the conduct that each guideline describes." Koon, 518 U.S. 81, 116 S.Ct. at 2044, 135 L.Ed.2d at 409. However, when presented with an atypical case, a court may consider whether a departure from the Guidelines is warranted. Id. A case is atypical when "there are circumstances of a kind or degree not adequately taken into consideration by the Commission." Id. (citing 1995 U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b)).
To determine if departure from the Guidelines is appropriate, sentencing courts must look at the factors present in each case. Certain factors never provide the basis for a departure, such as a defendant's race, sex, national origin, creed, religion, socio-economic *1320 status, lack of guidance as a youth, chemical dependance, and economic hardship. See 1997 U.S.S.G. §§ 5H1.4; 5H1.10; 5H1.12; 5K2.12. Other factors are categorized by the Guidelines as either "encouraged" or "discouraged" bases for departure. Encouraged factors are those "the Commission has not been able to take into account fully in formulating the guidelines." 1997 U.S.S.G. § 5K2.0. Conversely, discouraged factors are those "not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range." 1997 U.S.S.G. ch. 5, pt. H, intro. cmt. If the factor is a discouraged one, or an encouraged factor already considered by the applicable Guideline, a court should depart only if the factor is present to an exceptional degree. Koon, 518 U.S. 81, 116 S.Ct. at 2045, 135 L.Ed.2d at 410-11. Courts may depart from the Guidelines based upon either an individual factor or a number of factors combined. See United States v. Rioux, 97 F.3d 648, 662 (2d Cir.1996) (citing 1995 U.S.S.G. § 5K2.0 cmt.).
Paradies claims that there are several factors which take his case out of the heartland of sentencing cases, including advanced age, poor physical and mental health, vulnerability to abuse in prison, economic loss, military service, and charitable activities. He urges the Court to depart downwardly from the applicable Guideline range based on his unique circumstances. Defendant's allegations of vulnerability to prison abuse and economic loss are not relevant to the Court's determination of whether a downward departure is warrant in this case.[11] The remaining factors are discussed below.
First, Paradies claims that downward departure is appropriate based on his advanced age and poor health. Paradies is seventy-six years of age and does suffer from osteoarthritis, a torn rotator cuff, an enlarged prostate, and chest pains. However, age and physical condition are discouraged factors, and in most cases, neither is relevant in determining the appropriate sentence. 1997 U.S.S.G. §§ 5H1.1, 5H1.4. Only in extraordinary circumstances may these factors warrant a downward departure from the Guidelines. Specifically, the Guidelines provide that a downward departure based on age may be appropriate only "when a defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration." 1997 U.S.S.G § 5H1.1. Similarly, the Guidelines state that a downward departure based on poor physical condition may be appropriate only when a defendant has "an extraordinary physical impairment." 1997 U.S.S.G. § 5H1.4.
The Court is reluctant to carve out an exception in the Guidelines for those who are advanced in age. If the Court were to create such an exception, the elderly could violate the law with impunity. Instead, those advanced in age, like the young, must face the consequences of their illegal actions. Moreover, several of the individuals who were involved in the fraudulent schemes with Paradies are older than sixty years of age. Despite *1321 their ages, they all have served, or presently are serving, their sentences. Under these circumstances, a downward departure based solely on Paradies' age would be unjust.
In addition to his advanced age, Paradies suffers from osteoarthritis in his knees, hands, spine, and neck and, also, has a torn rotator cuff in his left shoulder. These ailments, individually, are not such extraordinary physical impairments as to take Defendant's case out of the heartland of cases which are before courts for sentencing. Indeed, Paradies' osteoarthritis and his torn rotator cuff significantly limit his daily activities. Paradies no longer is able to play golf or tennis. Like many who have advanced in age, he has been forced to alter his lifestyle. Nonetheless, he still is physically able to serve his prison sentence. Numerous inmates in the Federal Bureau of Prisons suffer from ailments similar to those suffered by Paradies. (Gawrysiak Test. Evidentiary Hr'g). As a result, federal prison officials are experienced in treating such conditions and will be able to accommodate Defendant's needs. Prison officials will not assign Paradies any task or activity that he is unable to perform. (Id.)
Nor does the fact that Defendant suffers from an enlarged prostate make his case atypical. Currently, his prostate condition is treatable with Hytrin. While Dr. Abernathy testified that the results of Paradies' most recent Prostate Specific Antigen test may indicate cancer, there has been no such finding at this time. Moreover, even if Paradies were to develop a more serious condition while serving his sentence, the Federal Bureau of Prisons could provide him with excellent medical care. The Federal Bureau of Prisons has two major referral centers, one in Springfield, Missouri, and another in Rochester, Minnesota, where Paradies could receive specialized treatment. The Court recognizes that Paradies' prostate condition causes him discomfort and requires certain accommodations. However, the Federal Bureau of Prisons will be able to address any of Paradies' special needs.
Similarly, Defendant's heart condition is not so extraordinary as to take this case out of the heartland of cases. See United States v. Altman, 107 F.3d 4 (2d Cir.1996) (unpublished table decision), reported at 1996 WL 739239 (affirming district court's refusal to depart downwardly based on the defendant's serious heart problems because the Federal Bureau of Prisons adequately could monitor the condition); United States v. Booher, 962 F.Supp. 629 (D.N.J.1997) (denying downward departure based on defendant's advanced age and coronary heart disease). Based on the evidence before the Court, Paradies' heart condition does not appear to be life-threatening. The results of his electrocardiogram over the past four years showed no definitive change. The Adenosine stress test conducted on January 5, 1998 revealed disease in one major vessel and one minor vessel, but no occlusion. Based on these results, Dr. Hurst, an experienced cardiologist, testified that he did not believe that Paradies' heart condition was a significant cause for concern. Furthermore, he testified that Paradies exhibited few of the risk factors associated with heart problems.
While Dr. Reid and Dr. Abernathy expressed concern about Paradies' heart condition, the Court finds their conclusions to be against the weight of the evidence. Indeed, Paradies may suffer from clinical angina. This condition, however, does not indicate heart disease. Instead, angina is merely chest pain associated with a lack of blood supply to the heart muscle. Currently, Paradies' heart condition is treatable with Nitroglycerin and can be monitored by the Federal Bureau of Prisons. Again, if Paradies' condition were to worsen during his sentence, the Federal Bureau of Prisons could provide him with appropriate medical care.
In addition to his physical ailments, Defendant claims that his poor mental health warrants a downward departure. Indeed, Paradies has experienced depression since his trial and conviction. The Court, however, does not find Defendant's mental state, when considered alone, to be sufficiently severe as to provide a basis for downward departure. Paradies began taking medication for his depression only a few days before the evidentiary hearing, and he has never consulted a psychiatrist regarding the condition. Moreover, significant depression following a felony conviction is to be expected. There is no *1322 evidence in this case that Paradies' mental state is unusual for a convicted felon.
These ailments, considered individually, are not so extraordinary as to take Defendant's case out of the heartland of cases before courts for sentencing. The combination of ailments, however, presents a situation not adequately considered by the Sentencing Commission when formulating the Guidelines. See United States v. Collins, 122 F.3d 1297, 1307 (10th Cir.1997) (upholding a downward departure based on a combination of factors including high blood pressure, ulcers, arthritis and prostatitis); Rioux, 97 F.3d 648 (upholding downward departure based on a combination of factors including, kidney disease, bone disease and charitable acts). Paradies is seventy-six years of age and approaching the end of his life. While the Court is unable to predict Defendant's life expectancy, based on his age and various infirmities, it is clear that a thirty-three month sentence is more onerous for Paradies than for most defendants. In reality, Defendant's thirty-three month sentence may turn out to be a life sentence.
Moreover, during his life, Paradies served his country and community. He was an officer in the Air Force during World War II and has given both his time and money to numerous charitable organizations. Considered alone, his actions in this regard are not extraordinary. However, when considered with the other factors present in this case, Paradies' service to his country and community support a downward departure from the Guidelines. See Rioux, 97 F.3d at 663.
While a downward departure from the Guidelines is warranted, justice requires that Paradies still serve a portion of his original sentence. As previously stated, the others involved in the illegal schemes with Paradies also are advanced in years. Yet, they all have served, or presently are serving, their sentences. Paradies must not be allowed to avoid the consequences of his illegal actions. Based on the evidence before the Court, a reduction of his sentence to an eighteen month commuted sentence reflects Paradies' unique situation. Granting a greater departure would contravene the intent of the Sentencing Commission and the purpose of the Guidelines.
CONCLUSION
The Court has assessed thoroughly the various factors present in Defendant's case. The Court finds that, in the aggregate, circumstances exist that are of a kind or degree not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines. Upon consideration of these circumstances, the sentence imposed should vary from the sentence required by the Guidelines. Because the Court finds Defendant's case to be outside the heartland of cases, the Court GRANTS a downward departure to a sentence of commitment to the Bureau of Prisons for a term of eighteen month. All other provisions of the original sentence shall remain in full force and effect. Defendant's Motion for Extension of Reporting Date is DENIED.
SO ORDERED.
NOTES
[1] Dobbs Paschal Midfield Corporation ("Dobbs"), the principal concessionaire at the Atlanta Airport, contracted with various subconcessionaires, including Midfield, to provide services at the airport. For unknown reasons, Dobbs required a thirty-five percent minority interest in Midfield.
[2] Jackson was a co-Defendant in the Atlanta Airport corruption case in which Paradies was convicted. Jackson was convicted by a jury of forty-two counts of receiving corrupt payments in violation of Title 18 U.S.C. § 666 and four counts of subscribing to false income tax returns, which under-reported his income, in violation of Title 26 U.S.C. § 7206(1). The Court sentenced Jackson to forty-two months in prison, which he presently is serving.
[3] Jackson "loaned" Wilbourn two hundred and seventy five thousand dollars from Options International, Incorporated, a corporation created in the name of Jackson's son, but controlled by Jackson. Wilbourn used fifty thousand dollars from the loan to purchase Goldston's stock. Wilbourn then transferred all of his and Goldston's interest in Midfield to Hartsfield Concessions, Incorporated ("Hartsfield Concessions"), which Wilbourn purportedly wholly-owned. The Government, however, produced evidence that the entire transaction was a sham, and that Jackson was the de facto owner of Hartsfield Concessions and the interest in Midfield. In August of 1988, Hartsfield Concessions purchased McClinton's interest in Midfield.
[4] For example, in July of 1987, Jackson voted in favor of Amendment Number Five, which reduced the rent charged to the concessionaires at the Atlanta Airport. Then, in 1989, Jackson argued that Amendment Number Six, a rent reduction proposal, should include larger concessionaires, like Midfield. After the City Council passed the Amendment, Paradies increased the management fees paid to Hartsfield Concessions.
[5] Dr. Abernathy saw Paradies once in 1985, and then for annual visits from 1994 to 1997. Dr. Abernathy's last physical examination of Paradies was in May of 1997.
[6] Dr. William A. Reid, a general surgeon, performed the test. He examined Paradies on January 5, 1998 for approximately an hour and a half. After the examination, Dr. Reid referred Paradies to Dr. John Hurst, a cardiologist.
[7] After Paradies' annual visit in 1994, Dr. Abernathy wrote him a letter setting forth the results of his examination. In the letter, Dr. Abernathy stated that he believed Paradies' chest pain to be the result of a pinched nerve.
[8] Dr. Abernathy does not have a record of any complaints made by Paradies about chest pains. Dr. Abernathy explains the absence of complaints by the fact that Paradies is a stoic man, who rarely complains.
[9] Defendant was able to run for only four and a half minutes, primarily due to his arthritis. In order to reach his peak heart rate, Defendant would have had to run for at least six or seven minutes.
[10] In contrast, Dr. Reid, a general surgeon, testified that he believed Paradies' heart condition to be serious. Dr. Reid, however, does not practice cardiac medicine, except for examinations prior to surgical procedures. He diagnosed Paradies with Clinical Angina and prescribed Nitroglycerin for the condition. Dr. Abernathy concurred in Dr. Reid's diagnosis because of Paradies' chest pain in Florida in 1994. The Court, however, finds that Dr. Reid's concern about Paradies' heart condition is against the weight of the evidence based on the results from both the electrocardiogram and the Adenosine stress test, as well as the opinion of an experienced cardiologist, Dr. Hurst.
[11] Paradies claims that the combination of his advanced age, poor health, and familial relationship with a United States Federal District Judge renders him vulnerable to abuse in prison. The Court does not agree. The Defendant relies on Koon, where the Supreme Court upheld a downward departure based on susceptibility to abuse in prison where the defendants were police officers convicted of civil rights violations in a highly publicized trial. 518 U.S. 81, 116 S.Ct. at 2045, 135 L.Ed.2d at 410-11. The facts of this case, however, differ significantly from those in Koon and do not support the conclusion that Paradies is susceptible to prison abuse. Furthermore, Paradies has been designated to a minimum security camp in Atlanta, where the threat of violence is minimal. Like Paradies, the other inmates at the camp have been convicted of nonviolent crimes. Moreover, the Court does not believe that inmates will target Paradies merely because his brother-in-law is a Federal District Judge.
Nor does the fact that Defendant suffered economic loss take his case out of the heartland of cases. The Court does not dispute Paradies' loss. He resigned from his position as President and CEO of Paradies Shops, and he is no longer able to work in his business. Paradies Shops has been barred from several airports, and Paradies is no longer trusted in the business community. Defendant's economic loss, however, does not make this case atypical. Instead, his loss is the natural consequence of his own illegal actions. See Koon, 518 U.S. 81, 116 S.Ct. at 2052, 135 L.Ed.2d at 420 (stating that "it is not unusual for a public official who is convicted of using governmental authority to violate a person's rights to lose his or her job and to be barred from future work in that field.")
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73 N.W.2d 36 (1955)
The STATE of Iowa, Appellee,
v.
Billy Joe MISKELL, Appellant.
No. 48725.
Supreme Court of Iowa.
November 15, 1955.
Rehearing Denied March 9, 1956.
*37 Smedal & Maurer and Milton D. Seiser, Ames, for appellant.
D. W. Countryman, Atty. Gen., of Iowa, Raphael R. R. Dvorak, George G. West, Asst. Attys. Gen., and D. L. Nelson, County Atty. of Story County, Ames, for appellee.
BLISS, Justice.
The information charged the accused with the crime of reckless driving "will liquor involved" for that on November 23, 1954, he "did unlawfully, wilfully operate his motor vehicle in a reckless manner with liquor involved * * * contrary to Section 321.283 of the 1950 Code of Iowa." (Italics ours.) On motion of defendant the italicized words were stricken by the Court.
The crime with which defendant is charged is found in Sect. 321.283 of the Code of Iowa 1950, I.C.A., to wit: "Reckless driving. Any person who drives any vehicle in such manner as to indicate either a wilfull or a wanton disregard for the safety of persons or property is guilty of reckless driving."
On the date stated, at about noon, as a prospective buyer, defendant was permitted by an automobile dealer in McCallsburg, Iowa, to take a used car that had been reconditioned, for a test drive of an hour or so. Later that afternoon Mrs. Roy Van Zee, a farmer's wife living a short distance east of McCallsburg, was proceeding eastward on an east-west road in her car with her two children for a four o'clock dental appointment in the town of Zearing, Iowa. The highway was a graveled two-lane road. She was traveling at a speed which she estimated as about fifty miles an hour. She had been driving a car for about nineteen years. When she was about 250 or 300 feet from a north-south intersecting road she observed a car about to pass her although she had heard no horn. This car *38 passed her and cut into her lane about five or ten feet in front of her car, "and the wheels of the car were off the ground." She was startled. She estimated the passing car was exceeding the speed of her car by fifteen miles an hour, and when it was about 100 feet in front of her it started to roll over. Mrs. Van Zee testified that the car rolled over three times. The first being before it reached the intersection. When the car reached the south side of the road, the driver evidently cramped his wheels, and it turned sideways and started to turn over. It hit a highway sign. There was loose, moist gravel on the north side of the road but the witness did not recall the condition of the south side of the road. She saw no holes or depression in the road nor in the intersection, and said the road was not a washboardy graveled road, but just an ordinary graveled road, and safe to travel over at a speed of fifty miles an hour. She testified that as the car started to roll over "its doors started flying open and several beer cans fell out and a gun." She put on her brakes but not hard enough to slide the wheels. The passing car came to rest on the south side of the road on the east side of the intersection. She stopped her car and walked up to the other car, which was about 100 or 150 feet east of the intersection. She saw the cans of beer along the road and about the car. The driver of the car was still in his car but she didn't speak to him. Mrs. Van Zee was a witness for the State.
Mert Coover, the car dealer was a witness for the State. He testified that: the defendant came into his place of business about 12:15 P.M. on the 23rd of November, 1953, and asked him if he could take out a 1951 Super 88 Oldsmobile to show it to someone who might help him purchase it. The witness told him to have it back by 1 o'clock that afternoon. It was then in good mechanical condition with the exception of the generator. He never brought it back and when it was towed in it was completely demolished.
A Mr. Goodmanson, a witness for the State, of Roland, Iowa, a trucker for the Marshall Canning Co., about four o'clock in the afternoon of November 23rd, was driving an empty truck west on the gravel road between McCallsburg and Zearing. When he was about eighty rods east of the intersection, we have referred to, he "counted a car being up in the air about three times." He did not see it before it started to turn over, but he saw the dust that it made. He stopped to give assistance and found Miskell in the car unconscious. The car was on the south shoulder of the road. There was some loose gravel and also a bump in the road at that point. He said it was never a good road until they later fixed it. It was his judgment that the skid marks started east of the intersection. The car went end over end three times and landed on all four wheels. It was badly demolished. He saw four or five cans of beer and picked them up and threw them in the ditch. He did not see any skid marks across the intersection. The car turned over three times east of the intersection on the south side of the road. He stated that the car first started to turn over east of the intersection. There was loose gravel on the sides of the road. He located the place where the car first started to turn over by a dent in the road. There were washboard bumps in the intersection. "The road was maintained and it was not a hazardous road."
Dale Allen, an automobile mechanic, who had worked for Mr. Coover, the auto dealer, since 1946, as a witness for the State, testified he was familiar with the mechanical condition of the Oldsmobile which the defendant drove on November 23, 1953. He had repaired it and road-tested it, the second time being just the morning before defendant took it out and the car was in good condition except for the generator. The steering apparatus and brakes were in good condition at the time Miskell drove it.
Dr. Hall, an osteopathic physician at Zearing, testifying for the State, said that he was called to the scene of the Miskell accident, and gave him a preliminary physical examination, and he saw him later in the hospital. He testified to the location of the accident, but gave no other testimony.
*39 William Severin, a Highway Patrolman, whose district included Story County, was a witness for the State. He investigated the accident about 4:10 P.M., after the defendant had been taken to the hospital. He testified the he first observed the tire marks of Miskell's car 300 feet west of the intersection in some gravel that had been piled on the north side of the road. He followed these tire marks and the marks of the car where it rolled overleaving green paint marks on the gravelto where the car was standing approximately 265 feet east of the intersection. A road sign post was broken off on the south side of the road. The witness saw the defendant at the hospital that evening and asked him for his driver's license, and how fast he was going, and "he (Miskell) said he was going about 35 to 40 miles per hour."
At the close of the State's evidence, defendant made the following motions to strike: 1. all words concerning liquor in the Information; 2. to eliminate all such words from any charge to the jury, and to instruct the jury to totally disregard the same; 3. to strike from the testimony of Mrs. Van Zee what she stated about seeing beer cans fly out of the defendant's car; 4. all testimony of Goodmanson about seeing and picking up beer cans on the highway or in the ditch; 5. to strike from the testimony of Severin, the Highway Patrolman, all statements of his conversation with defendant at the hospital, as being violative of Code sections 321.266 et seq. and 321.271, I.C.A.; and 6. to direct a verdict for defendant because of insufficient evidence to sustain the charge in the information.
The court sustained motions 1, 2, and 4, and overruled motion 3, since the testimony of Mrs. Van Zee that she saw beer cans flying from the car was material as bearing upon the manner in which the car was being driven. The court also overruled motion 5 for the stated reason that in the opinion of the Court Code section 321.271, I.C.A. does not apply to criminal matters, and that State v. Williams, 238 Iowa 838, 848, 28 N.W.2d 514 involved only the question whether the prosecuting attorney had been guilty of misconduct. We do not determine that question, for in any event the officer's taking of defendant's driving license, and his question respecting defendant's speed and the latter's answer that it was 35 to 40 miles per hour were in nowise prejudicial to defendant. He later testified in his own behalf that the car was traveling fifty miles an hour. It is our conclusion that the Court rightly ruled on all the motions. There was no error in overruling motion 6 to direct a verdict for defendant. There was ample competent evidence to sustain the charge in the information.
A witness for defendant testified that after the car driven by defendant had been reconditioned, and on the Saturday before the accident, he took the car out to see how it would drive and when it exceeded forty miles an hour it seemed to weave or crawl from side to side of the road. Another witness testified that he was familiar with the highway running east out of McCallsburg to the Zearing corner, and had driven over it the day before the accident, and it was washboardy across the intersection and, while he did not see any chuck-hole at the intersection, he felt it as he passed over it in his truck. He said: "The road is well maintained. I can't say what the condition of the road was at the time of the accident. The road was safe to travel."
Testifying for himself, defendant told of getting the car at the Coover garage for a test drive, and after driving it about twelve miles, he drove it about two more miles east on the graveled road to the corner where the accident occurred. He said: there was gravel on both sides of the road and as he proceeded on the south side at a speed of about fifty miles an hour, he honked his horn and went around and ahead of the Van Zee car about 300 feet from the intersection; he did not know the speed of that car but he gained on it; because of the condition of the north shoulder, the car had a tendency to pull to the left; he denied that he cut in within five or ten feet of the Van Zee car, and said he was about five car lengths or 100 to 150 feet ahead of that car before he pulled over to the right, about 300 feet from the *40 intersection; he did not recall the wheels of the car being in the air or the car skidding, but as he pulled back toward the center of the road and was about at the middle of the intersection he felt a terrific jolt, and lost control of the car. He testified that he had been driving a car since he was about twenty years old and had driven about 150,000 miles and considered himself a good driver. He was cross-examined at some length, without objection as to other cars he had wrecked and said there had been not over two. When inquiry was made to a specific instance, an objection that it was improper cross-examination and incompetent, was overruled. He denied the incident. He also denied over the same objection that he had been in at least ten accidents. Asked if he had not bought some beer at a service station tavern just preceding the accident, the Court sustained an objection. When asked if he had ever been convicted of a felony, he answered that he did not know what a felony was, and that he would rather not answer as to whether he had been convicted of a felony, as it had nothing to do with the case. He refused to answer whether he had been convicted of uttering a false check for $706.86 on July 6, 1947 in Marshall County, Iowa. There was no objection to the interrogation just above.
The defendant then rested, and the State offered no rebuttal. The foregoing resumé of the evidence fully and fairly covers it.
The defendant then moved to strike all of the cross-examination of the defendant with reference to whether he had been convicted of a felony, as incompetent and highly improper. He renewed his motions with respect to the testimony of Mrs. Van Zee, and of Mr. Severin, and his motion to direct a verdict for him. The first motion was sustained, the Court saying: "The defendant's motion to strike all of the testimony on cross-examination with reference to the inquiry as to whether or not he has ever been convicted of a felony is sustained, for the reason that as the record now stands the testimony would be prejudicial to the defendant, and it is upon that ground that it is stricken."
The Court then stated: "Members of the jury, in your absence the defendant has made motions to strike some of the testimony which has been offered here, and the Court has ruled on these motions, and with reference to the same the Jury is now told that the testimony of the witness Goodmanson, to the effect that he saw beer cans in the road and that he threw them in the ditch, and the testimony of the witness, Van Zee, that she saw beer cans in the ditch are stricken. The testimony of the defendant on cross-examination with reference to all questions pertaining to whether or not he had ever been convicted of a felony is stricken. Does that cover the extent of your motion?"
"Mr. Pell: I think it covers it in accordance with your previous ruling, Your Honor. Thank you."
"Defendant's Exceptions to closing argument of Mr. Lounsberry for the State."
"Mr. Pell: Exceptions taken to the remarks of counsel when he stated substantially in regard to the defendant, Miskell: who would sit up there on the stand and deny he had been convicted of a felony, as improper conduct on the part of the prosecutor, highly prejudicial, and exception is taken to the remarks and request is made of the Court to admonish the jury to pay no attention to such remarks."
"The Court: With respect to the remarks of the attorney for the State, the jury is told to disregard anything that the attorney for the State has said with reference to a felony so far as this defendant is concerned, so you are told to disregard any reference to it whatsoever."
The attorneys who presented this appeal did not participate in the trial. They rely for reversal upon three assigned errors: 1. overruling defendant's motion at the close of the State's evidence to direct a verdict, and its renewal at the close of all the evidence; 2. the admission of Patrolman Severin's testimony as to defendant's answers to questions asked him by the patrolman while investigating the accident; and 3. the denial of a fair trial to defendant *41 by prejudicial misconduct. We find no merit in any assigned error.
I. As we have hereinbefore stated there was substantial evidence sustaining the charge in the Information filed against the accused.
In a criminal action the cause should be submitted to the jury and the court should not direct a verdict of acquittal if there is any substantial evidence reasonably tending to support the charge. State v. Anderson, 239 Iowa 1118, 1125, 33 N.W.2d 1; State v. Crandall, 227 Iowa 311, 318, 288 N.W. 85; State v. Rutledge, 243, Iowa 179, 183-184, 47 N.W.2d 251, 50 N.W. 2d 801; State v. Hammer, Iowa, 66 N.W.2d 490, 492. In passing upon the appellant's contention the State's evidence, with all reasonable inferences therefrom, must be taken as true and viewed in the light most favorable to the State, and it is necessary to consider only the evidence which tends to support the verdict. See above-noted citations and State v. Schmidt, 239 Iowa 440, 445, 30 N.W.2d 473; State v. Williams, 245 Iowa 401, 403, 62 N.W.2d 241; State v. Graff, 228 Iowa 159, 174-175, 290 N.W. 97. Deciding fact issues is the province of the jury and its verdict on conflicting and supporting evidence is conclusive on appeal. State v. Franklin, 242 Iowa 726, 734-735, 46 N.W.2d 710; State v. Kneedy, 232 Iowa 21, 27, 3 N.W.2d 611; State v. Harrington, 220 Iowa 1116, 1123, 264 N.W. 24. Defendant's operation of the automobile was of a character as indicated either a willful or wanton disregard for the safety of persons or property and justified the jury's verdict that he was guilty of reckless driving. As said in State v. Hill, 239 Iowa 675, 679, 32 N.W.2d 398, 400: "Reckless driving is not an intentional wrong in the sense that resulting harm is intended. The statute is violated by conscious and intentional driving which the driver knows, or should know, creates an unreasonable risk of harm to others."
II. With regard to the second assigned error based upon Patrolman Severin's interview with defendant we have hereinbefore expressed our conclusion that there was no prejudicial error, and we will not elaborate further. So far as the record shows the interview between the defendant and the patrolman consisted of the latter asking defendant for his license to drive, and how fast he was driving before his car upset. His reply of 35 to 40 miles an hour was less damaging to him than his admission as a witness that his speed was about fifty miles an hour.
III. The third and last assigned error was: "Defendant was denied a fair trial by reason of a series of acts by the State throughout the trial. The purpose of said acts was to prejudice and discredit defendant in the eyes of the jury, irrespective of the merits of the case at bar, and which acts, taken as a whole, or singly, constitute prejudicial misconduct on the part of the prosecuting attorney."
Defendant sets out the specific conduct of which he complains as follows: 1. The reading of the information to the jury containing the expression "with liquor involved", coupled with the fact that there was no evidence that defendant had been drinking.
On motion of defendant, at the close of the State's evidence, the Court struck the words about liquor from the information. The words were omitted from the information as it appeared in the instruction to the jury, and the jury were told in the first instruction to entirely disregard such words.
2. The questioning and testimony of Mrs. Van Zee that she saw beer cans flying out the doors of the car driven by defendant after it had passed her. This testimony was material and pertinent as bearing on the reckless operation of the car. The Court struck her testimony that she saw the cans of beer on the ground. The testimony might properly have been let stand. She was a witness to the entire incident, including the cans in flight and at rest on the ground. After striking this testimony at the close of plaintiff's evidence, and also the testimony of Mr. Goodmanson *42 that he saw cans of beer in the road, the Court so informed the jury after they entered the box, and in its written instructions the jury was told not to discuss or consider any testimony that had been stricken.
3. The questioning and testimony of Mr. Goodmanson regarding beer cans. What we have said in the preceding paragraph applies to this complaint.
4. The questioning of Dr. Charles L. Hall whether he knew the smell of alcohol, and if he saw any at the scene of the accident.
The Doctor testified without objection that he had contacted people who had been using alcoholic liquor, and that he knew the odor. Objection to the question whether he smelled the breath of defendant was sustained. And his answer that he saw no liquor at the scene of the accident, and detected no odor of beer or liquor about the car, but that he did see beer bottles and beer cans, was stricken.
5. The questioning of Mr. Severin, the patrolman, if he was familiar with smell of intoxicating liquor and his affirmative answer were not objected to.
6. The cross-examination of defendant respecting prior automobile accidents.
He had testified in direct examination that he was 32 years old and had driven motor vehicles since he was 19 or 20 years old, and had driven about 150,000 miles. This testimony was probably given to show his competency as a motorist. His first statement in cross-examination was that "I have had considerable driving experience and consider myself a good driver." We find no prejudicial error in this examination.
7. The inquiry whether defendant bought some beer at Mr. Hagen's service station in McCallsburg.
The Court sustained an objection to the question, and the inquiry was pursued no further. He had taken the car about noon for a trial run, from Mr. Coover's place of business in McCallsburg with the request that he return it by 1:00 P.M. He testified that he bought gasoline at Hagen's about 3:30 P.M. It is fair to assume that Mr. Coover was not placing beer in his cars on these testing drives, and that defendant had knowledge of how the beer was placed in the car, but he did not see fit to shed any light on it or his sobriety on this occasion.
8. The cross-examination of defendant as to any conviction of a felony.
The examination was proper as bearing on the credibility of defendant's testimony. This cross-examination was stricken on defendant's motion at the close of plaintiff's evidence, as noted supra.
9. Argument to the jury that defendant did not deny he had been convicted of a felony. We have already noted the objection to this argument, and the Court's ruling sustaining it and directing the jury "to disregard any reference to it whatsoever."
IV. As we said in State v. Caringello, 227 Iowa 305, 310, 288 N.W. 80, 83: "Juries * * * are uniformly made up of law abiding citizens, with honest purposes, and of at least average intelligence. They are competent to understand, and are desirous of obeying the instructions of the court as to what they shall and shall not consider in determining their verdict. The trial court promptly and fully admonish the jury, both at the time of the withdrawal, and later by written instructions, and this appellate court is bound to assume that the jury fully understood and obeyed its admonitions." See also Taylor v. City of Sibley, 238 Iowa 1010, 1014-1015, 29 N.W. 2d 251; State v. Weaver, 182 Iowa 921, 930, 166 N.W. 379, 382; State v. Dobry, 217 Iowa 858, 865, 250 N.W. 702.
*43 V. Questions of improper conduct by a prosecuting attorney are peculiarly within the discretion of the trial court, and this Court should not interfere unless the conduct complained of has been so prejudicial as to deprive the complainant of a fair trial. State v. Warren, 242 Iowa 1176, 1187-1189, 47 N.W.2d 221; State v. Bolds, 244 Iowa 278, 282, 55 N.W.2d 534; State v. Jensen, 245 Iowa 1363, 1368, 66 N.W.2d 480; Connelly v. Nolte, 237 Iowa 114, 125-126, 21 N.W.2d 311; Withey v. Fowler Co., 164 Iowa 377, 391, 145 N.W. 923.
VI. "The general rule is that, if evidence is erroneously admitted * * * is distinctly withdrawn by the court, the error is cured, except in extreme instances where it is manifest that the prejudicial effect of the evidence on the jury remained despite its exclusion and influenced their verdict. 4 C.J. 898, section 2972." In re Estate of Iwers, 225 Iowa 389, 403-404, 280 N.W. 579, 587. See also McKee v. Iowa Ry. & L. Co., 204 Iowa 44, 48, 214 N.W. 564, 567, stating: "A fortiori the admission of incompetent evidence is cured by specific instruction to the jury not to consider same, in addition to striking such evidence from the record." State v. Warren, supra, 242 Iowa 1176, 1183, 47 N.W.2d 221.
In State v. Lek, 152 Iowa 12, 17, 18, 130 N.W. 1062, 1065, we said: "It must be borne in mind that the county attorney is not the court, and that impropriety of conduct on his part does not constitute in itself reversible error. * * * And the court was not asked to grant a new trial on account of any prejudice or improper influence due to this particular part of the argument of the County Attorney."
There was no motion for new trial in the case at bar.
It is our conclusion that the defendant had a fair trial, and the judgment should be, and is
Affirmed.
All Justices concur, except PETERSON, J., who takes no part.
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355 B.R. 886 (2006)
In re OCEAN CLUB SERVICES, LLC, Debtor.
In re Magic Cruise Line Services Co., Debtor.
In re Alberta Trading Co., Debtor.
Nos. 03-43619-BKC, 03-43627-BKC, 03-43629-BKC.
United States Bankruptcy Court, S.D. Florida.
November 16, 2006.
*887 Ronald G. Neiwirth, Esq., Miami, FL, for Debtors.
ORDER GRANTING DEBTORS' MOTION FOR SUMMARY JUDGMENT AND DISALLOWING MARITIME LIEN CLAIMS
ROBERT A. MARK, Bankruptcy Judge.
The Debtors, Alberta Trading Co. ("Alberta Trading"), Magic Cruise Line Services Co. ("Magic Cruise Line") and Ocean Club Services, LLC ("Ocean Club Services") (collectively, the "Debtors"), filed their Amended Objection to Claims ("Objection") (C.P.# 239), including objections to two proofs of claim filed by Straight A Tours, Inc. ("Straight A"). Resolving the Debtor's Objection with respect to Straight A requires the Court to determine whether Straight A has established a maritime lien claim against the proceeds derived from the sale of the Debtors' vessel. For the reasons that follow, the Court finds that Straight A's claims are unsecured, not secured by a maritime lien attaching to the proceeds from the sale. Therefore, the Objection will be sustained.
I. Factual Background
Alberta Trading, which wholly owns Magic Cruise Line, which in turn wholly owns Ocean Club Services, owned, until its sale in these bankruptcy proceedings, the passenger vessel The Mirage I. Alberta Trading chartered The Mirage I to Magic Cruise Line, and Ocean Club Services provided operations and management. Collectively, the Debtors operated The Mirage I on passenger cruises to destinations such as Cancun, Mexico.
By the Fall of 2003, the Debtors were in dire financial straights. The ship mortgage on The Mirage I was in default, and the Debtors were in arrears with many, if not all, of their creditors. These creditors included maritime lien creditors, including crew wage claimants, personal injury claimants and claimants who supplied "necessaries." Thus, in the Fall 2003, numerous creditors had the power to arrest The Mirage I on account of their unpaid claims.
In October 2003, the Debtors contracted with Straight A, an operator of student tours, booking The Mirage I for cruises on more than forty dates in 2004 for specific numbers of passengers. Straight A paid to Magic Cruise Line aggregate deposits of $212,000 for the bookings. Straight A's contemplated passengers, however, never boarded The Mirage I nor were the projected cruises ever undertaken because of *888 the intervening bankruptcies of the Debtors.
The Debtors individually petitioned for Chapter 11 protection on December 31, 2003, on the eve of the arrest of The Mirage I, and, on January 20, 2004, this Court entered an order providing for the joint administration of the individual cases. The Debtors sought, and were granted, authority to sell The Mirage I at auction with liens to attach to the proceeds of the sale, culminating in this Court's Final Order Approving Sale of Vessel and Related Assets (C.P.# 67) on March 22, 2004 approving the sale of The Mirage I for $8,050,000.00. Thereafter, this Court has presided over several adversary proceedings and contested matters to determine the amount and validity of lien claims against the sale proceeds.
II. Procedural Background
On July 10, 2006, the Court conducted a hearing on the Debtors' Motion for Summary Judgment (C.P.# 518) on the Debtors' Objection to two claims filed by Straight A Tours, Inc. ("Straight A"). Specifically, the Debtors object to Claim No. 72 filed by Straight A as a secured claim against Ocean Club Services; they seek to strike its status as a secured claim and to allow it as a general unsecured claim. Debtors object to Straight A's Claim No. 44 against Alberta Trading in its entirety. Straight A filed a Response (C.P.# 534) in which it contends its claims are secured by a preferred maritime lien arising out of the tort of financial unseaworthiness.
III. Discussion
A. Introduction
Straight A can survive the Motion for Summary Judgment only if it can show its claims are secured by a preferred maritime lien. This follows from the fact that The Mirage I's mortgagee, Bank Leumi Le-Israel, B.M., holds a preferred ship mortgage, which under the Ship Mortgage Act, 46 U.S.C. § § 31301-43, has priority over all claims not secured by a preferred maritime lien, and that the principal amount of the mortgage exceeds the amount of those proceeds from the sale of The Mirage I. Straight A argues that it holds a preferred maritime lien arising out of a maritime tort. The maritime tort alleged is financial unseaworthiness which Straight A argues was committed by the Debtors when they accepted from Straight A deposits for cruises the Debtors knew they would not be able to perform given the Debtors' dire financial condition at the time.
For the theory of financial unseaworthiness, Straight A principally relies on three cases: Associated Metals & Minerals Corp. v. Alexander's Unity MV, 41 F.3d 1007 (5th Cir.1995), Morrisey v. S.S.A. & J. Faith, 252 F.Supp. 54 (N.D.Ohio 1965), and The Henry W. Breyer, 17 F.2d 423 (D.Md.1927). As discussed below, even assuming that Straight A could establish a tort claim against one or more of the Debtors, the Court holds that Straight A cannot invoke the prerequisite admiralty jurisdiction necessary for that tort claim to give rise to a maritime lien. Moreover, it cannot prove one of the elements required to make a claim for financial unseaworthiness. Finally, even if Straight A could prove any tort claim against one or more of the Debtors, under these facts its claim would not be secured by a maritime lien. Thus, as a matter of law Straight A's claims are unsecured.
B. Standard for Summary Judgment.
Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that *889 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." Fed.R.Civ.P. 56(c). Summary judgment is not properly viewed as a device that the trial court may, in its discretion, implement in lieu of a trial on the merits. Instead, Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of every element essential to that party's case on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). in such a situation, there can be no genuine issue as to any material fact, as a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Id. at 322-23, 106 S.Ct. 2548.
C. Admiralty Jurisdiction
Admiralty jurisdiction arises if an alleged tort occurred in a maritime locale (the locality requirement) and there was a relationship between the tort and a maritime activity (the nexus requirement). East River Steamship v. Transamerica Delaval, 476 U.S. 858, 863-64, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). Here the nexus requirement is clearly met. The locality requirement, however, is not.
An alleged tort satisfies the locality requirement only if it occurs or has effects on navigable water. Wilkins v. Commercial Investment Trust Corp., 153 F.3d 1273 (11th Cir.1998). The cases relied upon by Straight A, Breyer, Faith and Associated Metals, which are more fully described below, are inapposite for purposes of establishing admiralty jurisdiction. In those cases the requirement that the tort occurs or has effect on navigable waters was satisfied because the cargo was loaded on board the vessel. Here, the passengers never boarded the vessel. Moreover, Straight A has made no other allegation that any element of the tort of financial unseaworthiness was committed on navigable water. The import of this is that the admiralty jurisdiction, which is prerequisite to asserting a maritime lien, is absent, and Straight A's efforts to assert a maritime lien necessarily fail. Although the analysis could end here, further discussion is appropriate since even if admiralty jurisdiction exists, Straight A cannot establish a tort claim for financial unseaworthiness. Moreover, even if a tort claim could be established, it would not give rise to a maritime lien against the vessel.
D. Financial Unseaworthiness
Though not using the phrase "financial unseaworthiness," In re The Henry W. Breyer, 17 F.2d 423 (D.Md.1927) seems to be the genesis of the doctrine. In that case, the ship was seized upon a libel for crew's wages. It was sold at auction for an amount substantially less than the outstanding principal amount of the preferred mortgage to which the ship was subject. Several claimants argued that they held preferred maritime liens.
Among these claimants were certain cargo owners who had engaged the vessel to carry cargo from Baltimore to Miami. The freight was prepaid, and the cargo was loaded onto the vessel in Baltimore. At the time the vessel took on these goods, her owners were significantly in arrears on the ship's mortgage and were about to miss another payment. There were also outstanding debts for crew's wages, supplies and repair services. After she was seized, the cargo owners were able to arrange for a third party to ship the goods on the same terms as with the original vessel. The goods were undamaged. *890 Thus, the losses of the cargo owners were limited to the prepaid freight.
The court found that the cargo owners held preferred maritime liens. The court relied upon alternative theories to find the predicate tort. First, the court reasoned that a preferred maritime lien arose by virtue of the vessel's complete failure to transport the cargo. The court recognized that the shippers did have a contract cause of action arising from this failure. However, the court found that by virtue of the common carrier relationship, there existed "a duty imposed by law which arises out of the relations which the carrier sustains to the public," i.e., failure to ship the`cargo once on board violated this "duty imposed by law" giving rise to a cause of action sounding in tort. The court found that the ship's failure to transport the goods arose from its owner's financial inability to reasonably furnish the ship and that the cargo owners "were entitled to recover the prepaid freight in an action of negligence." Id. at 431.
The court also relied upon an alternative "constructive fraud" theory. The court reasoned that "[i]t is a general principle that, when a person who is insolvent purchases goods with no intention of paying for them, and conceals his insolvency and his intention not to pay, he is guilty of fraud which entitles the vendor to recover the goods. Knowledge of inability to pay when the purchase is made is equivalent to purchase with intent not to pay. Such purpose is constructively fraudulent." Id. Here, the financial inability of the ship's owner was so complete, that insolvency must have been known to the "managers of the vessel when the cargo was taken on board." Id. Accepting the prepaid freight and loading the goods when it was clear that the owners could not fund the voyage was constructively fraudulent. The court concluded that "[i]t was equally fraudulent for the ship to accept payment for services which she was clearly unable to perform." Id.
In Morrisey v. S S A & J Faith, 2:52 F.Supp. 54 (N.D.Ohio 1965), the court analyzed similar facts. Although the cargo owners pressed both the "negligence" and "constructive fraud" theories articulated in Breyer, the court only analyzed the "negligence" theory. The court framed the issue as "whether the act of accepting cargo and freight charges and lifting anchor when the ship is in precarious financial straits can be construed as a failure to use due diligence to furnish a seaworthy vessel." Id. at 58. The court reasoned that the term "seaworthy" should not be limited to its denotation, i.e., the seaworthiness analysis requires more than an inquiry into its "physical facilities." Rather, carrying on the tradition of expanding the "connotative ambit" of the term, the court concluded that the duty to provide a seaworthy vessel "impose[d] the obligation so that a ship's owner must make reasonable effort to furnish a vessel which can complete the voyage for which she solicits business." Id. Conversely, the duty of seaworthiness is breached when
there is a multitude of unsatisfied creditors, any one of whom can arrest the vessel, and the owner lacks the resources to free her from the arrest of process either by satisfaction of the claims or the posting of a bond there can be no reasonable expectation that the vessel will perform the voyage.
Id. Thus, the duty to provide a seaworthy vessel is breached when the financial status of the ship's owners is such that interruption or termination of the voyage is foreseeable. Since the vessel was "already floundering on the shoals of hopeless insolvency" when it took on the cargo, the vessel's owners breached the duty to provide a seaworthy vessel.
*891 The court then turned to the question of whether the failure to provide a seaworthy vessel was a tort. In answering this question in the affirmative, the court reasoned that a common carrier's duty to provide a seaworthy vessel independently existed under the law. It was an additional safeguard to those negotiated by the parties in the contract for affreightment or bill of lading. A breach of this additional, independent duty, the court concluded, gives rise to cause of action in tort. Thus, the court held that accepting the prepaid freight and loading the cargo on an unseaworthy vessel gave rise to a maritime tort, and it award a preferred maritime lien in the amount of the prepaid freight.
In Associated Metals and Minerals Corp. v. Alexander's Unity MV, 41 F.3d 1007 (5th Cir.1995), the Alexander's Unity took on a cargo of steel plates that were susceptible to seawater rust damage for transport from India to Mobile and Houston. Because the Alexander's Unity's hatch covers had fallen into disrepair and because of the stormy and tumultuous seas surrounding the Cape of Good Hope, the ship's master requested permission from the vessel's owner to travel through the Suez Canal. The vessel's owner was unwilling to pay the fees necessary for passage through the Canal and denied the request. Moreover, the owner declined to replace the hatches and instead merely patched them with "asphalt tape." While rounding the Cape, the ship encountered conditions so severe that the ship's deck was covered by waves for several days. Seawater penetrated through the hatch cover and into the cargo holds, resulting in more than $700,000 of rust damage to the steel plates. The initial leg of the Alexander's Unity voyage took it to New Orleans from which it was supposed to continue and deliver the steel plates to Mobile and Houston. The ship, however, was arrested in New Orleans by the ship's mortgagee. The cargo owner incurred an additional $70,889.95 in expenses resulting from the forwarding of the steel plates.
The cargo owner sued seeking damages for the rust damage to the cargo and for expenses incurred in forwarding the cargo. The district court held that the cargo owner was "damaged not only from the breach of contract of carriage by the vessel but also from the physical and financial unseaworthiness of the vessel and the negligence of her owners." Id. at 1010. Thus, under admiralty law, the cargo owner held "a claim in tort for negligence and such a claim is a preferred maritime tort lien against the vessel" which encompassed the rust damage as well as forwarding expenses. Id. On appeal, the Fifth Circuit affirmed. It did not examine the substance of financial unseaworthiness. Rather, its analysis focused on whether the lien the cargo owner held on account of "physical and financial unseaworthiness" arose out of a maritime tort. The Fifth Circuit held that at least since The John G. Stevens, 170 U.S. 113, 18 S.Ct. 544, 42 L.Ed. 969 (1898), such claims had sounded in both contract and tort, which the Fifth Circuit described as a "hybrid" claim, and that subsequent developments in the law had not eliminated the tort. Id. at 1011-17.
Taken together, these cases can be read to develop the "negligence" theory articulated in Breyer into a cause of action for financial unseaworthiness. Although, as noted above, Associated Metals did not delve into the substance of financial unseaworthiness, it can be construed as placing the Fifth Circuit's imprimatur on the concept. The material facts in each of the three cases are identical: under some contractual aegis, freight is prepaid, cargo is loaded on board the vessel while the financial condition of the vessel's owner or charterer *892 is such that it is foreseeable that she will not complete the intended voyage, and, in fact, the intended voyage is not completed. Generalizing from these facts and employing the language of Breyer and Faith, the elements of the tort of financial unseaworthiness appear to be (1) a duty to provide a seaworthy vessel, (2) foreseeable termination or interruption of the intended voyage due to the financial condition of the vessel's owners, (3) actual termination or interruption resulting from the financial condition, and (4) damages, commonly the loss of prepaid freight. Moreover, following Associated Metals, financial unseaworthiness does sound in tort.
The facts of the instant case, however, are distinguishable from those in Breyer, Faith and Associated Metals because the passengers, which Straight A seeks to analogize to the cargo in the above cases, never boarded the vessel. The import of this factual distinction is that the duty of seaworthiness never arises. Todd Shipyards Corp. v. City of Athens, 83 F.Supp. 67 (D.Md.1949). In that case, which presented nearly identical facts to the instant case, the court relied on this distinction and denied maritime lien status to passengers who never boarded their intended passenger vessel.
In Todd Shipyards, the vessel was arrested following a libel entered by the shipyard that had renovated the vessel. The vessel had been a troop transport and by the efforts of the shipyard was converted to a passenger and cargo transport. The cost of the renovation, however, evidently exceeded the vessel's owner's capital. Although the vessel did make several voyages, it appears that the owner had little realistic chance of repaying the shipyard. Indeed, when the vessel was finally arrested, libels were also entered for unpaid crew wages for some preceding voyages. Among the other libels were those for passengers who had prepaid for tickets on the projected next voyage. No passenger ever boarded the vessel nor was any passenger's baggage loaded on board.
The court held that the passengers' claims for prepaid tickets were not secured by maritime liens. The court specifically considered whether under Breyer; which is also a District of Maryland case, the passengers held a maritime lien. In rejecting an argument that the Breyer holding afforded the passengers a maritime lien, the court relied upon the distinguishing fact that in Breyer the cargo was loaded on board the vessel whereas in its case, as in the instant case, the passengers never boarded. The court reasoned that Breyer was "only a recognition of a long existing right of a claimant to sue in tort for damages resulting from the wrongful action of a common carrier with respect to passengers or cargo after they had physically come within the control of the carrier." Todd Shipyards, 83 F.Supp. at 76. This is simply to say that the duty of seaworthiness is not imposed by law, as opposed by contract, until a passenger boards the vessel or cargo is loaded.
In summary, Straight A asks the Court to extend the financial unseaworthiness cases to new factual circumstances in which the passengers have not boarded the vessel. The Court declines to do so; instead, the Court adopts the analysis in Todd Shipyards. Because the passengers never boarded the Mirage I, the duty of seaworthiness never arose. Absent that duty, Straight A cannot make a claim for financial unseaworthiness and thereby convert its contract claim into a tort claim.
E. Unavailability of a Maritime Lien
Assuming Straight A a claim for fraud in the inducement akin to the "constructive fraud" theory raised in Breyer, Straight A's claim would still not be secured *893 by a maritime lien. Again, Todd Shipyards is persuasive here:
[E]ven if we assume that a common carrier maybe sued in tort for failure to fulfill an executory obligation to a passenger who did not come within the care or control of the carrier it does not follow that a breach of such executory contract creates a lien in rem. Thus it may well be that the shipowner in the present case may be sued in tort by the prospective passengers either in civil law courts or even in personam in admiralty, but they have no maritime lien to enforce in rem against the ship. The shipowner, and not the ship as an entity, is the common carrier. The obligation to transport passengers either in accordance with a previous contract or advertised schedule is not the obligation of the vehicle used for transportation, but of the owner or operator of the vehicle.
Todd Shipyards at 76 (internal citations omitted). The Todd Shipyards court found the theoretical underpinnings of this distinction in two Supreme Court cases. In Osaka Shosen Kaisha v. Pacific Export Lumber Co., 260 U.S. 490, 43 S.Ct. 172, 67 L.Ed. 364 (1923), in determining that no lien arose where only part of a designated cargo was transported (and the remaining part was never loaded on board the vessel) the Court reasoned:
The rule of admiralty, as always stated, is that the cargo is bound to the ship and the ship to the cargo. Whatever cases may have been decided otherwise disregarded the universal fact that no lien arises in admiralty except in connection with some visible occurrence relating to the vessel or cargo or to a person injured. This is necessary in order that innocent parties dealing with vessel may not be the losers by secret liens, the existence of which they have no possibility e detecting by any relation to any visible fact. It is in harmony with this rule that no lien lies in behalf of a vessel against her cargo for dead freight, or against a vessel for supplies contracted for, but not actually put aboard.
Id. at 500, 43 S.Ct. 172 (quoting The S.L. Watson, 118 F. 945, 952 (1 st Cir.1902)). See also Krauss Bros. Co. v. Dimon S.S. Corp., 290 U.S. 117, 121, 54 S.Ct. 105, 78 L.Ed. 216 (1933). Thus, until the passengers board the vessel, a maritime lien against a vessel cannot arise even if a tort claim can be established against its owners.
IV. Conclusion
The Court concludes that Straight A's claims are unsecured. Taking Straight A's allegations to be true, the inescapable fact is that its intended passengers never boarded The Mirage I. Because of this inescapable fact, Straight A cannot establish that the requisite admiralty jurisdiction exists, that the duty of seaworthiness arose or that there existed the connection between the vessel and the passengers necessary to impose a maritime lien against the vessel for the torts of the Debtors. In sum, the Debtors are entitled to summary judgment on the Objection since Straight A's allegations, taken as true, fail to establish a maritime lien as a matter of law. Straight A's claims, whether sounding in contract or in tort, are simply unsecured claims. Therefore, it is
ORDERED as follows:
1. The Debtor's Motion for Summary Judgment is GRANTED.
2. The Debtors' Objection is sustained and claims 44 and 72 filed by Straight A are disallowed as maritime lien claims. The claims will remain pending as general unsecured claims.
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295 F.2d 132
James C. WHITE, Appellantv.Donald L. CLEMMER, Director, District of Columbia Department of Corrections, et al., Appellees.James H. CHILDS, Appellantv.Donald L. CLEMMER, Director, District of Columbia Department of Corrections, et al., Appellees.
No. 16143.
No. 16144.
United States Court of Appeals District of Columbia Circuit.
Submitted April 26, 1961.
Decided June 1, 1961.
Petition for Rehearing En Banc Denied August 8, 1961.
Appellants filed a brief pro se, and their cases were treated as submitted thereon.
Mr. Ted D. Kuemmerling, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Chester H. Gray, Corporation Counsel, Milton D. Korman, Principal Asst. Corporation Counsel, and Hubert B. Pair, Asst. Corporation Counsel, were on the brief, submitted on the brief, for appellees.
Before Mr. Justice BURTON, retired,* and DANAHER and BASTIAN, Circuit Judges.
DANAHER, Circuit Judge.
1
Appellants separately sought to "mandamus" appellee Clemmer who is Director of the District of Columbia Department of Corrections. Named additionally were the appellees Pegelow and Knupp, Superintendent and Assistant Superintendent, respectively, of the Lorton Reformatory maintained at Lorton, Virginia, by the District of Columbia. Not named as parties were the Commissioners or any of them. The complaints were consolidated, and after consideration of appellees' motion to dismiss, both were dismissed without prejudice by the District Judge. His memorandum opinion pointed out that the appellants had failed to exhaust their administrative remedies and to join necessary parties. Appellants without having taken the steps implicitly suggested in the memorandum of the District Judge, have brought this appeal here. We are of the view for the reasons to be stated that the order must be affirmed.
2
D.C.Code § 24-442 (1951) provides that the Department of Corrections shall be conducted under the general direction and supervision of the Commissioners of the District of Columbia who "shall have charge of the management and regulation" of the Reformatory at Lorton, and "be responsible for the safekeeping, care, protection, instruction, and discipline of all persons committed" to the Reformatory at Lorton.1
3
Appellants have not contested the legality of their detention. Rather, it is clear, they complain in conclusionary fashion of various aspects of prison administration largely having to do with the granting or withdrawal of certain claimed privileges, a not unusual concomitant of their status. Cf. Price v. Johnston, 1948, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356. They have asked the court to act in a field which has been committed to the discretion of the Commissioners.2
4
We deem it clear that a remedy in the nature of mandamus is not available. The principles which should govern were summarized by this court in Hammond v. Hull, 1942, 76 U.S.App.D.C. 301, 303, 131 F.2d 23, 25, certiorari denied 1943, 318 U.S. 777, 63 S.Ct. 830, 87 L.Ed. 1145, as follows:
5
"(1) The writ should be used only when the duty of the officer to act is clearly established and plainly defined and the obligation to act is peremptory. (2) The presumption of validity attends official action, and the burden of proof to the contrary is upon one who challenges the action. (3) Courts have no general supervisory powers over the executive branches or over their officers, which may be invoked by writ of mandamus. Interference of the courts with the performance of the ordinary duties of the executive departments of the government would be productive of nothing but mischief. (4) When the performance of official duty requires an interpretation of the law which governs that performance, the interpretation placed by the officer upon the law will not be interfered with, certainly, unless it is clearly wrong and the official action arbitrary and capricious. (5) For it is only in clear cases of illegality of action that courts will intervene to displace the judgments of administrative officers or bodies. (6) Generally speaking, when an administrative remedy is available it must first be exhausted before judicial relief can be obtained, by writ of mandamus or otherwise."
6
Consideration of the allegations of record in light of the foregoing demonstrates that appellants have failed to state a cause of action for which relief may be afforded. Cf. Prince v. Klune, 1945, 80 U.S.App.D.C. 31, 148 F.2d 18.
7
Affirmed.
Notes:
*
Sitting by designation pursuant to 28 U.S.C. § 294(a)
1
Reorganization Order No. 34-Department of Corrections by D.C.Code, Title 1, Supp. VIII 1960, page 50, retains the principle that the Department of Corrections is established "under the direction and control of a Commissioner." See Parts I and II. Moreover, by their Policy Order, dated November 25, 1953, the Commissioners have provided that any person at Lorton who has been aggrieved may "within ten days, file with the Secretary of the Board of Commissioners a written statement of the alleged violation setting forth specifically and in detail the facts of the matter. The Commissioners will thereafter cause an investigation to be made and, in the event that the complaint is justified, will take appropriate action."
2
Cf. Sanders v. Allen, 1938, 69 App.D.C. 307, 309, 100 F.2d 717, 719
Memorandum
8
Filed Aug. 8, 1961.
9
PER CURIAM.
10
The sitting division, sua sponte, desires to dispel a misapprehension which has appeared in memoranda filed in connection with appellants' petition for rehearing en banc. This court did not hold that the District Commissioners are, or should have been joined as, necessary parties. We merely noted that the District Judge had indicated otherwise as one of the grounds for his ruling dismissing the complaint. We held only that the allegations failed to state a cause of action for which relief might be afforded when tested by the principles set forth in Hammond v. Hull, 1942, 76 U.S.App.D.C. 301, 303, 131 F.2d 23, 25, certiorari denied 1943, 318 U.S. 777, 63 S.Ct. 830, 87 L.Ed. 1145.
11
Expanding our footnote reference to the Policy Order issued by the District Commissioners under date of November 25, 1953, we call more particular attention to that portion applicable to the Department of Corrections, reading:
"III. Nondiscrimination in use of facilities and services.
12
"(a) Policy. Every official and employee under the supervision of the District Commissioners in any department, agency, or instrumentality, or any of its constituent units subject to this order shall act without regard to race, religion, color, ancestry, or national origin in all matters relating to the use and enjoyment of, or assignment or entitlement to, any public facility, accommodation, service, or treatment subject to his control, authority, or supervision unless specifically required by statute to do otherwise.
cc
"(b) Exceptions and instructions on specific matters.
13
* * * * *
14
"(4) The Jail Division of the Department of Corrections and the three institutions of that Department located at the District Reservation near Lorton and Occoquan, Virginia, shall expand their present partial integration to provide for complete integration in all matters, including assignments of inmates to cells or dormitories and eating facilities, with the objective that complete integration will be achieved within the shortest possible time consistent with sound administrative and penological practice and the public interest.
15
"(c) Complaints of violation. Any person who has been aggrieved because the policy of this section has not been adhered to may, within ten days, file with the Secretary of the Board of Commissioners a written statement of the alleged violation setting forth specifically and in detail the facts of the matter. The Commissioners will thereafter cause an investigation to be made and, in the event that the complaint is justified, will take appropriate action." (Emphasis added.)
16
We deem it clear that the Director of the Department of Corrections and officials at Lorton are subject to the foregoing Policy Order. It may be that administrative remedies are still open to these appellants.
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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 January 7, 2020 ∗
Decided January 9, 2020
Before
DIANE P. WOOD, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 19-1164
LINDA REED, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District
of Illinois, Eastern Division.
v. No. 14-C-2247
STATE OF ILLINOIS, Jorge L. Alonso,
Defendant-Appellee. Judge.
ORDER
After an Illinois court denied Linda Reed’s request for a court-appointed
attorney to accommodate her disability during a proceeding related to the guardianship
of her mother, Reed sued the State of Illinois alleging violations of the Americans with
Disabilities Act and the Rehabilitation Act. The district court entered summary
∗ We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19-1164 2
judgment for the State on both claims. Because Reed was not denied access to the
courts, we affirm the judgment.
We recite the undisputed facts, drawing reasonable inferences in Reed’s favor.
See Ashby v. Warrick County Sch. Corp., 908 F.3d 225, 230 (7th Cir. 2018). After Reed’s
brother was appointed plenary guardian of their disabled mother, Reed suspected that
he was mismanaging her estate. When her mother died, Reed wanted to protect her
inheritance. At that time, the guardianship estate was still open in the Circuit Court of
Cook County, and she involved herself in those proceedings, requesting a review of her
brother’s dealings and the appointment of an independent administrator.
Reed has a neurological disorder called Tardive Dyskinesia, which, according to
her complaint, results in “visible symptoms including an easily-triggered startle
response, involuntary movements in her limbs, hands, and mouth, and an
uncontrollable impulse to move” and “[l]ess visible symptoms [of] difficulty in logical
or critical thinking and inability to verbally communicate.” Reed contacted the probate
court’s disability coordinator to request accommodations. The coordinator provided
Reed with an accommodation request form and forwarded information about free or
affordable legal assistance. Reed (who lives in Wisconsin) returned the form, requesting
a note-taker whose notes would become part of the record and permission to participate
in the court hearings by telephone (to listen to the proceedings) and email (to respond
in writing, given her difficulty speaking). Later, she requested as an additional
accommodation that the court appoint counsel to represent her.
The probate court granted some of Reed’s requests and denied others. It
permitted Reed to participate in the hearings by telephone conference, allowed her to
use a note-taker, and offered to provide her with free transcripts of the proceedings. It
denied her request to put the notes made on her behalf into the record. The court also
denied her request to communicate via email during the proceedings but gave her
permission to use a free chat service to communicate with the judge during hearings.
Finally, the court denied Reed’s requests for an attorney, noting that she was “not the
ward or the respondent in a petition for adjudication” and that she had not taken
advantage of the disability coordinator’s efforts to connect her with an organization that
could have helped her find an attorney.
Reed declined to use the internet chat options—maintaining that learning a new
interface was too difficult—but nonetheless attended hearings by telephone. The court
maintained that it could understand Reed throughout the hearings and ultimately
No. 19-1164 3
granted some relief: it ordered an inventory and accounting of the estate, appointed a
guardian ad litem to help determine whether the brother should be discharged, and
ultimately dismissed the brother as guardian. The court (both during hearings and in
email correspondence with the disability coordinator) and guardian ad litem each
advised Reed that she needed to open a decedent’s estate to obtain the portion of her
inheritance that she believed had been diverted from her.
While the guardianship proceeding was ongoing, Reed sued the State of Illinois
alleging violations of the ADA and the Rehabilitation Act. See 42 U.S.C. § 12132;
29 U.S.C. § 794. 1 The district court recruited an attorney to represent her pro bono.
After discovery, the State moved for summary judgment. The operative third amended
complaint referenced all the accommodations that the probate court had denied, but in
her response to the motion for summary judgment, Reed argued only that the State
unlawfully rejected her request for an attorney, which she described as “the only
appropriate remedy” given her disability.
The district court entered summary judgment for the State on both counts. It first
concluded that the State enjoyed sovereign immunity on the ADA claim because it had
not prevented Reed from accessing the courts. Next, the court determined that
providing an attorney amounts to a service of a “personal nature” and therefore is not a
reasonable accommodation under the Rehabilitation Act, just as it would not be under
the ADA. 28 C.F.R. § 35.135; see A.H. by Holzmueller v. Ill. High Sch. Ass’n., 881 F.3d 587,
592 (7th Cir. 2018) (“The relevant provisions and implementing regulations of the
Rehabilitation Act and the ADA are ‘materially identical.’”).
Reed appeals the entry of summary judgment on her ADA and Rehabilitation
Act claims, arguing that the state court’s denial of her request for counsel frustrated her
right of access to the court because it prohibited her from meaningfully participating in
1 Reed also included as defendants the Circuit Court of Cook County, three
judges, and the disability coordinator, but the district court dismissed these claims as
redundant of her claims against the State. See Reed v. Illinois, No. 1:14-cv-02247, slip op.
at 1 (N.D. Ill. Aug 10, 2015) (citing Landers Seed Co., Inc. v. Champaign Nat’l Bank, 15 F.3d
729, 731–32 (7th Cir. 1994) (state courts are branches of state government); Orenic v. Ill.
State Labor Relations Bd., 537 N.E.2d 784, 795 (Ill. 1989) (circuit court employees are
employees of the state); Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (official capacity
claims against state employees are actually claims against the state)). Reed does not
challenge the dismissal of these defendants.
No. 19-1164 4
the guardianship proceedings. Although Reed discusses additional accommodations
that she requested, we do not consider arguments that she did not make in the district
court. See Guzman v. Brown Cty., 884 F.3d 633, 639 (7th Cir. 2018). Our review is de
novo. See Holzmueller, 881 F.3d at 592.
Reed first argues that the district court erred in concluding that the State was
immune from suit on her ADA claim. Congress has abrogated states’ sovereign
immunity for cases that arise under Title II of the ADA if they implicate the
“fundamental right of access to the courts.” Tennessee v. Lane, 541 U.S. 509, 533–534
(2004). But not all rights associated with the court system fall in this category; the
fundamental right of access to the courts refers to those constitutional rights that protect
a litigant’s ability to get into court and to receive a judgment. King v. Marion Circuit
Court, 868 F.3d 589, 592 (7th Cir. 2017), cert. denied, 138 S. Ct. 1582 (2018); see, e.g., Lane,
541 U.S. at 515 (physical exclusion of wheelchair-bound litigants from second-floor
courtroom is denial of access). Indeed, “there is no constitutional problem with …
requiring litigants to pay for their own lawyers in civil cases, although those expenses
may make litigation impractical if not impossible for some persons.” King, 868 F.3d
at 592.
Reed was not denied fundamental access to the court, even if the State made
litigating more difficult by denying her chosen accommodation. She appeared at
hearings via telephone, filed petitions, had a note-taker, and was permitted (though she
declined) to communicate at hearings through an internet chat service. The court
provided her with transcripts and took breaks during the hearings so that she could
manage her stress when it was exacerbating her symptoms. See, e.g., King, 868 F.3d
at 593 (no fundamental right of access was denied when claimant was able to litigate in
court). Moreover, the court granted much of Reed’s requested relief: it ordered an
inventory and accounting of the estate and eventually discharged her brother as
guardian over their mother. See Christopher v. Harbury, 536 U.S. 403, 415 (2002) (claimant
must present evidence of valid claim that was frustrated by the denial). As to her other
requested relief—the inheritance—the probate court repeatedly told Reed that only
issues of guardianship were before it. To litigate over the proper distribution of her
mother’s assets, Reed would have had to file a separate action to reopen her mother’s
estate. It was not the denial of an attorney that prevented her from getting all the relief
she wanted in the context of the guardianship proceeding. We do not minimize the
difficulties that Reed had participating as fully as she wanted to, but she had
meaningful access to the proceedings. The state’s sovereign immunity, therefore, is not
abrogated.
No. 19-1164 5
Reed next argues that she presented enough evidence from which a reasonable
factfinder could conclude that she had been excluded from the probate court in
violation of the Rehabilitation Act. (The State waived sovereign immunity under the
Rehabilitation Act in exchange for the receipt of federal funds, see Jaros v. Ill. Dep’t of
Corr., 684 F.3d 667, 671–2 (7th Cir. 2012).) In order to survive summary judgment, Reed
needed to produce evidence that she is a qualified individual with a disability and that
she was denied access to a program or activity because of her disability. See 29 U.S.C.
§ 794(a); Jaros, 684 F.3d at 672. Although the Rehabilitation Act does not contain an
express accommodation requirement, we read one into the statute generally. See Jaros,
684 F.3d at 672 (citing Alexander v. Choate, 469 U.S. 287, 301 (1985)).
Reed argues that the provision of an attorney to disabled, pro se litigants in a
civil context can be a reasonable accommodation and was required in her situation. She
asserts that, because the probate court can appoint attorneys to “wards and
respondents,” it is neither unduly burdensome on the court—nor would it alter the
fundamental nature of the court’s services—to provide them for disabled litigants as
well. Further, she argues that without an attorney, she was unable to meaningfully
participate in the court proceedings and so was effectively denied court access equal to
that of her non-disabled peers.
We do not need to decide broadly, as the State urges us to, that “appointed
counsel” is never a reasonable accommodation “as a matter of law.” There may be
circumstances in which a state court, in its discretion, might deem the assistance of an
attorney to be a reasonable accommodation of a disability. Nor do we weigh in on
whether the professional services of an attorney can be viewed as excluded “personal
services” under 28 C.F.R. § 35.135. Here, as we have concluded already, Reed was
neither denied physical access to the courts (she asked to litigate remotely) nor denied
meaningful participation in the court proceedings. Rather, she engaged in the hearings,
filed petitions and motions, and obtained some of the relief she sought.
Accordingly, we affirm the judgment of the district court.
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884 F.2d 745
In the Matter of PACKER AVENUE ASSOCIATES (A PennsylvaniaLimited Partnership).Appeal of Armand CERITANO.
No. 88-1720.
United States Court of Appeals,Third Circuit.
Submitted under Third Circuit Rule 12(6)Aug. 8, 1989.Decided Sept. 8, 1989.
Armand Ceritano, Philadelphia, Pa., pro se
Barry E. Bressler, Pelino & Lentz, P.C., Philadelphia, Pa., for appellee, Westinghouse Credit Corp.
Before BECKER, GREENBERG and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
VAN DUSEN, Senior Circuit Judge.
1
This case requires us to consider whether the district court abused its discretion by issuing, pursuant to 28 U.S.C. Sec. 1651(a), an order enjoining appellant from filing any further petitions, pleadings or documents whatsoever. The order does not clearly state whether it enjoins appellant from filing any further documents solely in matters related to this case, in matters in federal court, or, for that matter, in any matter in any court anywhere. Accordingly, while not unmindful of the tremendous frustration appellant's frivolous litigation activities must have caused the district court, we conclude that the injunction is overbroad and will modify it as described herein.
I.
2
Appellant, Armand Ceritano, was an officer of the corporate general partner of Packer Avenue Associates, a Pennsylvania limited partnership which owned a Hilton Inn near the Philadelphia airport and filed a voluntary petition in bankruptcy on July 25, 1977. Packer Avenue Associates was discharged and the bankruptcy case closed on November 18, 1982. Subsequently, appellant filed a number of frivolous pro se petitions attempting to collaterally attack issues decided in the bankruptcy case. As a result, on May 31, 1984, the district court ordered the clerk of the court to decline to accept any further petitions for filing from appellant without the authorization of the court. Appellant then repeatedly sought the authorization of the court to file various petitions. It appears that in each case authorization was denied. On September 14, 1988, the district court, noting that appellant had filed or attempted to file twenty-seven petitions relitigating issues that had already been decided by the court, and finding appellant's litigation activities to be an "unwarranted expenditure of administrative and judicial time and resources," sua sponte enjoined appellant from "filing any further petitions, pleadings or any document whatsoever" except for a notice of appeal in the present case.
3
This appeal followed.
II.
4
The All Writs Act, 28 U.S.C. Sec. 1651, gives district courts power, inter alia, to issue injunctions restricting the filing of meritless pleadings by litigants where the pleadings raise issues identical or similar to those that have already been adjudicated. In re Oliver, 682 F.2d 443, 445 (3d Cir.1982). However, such injunctions are extreme remedies and should be narrowly tailored and sparingly used. Id. The courts of appeals review their issuance for abuse of the district court's discretion. See Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1034 (9th Cir.1985), cert. denied, 476 U.S. 1183, 106 S.Ct. 2919, 91 L.Ed.2d 547 (1986).
5
This circuit has concluded that district courts may issue an injunction requiring a litigant who has repeatedly filed complaints alleging claims that have already been fully litigated to receive court approval before filing further complaints. Chipps v. United States Dist. Court for the Middle Dist. of Pa., 882 F.2d 72 (3d Cir.1989); In re Oliver, 682 F.2d 443 (3d Cir.1982). Other circuits have reached the same conclusion. See Filipas v. Lemons, 835 F.2d 1145 (6th Cir.1987); In re Martin-Trigona, 763 F.2d 140 (2d Cir.1985), cert. denied, 474 U.S. 1061, 106 S.Ct. 807, 88 L.Ed.2d 782 (1986); Pavilonis v. King, 626 F.2d 1075 (1st Cir.1980). Thus, we note initially that the district court's May 31, 1984, order requiring appellant to receive its permission before filing additional pleadings was not an abuse of discretion.
6
The September 14, 1988, order now appealed from, however, is much more broad and appears not to be narrowly tailored at all. It provides:
ORDER
7
AND NOW, this 14th day of September, 1988, for the reasons stated in the Court's accompanying memorandum, the Court, sua sponte, pursuant to 28 U.S.C. Sec. 1651(a) hereby enjoins petitioner Armand Ceritano from filing any further petitions, pleadings or any document whatsoever except for a Notice of Appeal in the above-captioned matter.
8
Reading the plain language of the order, it would appear to prohibit appellant from ever again filing another petition, pleading or document in federal court.1 All of the courts that have considered whether an injunction restricting a litigant's future litigation may be issued have emphasized that such an injunction should be narrowly tailored and rarely issued. See In re Oliver, supra, at 445; In re Martin-Trigona, supra, at 141-42; Pavilonis, supra, at 1079; In re Tyler, 839 F.2d 1290, 1294 (8th Cir.1988); Safir v. United States Lines, Inc., 792 F.2d 19, 24-25 (2d Cir.1986), cert. denied, 479 U.S. 1099, 107 S.Ct. 1323, 94 L.Ed.2d 175 (1987); Procub v. Strickland, 760 F.2d 1107, 1110-14 (11th Cir.1985); Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1524-26 (9th Cir.1983); In re Green, 669 F.2d 779, 786-88 (D.C.Cir.1981) (per curiam). There simply is no support in the law for permitting an injunction prohibiting a litigant from ever again filing a document in federal court. Accordingly, the decision of the district court sua sponte issuing the injunction cannot be allowed to stand.
9
However, the record does indicate that appellant has repeatedly filed frivolous motions and petitions with respect to Bankruptcy Case No. 77-1201 and, as a result, has been an undue burden on the district court's time. Therefore, we can certainly understand the district court's frustration with appellant. In In re Green, 669 F.2d 779 (D.C.Cir.1981) (per curiam), the District of Columbia Circuit reviewed a district court order that provided that a prolific pro se litigant would only be permitted to file claims upon payment of all filing fees and a $100.00 cash deposit as security for costs. It concluded that the district court's order violated the litigant's constitutional right of access to the courts, and directed the district court to vacate its original order and issue an order reading:
10
Petitioner may not file any civil action without leave of court. In seeking leave of court, petitioner must certify that the claims he wishes to present are new claims never before raised and disposed of on the merits by any federal court. Upon a failure to certify or upon a false certification, petitioner may be found in contempt of court and punished accordingly.
11
Id. at 787.
12
We find this to be a novel approach to the problems occasioned by pro se litigants who persist in filing great numbers of frivolous lawsuits. It has the benefit of not precluding access to the courts by the litigant while at the same time subjecting him or her to substantial penalties for contempt if he or she persists in filing frivolous claims attacking judgments on issues that have long ago been fully litigated and decided. This, we believe, strikes a good balance between the right of the litigant to access to the courts, the right of parties to previous litigation to enjoy the repose of res judicata, and the right of taxpayers not to have a frivolous litigant become an unwarranted drain on their resources. In line with this approach, we will modify the district court's order to read as follows:2
13
Appellant may not file any action dealing with issues resolved in Bankruptcy Case No. 77-1201 without leave of the district court. In seeking leave of court, appellant must certify that the claims he wishes to present are new claims, never before raised and disposed of on the merits by any federal court. Upon a failure to certify or upon a false certification, appellant may be found in contempt of court and punished accordingly.
14
Modifying the district court's order as we have done will, we hope, preclude Mr. Ceritano from filing any more frivolous papers pertaining to Bankruptcy Case. No. 77-1201, or at least subject him to a substantial penalty if he persists in doing so, while not depriving him of his right of access to the courts.
15
The remaining question to be dealt with is appellee's request that the panel issue an injunction prohibiting appellant from filing any further appeals in the Packer bankruptcy case. In our view, this motion need not be granted because, with the district court order modified as we have directed, it appears unlikely that appellant will be able to file many more frivolous actions in the district court, and hence he should not generate many more frivolous appeals. In the event he is able to file a meritorious action, we believe that he should continue to have the right to appellate review. Accordingly, in the exercise of our discretion, we will deny appellee's request.
III.
16
For all of the foregoing reasons, the order of the district court, sua sponte issuing an injunction precluding appellant from ever filing another paper in federal court, will be modified as we have directed, and the appellee's request that the panel enjoin appellant from filing any more appeals in the Packer Avenue Associates bankruptcy case will be denied.
1
We note that it seems quite possible that the district court did not intend to enjoin appellant from ever filing another document in federal court, but, rather, to enjoin him from ever filing another document in federal court dealing with Bankruptcy Case No. 77-1201, 1988 WL 96779. While this circuit has not passed on the issue, the First and Second Circuits have allowed similar injunctions. See Castro v. United States, 775 F.2d 399, 408-10 (1st Cir.1985); Lacks v. Fahmi, 623 F.2d 254, 256-57 (2d Cir.1980); but see Safir v. United States Lines, Inc., 792 F.2d 19, 25 (2d Cir.1986) (concluding that such an injunction was overbroad and modifying it to only preclude the appellant from filing another document dealing with the issue in question without obtaining leave of the district court), cert. denied, 479 U.S. 1099, 107 S.Ct. 1323, 94 L.Ed.2d 175 (1987). In all events, we need not consider whether the issuance of such an injunction would be an abuse of discretion because that is not what the injunction before the court says on its face, and in the exercise of our discretion we choose to modify it in a different way
2
Authority to modify the district court's order is found in 28 U.S.C. Sec. 2106. See also Safir v. United States Lines, Inc., 792 F.2d 19, 25 (2d Cir.1986), cert. denied, 479 U.S. 1099, 107 S.Ct. 1323, 94 L.Ed.2d 175 (1987); Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1523 & n. 7 (9th Cir.1983) (modifying similar district court orders). Accordingly, we modify the district court's order ourselves and do not, as the District of Columbia Circuit did in In re Green, return to the district court with directions to modify its order
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
COLLEEN F. CLAY, DOCKET NUMBER
Appellant, DC-0351-14-0254-I-2
v.
CORPORATION FOR NATIONAL DATE: December 21, 2016
AND COMMUNITY SERVICE,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Johnathan P. Lloyd, Esquire, Washington, D.C., for the appellant.
Angela R. Williams, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed its action separating the appellant by reduction in force (RIF). For the
reasons discussed below, we GRANT the agency’s petition for review and
REVERSE the initial decision. The appellant’s separation is SUSTAINED.
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
¶2 Effective June 28, 2010, the agency demoted the appellant under 5 U.S.C.
chapter 75, from her position as Director, Office of Emergency Management
(OEM), NY-04, to the position of Assistant Director of Projects and Partnerships,
AmeriCorps National Civilian Community Corps (NCCC), N Y-03, citing
organizational changes which occurred when OEM’s functions were integrated
into NCCC and the appellant’s position was abolished. On her appeal of that
action, the administrative judge found that the agency had failed to show that the
action would promote the efficiency of the service or that it was a permissible
exercise of management discretion within tolerable limits of reasonableness, and
that only by conducting a RIF could the deciding official legally avoid such
considerations. Clay v. Corporation for National and Community Service, MSPB
Docket No. DC-0752-13-0414-I-1, Initial Decision at 3-6 (July 10, 2013).
Accordingly, the administrative judge reversed the agency’s action. 2 Id. at 1, 7.
That decision became a final decision of the Board on August 14, 2013, when
neither party field a petition for review. On September 3, 2013, the agency
notified the appellant that it had complied with the initial decision by canceling
her demotion and retroactively restoring her to her former positio n, even though
neither it nor OEM existed at that time. On September 6, 2013, the agency issued
the appellant a specific notice of RIF explaining that the position to which she
had been reinstated was being eliminated and that, because she had less service
than the only other individual in her competitive level, t he appellant would be
separated, effective November 16, 2013. Clay v. Corporation for National and
Community Service, MSPB Docket No. DC-0351-14-0254-I-1, Initial Appeal File
(IAF), Tab 3 at 59.
2
The administrative judge found that the appellant failed to establish her affirmative
defense of retaliation for protected equal employment opportunity activity. Clay,
MSPB Docket No. DC-0752-13-0414-I-1, Initial Decision at 5-7.
3
¶3 On September 27, 2013, the appellant filed a petition for enforcement
arguing, inter alia, that the agency was not in compliance with the Board’s
decision because it had not in fact canceled the demotion action but rather had
simply realigned her position and notified her that she would be separated by RIF.
While the enforcement matter was pending, the appellant filed an appeal of the
RIF action, IAF, Tab 1, which the administrative judge dismissed without
prejudice pending final Board resolution of the appellant’s compliance appeal.
Clay v. Corporation for National and Community Service, MSPB Docket No.
D-0351-14-0254-I-1, Initial Decision at 2 (Apr. 15, 2014). The administrative
judge subsequently denied the appellant’s petition for enforcement, finding that
the agency provided documentary proof that it had canceled the action and
retroactively restored her to her former position as ordered by the Board, Clay v.
Corporation for National and Community Service, MSPB Docket No. DC-0752-
13-0414-C-1, Compliance Initial Decision at 1, 4, 6 (Jan. 23, 2014), and the
Board denied the appellant’s petition for review of that decision, Clay v.
Corporation for National and Community Service, MSPB Docket No. DC-0752-
13-0414-C-1, Final Order at 2-6 (Aug. 8, 2014).
¶4 In her refiled RIF appeal, the appellant alleged that the agency failed to
comply with the RIF regulations regarding the proper composition of her
competitive level. Refiled Appeal File (RAF), Tab 11 at 4. She also claimed that
the RIF was retaliatory based on her having filed the earlier Board appeal in
which she raised an allegation of discrimination, id. at 5, and arguing that, for
that reason, the RIF was personal to her, id. at 5-6.
¶5 Following the requested hearing, the administrative judge issued an initial
decision in which she first found that the agency undertook the RIF for a
legitimate reason; specifically, reorganizing the Immediate Office of the Chief
Executive Officer (CEO) and eliminating the duplication of function that resulted
from the appellant’s having been reinstated into that office where another
4
employee was performing similar duties. 3 RAF, Tab 22, Initial Decision (ID) at
3‑4. The administrative judge then considered the procedural RIF requirements
set forth at 5 C.F.R. part 351, specifically addressing the agency’s establishment
of the competitive area in this case, the Immediate Office of the CEO. The
administrative judge found that the agency admitted that it did not define the
competitive area solely in terms of the agency’s organizational units and
geographical location, as required by 5 C.F.R. § 351.402(b), but rather on the
basis of where a particular occupation was performed, which is prohibited. ID at
6-8. The administrative judge further found that the agency failed to comply with
5 C.F.R. § 351.402(c) because it established the competitive area within 90 days
of the effective date of the RIF without obtaining prior permission from the
Office of Personnel Management (OPM). The administrative judge found that the
agency’s improper constitution of the competitive area would require reversal of
the RIF action unless the agency showed by preponderant evidence that the
appellant still would have been separated, had the RIF been properly conducted,
ID at 8, but that, although the agency was on notice that the propriety of the
competitive area was being challenged, it presented no argument or alternative
scenario based upon the premise that the competitive area was found to be
improperly defined, and she therefore reversed the action , 4 ID at 8-9.
3
The appellant has not filed a petition for review challenging the administrative judge’s
finding that the agency established that it undertook the RIF for a legitimate reason, and
we discern no basis upon which to disturb that finding.
4
Citing to Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 42 (2015), the
administrative judge found that the appellant failed to prove her claim that the RIF was
personal to her based on her assertion that, in taking the action, the agency retaliated
against her for raising discrimination allegations in her prior Board appeal. ID at 9-13.
The appellant has not filed a petition for review challenging this finding .
Acknowledging that the Board has recently clarified how it analyzes such claims,
Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647 (2016), we nevertheless
discern no basis upon which to disturb the administrative judge’s ultimate finding that
the appellant failed to establish her claim.
5
¶6 The agency has filed a petition for review, Petition for Review (PFR) File,
Tab 1, 5 to which the appellant has responded, PFR File, Tab 8, and t he agency has
submitted a reply, PFR File, Tab 9.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 On review, the agency argues that the administrative judge erred in finding
that it failed to show that it properly constituted the competitive area in the RIF
and that, even if the competitive area was not properly constituted, the appellant’s
rights were not affected. PFR File, Tab 1 at 8-15, 18-20.
¶8 OPM’s regulations provide that, in conducting a RIF, an agency must
delineate one or more competitive area(s) in which employees compete for
retention, 5 C.F.R. § 351.402(a), that a competitive area must be defined solely in
terms of the agency’s organizational unit(s) and geographical location, and that
the minimum competitive area is a subdivision of the agency under s eparate
administration within the local commuting area. 5 C.F.R. § 351.402(b). The
agency bears the burden of proving by preponderan t evidence that it properly
determined the appellant’s competitive area. 5 C.F.R. § 1201.56(b)(ii).
¶9 In finding that the agency failed to meet its burden of proof regarding the
designation of the appellant’s competitive area as the Immediate Office of the
CEO, the administrative judge relied on the testimony of the Director, Personnel
Operations, the individual assigned to conduct the RIF. She testified that she
chose the competitive area because “that was the area where there was duplication
of function” and it was “the only area where there was any disaster work being
performed.” Hearing Transcript (HT) at 123; ID at 7-8. Based on that testimony,
and the testimony of the Director’s supervisor, the administrative judge found
that the agency improperly considered “occupation” in designating the
5
With its petition for review, the agency submitted evidence that it had complied with
the administrative judge’s interim relief order. PFR File, Tab 1 at 22.
6
competitive area, and that such consideration is contrary to OPM’s guidance. ID
at 7.
¶10 The agency alleges on review that, in finding that it improperly designated
the competitive area, the administrative judge misinterpreted OPM’s regulation
by misconstruing the testimony of the two agency witnesses and OPM’s guidance.
PFR File, Tab 1 at 8-11.
¶11 In reviewing the Director’s testimony regarding the designation of the
competitive area in this case, we find that she correctly stated that a competitive
area is the organizational component in which employees compete in a RIF. 6 HT
at 123; 5 C.F.R. § 351.402(b). Moreover, we find that her explanation that she
selected the Immediate Office of the CEO as an appropriate competitive area
because it was a distinct organizational unit with its own personnel authority, its
own function, specifically, disaster service work, and its own work processes,
comports with the RIF regulations. We have considered the OPM Workforce
Reshaping Operations Handbook (OPM Handbook) 7 which, as the administrative
judge acknowledged, lacks the authority of a regulation, and its statement that
“[a]n agency may not define a competitive area on the basis of other
considerations [besides organizational unit(s) and geographi cal location(s)] such
as bargaining unit membership, grade, occupation, etc. ,” OPM Handbook at 3; ID
at 5 & n.2, but we find, based on the testimonial evidence, that the agency did not
define the competitive area in this case on the basis of the appellant’s occupation,
but rather on appropriate considerations of organizational unit and geographical
6
To the extent the Director failed to specifically include “geographical location” in her
definition of and explanation for designating the Immediate Office of the CEO as the
competitive area, we find that her supervisor clearly testified to the inclusion of that
factor in defining the competitive area, and that he further testified that, when the
Director presented him with her competitive area determination, he agreed with it. HT
at 81, 83.
7
Available at http://www.opm.gov/policy-data-oversight/workforce-
restructuring/reductions-in-force/workforce_reshaping.pdf (last visited December 19,
2016).
7
location, consistent with the RIF regulations. We further find, therefore, that the
administrative judge erred in finding that the agency incorrectly determined the
competitive area in this case. 8
¶12 Based on her finding regarding the competitive area, the administrative
judge did not address the appellant’s additional argument that her competitive
level was improperly constituted. ID at 9. Because the record is complete, we
examine that issue now.
¶13 OPM’s regulations provide that agencies shall establish competitive levels
consisting of all positions in a competitive area which are in the same grade (or
occupational level) and classification series, and which are si milar enough in
duties, qualification requirements, pay schedules, and working conditions so that
the agency may reassign the incumbent of one position to any of the other
positions in the level without undue interruption. 5 C.F.R. § 351.403(a)(1).
¶14 The agency determined that competitive level 0049 consisted of two
positions, the appellant’s position of Director, OEM, NY-04, and the position of
Senior Advisor for Disaster Services, NX-01. IAF, Tab 3 at 42. The Director,
Personnel Operations, testified that she examined the position descriptions of the
two positions and found that they were interchangeable in that they both involved
disaster service and emergency management work, were both in the same pay
band, and were both supervisory. IAF, Tab 5 at 24, 28; HT at 124-25. The
Director’s supervisor testified that he agreed with that assessment. HT at 83-84.
¶15 Before the administrative judge, the appellant argued that the agency
violated 5 C.F.R. § 351.403(a)(5) and the OPM Handbook by including the
8
The administrative judge found that it appeared that the agency failed to comply with
the procedural requirements of the RIF regulations because, contrary to 5 C.F.R.
§ 351.402(c) and OPM guidance, OPM Handbook at 32, it established the competitive
area within 90 days of the effective date of the RIF without ob taining OPM approval.
ID at 8. Even if true, the timing provides no basis for reversing the agency’s action
because there is no showing that the appellant would not have been separated if the
competitive area had been established several days earlier. Foster v. Tennessee Valley
Authority, 87 M.S.P.R. 48, 52 (2000).
8
NX-01 position in her competitive level because the positions were in fact in
different pay bands. RAF, Tab 11 at 4, Tab 14 at 16 (OPM Handbook at 34). The
Director, Personnel Operations, testified that an NX-01 typically is a supervisor
or a manager responsible for a broad program with national impact, whereas a
NY-04 is typically an expert, but also a supervisor, responsible for programs that
may or may not be at the national level. HT at 137-38. She verified, however,
that both positions are in the same pay band. Id. at 136. Additionally, the
operative document explaining the agency’s Alternative Personnel System 9
provides that there are five bands and that NY-04 and NX-01 comprise a single
pay band, IAF, Tab 6 at 16, and the testimony of the supervisor of the Director,
Personnel Operations, was in accord, HT at 66. Based on our review of the
evidence, the agency has shown that it properly included the Senior Advisor for
Disaster Services position in the appellant’s competitive level.
¶16 The appellant also argued before the administrative judge that the agency
improperly excluded from her competitive level the position of Senior Advisor
for Partnerships and Advancement, NY-04. The appellant argued that the
position was interchangeable with her own and was in the same competitive area,
and that, if it had been in her competitive level, she would not have been
separated based on her earlier service computation date. 10 RAF, Tab 11. The
Director, Personnel Operations, testified that she reviewed both position
descriptions, IAF, Tab 20 at 18, Tab 5 at 24, but found that the Senior Advisor for
Partnerships and Advancement position focused on broad agency initiatives and
was nonsupervisory, whereas the appellant’s position focused on disaster services
or emergency management type of work and was supervisory. HT at 126-27.
9
The agency has statutory authority for maintaining its own excepted-service personnel
system with pay bands. 42 U.S.C. § 12651f(b).
10
According to the retention register, both employees are in group I, subgroup B. The
appellant’s adjusted service computation date is July 14, 1987, whereas the adjusted
service computation date of the incumbent of the Senior A dvisor for Partnerships and
Advancement position is September 27, 1994. IAF, Tab 3 at 42-43, Tab 21 at 6.
9
¶17 Citing the OPM Handbook, the appellant argued that the RIF regulations no
longer specifically require that an agency must establish a separate competitive
level solely because an employee holds a supervisory rather than a
nonsupervisory position. RAF, Tab 14 at 17. While true, the Handbook,
although lacking the authority of a regulation, further provides that the duties and
responsibilities of a supervisory position will generally preclude placement of the
position in a competitive level that includes a nonsupervisory position. Id. In
any event, we have reviewed the two position descriptions and find that they
reveal significant differences. The appellant’s position description focuses on
disaster preparedness, relief, and other services, and states that the incumbent
exercises independent discretion and judgment in completin g management
requirements. IAF, Tab 5 at 24. The incumbent of the Senior Advisor for
Partnerships and Advancement position is responsible for the formation of
national strategies, policies, and initiatives to grow national service through
cross-sector partnerships, and while that individual is responsible for
independently planning, conducting and coordinating work, and for having
substantial and continuing responsibility for ensuring program accomplishments,
the position description does not provide for independent discretion. IAF, Tab 20
at 18. In addition, the “competencies” for the two positions reflect substantial
differences. Compare IAF, Tab 5 at 24, with IAF, Tab 20 at 18. We find,
therefore, that the agency showed that the distinguishing features between the two
positions suffice to find that they are not similar enough in duties so that the
incumbent of one position could be reassigned to the other without undue
interruption, and that therefore they are properly placed in separate competitive
levels. McKenna v. Department of the Navy, 105 M.S.P.R. 373, ¶ 4 (2007).
¶18 In sum, because the other individual in the appellant’s competitive level had
an earlier service computation date, the appellant was properly released when her
position was abolished due to a reorganization. Further, because she had no
assignment rights given that all agency positions are in the excepted service,
10
5 C.F.R. § 351.701(a), she was properly separated. We therefore find that the
agency has shown by preponderant evidence that it complied with the procedural
requirements set forth in the RIF regulations in effecting this action.
ORDER
¶19 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) ( 5 C.F.R.
§ 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
11
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court‑appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
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918 A.2d 1151 (2007)
In the Matter of the PETITION OF the STATE of Delaware FOR a WRIT OF MANDAMUS.
No. 54, 2007.
Supreme Court of Delaware.
Submitted: February 15, 2007.
Decided: February 16, 2007.
Loren C. Meyers, and Paul R. Wallace, Department of Justice, Wilmington, DE, for the State of Delaware.
J. Brendan O'Neill, Kevin J. O'Connell, Bernard J. O'Donnell, and Nicole M. Walker, Assistant Public Defenders, Wilmington, DE, for Defendant James E. Cooke.
Charles M. Oberly, III, and Karen V. Sullivan, Oberly, Jennings & Rhodunda, P.A., Wilmington, DE, for Judge Jerome O. Herlihy.
Before STEELE, Chief Justice, HOLLAND and BERGER, Justices.
HOLLAND, Justice:
This Court has before it a petition that seeks to invoke its original jurisdiction for the purpose of issuing an extraordinary writ. The petition was filed by the State of Delaware and requests that this Court issue a writ of mandamus to Superior Court Judge Jerome O. Herlihy. The underlying matter that gave rise to the present proceeding is an evidentiary ruling during an ongoing capital murder trial.
James E. Cooke ("Cooke"), who is represented by two attorneys, is charged with First Degree Capital Murder and other serious offenses, and has pleaded not guilty. On the basis of psychiatric examinations and other evidence, Cooke's counsel intend to contest the State's proof of guilt, but also plan, concurrently, to present mitigation evidence of Cooke's mental illness. Several days prior to the beginning of trial, Cooke's defense counsel advised the trial judge that, based on their conversations with Cooke, he was not in agreement with presenting evidence of mental illness that would support a verdict of guilty but mentally ill ("GBMI").
The State seeks review of an order issued January 30, 2007, in which the Superior Court denied a motion made by prosecutors to preclude presentation by Cooke's defense counsel, during the guilt phase of the trial, of any evidence that would support *1153 a GBMI verdict or any other mental illness defense. The State asks this Court to adopt a per se rule that a defense attorney is prohibited from advancing a mental illness defense in the guilt phase if the defendant is opposed to that approach. Neither the State, nor the attorneys for Cooke, nor the trial judge's attorneys[1] were able to find a prior case from any jurisdiction deciding that exact issue.
In this expedited matter, we announced our decision yesterday because the defense was scheduled to begin today in the guilt phase of the ongoing capital murder trial. For the reasons stated in this Opinion, we have concluded that a writ of mandamus proceeding is not the proper procedural context in which to decide the issue raised by the State. Accordingly, the State's petition for the issuance of an extraordinary writ is denied.
Facts[2]
On August 8, 2005, the grand jury indicted James Cooke, charging him with two counts of Murder in the First Degree, Rape in the First Degree, Burglary in the First Degree, Arson in the First Degree, Reckless Endangering in the First Degree two counts of Burglary in the Second Degree, Robbery in the Second Degree, and two counts of Misdemeanor Theft. The State is seeking the death penalty on each count of murder. Trial began in the Superior Court on Friday, February 2, 2007, before the Honorable Jerome O. Herlihy.
On Friday, January 19, 2007, Judge Herlihy conducted an office conference for the purposes of discussing jury selection and scheduling. Immediately prior to this conference, prosecutors had received information from defense counsel on the question of presenting a mental illness defense at trial. After the various issues about jury selection, voir dire scheduling, and the use of uncharged misconduct evidence had been discussed, Judge Herlihy asked Cooke's counsel if there were any issues they wished to raise at that time. Counsel for Cooke, J. Brendan O'Neill, Esq., responded that "there's probably something we should bring up and Mr. Cooke and co-counsel [Kevin J. O'Connell, Esq.] and I have talked about it at length." As O'Neill explained, "Mr. Cooke has one idea about how to defend this case; his counsel has a different idea."
According to O'Neill, Cooke and defense counsel had discussed his defense at great length and had essentially "agreed to disagree." Cooke had been told by counsel that in the opinion of defense counsel, "it is his lawyer's discretion whether to present a particular defense. . . ." More precisely, a decision about the purpose of the litigation rested with Cooke, but decisions about trial tactics and strategy were for counsel to make in the guilt phase of the trial. O'Neill had also told Cooke that, in any penalty hearing, counsel also made the decision about presentation of mitigation evidence.
In defense counsel's view, the defense could present evidence of mental illness to support a verdict of GBMI, yet have Cooke maintain his innocence, as he may testify that he is factually innocent of the crimes. Cooke has at all times maintained that another person committed the charged offenses. At this point, O'Neill observed that before presentation of evidence began, they were going to need to go "hash this out on the record, and go forward from there."
*1154 Prosecutors then raised the question whether defense counsel could advance evidence of mental illness, over Cooke's objections and without undercutting a defense of actual innocence. O'Neill again observed that the question needed to be addressed formally before opening statements, including putting Cooke on the record. Prosecutors again broached this issue one week later on the afternoon of January 26.
In the view of prosecutors, it was hardly clear that defense counsel could choose to proceed with a particular mental illness defense when the defendant was adamant about his factual innocence. Given the uncertain state of the law, prosecutors indicated the State might ask the trial judge to certify questions to this Court. Before the Superior Court recessed for the day, prosecutors asked the trial judge to engage in a colloquy with Cooke, as had been suggested in the office conference on January 19. The defense took no position on whether the issue should be certified to this Court.
On January 26, the trial judge deferred any ruling on the issue. Before proceedings resumed on Monday, January 29, both the State and the defense had submitted additional memoranda to the trial judge. The trial judge indicated that no decision would be made on the issue that day.
On Tuesday, January 30, prosecutors moved to preclude the introduction of evidence, during the guilt phase, that would support a GBMI verdict or any other mental illness defense:
unless and until one of two things happens: either counsel tells Your Honor that the extant dispute between Mr. Cooke and counsel about the pursuit of that defense has been resolved and the defendant now agrees with the presentation of the defense or unless and until Your Honor engages in a colloquy with the defendant and satisfies Your Honor that the defendant has assented to the [advancing of evidence of mental illness].
In the State's view, "the presentation of evidence supporting a GBMI verdict was sufficiently akin to a guilty plea to make the decision to present such evidence one for the defendant alone to make." The record, according to prosecutors, established that (i) defense counsel intended to pursue a verdict of GBMI; (ii) Cooke has expressly objected to his attorneys' plans; (iii) Cooke has told his attorneys "that he prefers to pursue a factual defense of innocence . . . and also does not want to hear evidence of mental illness presented on his behalf"; and (iv) defense counsel intend to present evidence of mental illness supporting a GBMI verdict, during the guilt phase of the trial, notwithstanding Cooke's wishes. After hearing from defense counsel on the issue, the trial judge denied the State's application to preclude the defense from introducing evidence that would support a GBMI verdict.
Defense Decision Debate
A criminal defendant has authority over certain "fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal."[3] Counsel, however, bears principal responsibility for the conduct of the defense.[4] In particular, counsel has the responsibility for determining "what arguments to pursue,"[5] and *1155 "what defenses to develop."[6]
According to the State, its petition presents one question: in the event of an irreconcilable disagreement between defense counsel and the defendant about a decision to seek a verdict of guilty but mentally ill, do the defendant's wishes prevail? The State is asking this Court to place the decision to pursue a mental illness defense in the category of issues upon which only the defendant can decide. Although the State has been unable to find any controlling precedent that is exactly on point, it makes an argument based upon Delaware Professional Conduct Rule 1.2, Scope of Representation, which states the following:
(a) [A] lawyer shall abide by a client's decisions concerning the objectives of representation and . . . shall consult with the client as to the means by which they are to be pursued . . . In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
Thus, Rule 1.2 expressly provides that the client is the ultimate decision maker as to whether to enter a plea, waive a jury trial or testify at trial.[7]
The State argues that pursuit of a GBMI verdict is the "functional equivalent of a plea of guilt with a request for mitigation of the nature of his sentence (death) or the manner it is to be served (partially in a mental facility . . . )." In response to that argument, Cooke's attorneys assert the United States Supreme Court held in Florida v. Nixon that a concession of guilt is not the functional equivalent of a guilty plea.[8] In Nixon, the Supreme Court distinguished a concession of guilt from a guilty plea as follows:
Despite [defense counsel's] concession, Nixon retained the rights accorded a defendant in a criminal trial. CF. Boykin, 395 U.S. [238] at 242-243 and n. 4, 89 S.Ct. 1709[, 23 L.Ed.2d 274] (a guilty plea is "more than a confession which admits that the accused did various acts," it is a "stipulation that no proof by the prosecution need be advanced"). The State was obliged to present during the guilt phase competent, admissible evidence establishing the essential elements of the crimes with which Nixon was charged. . . . Further, the defense reserved the right to cross-examine witnesses for the prosecution and could endeavor, as [defense counsel] did, to exclude prejudicial evidence. See supra, at 558. In addition, in the event of errors in the trial or jury instructions, a concession of guilt would not hinder the defendant's right to appeal.[9]
In Nixon, the defense attorney conceded guilt and then presented evidence of mental illness during the penalty phase with the goal of avoiding a death sentence. He consulted several times with his client but never obtained explicit consent to conduct the defense in this manner.[10] Because the prosecution was still required to prove its case beyond a reasonable doubt, the United States Supreme Court held that conceding guilt during the guilt phase of a capital *1156 murder trial was not the functional equivalent of a guilty plea.[11] Cooke's defense counsel submit their position is strengthened by the Supreme Court's ruling in Nixon because, unlike the attorney in that case, they will not concede that Cooke is guilty. Moreover, Cooke's attorneys assert that a GBMI verdict is an alternative that will only be reached by the jury if they are persuaded that the State has met its burden of proof.
"In Wainwright v. Sykes, the United States Supreme Court held that the attorney possesses the right to decide certain strategic and tactical decisions, including what witnesses to call, whether and how to conduct cross-examination, what trial motions should be made, and what evidence should be introduced."[12] Based on Wainwright, Cooke's counsel assert that the decision to present evidence of mental illness at Cooke's trial is a tactical one solely within their province. Cooke's defense counsel argue that the principle that the attorney is the one who chooses whether to pursue a mental health defense was solidified by the United States Supreme Court in Florida v. Nixon.[13]
State Acknowledges Uncertainty
The State argues that the result in Nixon would have been different if the defendant had expressly objected. Nevertheless, with commendable candor the State acknowledges "the uncertain state of the law" underlying its claim. In fact, the State has consistently acknowledged that it does not have a clear right to the relief sought by its petition.
During the voir dire of prospective jurors on January 30, 2007, Deputy Attorney General Steve Wood raised the possibility of the State's making a request for certification. He noted that while no decision had been reached on whether to make such a request, the law was less than clear.
I think it is incumbent upon me to advise the Court that there is a growing sentiment, although not a decision yet, in our office to perhaps ask you to certify the question of essentially who is controlling the defense guilty but mentally ill versus not guilty to the Delaware Supreme Court.
The reason for that is, although we're still researching the matter, I don't know how to say this in legal language, but in a sense Your Honor is being called to make a decision in a capital case with no binding precedent that I can find or that we've found yet, not that I am a scholar here, but my reading of the cases that I've looked at, including Florida v. Nixon, the law review articles we've given Your Honor and everything else, is that this is about a 50-50 call, and I can't find a case right on point, and we haven't found one yet. . . .
* * *
I am I am rarely standing up before a court am I more uncertain about the law, and I don't mean that to sound arrogant, and I'm not trying to sound *1157 that way at all. It's just that I've read these cases, and boy, they're all over the map, and worse yet, I can't find anything, and I'm told yet that our office has not found anything that is factually on all fours; in other words, GBMI in a guilt phase versus Not Guilty by Reason of Insanity, or how one conduct the mitigation case in the penalty phase.
* * *
[B]ut as I said before, the more I look at the cases, the more I realize that through no fault of any Appellate Court, of course, Your Honor has been in some sense cast adrift at sea, because we cannot find a case that we could site to you as binding precedent either way. What I instead found are cases that I think, in good faith, I could use to argue either side of the question.
In his email to Judge Herlihy on January 27, 2007, Mr. Wood wrote: "We remain very concerned about our inability to find clear post-Nixon authorities directly on point." During a conference with Judge Herlihy on January 30, 2007, Mr. Wood characterized the issue as "a close call" and the case law as "so murky." In his last communication with Judge Herlihy before the State filed its petition for a writ of mandamus, Mr. Wood wrote: "Your Honor is well aware that there is no controlling authority directly on point."
Writ of Mandamus
"A writ of mandamus is a command that may be issued . . . to compel the performance of a duty to which the petitioner has established a clear legal right."[14] Because mandamus is an extraordinary remedy, the petitioner must establish a clear right to performance of the duty in question; no other adequate legal remedy is available; and the trial court has arbitrarily failed or refused to perform its duty.[15] "[I]n the absence of a clear showing of an arbitrary refusal or failure to act, this Court will not issue a writ of mandamus to compel a trial court to perform a particular judicial function, to decide a matter in a particular way, or to dictate the control of its docket."[16]
In addition,
It is clear that only exceptional circumstances amounting to a "judicial usurpation of power" will justify the invocation of the extraordinary writ of mandamus. One who applies to an appellate court for a writ of mandamus must demonstrate to the reviewing court that the entitlement to the writ is both "clear and indisputable."[17]
Conclusion
The State has not demonstrated that it has a clear legal right to require the trial judge to preclude Cooke's defense attorneys from presenting evidence that would support a GBMI verdict. Accordingly, the State's petition for a writ of mandamus must be denied.
NOTES
[1] In accordance with Supreme Court Rule 43, the trial judge notified the Clerk of this Court that he would participate in this proceeding and retained outside counsel to represent him.
[2] These facts are taken primarily from the State's petition in this matter.
[3] Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).
[4] Id. at 753 n. 6, 103 S.Ct. 3308; New York v. Hill, 528 U.S. 110, 114-15, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000).
[5] Hill, 528 U.S. at 115, 120 S.Ct. 659 (citing Jones, 463 U.S. at 751, 103 S.Ct. 3308).
[6] Wainwright v. Sykes, 433 U.S. 72, 93 n. 1, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Burger, C.J., concurring).
[7] The request to expand the category of issues upon which only the defendant can decide is not without precedent. In Red Dog v. State, 625 A.2d 245, 247 (Del.1993), this Court expanded the list of situations where the defendant, rather than the attorney, is the ultimate decision maker to include the decision whether to forego further appeals and to accept the death penalty.
[8] Florida v. Nixon, 543 U.S. 175, 188, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004).
[9] Id.
[10] Id. at 189, 125 S.Ct. 551.
[11] Id. at 188-89, 125 S.Ct. 551.
[12] Phillips, Jean K. Gilles, and Joshua Allen, Who Decides: The Allocation of Powers Between the Lawyer and the Client in a Criminal Case?, 71-Oct. J. Kan. B.A. 28 (2002) (citing Wainwright v. Sykes, 433 U.S. 72, 93 n. 1, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Burger, C.J., concurring)); see also Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
[13] See Nixon, 543 U.S. at 190-91, 125 S.Ct. 551 (citing Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L. Rev. 299, 329 (1983); Performance of Defense Counsel in Death Penalty Cases § 10.9.1, Commentary (rev. 3d 2003), reprinted in 31 Hofstra L. Rev. 913, 1040 (2003)).
[14] Clough v. State, 686 A.2d 158, 159 (Del. 1996).
[15] In re Bordley's Petition for a Writ of Mandamus, 545 A.2d 619, 620 (Del.1988) (per curiam).
[16] Id.
[17] In re Petition of State for a Writ of Mandamus, 603 A.2d 814, 815 (Del.1992) (citations omitted).
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BABA SOWE,
Petitioner, No. 06-72938
v.
Agency No.
A79-569-509
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 9, 2008—Seattle, Washington
Filed August 19, 2008
Before: Arthur L. Alarcón, Susan P. Graber, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Alarcón
11027
11030 SOWE v. MUKASEY
COUNSEL
Mark B. Nerheim, Bauman-Becia Law Group, Seattle, Wash-
ington, for the petitioner.
Marion E. Guyton and William C. Erb, Jr., United States
Department of Justice, Office of Immigration Litigation, Civil
Division, Washington, D.C., for the respondent.
OPINION
ALARCÓN, Circuit Judge:
Baba Sowe, a native and citizen of Sierra Leone, appealed
to the Board of Immigration Appeals (“BIA”) from the denial
of his applications for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”).
Sowe presented evidence before an immigration judge (“IJ”)
that he and his family were persecuted by members of the
Revolutionary United Front (“RUF”). We have jurisdiction
over his appeal pursuant to 8 U.S.C. § 1252. We deny Sowe’s
application for withholding of removal and for protection
under CAT. We remand his application for asylum to the BIA
for a hearing to determine his eligibility pursuant to 8 C.F.R.
§ 1208.13(b)(1)(iii)(A).
I
Sowe entered the United States on or about April 4, 2001.
SOWE v. MUKASEY 11031
On June 2, 2001, Sowe executed an I-589 form seeking asy-
lum and withholding of removal.1 He also applied for protec-
tion under CAT. On October 15, 2004, the INS served Sowe
with a notice to appear, and charged him with removability
because he did not possess or present a valid entry document
when he was admitted to the United States.
At his removal hearing, Sowe conceded removability.
Sowe testified that he was persecuted by the RUF because he
is a Muslim Maraka and because of his parents’ political affil-
iations with the United National People’s Party, a group
aligned with the Sierra Leone government.
Sowe testified that sometime around August 11, 1997, RUF
members came to his family’s home and asked for his father
and brother. AR 58. Sowe testified that the RUF was inter-
ested in his family because they were Muslim Marakas who
supported the government. Id. The RUF members took Sowe
to an RUF camp. There he was beaten and forced to do “hard
work in the prison there.” Id. at 60. He testified that he was
beaten because he “didn’t want to tell them where [his] par-
ents were and since they [knew] that [he was] a Muslim
Maraka.” Id. at 60. Sowe testified that he escaped the camp
after three weeks. Id. at 61.
Sowe testified that members of the RUF returned to his
family’s home on January 10, 1998. AR 62. They forcibly
took him to their camp. There he was forced to do laundry,
clean, and perform hard labor. Id. at 65. He testified that he
was beaten because he is a Muslim Maraka and because he
refused to disclose his father’s location. Id. at 66-67. After ten
days at the camp, Sowe escaped. Id. at 67.
1
Form I-589 is an application for asylum and withholding of removal.
See 8 C.F.R. § 208.3(a) (“An Asylum applicant must file Form I-589,
Application for Asylum and for Withholding of Removal, together with
any additional supporting evidence in accordance with the instructions on
the form.”).
11032 SOWE v. MUKASEY
Sowe further testified that on March 4, 1999, members of
the RUF returned to his home. Sowe stated that the rebels
“just start[ed] beating me and they took me away again.” Id.
at 68. He testified that the rebels came to his home because
his father was a Muslim Maraka and the imam of a mosque,
and because his family did not support the RUF. Id. On this
date, he was taken by force to an RUF camp because he
refused to tell the RUF where his father was. Id. At the camp,
he was forced to do odd jobs. Id. He escaped after five days.
Id. at 69.
Sowe testified that members of the RUF returned to his
family’s home on February 10, 2001, and killed his parents.
Id. at 69. On the same date, an RUF rebel “took a machete out
of [his] pocket and . . . . chop[ped Sowe’s brother’s] hand
off.” Id. at 70-71. The rebels seized Sowe’s sister and
removed her from her home. AR 71.2 Sowe escaped and fled
to Freetown. Id. at 72. He later entered the United States on
or about April 4, 2001. Id.
The IJ concluded that Sowe was not a credible witness. The
IJ stated: “I do not find the respondent to be a credible witness
in that, as noted, the Form I-589 is of an extremely skeletal
nature and notwithstanding the passage of so many years, has
not been supplemented by any kind of a statement.” AR 40.
Alternatively, the IJ stated:
even if we were to accept the respondent’s testimony
as true, I would find that there have been dramatic
changes in Sierra Leone, as noted above, in terms of
the United Nations involvement, the multiple rounds
of elections, the progress that has been made so that
the international presence is being withdrawn and so
2
Although both parties assert that Sowe’s sister was raped, that fact was
alleged only in his asylum application, AR 127, and in a letter written by
his sister, attached to his removal proceedings prehearing statement, AR
239.
SOWE v. MUKASEY 11033
forth, so that under such case law as Gonzalez-
Hernandez v. Ashcroft, 336 F.3d 995 (9th Cir. 2003),
the objective component of the claim can no longer
be established.
AR 42. The IJ’s findings regarding the changes in Sierra
Leone were based on a 2005 U.S. Department of State Coun-
try Report.3 The IJ denied Sowe’s application for asylum,
withholding of removal, and protection under CAT. The IJ
also noted that Sowe was ineligible for voluntary departure.
Sowe filed a timely appeal with the BIA challenging the IJ’s
decision.
II
The BIA dismissed the appeal based on the IJ’s alternative
holding that, even if Sowe’s testimony were deemed credible
and demonstrated past persecution, the presumption of future
persecution was rebutted by the evidence in the record reflect-
ing a change in country conditions. It stated:
We do not find the harm that the respondent claims
to have suffered, that of being detained and beaten
by the RUF, to be sufficiently compelling to support
a grant of asylum in the absence of a well-founded
fear of future persecution (see Matter of Chen, 20
I&N Dec. 16 (BIA 1989); nor do we find there to be
a reasonable possibility that the respondent may suf-
fer other serious harm upon removal to Sierra Leone.
See 8 C.F.R. §§ 1208.13(b)(1)(iii)(A), (B).
AR 3. The BIA did not review the IJ’s adverse credibility
findings. It stated: “We need not reach the issue whether the
adverse credibility determination was correct.”4 Id. The BIA
3
This report was issued in February of 2005, but describes the condi-
tions in Sierra Leone in 2004. We will refer to it as the “2004 country
report.”
4
The BIA appears to have assumed, for purposes of disposing of Sowe’s
appeal, that he suffered past persecution. It did not decide, however,
11034 SOWE v. MUKASEY
concluded that Sowe had failed to establish his eligibility for
asylum and withholding of removal. It also determined that
Sowe had failed to demonstrate that if removed to Sierra
Leone, he would more likely than not be tortured, as required
for relief under CAT.
Sowe’s timely petition for review was filed on June 7,
2006.
III
“The BIA’s decision that an alien has not established eligi-
bility for asylum is reviewed for substantial evidence.” Hanna
v. Keisler, 506 F.3d 933, 937 (9th Cir. 2007). “We review the
IJ’s factual findings regarding changed country conditions for
substantial evidence.” Smolniakova v. Gonzales, 422 F.3d
1037, 1052 (9th Cir. 2005). We also review for substantial
evidence the BIA’s determination that a petitioner has not
qualified for withholding of removal, and that a petitioner is
ineligible for CAT relief. Kaiser v. Ashcroft, 390 F.3d 653,
657 (9th Cir. 2004); Zheng v. Ashcroft, 332 F.3d 1186, 1193
(9th Cir. 2003). Sowe’s petition for review challenges the
decisions of the IJ and the BIA on several grounds.
A
[1] Sowe contends that both the IJ and the BIA erred in
denying his asylum claim on the ground that changed country
conditions made it safe for him to return to Sierra Leone.
Unless there is reason to grant discretionary relief pursuant to
8 C.F.R. § 1208.13(b)(1)(iii), an asylum application will be
denied if “[t]here has been a fundamental change in circum-
whether the IJ erred in finding that Sowe was not a credible witness.
“Thus, because the BIA has expressly declined to address [Petitioner’s]
credibility, we do not decide that issue here in the first instance.” Hanna
v. Keisler, 506 F.3d 933, 937 (9th Cir. 2007).
SOWE v. MUKASEY 11035
stances such that the applicant no longer has a well-founded
fear of persecution in the applicant’s country of nationality
. . . on account of race, religion, nationality, membership in
a particular social group, or political opinion.” 8 C.F.R.
§ 1208.13(b)(1)(i)(A).
Sowe’s contention that the BIA erred in concluding that the
presumption of future persecution had been rebutted by the
evidence of changed conditions in Sierra Leone raises a pre-
liminary question as to whether we review the IJ’s resolution
of this issue or the BIA’s conclusion. See Ghaly v. INS, 58
F.3d 1425, 1430 (9th Cir. 1995) (“Where the Board . . . con-
duct[s] a de novo review of the record, our review is limited
to the decision of the Board except to the extent that the IJ’s
opinion is expressly adopted by the Board.”). Here, the BIA
did not state whether it was conducting a de novo review of
the IJ’s findings regarding country conditions in Sierra Leone.
However, its holding regarding country conditions is nearly
identical to the IJ’s. “To the extent that the BIA incorporates
the IJ’s decision as its own, we treat the IJ’s statement of rea-
sons as the BIA’s and review the IJ’s decision.” Gonzalez v.
INS, 82 F.3d 903, 907 (9th Cir. 1996).
[2] Sowe first asserts that the IJ and the BIA erred in rely-
ing “primarily on the Department of State’s country report for
2004 (released February 28, 2005)” to rebut Sowe’s future
persecution claim on the ground that country conditions had
changed. Pet’r Br. at 24. Sowe argues that “[these] general-
ized materials are insufficient to rebut Mr. Sowe’s presumed
well-founded fear of future persecution.” Id. at 24. Reliance
on the 2004 country report was not erroneous. U.S. Depart-
ment of State country reports are “the most appropriate and
perhaps the best resource for information on political situa-
tions in foreign nations.” Kazlauskas v. INS, 46 F.3d 902, 906
(9th Cir. 1995) (internal quotations marks omitted).
Next, Sowe contends that
11036 SOWE v. MUKASEY
contrary to the BIA’s (and the IJ’s) assertions, [the
2004 country report indicates that] the “disarma-
ment” has not been completed, the Sierra Leone
Police are undisciplined and incompetent, the gov-
ernment of Sierra Leone has not devoted sufficient
resources to develop a competent police force, and
. . . the government of Sierra Leone remains unwill-
ing or unable to control RUF or former RUF rebels.
Pet’r Br. at 26. In support of this statement, Sowe has quoted
from selected portions of the 2004 country report. In a related
argument, Sowe contends that “[n]o individualized analysis
took place in this case and thus the BIA and the IJ abused
their discretion.” Id. at 29.
[3] We are not in a position to second-guess the IJ’s con-
struction of the somewhat contradictory 2004 country report.
See Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 1000 (9th
Cir. 2003) (“[T]he agency, not a court of appeals, must con-
strue the country report and determine if country conditions
have changed such that the applicant no longer has a well-
founded fear of persecution.”). “[W]here the [IJ] rationally
construes an ambiguous or somewhat contradictory country
report and provides an individualized analysis of how
changed conditions will affect the specific petitioner’s situa-
tion, substantial evidence will support the agency determina-
tion.” Id. (citation and internal quotation marks omitted).
[4] Substantial evidence supports the IJ’s findings that the
country conditions that affected Sowe have improved. Sowe’s
asylum claim is premised upon his fear of being persecuted by
the RUF because he is a Muslim Maraka, and because of his
parents’ political affiliations. The IJ noted that the 2004 coun-
try report found that RUF members have been tried by a war
crimes tribunal and that the Sierra Leone government is tak-
ing action against the RUF. The IJ further considered the fact
that Islam was practiced by 60 percent of Sierra Leone’s pop-
ulation, and that relations between various religious commu-
SOWE v. MUKASEY 11037
nities were amicable. The IJ acknowledged that in 1999, the
RUF took action against religious leaders, but that “this infor-
mation is from 1999 when the civil war was going forward
and there have been significant changes in Sierra Leone [since
then].” AR 41.
Next, Sowe argues that the BIA’s and the IJ’s conclusions
regarding country conditions were undermined by a 2003
country report, released on February 25, 2004. He cites no
authority for the proposition that information in an outdated
country report should be given more weight than information
in a more recent report.
B
Sowe also claims that the BIA “impermissibly place[d] the
burden upon Mr. Sowe to establish that he would face perse-
cution if returned to Sierra Leone.” Pet’r Br. at 30 (citing the
BIA’s conclusion that he failed to show “a pattern or practice
of persecution or that there is any continuing interest in him”).
In this aspect of its decision, the BIA did not adopt the IJ’s
reasoning. Therefore, we shall review the BIA’s conclusion.
[5] The BIA did not require Sowe to prove that country
conditions had not changed. Rather, in the statement Sowe
challenges, the BIA explained that because the government
had succeeded in rebutting any showing of persecution, Sowe
did not have a well-founded fear of persecution. This is an
accurate statement of the law. See Mamouzian v. Ashcroft,
390 F.3d 1129, 1135 (9th Cir. 2004) (“The government must
. . . rebut th[e] presumption by demonstrating by a preponder-
ance of the evidence that country conditions have changed or
that relocation is possible, so that the petitioner no longer has
a well-founded fear that she would be persecuted if she were
to return.”).
C
[6] Sowe also alleges that his well-founded fear of persecu-
tion was not rebutted because “[t]he Government failed to
11038 SOWE v. MUKASEY
establish that internal relocation was a reasonable option.”
Pet’r Br. at 33. Neither the BIA nor the IJ addressed this
issue. However, it was not error to avoid it. The presumption
that an asylum applicant has a well-founded fear of persecu-
tion can be rebutted either by a showing that “[t]here has been
a fundamental change in circumstances such that the applicant
no longer has a well-founded fear of persecution in the appli-
cant’s country of nationality” or by a showing that “[t]he
applicant could avoid future persecution by relocating to
another part of the applicant’s country of nationality.” 8
C.F.R. § 1208.13(b)(1)(i)(A), (B). Substantial evidence sup-
ports the conclusions of the IJ and the BIA that as a result of
fundamental changes in Sierra Leone, the RUF no longer per-
secutes any group on account of race, religion, nationality,
membership in a particular social group, or political opinion,
including the Muslim Maraka. This evidence rebutted the pre-
sumption of a well-founded fear of future persecution.
D
We next turn to Sowe’s argument that he is eligible “for a
humanitarian grant of asylum on account of the severe forms
of past persecution that he and his family suffered and the rea-
sonable possibility that he will suffer other serious harm if
removed to Sierra Leone” pursuant to 8 C.F.R.
§ 1208.13(b)(1)(iii)(A), (B). Pet’r Br. at 39.
[7] “[I]t is now within the discretion of the IJ and BIA to
grant asylum to victims of past persecution whose fear of
future persecution has been rebutted.” Belishta v. Ashcroft,
378 F.3d 1078, 1081 (9th Cir. 2004) (order) (citing 8 C.F.R.
§ 1208.13(b)(1)(iii)(A), (B)). Section 1208.13(b)(1)(iii)(A)
provides that an applicant who does not have a well-founded
fear of future persecution “may be granted asylum, in the
exercise of the decision-maker’s discretion, if . . . [t]he appli-
cant has demonstrated compelling reasons for being unwilling
or unable to return to the country arising out of the severity
of the past persecution.” In determining whether an applicant
SOWE v. MUKASEY 11039
qualifies for this relief, the BIA must “consider the level of
atrocity of past persecution.” Lopez-Galarza v. INS, 99 F.3d
954, 963 (9th Cir. 1996).
[8] The BIA denied discretionary relief pursuant to section
1208.13(b)(1)(iii)(A), stating: “[w]e do not find the harm that
respondent claims to have suffered, that of being detained and
beaten by the RUF, to be sufficiently compelling to support
a grant of asylum in the absence of a well-founded fear of
future persecution.” The BIA erred in failing to determine
whether, assuming the truth of Sowe’s testimony that he wit-
nessed his parents’ murder, the severing of his brother’s hand,
and his sister’s kidnaping, he provided compelling reasons for
his being unwilling or unable to return to Sierra Leone.
Because we lack the authority to act as fact-finders, or to
determine credibility in the first instance, we must remand to
the BIA the question whether Sowe is eligible for asylum pur-
suant to section 1208.13(b)(1)(iii)(A). INS v. Orlando Ven-
tura, 537 U.S. 12, 16-18 (2002) (per curiam).
[9] Sowe also alleges that the BIA erred in denying him
relief pursuant to section 1208.13(b)(1)(iii)(B). As to that
claim, the BIA concluded that there was no reasonable proba-
bility that Sowe “would suffer other serious harm upon
removal to Sierra Leone.” AR 3. Sowe argues this was error
because his arguments relating to asylum and withholding of
removal establish that he “faces a reasonable likelihood of
other serious harm if forced to return to Sierra Leone.” We
disagree. The evidence of changed country conditions effec-
tively rebutted the presumption that he would suffer future
persecution. Furthermore, to be eligible for asylum pursuant
to section 1208.13(b)(1)(iii)(B), Sowe must show “ ‘other
serious harm’ aside from persecution.” Recinos de Leon v.
Gonzales, 400 F.3d 1185, 1190 (9th Cir. 2005). Sowe has
failed to show that the BIA erred in determining that he was
not eligible for asylum pursuant to section
1208.13(b)(1)(iii)(B).
11040 SOWE v. MUKASEY
E
[10] Sowe contends that he is eligible for withholding of
removal. In Gonzalez-Hernandez, we concluded that the BIA
correctly denied an asylum claim because “the INS rebutted
the presumption that Gonzalez has a well-founded fear of
future persecution.” 336 F.3d at 998. When the government
rebuts an applicant’s well-founded fear of future persecution,
it defeats the applicant’s asylum claim, and his or her claim
for withholding of removal. See id. at 1001 n.5 (holding that
because the applicant and his family “do not have a well-
founded fear of persecution, it necessarily follows that they do
not qualify for withholding of removal”). Therefore, the
BIA’s findings regarding changed country conditions also
defeat Sowe’s withholding of removal claim.
F
Sowe argues that the BIA erred in denying his CAT claim.
“[T]o be eligible for relief under [CAT], a petitioner must
show ‘that it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.’ ”
Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001) (quot-
ing 8 C.F.R. § 208.16(c)(2)).
The BIA concluded that Sowe “has not established a fear
of the Sierra Leonean government and current country condi-
tions . . . do not suggest that if the respondent is removed to
Sierra Leone he will more likely than not be tortured.” AR 3.
Sowe contends that, in reaching this conclusion, the BIA
implicitly held that Sowe had to prove that he will be tortured
at the hands of the government, or that “the government has
[to have] actual awareness of an individual or a group’s incli-
nation to torture him personally.” Pet’r Br. at 44-45.
This is an unreasonable interpretation of the BIA’s order.
The order as a whole establishes that the BIA understood that
Sowe sought relief based on his claim that he fears the RUF.
SOWE v. MUKASEY 11041
The BIA concluded that Sowe failed to establish that the RUF
would torture him upon his return to Sierra Leone, and cited
8 C.F.R. §§ 1208.16(c)(3) and 1208.18(a) in support of its
conclusions. Section 1208.16(c)(3) describes the kind of evi-
dence that must be considered in determining “whether it is
more likely than not that an applicant would be tortured in the
proposed country of removal.” Section 1208.18(a) defines tor-
ture.
Sowe further contends that the BIA erred in denying CAT
relief because “country conditions have not improved such
that Mr. Sowe does not have a real fear that more likely than
not that he will be tortured at the hands of former RUF sol-
diers.” Pet’r Br. at 45. In particular, he claims that the BIA
“fail[ed] to take into consideration all the relevant evidence in
the record.” Id. at 46.
The evidence Sowe relies upon to demonstrate that he was
tortured is the same evidence he cited in support of his asylum
claim. However, just as changed country conditions can
defeat an asylum claim, they can also defeat a claim for CAT
protection. See El Himri v. Ashcroft, 378 F.3d 932, 938 (9th
Cir. 2004) (holding that “the El Himris have not shown that
it is more likely than not that they will suffer torture inflicted
by the government if they return to Kuwait” because “most of
the physical violence perpetrated by the government against
Palestinians ended when constitutional government returned
to Kuwait”).
[11] Here, as in the asylum context, Sowe’s arguments do
not establish that the country conditions in Sierra Leone have
remained stagnant. The BIA’s conclusion that Sowe will not
be tortured because conditions in Sierra Leone have changed
is supported by substantial evidence.
IV
[12] Sowe requests attorneys’ fees and other costs pursuant
to 28 U.S.C. § 2412(d)(1)(B). We deny Sowe’s request
11042 SOWE v. MUKASEY
because it is premature. See id. (“A party seeking an award of
fees and other expenses shall, within thirty days of final judg-
ment in the action, submit to the court an application for fees
and other expenses which shows that the party is a prevailing
party and is eligible to receive an award under this subsection
. . . .”).
The petition for review is DENIED IN PART and
GRANTED IN PART. We REMAND for further proceedings
regarding Sowe’s application for asylum pursuant to 8 C.F.R.
§ 1208.13(b)(1)(iii)(A).
The parties shall bear their own costs on appeal.
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414 F.2d 880
Eleanor Anne Patton BADGER et al., Plaintiffs-Appellants,v.LOUISVILLE & NASHVILLE RAILROAD COMPANY, Defendant-Appellee.
No. 27612 Summary Calendar.
United States Court of Appeals Fifth Circuit.
August 4, 1969.
George S. Shaddock, D. Cumbest, Cumbest, Cumbest & Shaddock, Pascagoula, Miss., for appellants.
George E. Morse, Gulfport, Miss., W. B. Hand, Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, Ala., George E. Morse, Morse, & Morse, Gulfport, Miss., for appellee.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
DYER, Circuit Judge:
1
Following a jury verdict awarding damages for the wrongful death of the driver of an automobile with which the railroad collided at the intersection of its tracks and a highway, the District Court denied appellant's motion for a new trial on damages only and granted appellee's motion for judgment notwithstanding the verdict. We reverse.1
2
Within the city limits of Pascagoula, Mississippi, about two o'clock in the afternoon of a clear day in August, 1966, the decedent, Doris Morgan Patton, was driving her station wagon in a northerly direction on Chico Road. As she was crossing the main line of the Louisville & Nashville Railroad, one of its passenger trains consisting of two engines and six cars, travelling in a westerly direction at 65 to 70 miles per hour, struck the vehicle resulting in Mrs. Patton's fatal injuries.
3
The husband and daughters of the decedent, as her heirs at law, sued the railroad under the Mississippi Wrongful Death Statute,2 charging it with negligence in failing to exercise due care in traversing at excessive speed, without a proper lookout and without sounding its statutory warning signal,3 a hazardous and dangerous crossing where it had permitted the view to become obstructed by high grass, shrubbery and trees.
4
There was hopeless conflict in the evidence concerning whether train signals were given, whether the view from the vehicle to the train was not obstructed, fully obstructed, or partially obstructed, and, if so, what distance down the track could be seen from what distance down the road. We do not know whether Mrs. Patton saw the train before the impact. We do know that the engineer saw the vehicle when the engine was 120 to 160 feet from the crossing — some 3 to 4 seconds before impact.
5
The trial judge, under these circumstances, wisely submitted the case to the jury on both liability and damages with a charge, however, that as a matter of law the railroad had the right of way at the crossing and that the decedent was guilty of negligence which contributed to her fatal injuries, thus the comparative negligence rule should be applied.4
6
We are convinced that the issues were properly presented to the jury and that the judgment on its verdict should be reinstated.
7
While it is true that Mississippi has, by statute, committed to the jury all questions of negligence and contributory negligence,5 we agree with the District Court that the Mississippi statute is not controlling. The Boeing Co. v. Shipman, 5 Cir.1969, 411 F.2d 365; Johnson v. Buckley, 5 Cir.1963, 317 F.2d 644; Revlon, Inc. v. Buchanan, 5 Cir. 1959, 271 F.2d 795, 81 A.L.R.2d 222; Mississippi Power & Light Co. v. Whitescarver, 5 Cir.1934, 68 F.2d 928. The court was required to apply the standards of proof as delineated in Boeing in determining whether a peremptory instruction should be given for the railroad on liability, or judgment n. o. v., or whether such an instruction should or should not be given on the issue of contributory negligence.
8
It is undoubted that there were obstructions to the view of an automobile driver when a train was approaching this dangerous crossing from the vehicle's right. The density of the obstruction and whether one must come dangerously close to the track before being able to see the train were factual resolutions to be made by the jury. Cf. Howard v. Missouri Pac. R. R., 5 Cir. 1969, 410 F.2d 1144. If the crossing, by virtue of these conditions, is unusually dangerous, ordinary care requires the railroad to meet the peril with unusual precautions, as by a lesser rate of speed, or by increased or additional warnings. See Illinois Central R. R. v. Williams, 1961, 242 Miss. 586, 135 So.2d 831; Gulf, Mobile & O.R.R. v. Scott, 1953, 216 Miss. 532, 62 So.2d 878; New Orleans & Northeastern R. R. v. Lewis, 1952, 214 Miss. 163, 58 So.2d 486. The speed of the train was 65 or 70 miles per hour at the crossing when the accident occurred, although the railroad's time book prescribed a limit of 25 miles per hour for some distance before, and at the place of the accident. We are more persuaded by what the railroad's time book stated was a reasonable speed under the circumstances than by the argument of its counsel that it makes no difference whether the train was travelling 100,000 M.P.H. More importantly, however, the jury apparently found the time book persuasive.
9
Nor do we find it unimportant to consider whether the train signals statutorily required to be given were in fact sounded. The railroad argues that even assuming that signals were not sounded, the failure to do so was not a proximate cause of the accident. But this we think assumes too much. The whistle board was located 1560 feet from the crossing. The whistle was required to be blown and the bell was required to be turned on from this point onward. If this had been done (the evidence on this point is in conflict), there would have been some warning to those about to use the crossing, which admittedly was obstructed to some extent, and if the train had been travelling 25 instead of 65 to 70 miles per hour, the warning time to the public would have been materially increased. We do not indulge in speculation concerning whether there would have been an accident if the speed of the train had been different, but we do recognize the fact that warning signals are required for the obvious purpose of warning the public that a train is approaching a crossing. The longer the warning the greater likelihood there is that it will be effective.
10
Considering all of the evidence we are convinced that there was a conflict that created a jury question concerning the railroad's liability. There was "evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions * * *. [I]t is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses." Boeing, supra, at 374-375.
11
We are equally convinced that the District Court's instruction to the jury that as a matter of law the decedent was guilty of negligence which contributed to her fatal injuries was correct. Appellant's only argument that there was a fact issue concerning contributory negligence is based upon the scant testimony of one witness that the decedent stopped her vehicle before going upon the railroad tracks. Whether she stopped or not it cannot be gainsaid that she either didn't look just prior to traversing the track, or, if she did look, she did not act prudently at a time when she might have saved herself from disaster. Again, considering all of the evidence in the light and with all reasonable inferences most favorable to appellant, we think that "the facts and inferences point so strongly and overwhelmingly in favor of one party [appellee] that * * * reasonable men could not arrive at a contrary verdict," Boeing, supra, at 374, and thus the instruction concerning contributory negligence was not only proper but required.
12
From the amount of the jury verdict it is obvious that the jury applied the Mississippi rule of comparative negligence as the Court correctly charged it to do. Under these circumstances the amount of the verdict cannot be said to be inadequate.
13
The judgment of the District Court is reversed with instructions to reinstate the judgment entered upon the verdict of the jury.
14
Reversed with instructions.
Notes:
1
Pursuant to new Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on the Summary Calendar and to notify the parties in writingSee Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804.
2
Mississippi Code Annotated (1942 Recompiled) § 1453
3
Mississippi Code Annotated (1942 Recompiled) § 7777
4
Mississippi Code Annotated (1942 Recompiled) § 1454
5
Mississippi Code Annotated (1942 Recompiled) § 1455
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389 F.2d 388
Edward F. HOUFF, Appellant,v.George W. BISER, Appellee.
No. 11568.
United States Court of Appeals Fourth Circuit.
Argued Jan. 12, 1968.Decided Jan. 26, 1968.
Hamilton O'Dunne, Baltimore, Md. (Patrick A. O'Doherty, Baltimore, Md., on brief), for appellant.
Richard A. Reid, Towson, Md. (Royston, Mueller, Thomas & McLean, Towson, Md., on brief), for appellee.
Before WINTER and CRAVEN, Circuit Judges, and KELLAM, District Judge.
PER CURIAM:
1
In this diversity action, the codefendant held liable to the plaintiff for negligence in the operation of his motorvehicle, contends that he is entitled to a new trial in an effort to show liability on the part of the other codefendant, who was exonerated by the jury. Specifically, he assigns error in the instructions which were granted, and the refusal to grant others which he requested.
2
Under the applicable law of Maryland and the facts developed at the trial, we think the instructions, when taken as a whole, were unexceptional and that there was no error in refusing to grant the requested instructions.
The judgment of the district court is
3
Affirmed.
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458 A.2d 1121 (1983)
Susan BRANCH
v.
DEPARTMENT OF EMPLOYMENT SECURITY (Richard A. Herbert, appellant).
No. 82-046.
Supreme Court of Vermont.
April 5, 1983.
*1122 Kissell & Massucco, Bellows Falls, Terri A. Fisk, Law Clerk (on brief), for plaintiff-appellee.
Fitts, Olson, Carnahan, Anderson & Bump, Brattleboro, for defendant-appellant.
Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.
PER CURIAM.
Dr. Richard A. Herbert, a dentist, appeals from a decision of the Vermont Employment Security Board awarding unemployment benefits to the claimant-appellee, Susan Branch. We affirm.
A detailed recitation of the facts is unnecessary. Suffice it to say that the Board found that claimant, a dental hygienist, was engaged in contract negotiations with her employer, Dr. Herbert. She would have suffered a sizeable wage reduction by accepting his final offer. The Board found that the choice of receiving reduced wages or leaving employment provided claimant with good cause for quitting attributable to the employer, within the meaning of 21 V.S.A. § 1344(a)(2)(A). Thus, the Board awarded her benefits.
The sole question presented for our review is whether the evidence supported the Board's findings. Our standard of review in unemployment compensation cases is clear: we are to affirm the findings of the Board as long as there is credible evidence to support them, even if there is substantial evidence to the contrary. Davis v. Department of Employment Security, 140 Vt. 269, 276, 438 A.2d 375, 379 (1981). We may reverse only when there is no evidence to support the Board's decision. Healey v. Department of Employment Security, 140 Vt. 79, 82, 436 A.2d 753, 755 (1981).
Applying this standard to the facts of the instant case, we find that there is substantial evidence to support the Board's findings and conclusions. The employer testified that claimant was at all times required to work a 32-hour week; claimant testified and payroll records showed that she worked an average of 24 to 26 hours per week. The employer argued that his final offer of $6.50 per hour was the same as the salary rate claimant had been earning during the first quarter of 1981; claimant provided evidence of the earnings she received and the hours she worked to show that $6.50 per hour was less than her current salary rate. The Board, as fact finder, was free to accept or reject any of this evidence. That it chose to accept the evidence of the claimant does not give us cause to reverse; we will do this only when there is no evidence to support the Board's decision. Thus, we find no error in the Board's conclusion.
Affirmed.
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Order Michigan Supreme Court
Lansing, Michigan
December 23, 2013 Robert P. Young, Jr.,
Chief Justice
Michael F. Cavanagh
Stephen J. Markman
147460 Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellee,
v SC: 147460
COA: 312805
Luce CC: 06-000887-FC
ROBERT PAUL DALGLIESH,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the May 30, 2013 order
of the Court of Appeals is considered, and it is DENIED, because the defendant has
failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 23, 2013
s1216
Clerk
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June HARRIS, Plaintiff-Counter-Defendant-Appellee Cross-Appellant,
v.
UNITED STATES of America, Defendant-Counter-Claimant-Third-Party Plaintiff-Appellant, Cross-
Appellee,
v.
Oscar Lussier Harris, Third-Party Defendant.
No. 97-5180.
United States Court of Appeals,
Eleventh Circuit.
May 21, 1999.
Appeals from the United States District Court for the Southern District of Florida. (No. 95-6944-CV-JAL),
Joan A. Lenard, Judge.
Before TJOFLAT, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Under section 6672 of the Internal Revenue Code (26 U.S.C.), any officer or employee of a
corporation who is responsible for the collection or payment of federal employment taxes (a "responsible
person") who willfully fails to pay such taxes is liable for a penalty equal to the unpaid amount.1 Pursuant
to this statute, the Internal Revenue Service made penalty assessments for unpaid taxes in the amount of
$86,421.37 against Oscar Eugene Lussier and June Harris after Savoy Electronics, Inc. ("Savoy"), failed to
pay withholding and social security taxes for the last three quarters of 1991. Lussier was Savoy's president,
and Harris was vice-president of sales. Harris paid a divisible portion of the assessment ($450) and then
1
26 U.S.C. § 6672(a) (1994) states:
Any person required to collect, truthfully account for, and pay over any tax imposed by
this title who willfully fails to collect such tax, or truthfully account for and pay over
such tax, or willfully attempts in any manner to evade or defeat any such tax or the
payment thereof, shall, in addition to other penalties provided by law, be liable to a
penalty equal to the total amount of the tax evaded, or not collected, or not accounted for
and paid over.
brought this suit under 26 U.S.C. § 7422(a) (1994) seeking a refund of that payment and cancellation of the
assessment. The Government counterclaimed against Harris for the unpaid portion of the assessment. The
Government also impleaded Lussier as a third-party defendant and asserted a claim for the unpaid assessment
against him.
Harris moved for summary judgment, contending that as a matter of law she was not a "responsible
person" within the meaning of section 6672. To support her contention, Harris argued that she lacked the
characteristics of a responsible person, which include the holding of corporate office, control over financial
affairs, the authority to disburse corporate funds, ownership of stock in the company, and the authority to hire
and fire employees. See George v. United States, 819 F.2d 1008, 1011 (11th Cir.1987).
First, Harris claimed that her job responsibilities did not include control over Savoy's financial or tax
matters; she stated that she did not even know that Savoy was delinquent on its tax payments until her
employment was terminated in January 1992. Second, Harris claimed that she only had limited authority to
disburse funds; although she had the authority to sign routine checks (such as "recurring payroll checks to
employees"), she could not sign other checks without the express approval of Lussier or his wife. Third,
Harris stated that she did not own stock in Savoy. Fourth, Harris asserted that she had virtually no authority
to hire and fire employees; although she probably had the authority to hire and fire employees in the sales
department, she could only take such action subject to Lussier's approval.2
In response to Harris' motion, the Government submitted a number of documents to demonstrate that
a genuine issue of material fact existed as to whether Harris was a responsible person. These documents
included the corporate resolution and bank signature cards that gave Harris the authority (without limitation)
to sign checks on behalf of Savoy, two Savoy checks signed by Harris in payment of unemployment taxes,
a copy of an IRS form in which Harris admitted that she loaned money to the corporation to pay its payroll,
2
Harris also submitted the affidavits of three Savoy employees, each of whom stated that Harris
neither had the authority to sign checks without Lussier's approval nor had control over Savoy's financial
and tax affairs.
2
and a signed declaration from Lussier that stated, inter alia, that Harris was authorized to sign checks on
behalf of Savoy and that she was a shareholder of Savoy's publicly-owned parent company.
On August 27, 1996, the district court granted Harris' motion for summary judgment, on the ground
that the Government failed to offer any "real evidence" that Harris was a responsible person.3 A docket entry
accompanying the court's order stated that the pending motions relating to the Government's claim against
Lussier were moot, and a second docket entry stated that the case was closed. The Government then filed
a motion to reopen the case because its claim against Lussier had not been adjudicated; the district court
denied the motion. In response, the Government moved the court to certify its judgment in favor of Harris
under Fed.R.Civ.P. 54(b). The court granted the motion, but then entered final judgment in favor of Harris
under Fed.R.Civ.P. 58, and ordered the case closed.
The Government now appeals the court's grant of summary judgment in favor of Harris and its denial
of the Government's motion to reopen its case against Lussier.
I.
As an initial matter, we must determine whether we have jurisdiction to entertain this appeal. Absent
some exception, we have jurisdiction over appeals only from final judgments of a district court. See 28
U.S.C. § 1291 (1994). When there are multiple parties in the case, the court can enter final judgment against
fewer than all of the parties only if it certifies pursuant to Rule 54(b) that "there is no just reason for delay."
Fed.R.Civ.P. 54(b); accord Schoenfeld v. Babbitt, 168 F.3d 1257, 1265 (11th Cir.1999).
In the case before us, the district court has not entered final judgment regarding the Government's
claim against Lussier; thus, that claim is still pending in the district court, and we do not have jurisdiction
to hear the Government's appeal regarding that claim.
3
Because the district court concluded that Harris was not a responsible person, it did not address the
question of whether she "willfully" failed to pay the delinquent taxes.
3
We conclude that we do have jurisdiction to hear the Government's appeal against Harris. Although
the district court entered final judgment in favor of Harris under Rule 58, we construe the court's order as
constituting a final judgment pursuant to Rule 54(b). We do so for two reasons. First, the Government
moved the court to certify its judgment in favor of Harris under Rule 54(b), and the district court stated in its
order that it was granting that motion. Second, because the court had not rendered a final decision regarding
the claim against Lussier, it could not have entered final judgment in favor of Harris unless it did so under
Rule 54(b); thus, it is logical to assume that the court intended to enter judgment pursuant to that rule. We
therefore proceed to review the merits of the Government's appeal of the entry of summary judgment for
Harris.
II.
In determining whether an individual qualifies as a responsible person under section 6672, the court
must examine the individual's status, duty, and authority within the corporation, not her knowledge of the tax
liability. See Mazo v. United States, 591 F.2d 1151, 1156 (5th Cir.1979).4 Liability attaches to any person
who, based on her status in the corporation, has the "actual authority or ability" to pay the taxes. Barnett v.
I.R.S., 988 F.2d 1449, 1454 (5th Cir.1993). As we have stated, indicia of a responsible person include the
holding of corporate office, control of financial matters, the authority to disburse corporate funds, ownership
of stock in the company, and the authority to hire and fire employees.5 See George v. United States, 819 F.2d
1008, 1011 (11th Cir.1987). We conclude that there was a genuine issue of material fact as to whether Harris
fit this definition of a responsible person.6
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as
binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
5
Courts have "taken a broad view of who constitutes a responsible person." Smith v. United States,
894 F.2d 1549, 1553 (11th Cir.1990).
6
We review a district court's grant of summary judgment de novo. See Fitzpatrick v. City of Atlanta, 2
F.3d 1112, 1117 (11th Cir.1993). We affirm the grant of summary judgment only if "there is no genuine
issue as to any material fact and ... the moving party is entitled to judgment as a matter of law."
4
The Government offered substantial evidence that indicated Harris' responsibility under section 6672.
First, it submitted Lussier's declaration that Harris had the authority to sign checks on behalf of Savoy, and
the corporate resolution and bank signature cards that granted her such authority. These documents refuted
Harris' contention that her authority to disburse corporate funds was limited; although Harris claimed that
she could sign non-routine checks only with approval, the Government's evidence indicated that her
check-signing authority was unlimited.7
Second, the Government's evidence indicated that Harris was a shareholder of Savoy's
publicly-owned parent company, and therefore that she indirectly owned stock in Savoy. A reasonable trier
of fact could conclude that Harris' indirect ownership interest, together with her status as an officer of the
corporation, afforded her sufficient authority to ensure that the taxes were paid.
Third, the Government offered two Savoy checks signed by Harris in payment of unemployment
taxes. This evidence refutes her contention that she had no control over Savoy's financial or tax affairs; it
demonstrates that Harris has paid taxes on behalf of Savoy in the past, and therefore suggests that she had
the ability to pay Savoy's delinquent withholding and social security taxes.
Finally, the Government submitted the IRS form on which Harris admitted that she loaned Savoy
money to pay its payroll. It is reasonable to infer that a person who helped the corporation meet its payroll
Fed.R.Civ.P. 56(c). The non-moving party is entitled to all reasonable factual inferences that may be
drawn from the evidence. See Rayle Tech, Inc. v. DEKALB Swine Breeders, Inc., 133 F.3d 1405, 1409
(11th Cir.1998).
7
Furthermore, even if Harris' check-signing authority was limited to routine checks, there is an issue of
material fact as to whether Savoy's tax payments were routine. During the relevant time period,
employers whose payroll taxes exceeded $500 per month were required to pay the taxes on a monthly
basis, and employers whose taxes exceeded $3000 after any three to four day period were required to pay
the taxes within three banking days of the end of that period. See Treas. Reg. § 31.6302(c)-1(a)(1)(i),
(ii). In light of the amount of the assessment ($86,421.37) and the fact that Savoy at times employed
nearly 100 employees, Savoy at least was required to pay its payroll taxes every month, and potentially
was required to pay several times per month. A reasonable fact finder could conclude that these payments
were "routine," and therefore that Harris had the authority to pay these taxes without first obtaining the
approval of Lussier or his wife.
5
could exert substantial influence over the payment of payroll taxes. Thus, the Government's evidence
suggested that Harris had the ability to pay the delinquent taxes.
In sum, we conclude that the Government's evidence was sufficient to raise a genuine issue of
material fact as to whether Harris was a responsible person under section 6672; thus the district court
inappropriately granted summary judgment in favor of Harris.
III.
For the foregoing reasons, we vacate the district court's entry of summary judgment in favor of Harris
and remand the case for further proceedings. In addition to conducting further proceedings on Harris' claim
against the Government and the Government's counterclaim, we assume that the district court will entertain
the Government's claim against Lussier.
VACATED and REMANDED.
6
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
RAYMOND JOE TAYLOR, §
No. 08-12-00143-CR
Appellant, §
Appeal from the
v. §
355th Judicial District Court
THE STATE OF TEXAS, §
Hood County, Texas
Appellee. §
Cause No. CR11748
§
OPINION
Raymond Joe Taylor appeals his conviction on three counts of Aggravated Assault with a
Deadly Weapon. The jury assessed a sentence of 80 years’ in prison, to run concurrently, and a
$10,000.00 fine. In his sole issue on appeal, Taylor contends that there was insufficient
independent evidence to corroborate the inculpatory testimony of an accomplice witness. For the
following reasons, we affirm.
BACKGROUND
Factual History
This case arises out of a shooting incident in Granbury, Texas. On August 3, 2010,
twenty-six-year-old Appellant and nineteen-year-old Caleb Fonseca stopped at a Shell gas
station on their way to visit Appellant’s wife at the Jalapeno Tree Restaurant. Fonseca and
Appellant were acquaintances. Fonseca would give Appellant rides and Appellant in turn would
give Fonseca gas money. While at the gas station, Fonseca got into a verbal altercation with
David Tarvin and Clint Morton, members of the Dynasty gang who had been harassing Fonseca
and sending him online death threats via Myspace messages. While the argument was going on,
another car carrying Dynasty member Christian Castillo, his girlfriend Teresa Rosenquist, and
Kristin White arrived at the gas station. Tensions continued to escalate before convenience store
employees informed everyone in the group that they were going to call the police.
What happened next is in dispute. Although Appellant elected not to take the stand in his
own defense, the trial court admitted, without objection, a redacted video recording of
Appellant’s police interrogation the night of the shooting. In the video, Appellant said that he
told Fonseca that if he was going to get into a fight, then he should get the fight over with, but
that Appellant wanted no part in the fight and he wanted Fonseca to take him home. He also said
that Fonseca complied and drove him home, but that the group from the gas station followed the
car to the house. Appellant claims he asked Fonseca to not stop at the house because his children
were there, but that Fonseca drove there anyway.
Once the car stopped, Appellant said, he gathered up his children and nephew and
ushered them into the back room. Fonseca and the Dynasty gang members continued arguing
outside. Appellant then exited the house and told everyone to get off his property. At that point,
he said, Fonseca fired one or two shots from a shotgun. The group of people from the gas station
and Fonseca all fled the scene. Fonseca returned five to ten minutes later, stating that he left his
gun at his sister’s house and claiming that he fired because he thought the group that had
followed them to Appellant’s house had a gun. Appellant said he then got back in Fonseca’s car
because he was afraid that his wife would be worried about him not showing up on time to meet
2
her at her job, especially given that they had been fighting recently.
Fonseca and other witnesses disputed Appellant’s account of events in their trial
testimony. Fonseca, White, and Rosenquist all testified that at the gas station, Appellant had
suggested that if the group really wanted to fight, they should go to his home in the Indian
Harbor subdivision because the police would not intervene there. Fonseca and Rosenquist
testified that everyone agreed to this arrangement, loaded into three separate cars, and then
departed for Appellant’s house. Fonseca further testified that prior to leaving for the gas station,
Fonseca had Appellant place Fonseca’s shotgun into Appellant’s house. Fonseca said that during
the car ride back to Appellant’s house from the gas station, Appellant asked Fonseca where he
kept the bullets for his shotgun. When Fonseca replied that they were in the trunk, Appellant
purportedly told him to “[p]op the trunk when we pull up” to the house.
White testified that when she arrived at Appellant’s house, she witnessed Fonseca open
the trunk of his car at Appellant’s house, remove a bag, and hand the bag to Appellant.
Appellant then told White, “[d]on’t worry about it, little mama. I’m just taking my CDs inside,”1
before stepping into his house. Fonseca maintained that the bag actually contained shotgun
ammunition. White saw stray shotgun shells in the trunk, yelled out that Fonseca had shotgun
shells, and then ran to her car. Fonseca then walked toward the front door.
Forensic analysis indicated that a gunman wielding a shotgun fired three shots from the
porch and driveway in front of Appellant’s house. The identity of the gunman was in dispute at
trial. Neighbors testified that they heard gunshots and found bullet holes on their property, but
only two witnesses actually identified the gunman at trial. White, who suffered facial injuries
from shotgun pellets and broken glass, admitted that she did not actually see who shot her, but
testified that she believed Appellant was the shooter. She also initially told police that Fonseca
1
Kristin White was four months pregnant at the time of this shooting.
3
had shot her, but later told police at the hospital that Appellant was the gunman. Megan
Bonham, the second eyewitness, testified that the gunman was a “tall” male standing on the
porch. Fonseca is 6’0” tall. Appellant is 5’4” tall.
Fonseca maintained during trial testimony that Appellant was the shooter, and that when
he asked Appellant why he was shooting, Appellant replied, “I don’t give a damn. I’ll kill them
all.” Prior to Appellant’s trial, Fonseca pleaded guilty to one count of aggravated assault arising
out of this same incident. Appellant admitted in the police interrogation video that he
encouraged Fonseca to fight the other people at the gas station, but denied firing the shotgun that
day. No fingerprints were collected from the shotgun, and no gunshot residue was found on
either Appellant or Fonseca.
Procedural History
Appellant was indicted on three counts of Aggravated Assault with a Deadly Weapon.
Appellant pleaded not guilty to all three charges. The jury found Appellant guilty on all three
counts, sentenced him to 80 years’ in prison, and assessed a $10,000.00 fine.
DISCUSSION
In his sole issue, Appellant argues that his conviction should be overturned under
TEX.CODE CRIM.PROC.ANN. art. 38.14 because biased testimony from Fonseca identifying
Appellant as the shooter is uncorroborated by other independent evidence in the record. We
disagree.
Standard of Review
The Texas Legislature has established that “[a] conviction cannot be had upon the
testimony of an accomplice unless corroborated by other evidence tending to connect the
defendant with the offense committed[.]” TEX.CODE CRIM.PROC.ANN. art. 38.14 (West 2005).
4
“The rule reflects a legislative determination that accomplice testimony implicating another
person should be viewed with a measure of caution,” since “accomplices often have incentives to
lie. . . [and] avoid punishment or shift blame to another person.” Blake v. State, 971 S.W.2d 451,
454 (Tex.Crim.App. 1998).
Evidentiary sufficiency under the accomplice witness rule is a separate level of review
created by statute that is independent from legal and factual sufficiency reviews as defined by the
federal and state constitutions. Cathey v. State, 992 S.W.2d 460, 462-63 (Tex.Crim.App. 1999).
In assessing an evidentiary challenge under the accomplice witness statute, we first eliminate the
accomplice’s live, sworn testimony at trial from consideration, Cockrum v. State, 758 S.W.2d
577, 581 (Tex.Crim.App. 1988); Torres v. State, 137 S.W.3d 191, 196 (Tex.App.--Houston [1st
Dist.] 2004, no pet.), and then review the remaining evidence in the light most favorable to the
verdict, Cantelon v. State, 85 S.W.3d 457, 461 (Tex.App.--Austin 2002, no pet.); Cathey, 992
S.W.2d at 463 n.4, to determine whether a rational juror would believe the evidence “tends to
connect the defendant” to the charged crime. Id. at 462. If not, the defendant is entitled to a
judgment of acquittal. Torres, 137 S.W.3d at 196; TEX.CODE CRIM.PROC.ANN. art. 38.17.
The precise level of evidence needed to corroborate an accomplice’s testimony and
sustain a conviction is undefined and largely hinges on the underlying facts and circumstances of
each case. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App. 1996). “All the facts and
circumstances in evidence may be looked to as furnishing the corroboration necessary[.]” Gandy
v. State, 835 S.W.2d 238, 241 (Tex.App.--Houston [1st Dist.] 1992, pet. ref’d). “Corroboration
may rest on direct or circumstantial evidence.” Gaston v. State, 324 S.W.3d 905, 909 (Tex.App.-
-Houston [14th Dist.] 2010, pet. ref’d); see also Gosch v. State, 829 S.W.2d 775, 777
(Tex.Crim.App. 1991). Corroborating evidence “tending to connect the defendant with the
5
offense committed” under Article 38.14 does not need to “directly connect the defendant to the
crime” or “be sufficient by itself to establish guilt . . . .” Cathey, 992 S.W.2d at 462. Instead, a
showing of some evidence beyond the mere commission of an offense or beyond the defendant’s
presence before, during, or after its commission is sufficient to establish the nexus. See
Dowthitt, 931 S.W.2d at 249; Colella v. State, 915 S.W.2d 834, 838-39 (Tex.Crim.App. 1995).
“[P]resence combined with other suspicious circumstances . . . [or] evidence the defendant was
in the presence of the accomplice at or near the time or place of the offense is proper
corroborating evidence.” Barrera v. State, 321 S.W.3d 137, 148 (Tex.App.--San Antonio 2010,
pet. ref’d). Likewise, evidence of motive, opportunity, and demeanor, when taken in concert
with other evidence, may be enough to corroborate accomplice testimony. See Smith v. State,
332 S.W.3d 425, 442 (Tex.Crim.App. 2011). “Any independent evidence tending to verify an
accomplice witness’s version rather than the defendant’s version is deemed to be corroborative,
even if it goes only to a mere detail versus a substantive connection between the defendant and
the offense.” Nethery v. State, 29 S.W.3d 178, 185-86 (Tex.App.--Dallas 2000, pet.
ref’d)[internal citation and quotation marks omitted].
The State concedes at the outset of its brief that “Caleb Fonseca was an accomplice as a
matter of law because Fonseca was charged with—and pled guilty to—the same offense as
Appellant.” See also Cocke v. State, 201 S.W.3d 744, 748 (Tex.Crim.App 2006). As such, the
accomplice witness rule applies, and we review the record as a whole—minus Fonseca’s trial
testimony—to determine if there is sufficient evidence linking Appellant to the shooting.
Application of Law to the Facts
Appellant argues that absent Fonseca’s testimony, the State has failed to adduce any
evidence at trial credibly establishing anything beyond Appellant’s mere presence at the scene of
6
the shooting, which is in and of itself insufficient to support his conviction. See Dowthitt, 931
S.W.2d at 249. He notes that of the eleven witnesses the State presented in addition to Fonseca,
only two—Kristen White and Megan Bonham—identified the shooter in court. Appellant
contends that neither of those eyewitnesses can credibly establish that Appellant was the shooter.
He points to the fact that White initially identified Fonseca as the shooter as proof that she is not
a credible witness. He also argues that the fact that Bonham stated that the shooter was “tall”
when Fonseca stands at 6’0” tall and Appellant is only 5’4” is proof that Fonseca and not
Appellant actually fired the shotgun. The State responds that the witness testimony and forensic
evidence sufficiently corroborate Fonseca’s testimony under the accomplice witness rule. We
agree.
We acknowledge that the timeline of events, the vantage point of eyewitnesses, and
testimonial inconsistencies may not conclusively establish the shooter’s identity absent
Fonseca’s testimony. However, the standard for reversal under the accomplice witness rule is
not pegged to proof beyond a reasonable doubt. Cathey, 992 S.W.2d at 462. Instead, the statute
provides the remedy of acquittal only where there is little to no evidence independently
corroborating an accomplice’s testimony connecting the defendant to a crime. Id. at 463. Here,
the State has offered some evidence that could plausibly corroborate Fonseca’s testimony and
show that Appellant was connected to the shooting.
Although Appellant’s presence at the crime scene, his association with a party that pled
guilty to the offense, his self-professed disdain for the gang members, and his desire to see a
fight could be insufficient to corroborate Fonseca’s testimony when taken individually, we must
not take a divide-and-conquer approach, but instead view the record as a whole and consider
them as relevant corroborating factors when taken together. See Ex parte Martinez, 330 S.W.3d
7
891, 894 n.4 (Tex.Crim.App. 2011)(“accused’s presence in the accomplice’s company before,
during, and after the commission of the offense” may corroborate when linked to other
evidence); Dowthitt, 931 S.W.2d at 249 (presence at scene of the crime may corroborate
contingent upon linkage); Smith, 332 S.W.3d at 442 (motive evidence may corroborate
accomplice where taken with other evidence). Likewise, the fact that Appellant had the
opportunity to enter his home and retrieve a firearm prior to the shooting, although insufficient to
corroborate Fonseca’s testimony alone, becomes significant when viewed in light of the fact that
Fonseca testified he had left his shotgun at Appellant’s home and no eyewitness testified to
seeing a gun prior to Appellant’s entry into the home. Id. (opportunity evidence may be linked
with other evidence for corroboration); Gaston, 324 S.W.3d at 909 (circumstantial evidence is
proper corroborating evidence).
Apart from the inferential evidence of presence, motive, and opportunity, other witnesses
explicitly corroborated Fonseca’s version of events. White corroborated Fonseca’s claim that
Appellant set the shooting into motion when she testified that Appellant told the group at the gas
station to “[f]ollow me to my house” because “[t]here will be no law[,]” which she understood to
mean “no police.” White’s testimony also directly contradicted Appellant’s video recorded
statement in which he claimed he wanted no part in the fight, told Fonseca to drive him home,
and maintained the group from the gas station followed them to Appellant’s home on their own.
The jury, as finder of fact, was free to believe that the inconsistencies between Appellant’s police
statement and other eyewitness testimony tended to independently corroborate Fonseca’s version
of events and resolve those inconsistencies against Appellant. See Nethery, 29 S.W.3d at 185-86
(holding that “[a]ny independent evidence tending to verify an accomplice[’s]” story over a
defendant’s story is corroborative).
8
White further corroborated Fonseca’s assertion that Appellant removed a bag from the
trunk and took it with him into his house prior to the start of the shooting, thereby also
contradicting Appellant’s statement to police in which he claimed that as soon as he returned to
his house, he immediately exited the car and shepherded his children to the room. White’s
testimony that the trunk from which the bag came contained shotguns shells constituted
circumstantial evidence corroborating Fonseca’s testimony that the bag Appellant carried into
the house contained shotgun shells. Id. (evidence may be corroborative even if it “goes only to a
mere detail” and not a “substantive connection between the defendant and the offense”).
Additionally, her testimony that only a short time elapsed between Fonseca walking to the front
door while she attempted to start her car and her being shot is circumstantial evidence
corroborating Fonseca’s claim that Appellant was the gunman. Forensic testing showed that
shots were fired from the porch near the front of the house, and given the time frame, it would
have been easier for Appellant to obtain the gun from inside the house and begin shooting from
that position than for Fonseca to do the same.
Finally, evidence gathered during the course of the police investigation corroborates
Fonseca’s version of events. After the shooting, Fonseca stated he placed the loose shotgun
shells in the console of his vehicle and that he and Appellant went to Fonseca’s house and hid the
gun in Fonseca’s closet. Fonseca further testified that Appellant asked to use the restroom after
the shooting. When Appellant came out of the bathroom, “[h]e was drying off his hands on his
pants.” Fonseca and Appellant were arrested a short time later.2 Police later found the gun in
Fonseca’s closet and unspent shotgun shells in the car’s console. Forensic testing showed no
gunshot residue on either Appellant’s or Fonseca’s hands. In viewing the evidence in the light
most favorable to the verdict, we find that the State has met its burden in connecting Appellant to
2
Fourteen minutes elapsed from the time of the first 911 call until Appellant and Fonseca were arrested.
9
the aggravated assault under TEX.CODE CRIM.PROC.ANN. art. 38.14. As such, reversal of the
verdict and rendition of an acquittal judgment under the accomplice witness statute is
unwarranted.
Issue One is overruled. We affirm Appellant’s conviction.
February 26, 2014
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Do Not Publish)
10
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Court of Appeals
of the State of Georgia
ATLANTA, April 12, 2018
The Court of Appeals hereby passes the following order
A18D0373. MICHAEL BURKE v. BIRDINE HARRIS, AS EXECUTRIX OF THE
ESTATE OF JOHNNY BURKE, DECEASED.
Upon consideration of the Application for Discretionary Appeal, it is ordered that it be
hereby DENIED.
LC NUMBERS:
2017CV297188
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, April 12, 2018.
I certify that the above is a true extract from the minutes
of the Court of Appeals of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk.
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653 F.2d 229
Edward W. OSTROWSKI, et al., Plaintiffs-Appellants,v.The UNITED STATES DEPARTMENT OF LABOR, OFFICE OF WORKERSCOMPENSATION PROGRAMS, et al., Defendants-Appellees.
No. 79-1667.
United States Court of Appeals,Sixth Circuit.
Argued June 1, 1981.Decided and Filed July 2, 1981.
Ferdinand M. Peters, Koperski & Peters, Warren, Mich., for plaintiffs-appellants.
James K. Robinson, U. S. Atty., Henry J. Maher, Plunkett, Coomey, Rutt, Watters, Stanczyk & Pedersen, David Wightman, U. S. Department of Labor, Thomas M. Woods, Asst. U. S. Atty., Special Litigation Section, Detroit, Mich., Frederic D. Cohen, Attorney, Appellate Staff, William Kanter, Freddi Lipstein, Civil Division, Dept. of Justice, Washington, D. C., for defendants-appellees.
Before EDWARDS, Chief Judge, and KENNEDY, Circuit Judge and HORTON,* District Judge.
PER CURIAM.
1
Plaintiffs in this case appeal from a judgment requiring them to reimburse the Federal Employees' Compensation Fund out of damages previously awarded to them in a state court tort action against third parties.
2
In 1973, Michigan adopted a "no fault" automobile insurance system which limited these plaintiffs to recovery for noneconomic losses (such as pain and suffering) in their suit against third party tortfeasors. See Mich.Comp.Laws Ann. § 500.3135 (Supp.1981). The question presented for our review is whether this modification in Michigan's tort law prohibits the United States from obtaining reimbursement, out of plaintiffs' third party tort suit recovery, for economic benefits paid under the Federal Employees' Compensation Act ("FECA"), 5 U.S.C. §§ 8101-8193 (1976). The District Judge who decided this case answered this question in the negative in a lengthy and carefully considered opinion. See Ostrowski v. Roman Catholic Archdiocese of Detroit, 479 F.Supp. 200 (W.D.Mich.1979).
FECA section 8132 provides in part:
3
If any injury or death for which compensation is payable under this subchapter is caused under circumstances creating a legal liability in a person other than the United States to pay damages, and a beneficiary entitled to compensation from the United States for that injury or death receives money or other property in satisfaction of that liability as a result of suit or settlement by him or in his behalf, the beneficiary, after deducting therefrom the costs of the suit and a reasonable attorney fee, shall refund to the United States the amount of compensation paid by the United States and credit any surplus on future payments of compensation payable to him for the same injury.
4
Construing this statutory section, the District Judge held:
5
It is undisputed that any payments the plaintiff will receive as a result of the state court action will be "damages" paid to discharge a legal liability arising from the same injuries that gave rise to compensation under FECA, namely, for injuries occurring in the January, 1975 accident. There is no language in Section 8132 delineating two classes of damages one of which gives rise to a duty to reimburse and one of which does not. On the contrary, by its terms the duty to reimburse encompasses all damages recovered from third parties.
6
479 F.Supp. at 203.
7
It should be noted that Congress delegated authority to the Secretary of Labor to promulgate regulations under FECA. See 5 U.S.C. § 8149. Under that authority, the Secretary has adopted a regulation which provides as follows:
8
If an injury for which benefits are payable under the Act is caused under circumstances creating a legal liability upon some person other than the United States to pay damages therefor, and, as a result of suit brought by the beneficiary or by someone on his or her behalf, or as a result of settlement made by him or her or on his or her behalf in satisfaction of the liability of such other person, the beneficiary shall recover damages or receive any money or other property in satisfaction of the liability of such other person on account of such injury or death, the proceeds of such recovery shall be applied as follows:
9
(a) If an attorney is employed, a reasonable attorney's fee and cost of collection, if any, shall first be deducted from the gross amount of the settlement;
10
(b) The beneficiary is entitled to retain one-fifth of the net amount of the money or other property remaining after the expenses of a suit or settlement have been deducted, plus an amount equivalent to a reasonable attorney's fee proportionate to any refund to the United States;
11
(c) There shall then be remitted to the Office, the benefits which have been paid on account of the injury, which shall include payments made on account of medical or hospital treatment, funeral expense, and any other payments made under the Act on account of the injury or death;
12
(d) Any surplus then remaining may be retained by the injured employee or his dependents, and the net amount of damages received by the beneficiary shall be credited against future payment of benefits to which the beneficiary may be entitled under the Act on account of the same injury or death.
13
20 C.F.R. § 10.503 (1980).
14
The regulation is obviously designed to prevent injustice to the federal employee in an instance where recovery from a third party, by dint of attorney fees or other costs, would have been entirely or substantially wiped out by the FECA claim.
15
In the instant case, appellant Ostrowski had received from the Federal Employees' Compensation Fund $5,058.70 for medical care costs and $41,196.62 for loss of wages through December 6, 1978. As of the time of trial, wage loss was still being paid under FECA. Ostrowski received $100,000 in settlement of his third party tort action.
16
We have reviewed the purposes of FECA, which include prompt assistance in meeting the employee's medical expenses and continuation of wage payments when he is injured in the course of his employment. The provisions for the fund to recoup such expenditures are obviously designed to diminish the cost of this governmental program and preventing the possibility of double recovery.
17
For the reasons stated above and further spelled out in the Memorandum Opinion of the District Judge filed September 18, 1979, the judgment of the District Court is affirmed.
*
Honorable Odell Horton, United States District Judge for the Western District of Tennessee, sitting by designation
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41 Cal.App.4th 1832 (1995)
THE PEOPLE, Plaintiff and Respondent,
v.
ANTONIO MORALES GARCIA, Defendant and Appellant.
Docket No. F021752.
Court of Appeals of California, Fifth District.
August 11, 1995.[]
*1836 COUNSEL
Andrew Cappelli, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Shirley A. Nelson and Derald E. Granberg, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[]]
OPINION
ARDAIZ, P.J.
By information filed in Merced County Superior Court on December 28, 1993, appellant, Antonio Morales Garcia, was charged with the following offenses: (1) the murder of Maria Prado, in violation of Penal Code section 187; (2) gross vehicular manslaughter while intoxicated in violation of Penal Code section 191.5; (3) driving while under the influence of alcohol or drugs resulting in injury in violation of Vehicle Code section 23153, subdivision (a); (4) driving with a blood-alcohol level of .08 percent or more resulting in injury in violation of Vehicle Code section 23153, subdivision (b); (5) driving with a suspended or revoked license in violation of Vehicle Code section 14601.2, subdivision (a); (6) and hit-and-run driving in violation of Vehicle Code section 20002, subdivision (a).[1] It was further alleged that, within the last seven years, appellant had suffered a prior conviction for driving with a blood-alcohol level of .08 percent or more.
Appellant was arraigned on December 29, 1993, entered pleas of not guilty to all charges, and denied the prior conviction allegation. In response to a pretrial motion made by the defense, counts 3 through 5 were dismissed.
On the first day of trial and outside the presence of the prospective jurors, appellant pleaded guilty to count 6 (hit-and-run driving). The parties then proceeded to trial on the remaining counts. On the eighth day of trial, the jury found appellant guilty of the offenses alleged in both count 1 (second degree murder) and count 2 (gross vehicular manslaughter while intoxicated).
Imposition of sentence occurred on May 18, 1994. Appellant was denied probation and ordered imprisoned for a term of 15 years to life with the possibility of parole on count 1, the upper term of 10 years on count 2, stayed under section 654, and a concurrent term of 6 months on count 6. He *1837 was awarded appropriate time credits and ordered to pay a Government Code section 13967 restitution fine in the amount of $4,400.
Notice of appeal was timely filed on June 7, 1994.
FACTS
On December 18, 1992, around 11 p.m., Mr. Kilgore was stopped at a stop sign on Cunningham at Santa Fe and waiting for traffic to clear when a car coming out of LeGrand made a right turn onto Cunningham and struck his truck causing it to spin around. As the car accelerated away from the scene, Kilgore noticed it had taillights like those belonging to a large, "late model '70 Chevy." The vehicle was last seen headed north on Cunningham. At trial, the parties stipulated that appellant was the driver of the vehicle involved in the collision with Mr. Kilgore.
Merced County Sheriff's Deputy Fournier was on duty on December 18, 1992, when, around 11 p.m., he was advised that a hit-and-run accident had just occurred in the area of LeGrand and Cunningham roads. The suspect vehicle was described as a large vehicle, dark in color, last seen heading northbound on Cunningham and possibly headed for Merced via Highway 140.
The deputy was heading eastbound on Highway 140 at an approximate speed of 50 miles per hour looking for this vehicle. As cars passed the officer, he would glance to the left to see whether they matched the description of the hit-and-run vehicle.
Deputy Fournier's patrol vehicle was the last of three cars in the eastbound lane. West of Arboleda, the next cross street, the middle vehicle signaled and successfully passed the first car. This was the last the officer saw of the passing vehicle. He did not recall seeing any additional westbound traffic at this point.
Approximately 20 seconds later and somewhere east of Arboleda on Highway 140, he looked ahead and saw a steam cloud and a burst of light. What he observed turned out to be a fireball from an accident that had just taken place. Deputy Fournier could not recall if something had passed him immediately before the accident which would have diverted his attention to the side.
When he came upon the scene, the deputy saw debris in the roadway and a large bronze or gold-colored Chevy Impala on the north shoulder of the *1838 road, its engine ablaze. On the southern shoulder of the roadway, he saw a white Chevy Baretta. He could not say which direction the vehicles had been traveling prior to impact.
Deputy Fournier contacted the driver of the gold car, whom he identified as appellant, and told him an ambulance was on the way. He put out the fire and then went to check on the occupant of the Baretta. Using some of the debris from the accident, a large metal bar, he tried, without success, to pry open the door of the Baretta. The only other debris that was moved following the accident occurred when a passerby was pulling the hood of the Baretta out of the roadway. Seeing this, the deputy ordered him to stop.
At trial, the deputy said he was certain that the passing car had completed the pass before the accident occurred. His response to questions raised by defense counsel suggested that he did not believe this car was in any way involved in the accident.
Officer Winter of the California Highway Patrol (C.H.P.) testified that he was summoned to an accident scene on state Highway 140 near Arboleda in the evening hours of December 18, 1992. The officer described Highway 140 as an unlit, two-lane, east-west, level highway.
Upon his arrival, Officer Winter observed a full-size brown Chevy on the north side of the roadway facing south. The occupant of this vehicle, later identified as appellant, appeared to be pinned behind the steering wheel. The other vehicle, a white Chevy Baretta, was located to the east on the south side of the road.
Based on the appearance of the vehicles, the officer opined that they had been involved in a head-on collision. The physical evidence found in the roadway caused Officer Winter to place the point of impact approximately five feet inside the eastbound lane of Highway 140 the lane in which the white vehicle was traveling prior to impact.
Officer Esmay of the C.H.P. accident investigation team was subsequently called to investigate the accident. He placed the area of impact between three and five feet to the left or south of the center line (i.e., between three and five feet inside the eastbound lane). The officer noted that the angle of approach of the larger Chevy towards the smaller Chevy was 10 1/2 degrees. He said this type of movement would be consistent with weaving or drifting and certainly meant that there had to be some turning movement by the larger vehicle prior to impact. He calculated the precollision speed of the full-size Chevy at 47 1/2 miles per hour and the smaller white Chevy at 44 1/2 *1839 miles per hour. There was no physical evidence to show that either driver applied the brakes prior to impact. This does not mean, however, that the vehicles did not slow down before impact only that no physical evidence remained behind to show that they had applied their brakes. When the vehicles struck, they overlapped by roughly one and three-tenths feet. Based on his investigation, Officer Esmay opined that the collision occurred in the eastbound lane with vehicle No. one, the brown Chevy, crossing over the center line and remaining there until impact. Of that, he had no doubt. Crossing over the center line is a violation of Vehicle Code section 21650.
Officer Esmay said he was aware that Deputy Fournier had mentioned something about a third vehicle passing. However, Esmay also said that, to his knowledge, no physical evidence was found at the scene that would support a claim of a third car passing these vehicles on the shoulder.[2] He also stated that Deputy Fournier had given him no indication that the third vehicle was responsible for the accident. Indeed, the third vehicle was not even mentioned in the initial report prepared regarding this accident.
The parties stipulated at trial that the collision caused the death of Maria Prado. They also stipulated that a blood sample was obtained from appellant in a medically approved manner and as to the sufficiency of the sample's legal chain of custody.
C.H.P. Officer Frederick testified that he interviewed appellant regarding the accident on December 23, 1992. C.H.P. Officer Ortiz acted as translator during the interview since appellant spoke only Spanish and Officer Frederick spoke only English. After waiving his Miranda rights,[3] appellant agreed to talk to the officers. Appellant seemed to have no difficulty understanding or responding to the questions put to him although both officers acknowledged that appellant had just been released from the hospital at the time of their interview.
Appellant admitted owning a tan Chevy Caprice and being involved in only one accident on the day in question which he described as occurring in Livingston on his way to look for work in Delhi. He said that he was the only person in his car and was making a turn (he could not remember which direction) when another vehicle came up on him "fairly quick" and the two cars struck. When the officer told appellant that the doctors found alcohol in *1840 his system, he said they were wrong as he had not consumed any alcohol that day. Before concluding the interview, Officer Frederick asked appellant if he would like to add anything to his statement regarding "either accident." Appellant told the officer, "you know what happened." He started to say "you were there" but he stopped short and told the officer that he did not want to discuss the matter any further.
At trial, a Department of Justice criminalist testified that he tested the sample of appellant's blood drawn at 1:30 a.m. on December 19, 1992, and found that it contained .16 percent blood-alcohol. The criminalist said this meant that appellant would have had a blood-alcohol level of .20 percent around 11:15 or 11:20 p.m. the evening before.
In his opinion, a person could not operate a car in a safe manner with this level of alcohol in his or her bloodstream. Indeed, the criminalist was of the opinion that no one could safely operate a motor vehicle with a blood-alcohol as low as .10 percent. A person such as appellant, with a blood-alcohol level of .20 percent would experience even a greater degree of impaired judgment,[4] delayed reaction time, and diminished divided attention skills (the ability to perform more than one task at a time such as those needed to operate a car safely). Such a person would generally panic if presented with an emergency situation. The criminalist went so far as to say that he did not think a person with appellant's blood-alcohol level would be able to drive a car in a straight line although he did admit that an alcohol tolerant driver could probably manage it on a straight, familiar road with good weather. The tolerant driver would nevertheless have difficulty responding to an emergency situation.
Evidence was also presented regarding former occasions when appellant had been arrested for driving under the influence. On one such occasion, around 9 p.m. on August 28, 1990, Merced County Sheriff's Deputy DeBusk observed appellant driving a tan Cadillac that was weaving from the left of the center line to the right of the fog line. The officer initiated a traffic stop and, when he made contact with appellant, detected an odor of alcohol about his person. Because he suspected that appellant may have been driving while under the influence of alcohol, the deputy sought assistance from C.H.P. in accordance with his department's practice.
C.H.P. Officer Lawson was the officer who responded. Based on appellant's physical appearance, poor performance on the field sobriety tests, and *1841 described driving patterns, Officer Lawson concluded that appellant had been driving while under the influence of alcohol and placed him under arrest. A blood sample subsequently obtained revealed a blood-alcohol level of .13 percent.
Approximately one month later, on September 25, 1990, appellant was arrested a second time for driving under the influence. A blood sample obtained on this occasion revealed a blood-alcohol level of .15 percent.
Appellant was arrested again on February 23, 1992, for driving under the influence. On this occasion, appellant was observed driving his car across the center line and almost entirely into the lane of oncoming traffic. A patrolman traveling in the opposite direction had to leave the roadway to avoid a head-on collision with appellant.
Using both lights and siren, the officer tried to initiate a traffic stop but appellant failed to yield. During the pursuit, appellant continued to drive on the wrong side of the road. Four or five additional vehicles were forced off the roadway to avoid a collision with appellant.
When appellant finally stopped his vehicle, he got out of the car and tried unsuccessfully to flee on foot. He was observed to stagger and stumble about. The officer noted that appellant stood a good chance of falling down if he had not been leaning up against the patrol car. Using a Breathalyzer, appellant's blood-alcohol was found to be .18 percent at 6:56 p.m. on February 23, 1992.
Evidence was also offered to show that appellant attended two of the fifteen 2-hour sessions that comprise the first offender's program. During these sessions, attendees were customarily told, in Spanish, about the negative effects alcohol has on the brain and, in particular, the effects it has on one's ability to drive safely. They were specifically told that combining alcohol with driving is likely to result in an accident.
Defense
Mr. Johnson, a consulting mechanical engineer with a background in vehicle design and testing, testified that he conducted his own investigation into the cause of this fatal accident. He reviewed a number of the documents and photographs related to the accident and examined appellant's car. He was unable to examine the damaged portion of the Baretta because it had been removed and discarded by a salvage company prior to his having been retained in this matter. He also visited the accident site on May 14, 1993.
*1842 Johnson said he agreed with the determinations made by C.H.P. regarding the crash site, the pre-impact speeds of the vehicles, and the angle of impact. He disagreed with the officers' conclusions that the angle of impact was consistent with appellant drifting or weaving over the center line.
The type of turning movement seen here was, in his experience, inconsistent with that of an inebriated driver. Mr. Johnson described the angle leading to impact as a "pretty severe turn" or "an intended steer maneuver" which he found more consistent with a third vehicle being involved in the accident. The angle was more than five times that of an intentional lane change which is, in turn, greater than the angle of a drift. The fact that both drivers were operating their vehicles below both the speed limit and the normal rate of flow at the time of the accident suggested to Johnson that they may have been in the process of reacting to a third vehicle when the collision occurred. He admitted, however, that there was no physical evidence to either support or refute that theory.
In forming his opinion, Johnson assumed the third car had not completed its pass when the accident occurred. He opined that the third vehicle was on the far right side of appellant's lane leaving appellant with the sole option of moving to the left. He reached this conclusion after calculating the time it would take the third vehicle to complete its pass. Johnson found it unlikely that Deputy Fournier would have been looking at the vehicle passing him westbound for the entire seven and three-tenths seconds it would take for the third vehicle to complete its pass. He believed the officer probably looked at the vehicle passing him for two to three seconds before he looked forward again and saw the fireball. Two or three seconds was simply not enough time for the third vehicle to complete its pass.
Johnson acknowledged that he had not interviewed Deputy Fournier personally. He said he based his conclusions on the statements attributed to Fournier in the reports prepared by other officers. Johnson was surprised to learn of Fournier's preliminary hearing testimony in which the officer clearly said the third vehicle was not involved in the accident. The defense expert considered the preliminary hearing testimony a significant change from the statements Fournier purportedly made when interviewed by other law enforcement officers shortly after the accident.
Appellant also presented evidence to show he was of limited intelligence. Using a battery of standardized tests, Dr. Neufeld, a clinical psychologist, learned that appellant had a rough IQ of 68 a score that falls within the range for mild mental retardation.
One test Neufeld used was the "WAIS-R," which is a test that has never been performed in Spanish or with the use of an interpreter. As such, no *1843 testing has been done to establish the validity of the results obtained in a test performed using either approach.
Despite the fact that appellant was born in Mexico and speaks only Spanish he was given portions of the WAIS-R test. He was also given more instruction, some of it in Spanish, than is customary. Dr. Neufeld was of the opinion that this procedure would, if anything, tend to inflate appellant's scores.
Dr. Neufeld acknowledged the fact that Atascadero State Hospital had ruled out the diagnosis of mild mental retardation based on appellant's ability to function within the confines of the hospital; he simply disagreed with the hospital's determination.
Dr. Neufeld said he observed some indicators of traumatic brain damage during the testing process but felt they were insufficient to support such a diagnosis. However, he later testified that none of the test results indicated brain damage.
The doctor explained that individuals with appellant's test scores can learn academic skills appropriate to approximately the sixth grade level although they generally require a great deal of repetition, reinforcement, and encouragement to do so. In addition, the information must be presented in a very simple way. Dr. Neufeld found appellant's claim to have taught himself how to read and write inconsistent with his IQ score.
The doctor acknowledged that people are exposed to a tremendous amount of information regarding the dangers of drinking and driving in today's society. He said appellant would be able to "pick up on" the information generally available in the culture and would be able to interpret it in very concrete ways despite his diminished cognitive abilities.
Dr. Neufeld would not expect appellant to have gained anything from the two driving-while-intoxicated classes he attended. When asked whether he would expect appellant to realize the risks to human life associated with drinking and driving if he had not previously experienced them, the doctor said he would expect appellant to think of driving while intoxicated as something that he should not do because he may get caught.
In speaking with appellant's relatives, Dr. Neufeld learned that there had been no change in appellant's mental status over the years. From this, the doctor reasoned that appellant's mental abilities were the same before and after the incident. Dr. Neufeld acknowledged, however, that it was obvious *1844 in his discussions with the relatives that they had not had the opportunity to observe appellant functioning in society since the accident and that they knew very little about appellant's precollision abilities.
Nevertheless, the doctor said he would expect appellant to complain of lost abilities if he had in fact sustained brain damage in the accident. While appellant's records contained certain complaints about difficulties with memory, concentration and attention, Neufeld did not find them, in and of themselves, indicative of brain damage. He said these complaints could also be consistent with depression and noted that appellant was suffering from depression at the time these complaints were made.
On cross-examination, Dr. Neufeld admitted that his testimony regarding appellant's present ability to learn would not accurately reflect appellant's pre-collision abilities if appellant had actually sustained brain damage in the accident. He acknowledged that the injuries appellant sustained in the accident (crushed orbital bone) could result in brain damage and that improvement in memory following the accident is also consistent with brain damage. He nevertheless attributed appellant's apparent improvement in memory of the events surrounding the accident to having the police report read to him as well as someone whose depression is lifting.
The doctor also conceded that appellant's performance on the tests was dependent on his ability to see and that he, Dr. Neufeld, was not competent to evaluate a person's visual acuity. He knew appellant was virtually blind in one eye but said appellant was able to count the number of fingers he held up some distance away.
Dr. Hamm, a licensed psychologist, said he examined appellant on May 26, 1993, to determine whether he was competent to stand trial. The doctor initially found that appellant had a significant impairment in memory and concentration. He described appellant's intellectual functioning as "concrete" which meant that appellant was only capable of thinking at the lower levels of abstraction. Based on his limited examination, Dr. Hamm initially expressed diagnoses of atypical depression and possibly dementia due, in part, to long-term alcohol abuse.
After learning of the psychological test results and the initial diagnosis by Atascadero, Dr. Hamm changed his diagnosis so that he now concurs with Dr. Neufeuld's diagnosis of mild mental retardation. Dr. Hamm explained that appellant's low level of intellectual functioning was detected during his initial interview but, due to the limited nature of his examination, he was not able to perform the battery of tests needed to differentiate between dementia and mental retardation.
*1845 Dr. Hamm testified that a person with appellant's IQ probably would not be capable of developing a very abstract concept of what is dangerous. Instead, that person would develop what the doctor referred to as a more reflexive concept. He gave the following example: people with appellant's IQ level do not learn that this is the law so I must do x, y, z. Instead, they learn very rudimentary principles like "this is no and this is yes, and do this and don't do that...." The doctor explained that an IQ of around 90 is needed before a person is able to think abstractly so that he can apply what he has learned in one situation to other situations. He nevertheless agreed that one with appellant's IQ would "probably" comprehend at some level that driving 100 miles per hour through town is dangerous both to oneself and others.
When asked what appellant might learn from his prior experiences of driving after drinking, Dr. Hamm said he would learn that one gets arrested when they do so. To understand that he may hurt someone as a result involves an abstract concept that appellant is not going to grasp. In appellant's case, someone would probably have to get hurt as a result of drinking and driving once, twice or perhaps even three times before appellant would appreciate the risk associated with such conduct.
Dr. Deutsch, a physician specializing in addiction medicine, examined appellant on May 7, 1993. The doctor explained how alcohol affects different parts of the brain which, in turn, affects one's ability to perform certain mental and physical functions. He said that a blood-alcohol level of as low as .05 percent can result in reduced judgment capabilities. One's ability to reason (engage in abstract thinking) also appears to be affected at relatively low levels of blood-alcohol. Cerebellum effects, such as coordination and speech, would begin to be affected in nontolerant drinkers at a blood-alcohol level of .08 percent. Tolerant drinkers, on the other hand, may not exhibit difficulties with these functions at this blood-alcohol level.
A person with a blood-alcohol of .20 percent (such as appellant at the time of the accident) would have been experiencing deficits in both cortex and cerebellum functions. In a nontolerant person this would result in a reduction in his decisionmaking capabilities, including the ability to recognize the danger of driving while intoxicated, as well as an increase in his reaction time. The likelihood of failing to recognize the dangers associated with driving while intoxicated is greater for a person with appellant's reduced mental capabilities. The doctor did note, however, that some people are capable of driving a vehicle in a straight line even with a blood-alcohol level of .20 percent.
The doctor also discussed one's ability to evaluate cause and effect. He explained that the closer in time two things occur, the more people tend to assume they are causally related even though the contrary is true.
*1846 During the interview, Dr. Deutsch learned that appellant had a history of drinking excessively for more than 20 years. He could not determine whether appellant was a tolerant drinker because appellant was not a reliable historian when it came to his drinking habits. The doctor nevertheless concluded that appellant was addicted to alcohol and was in denial. He explained that mental retardation makes coming to terms with the problem even more difficult.
In his opinion, appellant would require intensive, long-term treatment to overcome his drinking problem due to his decreased mental capability. As such, he would have learned nothing from attending only two classes out of fifteen offered. Somewhat later in his testimony, however, the doctor admitted that appellant did learn that he should not be drinking.
Ms. Arce testified that she came into contact with appellant on December 24, 1992, when she interpreted for him in superior court.[5] She said he was in very bad shape at the time. He was in a wheelchair, had one leg bandaged, a very swollen foot, and a patch over one eye. Appellant complained that he was having a lot of pain and did not seem to realize where he was or what was going on around him.
Rebuttal
Officer Weidenman testified that she had been a patrol officer for 11 years and, in that capacity, has had approximately 700 to 1,000 encounters with people who drive under the influence. She has observed everything from weaving within the lane, to jerking in and out of the lane, to running stop signs, to speeding, to not moving at all. In her opinion, the 10 1/2 degree angle described by Johnson was consistent with the jerking movements she has observed by inebriated drivers.
Dr. Lloyd, a psychiatrist, said he interviewed appellant in June of 1993, for the limited purpose of determining his competency to stand trial. While he did not administer any type of intelligence test, Dr. Lloyd did not see any signs of mental retardation but instead believed appellant to be in the low normal range of intelligence. He noted Atascadero Hospital staff had ruled out mental retardation based on the staff's extended observations of appellant.
The doctor also discussed a certain shortcoming of the WAIS-R intelligence test that is, that the test has been "normed" for a particular group of *1847 people. If one were to give that test to a person outside the group for which it is normed, the results obtained would be of questionable validity. If a test is given to a person who is raised in another country under different social circumstances and especially if that person has a limited education, a lot of good questions would be raised about the validity of the test.
Dr. Lloyd said even a person with mild mental retardation can learn it is dangerous to drink and drive and that someone might be hurt as a result. He concluded appellant was capable of understanding that concept. The doctor pointed to appellant's performance at Atascadero that proved he was capable of abiding by rules. He also noted that people with this IQ level can learn from their personal experiences.
Dr. Paez, a psychiatrist, said appellant was under his daily care during the two months he spent in Atascadero State Hospital. When appellant first presented at the hospital, he was not suffering from any mental disorder although he was in denial which the doctor said was central to alcoholism. For example, appellant claimed the other driver crossed the divided line and that the hit and run accident occurred because the other car was sticking out in the road. As time went on, however, appellant's memory improved and he was gradually able to remember the evening's events. In therapy, appellant admitted hitting the first car without stopping and then hitting a second car. He even admitted that the girl inside the second car would not have been killed if he had stopped after the first accident.
Dr. Paez went so far as to say that, in his opinion, appellant could have been returned to court immediately upon his arrival at Atascadero. The doctor never believed appellant was mentally retarded. His impression was that appellant simply took his time learning the material presented to him at the hospital. Dr. Paez said appellant passed the competency tests and demonstrated his awareness of the issues. Appellant also helped teach other Spanish-speaking patients the evils of alcohol.
The doctor was of the opinion that appellant was capable of understanding the concept that drinking and driving might kill someone. In fact, appellant was able to grasp the abstract concepts involved in the mock trial process that he went through at Atascadero. During cross-examination, the doctor admitted the concepts were "more or less" repeated daily and that appellant obtained an understanding of these concepts at the end of the process.
DISCUSSION
The arguments presented by appellant concern essentially three topics: (1) what he claims to be the prejudicial use of evidence of his prior episodes of *1848 driving under the influence; (2) whether gross vehicular manslaughter while intoxicated is a "lesser included offense" of murder thereby necessitating the striking of his conviction for the lesser included offense; and (3) whether the sentencing court erred when it imposed a $4,400 restitution fine. We shall address each of these areas of contention in turn.
I
Use of Prior Instances of Driving Under the Influence Evidence
(1a) Appellant contends the trial court abused its discretion under Evidence Code section 352 when it allowed the jury to hear evidence related to his three prior arrests for driving under the influence of alcohol only one of which led to a conviction. He acknowledges the People had the burden of proving his subjective awareness of the dangers associated with drinking and driving as an element of murder (implied malice) but insists the evidence was not relevant on that basis. He directs our attention to People v. Watson (1981) 30 Cal.3d 290, 300 [179 Cal. Rptr. 43, 637 P.2d 279] (Watson I); People v. McCarnes (1986) 179 Cal. App.3d 525, 532 [224 Cal. Rptr. 846]; and People v. Brogna (1988) 202 Cal. App.3d 700, 709 [248 Cal. Rptr. 761], which he claims provide support for his position. Respondent argues the evidence was properly admitted on the issue of implied malice and that any potential for prejudice resulting from its admission was eliminated by the use of a limiting instruction.
Under Evidence Code section 352, a trial court has discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will ... create substantial danger of undue prejudice...." (Evid. Code, § 352.) (2) The law is clear that "[i]ts exercise of discretion under Evidence Code section 352 will not be disturbed on appeal absent a clear abuse, i.e., unless the prejudicial effect of the evidence clearly outweighs its probative value. [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 637 [250 Cal. Rptr. 659, 758 P.2d 1189]; accord, People v. Mickey (1991) 54 Cal.3d 612, 668 [286 Cal. Rptr. 801, 818 P.2d 84]; People v. Gordon (1990) 50 Cal.3d 1223, 1239 [270 Cal. Rptr. 451, 792 P.2d 251].) Having reviewed the record, we find no abuse of discretion.
The record clearly shows the People prosecuted appellant for murder based on a theory of implied malice.
(3) In cases of vehicular homicide, implied malice has been found to exist "when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life." (Watson I, *1849 supra, 30 Cal.3d at p. 296.) It has also been found to exist "when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life." (Id. at p. 300.) From these statements, it can be discerned that "a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard." (Id. at pp. 296-297.) Implied malice, like all other elements of a crime, may be proven by circumstantial evidence. (People v. Bloyd (1987) 43 Cal.3d 333, 346-347 [233 Cal. Rptr. 368, 729 P.2d 802]; People v. Klvana (1992) 11 Cal. App.4th 1679, 1704 [15 Cal. Rptr.2d 512].)
(1b) Here, the trial court correctly reasoned that the evidence related to appellant's prior conviction for driving while intoxicated and his limited participation in drinking driver programs was relevant to prove the knowledge element of implied malice. This ruling finds ample support in the case law. (People v. Talamantes (1992) 11 Cal. App.4th 968 [14 Cal. Rptr.2d 311]; People v. David (1991) 230 Cal. App.3d 1109 [281 Cal. Rptr. 656]; People v. Murray (1990) 225 Cal. App.3d 734 [275 Cal. Rptr. 498]; People v. Brogna, supra, 202 Cal. App.3d 700; People v. McCarnes, supra, 179 Cal. App.3d 525.)
While the above referenced cases dealt with prior convictions and their attendant educational programs, appellant has not presented us with any reason to treat his prior instances of misconduct not resulting in a conviction any differently.[6] No conviction is needed before evidence of other crimes or misconduct of a defendant can be introduced under Evidence Code section 1101 to prove knowledge.[7] (People v. Wilson (1992) 3 Cal.4th 926, 939-940 [13 Cal. Rptr.2d 259, 838 P.2d 1212]; People v. Brogna, supra, 202 Cal. App.3d 700, 706; cf. People v. Ewoldt, supra, 7 Cal.4th 380, 401, 402 [same but for proof of common design or plan or identity].)
Appellant also challenges the trial court's decision to allow the People to introduce evidence of the events leading to his former arrests for driving under the influence. We find these facts particularly relevant in light of appellant's claim that, due to his mental retardation, he was capable of *1850 learning only after repeated exposure to the same information. These facts show that the dangers of driving while intoxicated were demonstrated to appellant firsthand when, on one such occasion, he was unable to keep his vehicle in his own lane and, on another occasion, he not only crossed over the center line but continued to drive in the wrong lane for some distance thereby forcing a number of vehicles, including one patrol car, to leave the roadway to avoid a head-on collision with him.
While this evidence was undoubtedly harmful to appellant, that is not what is meant by undue prejudice under Evidence Code section 352. (4) Case law makes clear that "`"[t]he `prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against ... [one party] as an individual and which has very little effect on the issues."'" (People v. Garceau (1993) 6 Cal.4th 140, 178 [24 Cal. Rptr.2d 664, 862 P.2d 664].) (1c) As previously explained, this evidence was highly relevant on the issue of implied malice. The court correctly determined that any potential for prejudice that might otherwise result from its admission could be minimized through use of a limiting instruction. Given these circumstances, we believe the trial court properly found this evidence more probative than prejudicial.
(5) Appellant also contends the trial court committed prejudicial error when it failed to advise the jurors at the time this evidence was introduced that they could consider the evidence solely on the issue of implied malice. In the event we find the issue waived, appellant argues his trial counsel was ineffective for having failed to prompt the court to instruct the jurors at that time.
We note initially that appellant does not challenge the language actually used to instruct the jury on the limited relevance of this evidence or on the law as it relates to the offense of murder.[8] Accordingly, we presume those instructions are correct. We also note the jurors were told at the beginning of trial that they were "not to form or express an opinion on the case until it is *1851 finally submitted to [them]." Since jurors are presumed to understand and follow the instructions given them (e.g., People v. Delgado (1993) 5 Cal.4th 312, 331 [19 Cal. Rptr.2d 529, 851 P.2d 811]; People v. Mickey, supra, 54 Cal.3d at p. 689, fn. 17), the jurors would not have evaluated this evidence until after they received instructions on the limited relevance of this evidence and the case was finally submitted to them. They are also presumed to have properly limited their consideration of the evidence to the issue of implied malice. Appellant has done nothing to rebut these presumptions. He has thus failed to show he was prejudiced by the delay in instructing the jury.
II
A. Gross Vehicular Manslaughter While Intoxicated as a Lesser Offense of Murder
(6a) Appellant claims he stands convicted of both the greater offense of murder and the lesser included offense of vehicular manslaughter for the death of Miss Prado. He insists his conviction for the latter must be reversed because it is a lesser included offense of murder. He cites People v. Moran (1970) 1 Cal.3d 755, 763 [83 Cal. Rptr. 411, 463 P.2d 763], and People v. Watson (1983) 150 Cal. App.3d 313, 320 [198 Cal. Rptr. 26] (Watson II) in support of his position.
Respondent argues both convictions should be allowed to stand. Respondent reads Moran as prohibiting a single charged offense to support a conviction of both a greater and lesser offense. Thus, according to respondent, the Moran holding does not preclude convictions where, as here, both the greater and lesser offenses are separately charged in this same proceeding. Respondent believes this is particularly true in light of the language contained in section 954 and the holding of People v. Pearson (1986) 42 Cal.3d 351, 357-358 [228 Cal. Rptr. 509, 721 P.2d 595]. Alternatively, respondent argues that gross vehicular manslaughter while intoxicated is not a lesser included offense of murder.
(7) Our Supreme Court "has long held that multiple convictions may not be based on necessarily included offenses." (People v. Pearson, supra, 42 Cal.3d at p. 355, citing People v. Moran, supra, 1 Cal.3d at p. 763; People v. Bauer (1969) 1 Cal.3d 368, 375 [82 Cal. Rptr. 357, 461 P.2d 637, 37 A.L.R.3d 1398]; People v. Smith (1950) 36 Cal.2d 444, 448 [224 P.2d 719]; People v. Greer (1947) 30 Cal.2d 589, 602 [184 P.2d 512].) Application of this rule has not been limited to cases like Moran which result in dual convictions arising out of a single charged offense. It has also been applied *1852 when greater and lesser included offenses were separately charged in the same action. (Smith, supra, 36 Cal.2d at pp. 445, 448.)
(6b) We begin our limited inquiry by determining whether gross vehicular manslaughter while intoxicated is a lesser included offense of murder.[9]
The initial question is: what is the offense we are dealing with? In our view, whether the crime is murder in the first degree, murder in the second degree, voluntary manslaughter or involuntary manslaughter, all of these define a type of homicide that is unlawful. "Homicide is the killing of a human being by a human being and may be excusable, justifiable or felonious." (People v. Caetano (1947) 29 Cal.2d 616, 618 [177 P.2d 1], disapproved on other ground in People v. Morse (1964) 60 Cal.2d 631, 649 [36 Cal. Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810].)
"Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." (§ 187.) While murder is divided into degrees, these relate to the gravity of the unlawful homicide and the punishment. (§§ 187, 190.)
"Manslaughter is the unlawful killing of a human being without malice. It is of three kinds...." (§ 192.)
(8) "`The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.'" (People v. Pearson, supra, 42 Cal.3d 351, 355, quoting People v. Greer, supra, 30 Cal.2d 589, 596; accord, People v. Lohbauer (1981) 29 Cal.3d 364, 368-369 [173 Cal. Rptr. 453, 627 P.2d 183].) One looks to the elements of the offenses and not the evidence to make this determination. (People v. Marshall (1957) 48 Cal.2d 394, 405 [309 P.2d 456]; People v. Rush (1993) 16 Cal. App.4th 20, 34 [20 Cal. Rptr.2d 15].)
(6c) At the time of the offense, gross vehicular manslaughter while intoxicated was defined as: "[T]he unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23152 ... of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence." (§ 191.5, italics added.)
*1853 In Watson II, the Third District Court of Appeal confronted the question of whether vehicular manslaughter was a necessarily lesser offense of murder. This issue arose on remand from the California Supreme Court's decision in Watson I, supra, 30 Cal.3d 290, that second degree murder may be charged when the facts surrounding a vehicular homicide support a finding of implied malice.
At the time of the Watson II decision, section 192 provided:
"`Manslaughter is the unlawful killing of a human being, without malice. It is of three kinds:
"`1. Voluntary upon a sudden quarrel of heat of passion.
"`2. Involuntary in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection; provided that this subdivision shall not apply to acts committed in the driving of a vehicle.
"`3. In the driving of a vehicle
"`(a) In the commission of an unlawful act, not amounting to a felony, with gross negligence; or in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.
"`(b) In the commission of an unlawful act, not amounting to felony, without gross negligence; or in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.
"`This section shall not be construed as making any homicide in the driving of a vehicle punishable which is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.'" (Watson II, supra, 150 Cal. App.3d at p. 322, fn. 5.)
Respondent argues that "... gross vehicular manslaughter while intoxicated is not a lesser-included offense within murder. An offense is a necessarily-included offense if the statutory definition of the greater offense includes all of the elements of the lesser so that the greater offense may not be accomplished without necessarily committing the lesser." In effect, respondent argues you can commit murder without using a vehicle or being intoxicated, or committing an unlawful act with gross negligence, etc., therefore section 191.5 cannot be a lesser-included offense.
*1854 In our view, what this perspective overlooks is that all types of unlawful homicide have circumstances added to the basic offense whether it is the premeditation and deliberation of first degree murder or the heat of passion of voluntary manslaughter. The point is that neither murder nor manslaughter nor gross vehicular manslaughter while intoxicated can be committed without committing an unlawful killing of a human being which is an unlawful homicide.
As noted in Watson II, "We conclude that the three subdivisions of section 192 each define a species of the single crime of manslaughter and that manslaughter the unlawful killing of a human being without malice is an offense necessarily included within murder. Where, as here, the evidence so warrants, the court must instruct on that theory of the case even without request. Because of the failure so to instruct, the murder verdicts cannot stand." (Watson II, supra, 150 Cal. App.3d at p. 323; cf. Watson I, supra, 30 Cal.3d 290, 298 [despite statutory changes in requisite mental state for vehicular manslaughater, crime involved in each version was "manslaughter, an offense which consistently has been defined as the unlawful killing of a human being without malice.").]
To say that because a murder can be committed without using a vehicle or being intoxicated, those additional "elements" take it outside the included elements of murder ignores the fact that, for example, murder can be committed without the heat of passion of voluntary manslaughter. Thus, the additional circumstance of heat of passion is no different than that of intoxication or use of a vehicle as they relate to an unlawful homicide. Therefore, we conclude for purposes of the lesser offense analysis of unlawful homicide, the relevant inquiry turns on the core of an unlawful killing of a human being and not on the circumstances or type of unlawful killing.
A similar analysis was utilized in People v. Collins (1960) 54 Cal.2d 57 [4 Cal. Rptr. 158, 351 P.2d 326]. In Collins, the issue was whether what was then described as statutory rape was a lesser offense of forcible rape. Each of the forms of conduct were subdivisions of then section 261 which generally stated, "Rape is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances...." The court held in part, "The subdivisions of section 261 do not state different offenses but merely define the different circumstances under which an act of intercourse constitutes the crime of rape." (54 Cal.2d at p. 59.)
The court further stated in reference to its own precedent, "In People v. Marshall, 48 Cal.2d 394, at page 403 ... it was pointed out that ... `this *1855 court considered, as the yardstick for measuring the offenses included within the rape charged, the specific allegations of the accusatory pleading rather than the general code definition of rape as a crime which can be committed in various ways.'" (54 Cal.2d at p. 59.)
While Collins involved other issues such as notice, the court in Lohbauer took pains to note, "The rationale of Collins was that one charged with forcible rape could be convicted of `statutory' rape under the same statute, provided he had adequate notice and a reasonable opportunity to prepare his defense. The force of that specific holding has been abrogated, of course, by the Legislature's repeal of subdivision 1 of section 261 and the enactment in 1970 of a separate statute, section 261.5, prohibiting sexual intercourse with a female under age 18. In any event, Collins had neither redefined a `necessarily included' offense within the meaning of section 1159, nor departed from the rule of that statute; it had held only that rape was one crime within that meaning. [Citations.] Collins is not authority for any expanded definition of `necessarily included' offenses." (People v. Lohbauer, supra, 29 Cal.3d at p. 372.)
The essence of Collins was that rape was an act of intercourse with a female not the wife of the perpetrator without consent either because the consent was withheld or was legally invalid. In effect, the different definitions for the specific crime, forcible rape, statutory rape, etc., were simply "different circumstances under which an act of intercourse constitutes the crime of rape." (People v. Collins, supra, 54 Cal.2d at p. 59.) Likewise the specific crimes of murder, voluntary manslaughter, involuntary manslaughter, and vehicular manslaughter are simply different circumstances under which a homicide is unlawful and bear upon punishment. We see section 191.5 as no different. While the statute may create a different set of circumstances defining a type of unlawful homicide, it is, nonetheless, an unlawful homicide. We conclude the analysis of Watson II and the reasoning of Collins compel this result. In our view, Lohbauer does not mandate a different conclusion. Therefore, we find gross vehicular manslaughter while intoxicated to be a lesser included offense of murder.
B. Remedy[*]
.... .... .... .... .... .... .... .
*1856 III
Government Code Section 13967 Restitution Fine[*]
.... .... .... .... .... .... .... .
DISPOSITION
For the reasons expressed in the unpublished portion of this opinion, we order the conviction of gross vehicular manslaughter while intoxicated reversed and the restitution fine reduced to $200. The trial court is directed to prepare an amended abstract of judgment reflecting these changes and forward a certified copy to the Department of Corrections. In all other respects the judgment is affirmed.
Dibiaso, J., and Reed, J.[] concurred.
NOTES
[] Review granted November 22, 1995. Review dismissed and opinion ordered published February 15, 1996.
[] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of part II B and part III.
[1] Hereinafter, all statutory references are to the Penal Code unless otherwise indicated.
[2] According to Officer Weidenman, who assisted in this investigation, she thought the shoulders of the road were examined for such evidence in mid-January after a considerable amount of rainfall.
[3] Miranda v. Arizona (1966) 384 U.S. 436, 478-479 [16 L.Ed.2d 694, 725-726, 86 S.Ct. 1602, 10 A.L.R.3d 974].
[4] This would encompass, among other things, the judgment needed to physically operate a vehicle (i.e., judging distances, etc.), as well as the judgment needed to fully appreciate the hazards of driving. The criminalist explained that, as to the latter, the appreciation of risk is not lost but the ability to mentally process the information needed to respond to the risk physically is slowed.
[5] Her contact with appellant came the day after he was interviewed by police regarding the accident which led to these charges being filed.
[6] The record does not shed any light as to why two of appellant's arrests for driving under the influence did not lead to conviction.
[7] Evidence Code section 1101 provides: "(a) Except as provided in this section ... evidence of a person's character or a trait of his or her character ... is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime ... when relevant to prove some fact ... such as ... knowledge...." The vitality of this section continues today despite the passage of Proposition 8. (People v. Ewoldt (1994) 7 Cal.4th 380, 390 [27 Cal. Rptr.2d 646, 867 P.2d 757].)
[8] During the instructional phase of the trial, the jurors were told that:
"[They] may consider the evidence that Mr. Garcia has previously been arrested and charged with drinking and driving for the limited purpose of determining whether Mr. Garcia learned from that experience that the natural consequences of that conduct are dangerous to human life or phrased in a different way that there was a high probability that the conduct would result in death.
"Further you must determine whether Mr. Garcia knew that this conduct was dangerous to human life at the time of the present offense.
"If you have a reasonable doubt that Mr. Garcia learned from his prior conduct that that conduct was dangerous to life, you must disregard the evidence of that prior conduct.
"You may not consider any evidence of prior incidence of drinking and driving as evidence of Mr. Garcia's bad character, criminal record or violation of any laws."
[9] Contrary to appellant's representation, he was not convicted of simple vehicular manslaughter. He was instead convicted of gross vehicular manslaughter while intoxicated. Because he asserts a single basis for applying the above referenced rule, i.e., that his conviction for gross vehicular manslaughter while intoxicated is a lesser included offense of murder, we have limited our analysis accordingly.
[*] See footnote, ante, page 1832.
[] Judge of the Tulare Municipal Court sitting under assignment by the Chairperson of the Judicial Council.
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-1048
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Rashad McKay, also known as Rashod McKay
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: July 19, 2016
Filed: July 22, 2016
[Unpublished]
____________
Before WOLLMAN, ARNOLD, and MURPHY, Circuit Judges.
____________
PER CURIAM.
Rashad McKay appeals after the district court1 denied him a sentence reduction
under 18 U.S.C. § 3582(c)(2). Following careful de novo review, see United States
1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
v. Long, 757 F.3d 762, 763 (8th Cir. 2014), we find no reversible error. Accordingly,
we affirm. See 8th Cir. R. 47B.
______________________________
-2-
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697 F.2d 14
Vincent GIORDANO, Petitioner, Appellant,v.Michael FAIR, et al., Respondents, Appellees.
No. 82-1495.
United States Court of Appeals,First Circuit.
Argued Dec. 7, 1982.Decided Jan. 5, 1983.
Ann Lambert Greenblatt, Boston, Mass., for petitioner, appellant.
Linda G. Katz, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Stephen R. Delinsky, Asst. Atty. Gen., Chief, Criminal Bureau, and Barbara A.H. Smith, Asst. Atty. Gen., Chief, Criminal Appellate Division, Boston, Mass., were on brief, for respondents, appellees.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
LEVIN H. CAMPBELL, Circuit Judge.
1
Vincent Giordano appeals from the district court's denial of his petition for habeas corpus pursuant to 28 U.S.C. Sec. 2254. We affirm the district court's judgment.
2
In 1977 while Giordano was incarcerated at the Adult Correctional Institution at Cranston, Rhode Island, he requested under Article III of the Interstate Agreement on Detainers, Mass.Gen.Laws ch. 276 App. Sec. 1-1 (hereafter IAD) to be brought to Massachusetts to stand trial on charges pending against him in Massachusetts. On May 4, 1977, he was transported to Massachusetts under the authority of the IAD and placed in the custody of the Franklin County House of Correction at Greenfield. Four days later Giordano, along with four other inmates, was discovered missing. A hole was found in the wall of the jail. On May 10, 1977, Giordano surrendered to the Cranston police. He was returned to Massachusetts and indicted under the provisions of Mass.Gen.Laws ch. 268, Sec. 16 (1981 Supp.), the Commonwealth's general escape statute.
3
During the escape trial in Massachusetts Superior Court, the Commonwealth introduced into evidence the IAD form authorizing Giordano's custody in Massachusetts. The state did not, however, offer any evidence of Giordano's Rhode Island conviction. In a motion for a directed verdict of acquittal, Giordano argued that the lack of such evidence constituted a failure of proof of an essential element of the crime of escape. The superior court disagreed and denied the motion. He was then convicted and sentenced to a seven to ten year prison term.
4
On appeal, the Massachusetts Appeals Court rejected Giordano's argument that the lack of proof of his Rhode Island conviction constituted a fatal flaw in the state's case. Commonwealth v. Giordano (1979) 8 Mass.App. 590, 395 N.E.2d 896, cert. denied, 446 U.S. 968, 100 S.Ct. 2948, 64 L.Ed.2d 828 (1980). The court noted that while lawfulness of custody is an element of the crime of escape, 8 Mass.App. at 590, 395 N.E.2d at 897, the Commonwealth sufficiently proved lawfulness by introducing evidence that Giordano was held in Massachusetts pursuant to the IAD at the time of his escape.
5
After the denial of further review by the Massachusetts Supreme Judicial Court, 1980 Mass.Adv.Sh. 135, and of a petition for certiorari by the United States Supreme Court, 446 U.S. 968, 100 S.Ct. 2948, 64 L.Ed.2d 828 (1980), Giordano filed the present petition for habeas corpus before the United States District Court for the District of Massachusetts. Giordano argued that proof of the lawfulness of his Rhode Island conviction was an essential element of the crime of escape in Massachusetts and that his conviction without the introduction of additional--or, as he would have it, "any"--evidence pertaining to that element violated his constitutional right to due process. He further claimed that the appeals court violated the Constitution by holding that the IAD form created a mandatory presumption that the Rhode Island imprisonment was lawful and that the court's opinion unconstitutionally expanded the scope of the statute. The district court rejected these arguments in an opinion recited from the bench. Giordano then appealed from that judgment to this court.
6
Giordano was indicted and convicted under Mass.Gen.Laws ch. 268, Sec. 16 (1981 Supp.).1 Massachusetts courts have long held that lawfulness of custody is an element of the crime of escape under that statute and its predecessors. E.g., Commonwealth v. Antonelli, 345 Mass. 518, 188 N.E.2d 478 (1963); Commonwealth v. Farrell, 87 Mass. (5 Allen) 130 (1862). Ordinarily, the element of lawful custody is proven by evidence of a copy of the conviction or a mittimus. Giordano concludes from this that proof of the validity of the underlying conviction is essential to the state's case. He further contends that the appeals court, by concluding that the introduction of the IAD form satisfied the state's burden of establishing the lawfulness of custody, created a mandatory presumption of the validity of the underlying conviction. He argues that such a presumption violates the constitutional prohibition against shifting the burden of proof against the defendant, Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and violated the IAD itself, an act whose interpretation is a question of federal law. Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981).
7
We think that Giordano misreads the state court's opinion. The appeals court stated that the IAD form was evidence that Giordano was lawfully held at the Franklin County House of Correction. The court then went on to say,
8
We think that, so far as the courts of this Commonwealth are concerned, a presumption of regularity attended the circumstances of the defendant's imprisonment in Rhode Island, cf. Michigan v. Doran, 439 U.S. 282, 289-290 [99 S.Ct. 530, 535-536, 58 L.Ed.2d 521] (1978), and considerations of comity, as well as common sense preclude the defendant from testing the lawfulness of his imprisonment in Rhode Island by escaping from custody in Massachusetts.
9
8 Mass.App. at 592, 395 N.E.2d at 898.
10
We do not read this language as stating that the IAD form created a mandatory presumption that the Rhode Island confinement was lawful. By citing Michigan v. Doran, the appeals court suggested that it harbored doubts as to the relevance and appropriateness of a Massachusetts court's inquiring into the legality of the Rhode Island imprisonment. In Doran the Supreme Court held that an asylum state could not review whether an extraditing state had probable cause to seek an extradition. Similarly here, it might seem unusual for a Massachusetts court to pass upon the legality of custody in a sister state. The court, therefore, held that the IAD form coupled with the presumption of regularity normally attending official actions satisfied the prosecution's affirmative case for lawful custody. The presumption of regularity, however, is not a mandatory presumption. Stearns v. United States, 291 U.S. 54, 63, 54 S.Ct. 325, 328, 78 L.Ed. 647 (1934); P. Liacos, Handbook of Massachusetts Evidence 61 (5th ed.1981). In the present case, as the appeals court pointed out, the defendant "did not suggest as part of his case that his imprisonment either in Rhode Island or Massachusetts was unlawful."2 Commonwealth v. Giordano, 8 Mass.App. at 592 n. 2, 395 N.E.2d at 898 n. 2. In such circumstances, the appeals court found that the prosecution did not have to introduce any further evidence of lawful custody in Rhode Island. Lawfulness of custody for the purposes of chapter 268, section 16 could be established by the state's showing that Massachusetts had lawful authority to hold the prisoner.
11
Given our interpretation of the state court's opinion, we find little merit in Giordano's argument that his conviction violated the fourteenth amendment because the state did not introduce evidence of all elements of the offense. Giordano is correct in saying that the due process clause of the fourteenth amendment demands that no person be convicted except upon "evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979). Nevertheless, when state convictions are at issue, federal courts look to the state's law in determining what constitutes the elements of the offense, id. at 324-26, 99 S.Ct. at 2791-2792; Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), and the weight to be given evidentiary presumptions. Sandstrom v. Montana, 442 U.S. at 516, 99 S.Ct. at 2455. As long as rebuttable presumptions are rationally related to the elements of the offense that they establish, they are not constitutionally infirm and the state may employ them. Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979). Here, the state court held that the element of lawful custody was satisfied by the presentation of the IAD form and the "presumption of regularity" and that the state did not have to introduce further evidence of the legality of the Rhode Island conviction. Because there is undoubtedly a rational relationship between the evidence that the state introduced, the presumption it employed, and the elements it had to prove, the state was under no constitutional obligation to introduce further evidence of the lawfulness of Giordano's Rhode Island imprisonment.
12
Giordano contends, however, that the appeals court decision as to the requirements of the state's affirmative case violated the Constitution. He concedes that the state could in other cases convict someone for escape merely by showing that they were held pursuant to the IAD but argues that the court's interpretation of chapter 268, section 16 in his case was unconstitutional.3 In support of this contention he relies upon Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). In that case the Supreme Court held that the conviction of civil rights demonstrators under a statute prohibiting "entry upon the lands of another ... after notice from the owner or tenant prohibiting such entry" was unconstitutional where the defendants had never received such notice and the statute had never before been construed to prohibit entry without notice. The Court found that the application of the statute under such circumstances deprived the defendants of a fair warning as to whether the conduct they were engaging in was unlawful.
13
We do not see how Bouie is applicable here. Giordano cannot argue that he did not know that the conduct he engaged in was unlawful. He admits that he could have been convicted under another statute, Mass.Gen.Laws ch. 276 App. Sec. 1-5 (1972), and does not deny that the Commonwealth might have proven that he was lawfully imprisoned in Rhode Island. Furthermore, in Bouie the Supreme Court relied upon the fact that the state court's expansive interpretation of the trespassing statute did violence to the statute's clear meaning and settled precedent. No such argument can be made here. See United States ex rel. Hardeman v. Wells, 379 F.Supp. 1087, 1088-89 (D.Mass.1974) (application of predecessor to chapter 268, section 16, to an inmate who escaped from a furlough is distinguishable from Bouie because it did not violate the statute's clear meaning or settled precedent). Chapter 268, section 16, is silent about the element of lawful custody, see note 1, supra, and no case law has limited the statute's scope as Giordano would have us do. Indeed, before the appeals court decided the instant case, the Massachusetts Supreme Judicial Court had stated that "in interpreting escape statutes, there is justification for adopting a construction which permits the punishment of all escaping prisoners." Commonwealth v. Reed, 364 Mass. 545, 547, 306 N.E.2d 816, 818 (1979). And in a more recent case the Supreme Judicial Court stated that the invalidity of confinement was no defense to a charge of escape as long as the prisoner was held under the color of law. Petition of Lynch, 379 Mass. 757, 400 N.E.2d 854 (1980). In so deciding, the court noted that its decision was supported by the weight of authority in other jurisdictions. 379 Mass. at 760 n. 2, 400 N.E.2d at 857 n. 2. Given these precedents, we hardly see how the appeals court's construction of the state statute can be said to constitute a violation of due process.
14
Affirmed.
1
The statute states:
A prisoner who escapes or attempts to escape from any penal institution or from land appurtenant thereto, or from the custody of any officer thereof or while being conveyed to or from any such institution, or fails to return from temporary release granted under the provisions of section ninety A of chapter one hundred twenty-seven, may be pursued and recaptured and shall be punished by imprisonment in the state prison for not more than ten years or by imprisonment in a jail or house of correction for not more than two and one half years.
2
The Massachusetts Appeals Court went on to say,
[Defendant's] counsel conceded (after the denial of his motion for a directed verdict) that his transfer to Massachusetts under the Interstate Agreement was voluntary (see Art. III[a], which would operate under Art. III[e], as a consent to custody in Massachusetts and to his return to prison in Rhode Island after final disposition of charges in Massachusetts.
8
Mass.App. at 592 n. 2, 395 N.E.2d at 898 n. 2
3
Giordano also argues that its interpretation of the statute must be incorrect because the Commonwealth of Massachusetts has a specific statute making it unlawful for prisoners held pursuant to the IAD to escape. Mass.Gen.Laws ch. 276 App. Sec. 1-5 (1972). While the appeals court's interpretation of chapter 268, section 16, makes chapter 276 App., section 1-5 partially superfluous, the question of the statute's interpretation is one that must be left to the state courts
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845 F.2d 1021
Herndonv.Lynaugh
NO. 86-1876
United States Court of Appeals,Fifth Circuit
APR 22, 1988
1
Appeal From: N.D.Tex.
2
VACATED.
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287 F.Supp. 900 (1968)
Charles EVERS et al., Plaintiffs,
v.
T. B. BIRDSONG et al., Defendants.
Civ. A. No. 1146.
United States District Court S. D. Mississippi, W. D.
July 24, 1968.
*901 OPINION OF THE COURT
DAN M. RUSSELL, Jr., District Judge.
On March 11, 1966, Charles Evers and two other named plaintiffs, residents of the State of Mississippi, filed a class action "on their own behalf and on behalf of all other persons in seeking to peacefully assemble and petition the President of Alcorn A. and M. College from redress of their grievances concerning the operation and administration of that College" and wherein plaintiffs sought a temporary restraining order and a preliminary and permanent injunction. In the complaint and by affidavit in support of an immediate restraining order, plaintiffs set forth that on the preceding Friday, March 4, 1966, they and 250 other Negro adults assembled at the entrance of the college on State Highway 552, which runs through the college grounds. Their intent was to march through the campus to the office of J. D. Boyd, president, to present a petition of grievances. They assembled on the left side of the highway, two abreast, under the supervision of marshals. With no singing or shouting, but in an orderly manner, they proceeded on the highway about 500 yards inside the college gate, where they were met by Vernon Maxwell, chief of the college security force, several members of the Mississippi State Highway Patrol, and Dan S. McCay, Sheriff of Claiborne County. Maxwell and McCay refused the marchers permission to continue, and when they nonetheless surged forward, approximately 235 were arrested.[1] Plaintiffs further alleged that they and approximately 1500 other persons intended to assemble again in a peaceful and orderly manner on March 12, for the same purpose. The complaint named as defendants, in addition to Boyd, Maxwell and McCay, T. B. Birdsong, head of the Mississippi Highway Patrol, Dr. Verner S. Holmes and S. R. Evans, president and vice-president of the Board of Trustees of the Institution of Higher Learning of the State of Mississippi, the remaining members of the Board, and Mrs. Celia Pritchard, Sheriff of Jefferson County, individually as well as in their official capacities, their agents, successors, employees and all those in concert with them.
At an immediate hearing on the same day the complaint and affidavit were filed, and despite the counter-affidavits of Holmes and Dr. E. R. Jobe, Executive Secretary of the Board of Trustees, that they had no knowledge of any grievances prior to a telegram sent by Evers on March 3, 1966,[2] and the counter affidavit of Boyd that his first knowledge of the alleged grievances was the attempted march of March 4, this Court issued a temporary restraining order allowing 200 marchers on March 12, 1966, to march from the eastern entrance of Alcorn College on Highway 552 to a point nearest the Administration Building, where a committee was permitted to proceed to Boyd's office and present a *902 petition of grievances, the whole group then returning to the point of assembly.[3] At the hearing of March 11, 1966, it was shown that Alcorn is a predominately Negro college of 1600 to 1700 students. It is sprawled over a large acreage in an isolated area of Claiborne County, some eight miles from the small town of Lorman. Nearest other towns include Port Gibson, Vicksburg and Natchez.
This march took place as ordered, orderly and with no interference. Had matters thereafter proceeded in like fashion there would have been nothing further to the lawsuit.
Evidence at the full hearing showed that Boyd promptly referred the grievances to the Board of Trustees.
On March 24, 1966, plaintiffs, by letter attempted to withdraw their complaint. No order was submitted or signed.
Meanwhile Evers continued with civil rights activities. On April 1, 1966, he staged a march at Port Gibson that terminated at the courthouse for a speech by Evers. Among the remarks were: "Next week we want all the children to stay out of school * * * On Monday (April 4) we will have the biggest march at Alcorn College that has ever been held in the south. We are going to march all over the campus. We are going to stay there until Dr. Boyd is gone * * * Boyd has got to go and Maxwell has too. * * * This is not a civil rights matter; this is negro against negro." On April 2, 1966, at the same place, Evers spoke to a group of 500 persons, repeating in essence the foregoing statements. On the morning of April 4, and during a school day, bands of Negro elementary and high school children from Port Gibson and the surrounding community began swarming over the campus, finally gathering in front of Dr. Boyd's home. After the highway patrol had been called, the children circled the president's home, clapping, singing and calling obscenities to the patrolmen. They refused to disburse, the patrolmen chasing them throughout the day. Alcorn students joined in the disturbance, cursing the officers from dormitory and classroom windows, and around 11 a. m., started throwing bottles at the patrolmen and their vehicles. As the disturbance reached riot proportions, the patrolmen cleared one dormitory with tear gas, some of the occupants being among a total of 35 arrested. At noon Evers appeared outside the west gate of the campus and told Giles Crisler, investigator for the highway patrol: "Things will go on like this the rest of the day and tonight we are going to have a mass meeting." Evers then asked for permission to march on the Campus. Crisler replied by showing Evers an injunction issued by the Chancery Court of Claiborne County forbidding a march on the campus, which Evers said he had received notice of.[4] Evers then called approximately 200 school children together, congratulated them on what they had been doing, and told them to continue, saying: "We will get rid of Boyd or close down the college. * * * We will whip the hell out of Maxwell after he is fired. We don't want to kill himjust kick him and stomp him and beat the hell out of him." After this speech, Evers and one Rudy Shields continued to direct the children around the campus by using *903 hand signals. At about 3 p. m. Evers called the children together, congratulating them again and telling them to come back that night for a mass meeting at Patton's Store, a small grocery store just outside the east entrance of the campus, where the crowds had been congregating for Evers' speeches. At about 7:15 p. m., a mass meeting got underway with speeches and singing. Evers led a large group to the west gate in an attempt to enter, where he was told by Sheriff McCay that he could not violate the state court injunction and that the students were so agitated by the day's events that a riot was impending. At this time McCay and several patrolmen were between a group of some 200 students and Evers and his crowd, and the situation was described as tense and dangerous. Evers and his group finally retired to Patton's Store where Evers at 9:30 p. m. made another speech, saying "No injunction, no patrol, nothing will stop us from marching on the campus. * * * This is not civil rights * * * it is negro against negro." He told the group to be back the next morning, April 5, and invited the college students to join them and close down the college.
The next day plaintiffs filed an amended complaint seeking authority to stage a demonstration on April 4, the preceding day, thus moot on its face, and again Evers met with approximately 200 school children, following which 50 or 60 of them climbed over and through the fences on to the campus, again surrounding Dr. Boyd's residence. There, Officer Maxwell attempted to disburse them with fire hoses, for which there was insufficient pressure, and a tear gas bomb which blew back on Maxwell. The children retreated when highway patrolmen walked up. At noon, Rudy Shields and Evers again directed the children with hand signals, and Evers again informed Crisler that the disturbances would continue, with a mass meeting scheduled for that night. At one time in the afternoon Evers was permitted to go through the campus on Highway 552 by car. At 5 p. m., a group started assembling and reached approximately 1200 persons, and Evers spoke again. At 8:40 p. m., Evers directed the group to line up for a march on the campus. Crisler refused permission and Evers made another speech, saying "You all know how to go on; you are on your own now. There are 2000 students that want to march with us. * * * If you have any grievances against any highway patrolman, catch him by himself and beat the hell out of him." Again 200 to 300 students were behind the highway patrol, and Evers and his crowd in front. Evers called out, "Make a sandwich out of them." The crowd was unruly, the highway completely blocked with persons and vehicles. Crisler ordered them to clear the highway within two minutes. He and 12 other patrolmen started along the road to show Evers which cars to move when they were immediately surrounded. Upon Crisler's signal for the entire patrol to move up, bottles were thrown and five shots fired, none by highway patrolmen, who used tear gas. One carbine, and 30 rounds of ammunition, not recovered, were taken from a patrolman. A loaded rifle was taken from one of the demonstrators. In the short melee which followed, several demonstrators, as well as highway patrolmen, were injured, none seriously.
On the night of April 7, 1966, considerable damage was caused to college buildings, windows and doors were broken, and installations wrecked.
On April 13, 1966, at the request of the office of the Attorney General of the State of Mississippi, representing the Board of Trustees, a second hearing was had. Evers appeared in person and by counsel, moved for a continuance and voluntarily agreed not to lead in, participate in or counsel further demonstrations at Alcorn College pending a full hearing on the merits. The Court, by order of that date, granted plaintiffs motion for continuance, approved plaintiffs' agreement, directed defendants to answer the amended complaint and to *904 file their cross-complaint by April 27, 1966, with trial set for May 5, 1966.
On April 20, 1966, this Court issued an order for a "show cause" hearing on April 21 on a motion for civil and criminal contempt directed against Robert Lee Smith, Cleveland L. Sellers, Ransom Moore and Howard Edward Jeffries which motion alleged that as non-students of Alcorn College these four persons had on Monday night, April 18, 1966, committed trespasses by entering the campus and dormitories and attempting to create a disturbance. All four were alleged to be representing an organization known as Students Non-Violent Coordinating Committee (SNICK), and alleged to be plaintiffs by reason of one or more having acted in concert with Evers and other plaintiffs in the demonstrations detailed herein, and that each had notice of the order of April 13, 1966. This hearing was not had, as plaintiffs on the same day filed with the Fifth Circuit a Notice of Appeal for a stay of the interlocutory injunction in the April 13 order, which the Fifth Circuit on the following day, April 22, denied. On this same day a contractor's construction building located on the campus was burned and damages were committed to the interior and exterior of the Student Union building. On April 27, 1966, the pleading date set by the Court, defendants filed their answer and counter claims seeking an injunction against plaintiffs, and against any and all persons the Court finds to be plaintiffs, from leading, participating in or counseling any further demonstrations, riots or disturbances on or about the campus of Alcorn A. & M. College, and a money judgment in the sum of $15,709.00 against plaintiffs in favor of the Board of Trustees of Institutions of Higher Learning of the State of Mississippi on account of damages to buildings and equipment, the sum of $32,819.75 against plaintiffs for costs, damage and expense to the Highway Patrol, and the sum of $2,000.00 in favor of Sheriff McCay for expenses and damages to him.
On defendants' motion for plaintiffs to show cause why they should not answer defendants' counter-claims by May 4, 1966, the day before that set for a full hearing, and upon plaintiffs' request for an additional continuance in order to have the full 20 days allowed by the rules in which to answer, this Court on April 5, granted plaintiffs' motion and re-set the case for May 30, 1966, continuing in effect the same restraint and injunction appearing in the April 13 order. On plaintiffs' motion to modify the latter part of the order, the Court denied on April 29. On May 23, 1966, a group of elementary and high school students led by Rudy Shields, appeared on the campus, singing and shouting and disrupting the commencement exercises. On May 27, 1966, plaintiffs moved for a third continuance on the grounds that they had not had sufficient time to complete discovery nor prepare for trial on defendants' counterclaims. The Court, by order dated June 8, 1966, granted plaintiffs' motion and re-set the case for July 13, 1966, again continuing the restraints and injunctions contained in the orders of April 13 and April 29, 1966. Again, plaintiffs filed Notice of Appeal, this time on the order of April 29, 1966 as set forth in the order of June 8, 1966.
The case was finally tried beginning on July 13, 1966. Plaintiffs, in December 1966, by motion to the Fifth Circuit, agreed to by defendants, requested an abeyance of the appeals pending a decision by this Court. No such notice was given this Court until September 25, 1967, followed by an order from the office of the Clerk of the Fifth Circuit, dated January 4, 1968, notifying the parties that the appeals would be dismissed, and which has since been so ordered. During the six day trial witnesses for both parties testified at length, identifying numerous photographs, movie reels, and correspondence, the gist of the evidence being related above as the findings of fact of the Court. There was also detailed evidence presented by defendants on their cross-claims of property damage and expenses.
*905 There are two issues presented by this case. Are the plaintiffs an identifiable group subject to the notice required by Federal Civil Rule 65, and against whom liability for damages may be assessed, and to what extent can either side be restrained, on the one hand without interfering with the rights of the plaintiffs to peaceful assembly and presentation of grievances, and on the other without judicial usurpation of administrative functions of school officials and the duty of law enforcement officials to maintain order.
This action was filed as a class action under Rule 23(a) (3) before its amendment of July 1, 1966. The class was described as the named plaintiffs, Evers, Russell, and Warren and "all other persons in seeking to peacefully assemble and petition the President of Alcorn A. and M. College for redress of their grievances concerning the operation and administration of that college." With nothing more, the Court would dismiss the action for lack of definitiveness of the class, there being nothing to show whether or not the characterization included parents, taxpayers, alumni, friends, employees, or students of the college, the marchers, the demonstrators, the crowds who attended mass meetings, or even the grade school children used as pawns to harass and mock school and law enforcement officials. Plaintiffs insist in their post trial brief that the class includes those marchers who participated in the March 4, 1966 demonstration, but furnish no names. The Court finds that to this group should be added all those who participated in marches, demonstrations and incidents occurring in and about the campus of Alcorn College during the months of March and April 1966, specifically including the named plaintiffs, and Rudy Shields, Robert Lee Smith, Cleveland Sellers, Ransom Moore and Howard Edward Jeffries. A majority of these persons' names appear on lists furnished by defendants as Exhibits D and E to Answers to Interrogatories, filed in the record on May 26, 1966, but not introduced at the trial. Plaintiffs' counsel are directed to notify all such persons that they are members of the class of plaintiffs herein and subject to the orders of this Court, unless within 60 days of this date, any show cause to be excluded.
This is another case where protected rights of peaceful assembly and for redress of grievances must be weighed against the administrative prerogatives of school officials and the duty of law enforcement personnel to maintain order, and protect public property. By constitutional authority and statute the Board of Trustees of Institutions of Higher Learning of the State of Mississippi is charged with the management and control of state institutions of higher learning of which Alcorn College is one. This authority is delegable to the school president and his officials, who must be given wide discretion in anticipating and preventing interruptions in the class room and student activities for which the school is operated. Tinker v. Des Moines Independent Community School District, D.C., 258 F.Supp. 971, and Blackwell v. Issaquena County Board of Education, 5 Cir., 363 F.2d 749. School campuses are not public in the sense of streets, courthouses, and public parks, open for expressions of free speech by the public. A college campus, particularly in an isolated area as is Alcorn, is vulnerable to the attentions occasioned by even the most orderly parade or assembly. The protest here is not so much that of plaintiffs' arrests for trespass following their initial march of March 4, 1966, on to campus property, but that they cannot continue freely to assemble on the campus to again and again voice their alleged protests in marching, clapping, and singing without restraint.
It was on the assumption that plaintiffs had a right to express legitimate grievances against school policies that the Court overrode the defendants' objections and permitted the march of March 12, 1966, with reasonable and appropriate guide lines, recognizing that *906 grievances often are shunted aside. However, there was never any relaxation by this Court of its awareness of the school's right and duty to proceed with institutional education without unwarranted invasion by plaintiffs. Plaintiffs or others, at their instigation, deliberately returned to the campus time and again, marching, clapping, singing and hurling obscenities at school officials and highway patrolmen duly authorized to be there. Eventually, college students were aroused to such a pitch that buildings were burned and equipment wantonly damaged.
It makes no difference as to the causewhether it be just, holy or "negro against negro" as alleged, there is nothing in the constitution or law for lawlessness, violence or destruction of property under the guise of petition and protest.
The right of free speech, assembly or protest has never been so judicially enlarged as to permit disruption of a school and destruction of its property. It would seem more logical to assume that it is the duty of school officials to protect students from such disruptions related above, and for law officials of the state to protect its property from destruction.
The Court finds that plaintiffs' action should be dismissed, and that upon defendants' counter action, plaintiffs and their class, described above, should be permanently enjoined and restrained from inciting, leading, participating in or counseling any marches, demonstrations or disturbances on the campus of Alcorn College.
As to the damages sought by defendants, the Court would be inclined to allow the claim of the School Board and the State of Mississippi for damages to buildings and equipment. However, in the absence of evidence that those who caused the damage are identifiable members of the plaintiffs' class, the Court reluctantly foregoes this assessment.
An appropriate order may be drawn providing for notice by plaintiffs' counsel[5] of said order to all plaintiffs named herein.
NOTES
[1] On the night of March 4, 1966, the old hospital building on the campus was destroyed by fire, severely damaging the east end of the adjacent, new Fine Arts building.
[2] Jobe and Dr. Holmes acknowledged that they received a telegram from Charles Evers on March 3 reading: "Request immediate investigation of administrative policies of Alcorn A. & M. College, Lorman, Mississippi, due to reported discrepancies in financial situations particularly those involving vending machines. Charles Evers, Field Director, N.A.A. C.P." Dr. Holmes responded by telephone and Jobe by telegram on the same day inviting Evers to meet with the Board at a regular or special meeting to present the grievances. The only response from Evers was that plans for the March 4 demonstration had gone too far to cancel.
[3] Prior to the demonstration, Evers addressed the assembled crowd, and was quoted as saying, "Our white friends are dumber than I thought they were. We asked for permission to have 1500 people to march * * * they fell for the bait and we got exactly what we wanted." At the hearing, Evers admitted he made the statement, but denied he was referring to the Court.
[4] The writ bears the date of April 2, 1966. Plaintiffs filed a petition for removal to this Court and the cause was docketed as No. 1149. The Court sustained defendants' motion to consolidate with this cause for trial. However, as no written order of consolidation appears of record, and as the petition for removal was not accompanied by bond, the Court proposes to remand this cause to the original state docket.
[5] As has happened before in numerous civil rights cases before this Court, plaintiffs are represented by a succession of attorneys, in this case, sixteen, none of whom have been released as attorneys and counsel of record, and few of whom have left any forwarding address.
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94 Ga. App. 894 (1957)
96 S.E.2d 540
CULLENS
v.
THE STATE.
36465.
Court of Appeals of Georgia.
Decided January 22, 1957.
Emory L. Rowland, H. F. Tarbutton, Virgil Shepard, for plaintiff in error.
*895 Wm. M. West, Solicitor-General, Hal Bell, Assistant Solicitor-General, contra.
TOWNSEND, J.
1. Special ground 1 assigns error on the charge of the court as follows: "Under our law a person charged with a crime is not permitted to give sworn testimony in his own behalf. He is permitted to make an unsworn statement, about which the court will presently charge you, but a defendant on trial on the charge of a crime is not permitted by law to make a sworn statement or give sworn evidence in his own behalf, but he may be sworn and testify . . . for the other defendant. So, gentlemen, I instruct you that the sworn testimony of each of these defendants upon this trial will be considered by you only on behalf of the other defendant and not on behalf of the defendant sworn and testifying: . . . "[Where] a defendant takes the stand as a witness and is sworn, his testimony is governed by the same rules of credibility of witnesses about which the court has charged you but it is limited to this, his sworn testimony shall be considered only on behalf of the other defendant. That applies to each of these defendants, each of whom has been sworn as a witness for the other defendant and you will so consider that sworn testimony, giving it such force, weight and credit as you think it entitled to receive under the other rules of law which the court has given you or may hereafter give you in charge." It is contended that this instruction might have the effect of minimizing in the minds of the jurors the weight of the evidence given by the defendants when they were testifying.
Staten v. State, 140 Ga. 110 (2) (78 S. E. 766), and Roberson v. State, 14 Ga. App. 557 (81 S. E. 798), cited by counsel for the plaintiff in error, hold that the trial court must not, when instructing the jury on the effect of the sworn testimony of one defendant in a criminal case given on behalf of a codefendant jointly on trial, instruct that this sworn testimony, as to the defendant giving it, has the same effect as an unsworn statement, as this tends to minimize the effect of the testimony. Those cases do not apply here for the reasons that (1) in those cases the defendants made no unsworn statement, while here each defendant, in addition to testifying for his codefendant, made an unsworn statement in his own behalf (this distinction is fully developed *896 in Warren v. State, 74 Ga. App. 285, 39 S. E. 2d 704), and (2) in the present case both the defendants, their counsel, and the solicitor stipulated with the court "to a joint trial with the reservation by each of the defendants to give sworn testimony on behalf of the other defendant but not on his own behalf; each of the defendants further reserving the right to make an unsworn statement solely on his own behalf, and that such sworn testimony and unsworn statements should be so considered for all purposes in the joint trial of the cases." In Burnsed v. State, 14 Ga. App. 832, 835 (82 S. E. 595), and Burgan v. State, 59 Ga. App. 524, 527 (1 S. E. 2d 603), it is held that where a defendant testifies on behalf of a codefendant jointly on trial with him the circumstances "are so exceptional that we deem it to be better practice that the attention of the jury be directed to the exercise of this right upon the part of the accused, and that they be instructed that this testimony is to be given the same consideration as that of other witnesses." And in Brooks v. State, 55 Ga. App. 227, 229 (189 S. E. 852), although the exception was on a different ground (refusal to charge in the same connection on the statement as such), effect was given to a stipulation between counsel and the court that each defendant would have the right to testify in favor of the other, etc., citing Cofer v. State, 163 Ga. 878 (4) (137 S. E. 378) as authority.
In this case the court charged a correct principle of law, charged in accordance with the stipulation between counsel, charged correctly, and without exception, on the effect of the unsworn statement made by each defendant, and charged, as suggested in the Burnsed and Burgan cases, supra, that the testimony of each defendant be considered by the jury under the rules given in charge generally as to sworn testimony. Accordingly, this ground is without merit.
2. Error is assigned in special ground 2 on the following excerpt from the charge: "In the event you return a verdict fixing the punishment at not less than so many years and not more than so many years, and the defendant is sentenced to that term by you provided in your verdict, then it would lie within the authority of the proper State authorities to formulate regulations whereby the defendant might be released after serving the minimum term fixed by you in your verdict."
*897 It has been held that it is error for the trial court to give any charge pertaining to the duties and functions of the State Board of Pardons and Paroles. Thompson v. State, 203 Ga. 416 (47 S. E. 2d 54); Strickland v. State, 209 Ga. 65 (70 S. E. 2d 710); Davis v. State, 92 Ga. App. 627 (1) (89 S. E. 2d 548). But it has been held proper to charge that where an indeterminate sentence is given "it would lie within the authority of the proper State authorities to formulate regulations whereby the defendant might be released after serving the minimum term fixed by the verdict," in order that the jury may know the effect of the sentence. Balkcom v. State, 86 Ga. App. 513 (1) (71 S. E. 2d 554); Weeks v. State, 63 Ga. App. 773, 776 (11 S. E. 2d 670). The reason that it is error to charge on the subject of parole is that this might influence the jury to give longer sentences on the supposition that defendants would be eligible for parole after serving one third of their term, and would not, therefore, serve their full sentence, when this fact is specifically pointed out to them. On the other hand, the Indeterminate Sentence Act is being applied by the jury, not by some other body, at the time such a sentence is meted out, and the jury cannot act intelligently without having some idea of what such a sentence means. This law and the rules applicable being more automatic and self-executing in nature are considered a proper subject upon which to inform the jury, and not subject to the objection that it would influence them to assess a greater punishment than they would without such information. The charge relating thereto was not error under these authorities, and certainly did not cause the jury to fix a more severe punishment, it appearing from the verdict that it was the minimum required by law and was not indeterminate in nature.
3. Archie Nelson testified that the defendants came up and searched his car, accusing him of drinking, but that he was not drinking and the automobile had merely choked up at an intersection. They told him to meet them after he got his check. When he did not do so they went to his house, accused him of drunk driving and driving without a license, but told him that if he gave them $20 he could avoid the trouble, and if not he would be locked up. Nelson testified that he gave them $10 and instructed them to come by the next Friday and he would give them *898 the other $10. He immediately reported this and, acting under instructions from another police officer, arranged for the defendants to return at a stated time. A police lieutenant gave Nelson two $5 bills marked for identification and, concealed in the house, saw the defendants drive up and blow their horn and saw Nelson go to the car and give them the money, which they accepted. Immediately afterward they were called in for questioning and the money was still on their persons. The defendants in their testimony and sworn statements stated that Nelson had not been drinking, that they had searched the car for lottery tickets; that he did not have his license with him; that he was so grateful to them for not arresting him that he asked them to come by his house so that he could give them a Christmas present, and that they did so. Thus, the defendants admitted and attempted to explain the facts proved by the State, and this explanation the jury did not believe. The evidence was accordingly sufficient to authorize the verdict, and the general grounds are without merit.
The trial court did not err in denying the motion for new trial.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
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985 F.2d 565
Harper (Karen)v.U.S. Forest Service
NO. 91-1772
United States Court of Appeals,Eighth Circuit.
Oct 21, 1991
1
Appeal From: W.D.Ark.
2
AFFIRMED.
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[Cite as State v. Beerman, 2016-Ohio-772.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO )
)
PLAINTIFF-APPELLEE )
) CASE NO. 15 BE 30
VS. )
) OPINION
JASON MICHAEL BEERMAN )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Belmont County, Ohio
Case No. 15 CR 2
JUDGMENT: Affirmed. Motion to Withdraw Sustained.
APPEARANCES:
For Plaintiff-Appellee Attorney Daniel P. Fry
Belmont County Prosecutor
Attorney J. Flanigan
Assistant Prosecutor
Courthouse Annex 1
147-A West Main Street
St. Clairsville, Ohio 43950
For Defendant-Appellant Attorney John Jurco
P.O. Box 783
St. Clairsville, Ohio 43950
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: February 29, 2016
[Cite as State v. Beerman, 2016-Ohio-772.]
DeGENARO, J.
{¶1} Defendant-Appellant, Jason Michael Beerman, appeals the April 15,
2015 judgment of the Belmont County Court of Common Pleas convicting him of one
count of conspiracy and sentencing him accordingly. Appointed appellate counsel for
Beerman has filed a no-merit brief and a request to withdraw as counsel pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967), and State v.
Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (1970). For the following reasons we
sustain counsel's motion to withdraw and affirm the trial court's judgment.
{¶2} On January 7, 2015, Beerman was indicted on two counts of
possession of a deadly weapon while under detention, R.C. 2923.131(B) and
(C)(2)(c)(i), third-degree felonies. Beerman was accused of possessing a homemade
shank while an inmate in the Belmont Correctional Institution where he was serving a
prison sentence for second-degree felonies committed in Hamilton County.
{¶3} Beerman subsequently entered into a Crim.R. 11 plea agreement and
agreed to plead guilty to one amended count of conspiracy to possess a deadly
weapon while under detention pursuant to R.C. 2923.01(A)(1), a fourth-degree felony
under R.C. 2923.01(J)(2), in exchange for dismissal of the second count and for a
jointly agreed sentence recommendation of 9 months to be served consecutively to
the prison sentence Beerman was already serving.
{¶4} During an April 13, 2015 hearing, the trial court sustained the State's
motion to amend count one to conspiracy and to dismiss the second count. The trial
court advised Beerman of all the constitutional and nonconstitutional rights he was
waiving by entering the plea, and then accepted his guilty plea, finding Beerman's
plea was knowing, voluntary and intelligent, and proceeded immediately to
sentencing. The trial court's April 15, 2015 judgment entry imposed the agreed
sentence of 9 months in prison to be served consecutively to the prison sentence
Beerman was serving for the Hamilton County offenses.
{¶5} An attorney appointed to represent an indigent criminal defendant may
seek permission to withdraw if the attorney can show that there is no merit to the
appeal. See generally Anders, 386 U.S. 738. To support such a request, appellate
-2-
counsel is required to undertake a conscientious examination of the case and
accompany his or her request for withdrawal with a brief referring to anything in the
record that might arguably support an appeal. Toney, 23 Ohio App.2d at 207.
Counsel's motion must then be transmitted to the defendant in order to assert any
error pro se. Id. at syllabus. The reviewing court must then decide, after a full
examination of the proceedings and counsel's and the defendant's filings, whether
the case is wholly frivolous. Id. If deemed frivolous, counsel's motion to withdraw is
granted, new counsel is denied, and the trial court's judgment affirmed. Id.
{¶6} Counsel filed a no-merit brief and we granted Beerman 30 days to file a
pro-se brief which, to date, he has failed to file. In the typical Anders case involving a
guilty plea, the only issues that can be reviewed relate to the plea or the sentence.
See, e.g., State v. Verity, 7th Dist. No. 12 MA 139, 2013–Ohio–1158, ¶ 11.
{¶7} A guilty plea must be made knowingly, voluntarily and intelligently.
State v. Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–509, 881 N.E.2d 1224, ¶ 7. If it is
not, it has been obtained in violation of due process and is void. State v. Martinez,
7th Dist. No. 03 MA 196, 2004–Ohio–6806, ¶ 11, citing Boykin v. Alabama, 395 U.S.
238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When determining the voluntariness
of a plea, this court must consider all of the relevant circumstances surrounding it.
State v. Johnson, 7th Dist. No. 07 MA 8, 2008–Ohio–1065, ¶ 8, citing Brady v. United
States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
{¶8} The trial court must engage in a Crim.R. 11(C) colloquy with the
defendant in order to ensure that a felony defendant's plea is knowing, voluntary and
intelligent. State v. Clark, 119 Ohio St.3d 239, 2008–Ohio–3748, 893 N.E.2d 462, ¶
25–26. During the colloquy, the trial court is to provide specific information to the
defendant, including constitutional and nonconstitutional rights being waived. Crim.R.
11(C)(2); State v. Francis, 104 Ohio St.3d 490, 2004–Ohio–6894, 820 N.E.2d 355.
{¶9} The constitutional rights the defendant must be notified of are the right
against self-incrimination, to a jury trial, to confront one's accusers, to compel
witnesses to testify by compulsory process, and to have the state prove guilt beyond
-3-
a reasonable doubt. Crim.R. 11(C)(2)(c); State v. Veney, 120 Ohio St.3d 176, 2008–
Ohio–5200, 897 N.E.2d 621, ¶ 19–21. A trial court must strictly comply with these
requirements. Id. at ¶ 31; State v. Ballard, 66 Ohio St.2d 473, 477, 423 N.E.2d 115
(1981). "Strict compliance" does not require a rote recitation of the exact language of
the rule. Rather, a reviewing court should focus on whether the "record shows that
the judge explained these rights in a manner reasonably intelligible to the defendant."
Id. at paragraph two of the syllabus.
{¶10} The nonconstitutional rights the defendant must be informed of are the
effect of his plea, the nature of the charges, and the maximum penalty, which
includes an advisement on post-release control if applicable. Further, a defendant
must be notified, if applicable, that he is not eligible for probation or the imposition of
community control sanctions. Finally, this encompasses notifying the defendant that
the court may proceed to judgment and sentence after accepting the guilty plea.
Crim.R. 11(C)(2)(a)(b); Veney, 120 Ohio St.3d 176 at ¶ 10–13; Sarkozy, 117 Ohio
St.3d 86, at ¶ 19–26. The trial court must substantially comply with these
requirements. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
"Substantial compliance means that under the totality of the circumstances the
defendant subjectively understands the implications of his plea and the rights he is
waiving." Id. at 108. In addition to demonstrating the trial court did not substantially
comply with Crim.R. 11(C)(2)(a)(b) the defendant must also show a prejudicial effect,
meaning the plea would not have otherwise been made. Veney, 120 Ohio St.3d 176
at ¶ 15 citing Nero, 56 Ohio St.3d at 108.
{¶11} The trial court's advisement of Beerman's constitutional rights strictly
complied with Crim.R. 11(C)(2)(c), and he indicated he understood he was giving up
all of the above rights. The trial court also substantially complied with Crim.R. 11(C)
when advising Beerman of his nonconstitutional rights. As the trial court's colloquy
with Beerman complied with Crim.R. 11(C), the plea was knowingly, voluntarily, and
intelligently entered. Accordingly, there are no appealable issues regarding the plea.
{¶12} The parties jointly recommended a nine month sentence to be served
-4-
consecutively to the prison term Beerman was incarcerated for at the time. A jointly
recommended sentence that is authorized by law and that is accepted and imposed
by the trial court is not subject to direct appeal. State v. Reed, 7th Dist. No. 09 MA
53, 2010–Ohio–1096; R.C. 2953.08(D)(1). "A sentence is 'authorized by law' and is
not appealable within the meaning of R.C. 2953.08(D)(1) only if it comports with all
mandatory sentencing provisions." State v. Underwood, 124 Ohio St.3d 365, 2010-
Ohio-1, 922 N.E.2d 923.
{¶13} Further, we join our sister districts in holding that where, as here, the
parties jointly recommend consecutive sentences, the trial court was not required to
make the R.C. 2929.14(C)(4) findings in order to impose consecutive sentences, nor
is the sentence subject to appellate review.
{¶14} For example, State v. Weese, 2d Dist. No. 2013–CA–61, 2014–Ohio–
3267, the Second District explained:
Ordinarily, R.C. 2929.14(C)(4) requires certain findings to be
made before consecutive sentences can be imposed. However, the
Ohio Supreme Court explicitly has held that "[a] sentence imposed
upon a defendant is not subject to review under [R.C. 2953.08(D) ] if
the sentence is authorized by law, has been recommended jointly by
the defendant and the prosecution in the case, and is imposed by a
sentencing judge." State v. Porterfield, 106 Ohio St.3d 5, 2005–Ohio–
3095, 829 N.E.2d 690, ¶ 25. In addition, the court stated that "[t]he
General Assembly intended a jointly agreed-upon sentence to be
protected from review precisely because the parties agreed that the
sentence is appropriate. Once a defendant stipulates that a particular
sentence is justified, the sentencing judge no longer needs to
independently justify the sentence." Id. Therefore, not only were
findings unnecessary, but the agreed sentence is not subject to
appellate review. Any argument to the contrary lacks arguable merit
and would be frivolous. Id.
-5-
Weese at ¶5. Accord State v. Rue, 9th Dist. No. 27622, 2015-Ohio-4008; State v.
Pulliam, 4th Dist. No. 14CA3609, 2015-Ohio-759; State v. Savage, 12th Dist. No.
CA2014-02-002, 2015-Ohio-574; State v. Jefferson, 10th Dist. No. 12AP–238, 2014–
Ohio–11; and State v. Miller, 8th Dist. No. 101086, 2014-Ohio-5685, ¶ 9.1
{¶15} Finally, the trial court properly notified Beerman that upon his release
from prison he would be subject to a discretionary three-year period of post-release
control and explained the ramifications of violating post-release control. R.C.
2967.28(C). The 9 month prison sentence Beerman received is within the 6 to 18
month statutory range for the charge. R.C. 2929.14(A)(4).
{¶16} In conclusion, because the record contains no apparent errors, counsel
is permitted to withdraw and the judgment of the trial court is affirmed.
Donofrio, P. J., concurs
Waite, J., concurs
1
We note that currently pending before the Ohio Supreme Court is the following certified conflict
question: "In the context of a jointly-recommended sentence, is the trial court required to make
consecutive-sentence findings under R.C. 2929.14(C) in order for its sentence to be authorized by law
and thus not appealable?" State v. Sergent, Case No. 2015-1093. The conflict cases are Weese,
supra, Pulliam, supra, and State v. Sergent, 11th Dist No. 2013–L–125, 2015-Ohio-2603 (holding that
trial court still required to make findings regarding consecutive sentences under R.C. 2929.14(C)(4)
even where the consecutive sentence was jointly recommended).
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(2008)
Chanda ALSTON et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA et al., Defendants.
Civil Action No. 07-0682 (RMU).
United States District Court, District of Columbia.
June 19, 2008.
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART THE DEFENDANTS' PARTIAL MOTION TO DISMISS
RICARDO M. URBINA, District Judge.
I. INTRODUCTION
Before the court is the defendants' partial motion to dismiss. The plaintiffs in this case are a student with disabilities, C.A., and her mother.[1] They allege that the District of Columbia ("the District"), its Superintendent of Schools, Clifford Janey,[2] and seven current and former officials of the District of Columbia Public Schools ("DCPS") denied C.A. a free appropriate public education ("FAPE")[3] and in so doing discriminated and retaliated against her because of her disabilities. Because the anti-discrimination provisions of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131 et seq., and the Rehabilitation Act, 29 U.S.C. § 794, as well as the entirety of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., do not allow for individual capacity suits, the court dismisses the claims against the individual defendants based on those statutes. Because the plaintiff has not alleged a custom or policy of denying disabled students their educational rights, and because other federal statutes provide comprehensive remedial schemes, the court dismisses the claims against the District and the individual defendants brought under 42 U.S.C. § 1983. The court denies all other parts of the defendants' motion.
II. BACKGROUND
A. Factual Background
C.A. is now at least fifteen years old and brings this suit through her mother, Chanda Alston. See Compl. ¶ 1. The following facts are as alleged by the plaintiff in her complaint. C.A. has multiple disabilities that impair her ability to learn and has been on an Individualized Education Program ("IEP")[4] since 1998. Id. ¶¶ 1, 14. From 1998 to 2001, C.A. attended the Kennedy-Krieger School in Baltimore without incident. See id. ¶¶ 17-18. In September 2001, a DCPS Hearing Officer[5] decided that C.A. should be placed in a residential program[6] where she would live and receive care and services at the same facility. Id. ¶ 18. C.A.'s placement during the 2001-02 school year is unclear. See id. ¶¶ 18-20. In 2002; her IEP team placed C.A. at the Grafton School, a private facility in Rockville, Maryland. Id. ¶ 20.
Near the end of the 2002-03 school year, her IEP team decided to add a day instructional program at Cabin John Middle School in Montgomery County where she would receive more specialized educational services. Id. ¶ 21. That is, she was to continue to reside at the Grafton School but would attend specialized instruction at Cabin John during the day. See id. In the summer of 2003, instead of paying Montgomery County for C.A.'s additional special education services, the defendants "issued a notice of placement, changing [C.A.'s] disability classification, and placing her in a D.C. public school program for the mentally retarded at Kramer MS." Id. ¶ 22. But, in August 2003, a Hearing Officer upheld the IEP team's addition of the day program, as the plaintiff requested, and held that the defendants had submitted fabricated documents and lied in the Due Process Hearing in an effort to undermine the IEP team's decision. Id. ¶ 23. Although they continued to pay for C.A.'s placement at Grafton, the defendants failed to pay Montgomery County for the day program until the spring of 2005, so C.A. did not attend Cabin John MS during the 2003-04 school year and most of the 2004-05 school year. Id. ¶ 24. In the summer of 2005, the defendants again refused to authorize payment for the Cabin John placement for the upcoming school year, and this court ordered "stay put" relief[7] in September of that year so that C.A. could attend Cabin John in addition to Grafton while a Due Process Hearing took place. Id. ¶¶ 26-30. In November 2005, the Hearing Officer upheld C.A.'s placement at Grafton and Cabin John. Id. ¶ 33.
At the end of 2005, Grafton School announced that it would be closing its Rockville campus. Id. ¶ 35. The campus closed in mid-February of 2006. Id. ¶ 38. Shortly before the school closed, C.A. suffered hallucinations. Id. ¶ 37. With the closure of Grafton, C.A. lost "the residential structure that psychological and psychiatric evaluators had found [she] required" and her condition worsened to the point that she was hospitalized in March in the psychiatric ward of Children's Hospital. Id. ¶¶ 36, 39. By May, the defendants had not made any arrangements to place C.A. at another residential facility, and the plaintiff filed another Due Process Complaint and another suit asking this court for injunctive relief requiring the defendants to place C.A. in another residential facility immediately. Id. ¶¶ 41, 43. While the case was pending, the defendants held two dispute resolution meetings and again proposed the public school program for mentally retarded students at Kramer Middle School, which the plaintiff turned down. Id. ¶ 42. In July 2006, this court granted stay put relief and ordered the defendants to place C.A. by August of that year. Id. ¶ 44.
In response to this ruling, the defendants submitted her application to "only a handful of schools" and failed to include the appropriate evaluations with some of those applications.[8]Id. ¶ 45. After DCPS failed to place C.A. by the August 7 deadline, the plaintiff herself sent an application to The Woods, a residential facility in Pennsylvania, which agreed in late October to accept C.A., pending payment authorization by DCPS. Id. C.A. finally enrolled at The Woods on November 28, 2006. See id. ¶ 52.
To settle the plaintiff's May 2006 Due Process Complaint, the District held hearings in July 2006 and January 2007. Id. In July, the Hearing Officer held that he was not able to order "interim educational services" for C.A. Id. In January, he held that although the District had not followed her IEP from February to November of 2006, it had not denied C.A. a FAPE. Id. He also denied the requests for "compensatory services." Id.
B. Procedural History
The plaintiff filed her complaint on April 17, 2007. She alleges at least nine causes of action under the ADA, 42 U.S.C. §§ 12131 et seq.; the IDEA, 20 U.S.C. §§ 1400 et seq.; the Rehabilitation Act, 29 U.S.C. § 794; and the D.C. Human Rights Act ("DCHRA"), D.C. CODE § 2-1402. Compl. ¶¶ 65-110. She seeks injunctive and declaratory relief, exemplary and compensatory damages, punitive damages, attorney's fees and a reversal of the Hearing Officer's January 2007 decision. Id. at 41. The defendants moved for partial dismissal on December 19, 2007. The plaintiff filed an opposition on January 15, 2008, and the defendants filed a reply on February 8, 2008. The court now turns to the defendants' motion.
III. ANALYSIS
A. Legal Standard for Rule 12(b)(6) Motion to Dismiss
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of`a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir. 2003) (citing FED.R.CIV.P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pre-trial procedures established by the Rules to disclose more precisely the basis of both claim and defense to define more narrowly the disputed facts and issues." Conley, 355 U.S. at 47-48, 78 S.Ct. 99 (internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), or "plead law or match facts to every element of a legal theory," Krieger v. Fadely, 211 F.3d 134, 136 (D.C.Cir.2000) (internal quotation marks and citation omitted).
Yet, the plaintiff must allege "any set of facts consistent with the allegations." Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1969, 167 L.Ed.2d 929 (2007) (abrogating the oftquoted language from Conley, 355 U.S. at 45-46, 78 S.Ct. 99, instructing courts not to dismiss for failure to state a claim unless it appears beyond doubt that "no set of facts in support of his claim [] would entitle him to relief); Aktieselskabet AF 21.November 2001 v. Fame Jeans, Inc., 525 F.3d 8, 17 n. 4 (D.C.Cir.2008) (affirming that "a complaint needs some information about the circumstances giving rise to the claims"). While these facts must "possess enough heft to `sho[w] that the pleader is entitled to relief,'" a complaint "does not need detailed factual allegations." Id. at 1964, 1966. In resolving a Rule 12(b)(6) motion, the court must treat the complaint's factual allegations including mixed questions of law and fact as true and draw all reasonable inferences therefrom in the plaintiffs favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C.Cir.2003); Holy Land Found, for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C.Cir.2004); Browning, 292 F.3d at 242.
B. The Court Dismisses the Claims Against the Individual Defendants Under the IDEA
The defendants argue that personal capacity suits are not allowed under the IDEA.[9] Defs.' Mot. at 9. The plaintiff does not respond to this argument. See Pls.' Opp'n; Defs.' Reply at 2-3. Accordingly, the court may treat this argument as conceded. See Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C.Cir. 1997). Even if the court were not to treat the point as conceded, the defendants are correct that such an action is not permissible, Bradley v. Ark. Dep't of Educ., 301 F.3d 952, 956-57 (8th Cir.2002) (dismissing individual capacity claims seeking compensatory and punitive damages under the IDEA). The court therefore grants the defendant's motion and dismisses all claims under the IDEA against the defendants in their individual capacities.
C. The Court Grants in Part the Defendant's Motion to Dismiss the ADA Discrimination Claims
1. Individuals Are Not Personally Liable for Discrimination Under the ADA
The defendants claim that the "ADA prohibits liability claims against individuals," Defs.' Mot. at 5, and that the plaintiff failed to plead the elements of an ADA discrimination claim, Defs.' Reply at 3-4. The plaintiff insists that individuals are liable under the retaliation provisions of the ADA.[10] Pls.' Opp'n at 1-2. Although the plaintiff does not respond to the defendants' arguments regarding the discrimination claim and the court may treat this point as conceded, Twelve John Does, 117 F.3d at 577, the court nevertheless analyzes this claim under the appropriate law, Smith v. Mallick, 514 F.3d 48, 51 (D.C.Cir. 2008) (holding that courts have an independent obligation to apply the correct law regardless of the parties' arguments).
Title II[11] of the ADA, by its terms, only prohibits discrimination by "public entities." 42 U.S.C. § 12132. The statute is clear that individuals are not public entities. Id. at § 12131(1). Therefore, individuals, acting in their personal capacities, cannot violate Title II. E.g., Garcia v. State Univ. of N.Y. Health Scis. Ctr., 280 F.3d 98, 107 (2d Cir.2001) (prohibiting personal capacity suits under the discrimination provisions of the ADA and the Rehabilitation Act). To the extent that the plaintiffs claims against the individual defendants in their personal capacities are based on Title II, the court dismisses them.
2. The Plaintiff's Allegations Against the District Are Sufficient
The defendants also move to dismiss the plaintiffs claims against the District under the ADA, Defs.' Mot. at 1, arguing that the plaintiff fails to plead the elements of an ADA discrimination claim, Defs.' Reply at 3-4. As the defendants only presented this argument in their reply, the plaintiff did not respond to it. Generally, arguments raised for the first time in a reply are waived. Walker v. Pharm. Research & Mfg. of Am., 461 F.Supp.2d 52, 58 n. 9 (D.D.C.2006); see also In re Asemani, 455 F.3d 296, 300 (D.C.Cir.2006) (treating as waived an argument raised for the first time in a reply). Out of an abundance of caution, however, the court analyzes this claim under the appropriate law. Smith, 514 F.3d at 51.
The ADA prohibits public entities from excluding qualified individuals with disabilities from participating in or receiving the benefits of "the services, programs, or activities" of that entity. 42 U.S.C. § 12132. As a local government, the District of Columbia is a public entity. Id. at § 12131(1)(a) (defining "public entity" as "any state or local government"). Although the plaintiff need not plead all the details necessary to ultimately prevail on a claim, providing such details is sufficient to defeat a motion to dismiss. See Fame Jeans, 525 F.3d at 17-18. The elements of an ADA discrimination claim are 1) that the plaintiff is a qualified individual with a disability; 2) that the public entity denied her the benefits of or prohibited her from participating in the entity's services, programs or activities; and 3) that denial or prohibition was "by reason of her disability. 42 U.S.C. § 12132.
First, the plaintiff explicitly alleges that C.A. is a qualified individual with a disability under the ADA. Compl. ¶¶ 1, 71-76. Second, the plaintiff claims that the defendants have prevented her from participating in DCPS's Program of Indirect Services. Id. ¶¶ 17-22. Third, the plaintiff alleges that the defendants denied C.A. the benefits of an appropriate academic placement "solely by reason of her disability." Id. ¶ 74. Together, these allegations are more than enough to state a claim upon which relief may be granted. See Burnett v. Sharma, 2007 WL 1020782, at *9 (D.D.C. Mar.30, 2007) (denying a motion to dismiss a complaint that did not allege "specific supporting factual allegations"). Therefore, the court denies the defendants' motion to dismiss the ADA Title II claims against the District of Columbia.
D. The Court Dismisses in Part the Rehabilitation Act Claims
1. Individuals Are Not Personally Liable for Discrimination Under § 504 of the Rehabilitation Act
The defendants move to dismiss the Rehabilitation Act claims against the individual defendants, Defs.' Mot. at 1, but provide no argument on this point. The plaintiff maintains that individuals are liable under the Rehabilitation Act for retaliation.[12] Pls.' Opp'n at 3. Although the defendants did not properly argue this issue, the court is "entitled to apply the right body of law, whether the parties name it or not." Smith, 514 F.3d at 51 (quoting Mwani v. bin Laden, 417 F.3d 1, 11 n. 10 (D.C.Cir.2005)).
Like Title II of the ADA, § 504 of the Rehabilitation Act only prohibits discrimination by a "program or activity" receiving Federal funds. 29 U.S.C. § 794(a). The definitions of "program or activity" do not include individuals. Id. at § 794(b). Therefore, individuals, acting in their personal capacities, cannot violate § 504. E.g., Garcia, 280 F.3d at 107 (prohibiting personal capacity suits under the discrimination provisions of the ADA and the Rehabilitation Act). To the extent that the plaintiffs claims against the individual defendants in their personal capacities are based on § 504, the court dismisses them.
2. The Plaintiff's Allegations Against the District Are Sufficient
The defendants first contend that the Rehabilitation Act applies only to employment discrimination and is thus "wholly irrelevant" to this case. Defs.' Mot. at 7. The plaintiff responds that the defendants provide programs and services, which, implicitly, are subject to the provisions of § 504. Pls.' Opp'n at 5. Section 504 of the Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). The statute further defines "program or activity" to include "all the operations of... a local educational agency." Id. § 794(b)(2)(B). By its plain language then, the statute applies to the provision of educational services by DCPS. See, e.g., Savoy-Kelly v. E. High Sch., 2006 WL 1000346, at *4 (D.D.C. Apr. 14, 2006) (holding that a § 504 claim for denial of educational benefits is cognizable but dismissing the claim because the plaintiff failed to adequately allege causation).
Second, the defendants argue that the plaintiff has not shown that C.A.'s alleged exclusion from services happened "solely by reason of her disability. Defs.' Mot. at 7. She replies that the complaint sets forth sufficient facts regarding causation, citing pages 50-51. Pls.' Opp'n at 5. To sustain a § 504 claim, a plaintiff must show that the discrimination or exclusion is caused "solely by reason of her disability. Lunceford v. D.C. Bd. of Educ., 745 F.2d 1577, 1580 (D.C.Cir.1984) (denying liability where the hospital school discharged the student at least in part because he no longer needed medical care and in part because other students were waiting for admission). This causation standard is higher than that required by the ADA. Compare 42 U.S.C. § 12132 ("by reason of"), with 29 U.S.C. § 794(a) ("solely by reason of"). The plaintiff, however, explicitly alleges that the "[defendants intentionally excluded C.A. from participating in and denied her the benefits of DCPS educational programs and services solely because of her disability." Compl. ¶ 85. There is no mention in the complaint of any causes other than the "extent and severity of her disabilities." E.g., id. ¶ 51. Therefore, the facts pled provide the defendant with clear notice about the plaintiffs claims regarding causation. See Lunceford, 745 F.2d at 1580.
Finally, the defendants contend that the plaintiff has not pled sufficient facts to show that they acted in bad faith or with gross misjudgment rather than that they merely failed to provide a FAPE. Defs.' Mot. at 8. To this, the plaintiff retorts that the complaint alleges intentional and willful violations of C.A.'s rights, which is "more than `bad faith.'" Pls.' Opp'n at 5. In the special education context, the D.C. Circuit requires the plaintiff to show "something more than a mere failure to provide the `free appropriate public education' required by [the IDEA]." Lunceford, 745 F.2d at 1580 (quoting Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir. 1982)). To show something more, the plaintiff must demonstrate "bad faith or gross misjudgment" on the part of the defendants. R.S. v. District of Columbia, 292 F.Supp.2d 23, 28 (D.D.C.2003) (dismissing the complaint where the plaintiffs only allegation was the failure to provide a FAPE and there were no insinuations of misconduct). Here, the plaintiff repeatedly alleges that the defendants acted intentionally to deny C.A. the educational benefits to which she was entitled. E.g., Compl. ¶ 85. She further alleges that the defendants fabricated documents for a Due Process Hearing and lied to the Hearing Officer. Id. ¶¶ 23, 31. The plaintiff is not required to use the magic words "bad faith" in her pleading, and the allegations here certainly qualify as gross misjudgment, if not more. See R.S., 292 F.Supp.2d at 28.
Because the Rehabilitation Act is relevant to the special education context and the plaintiff has alleged that C.A. was denied benefits solely because of her disability and that the defendants acted in intentionally or in bad faith, she has stated a claim upon which relief may be granted. The court, therefore, denies the defendants' motion to dismiss the § 504 claim against the District.
E. The Court Denies the Motion to Dismiss the Plaintiffs Retaliation Claims Under the ADA and the Rehabilitation Act
The defendants request that the court dismiss all the claims pursuant to the ADA and the Rehabilitation Act, Defs.' Mot. at 1, but make no mention of the retaliation claims as separate from the discrimination claims, see id. at 4-5, 7-8. Although the defendants do not specifically address the retaliation claims, the court is "entitled to apply the right body of law, whether the parties name it or not." Smith, 514 F.3d at 51 (quoting Mwani, 417 F.3d at 11 n. 10).
Although the text of the ADA and the Rehabilitation Act differ, courts frequently interpret them analogously. E.g., Weixel v. Bd. of Educ., 287 F.3d 138, 148 (2d Cir.2002) (using the same test for retaliation under both statutes). The analysis below focuses on the ADA, but it applies with equal force to the Rehabilitation Act.
1. Retaliation Under the ADA and the Rehabilitation Act
The ADA prohibits any "person" from discriminating against an individual who "has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under [the ADA]." 42 U.S.C. § 12203. Similarly, although the Rehabilitation Act itself does not prohibit retaliation, it does incorporate the "remedies, procedures, and rights" of Title VI, which does. Weber v. Cranston, 212 F.3d 41, 48 (1st Cir.2000). Additionally, the implementing regulations for the ADA prohibit any "private or public entity" from discriminating against, coercing, intimidating, or threatening someone as an act of retaliation. 28 C.F.R. § 35.134. Furthermore, "private entity" is defined as "a person or entity other than a public entity;" a "public entity" includes "any state or local government." Id. § 36.104.
The D.C. Circuit has identified a three-step test for determining whether a plaintiff has stated a sufficient prima facie case for retaliation under the ADA: the plaintiff must allege that 1) she "engaged in protected activity," 2) she "was subjected to adverse action by" the defendant and 3) there is a causal connection "between the adverse action and the protected activity." Mayers v. Laborers' Health and Safety Fund of N. Am., 478 F.3d 364, 369 (D.C.Cir.2007) (quoting Smith v. District of Columbia, 430 F.3d 450, 455 (D.C.Cir. 2005)) (internal quotations omitted). The same test applies under the Rehabilitation Act. Duncan v. Wash. Metro. Area Transit Auth., 214 F.R.D. 43, 49-50 & n. 8 (D.D.C.2003). Although this test was developed in the employment, discrimination context, every circuit to consider the issue has applied the same or a similar test in retaliation cases regarding public programs. Albra v. City of Fort Lauderdale, 232 Fed.Appx. 885, 891 (11th Cir.2007) (applying the same test where the plaintiff claimed he was denied the benefit of police services); Weixel, 287 F.3d at 148-49 (applying a similar test where the plaintiff challenged her educational placement in the public schools); Johnson v. Oklahoma, 2000 WL 1114194, at *1, 229 F.3d 1163 (10th Cir. Aug. 7, 2000) (applying the circuit's retaliation test from employment cases where the plaintiff alleged retaliation by the public university she attended). Critically, even though this test presents a higher standard than that which is required to survive a motion to dismiss, Swierkiewicz, 534 U.S. at 511-14, 122 S.Ct. 992, a plaintiff who meets this higher standard has a fortiori pled enough to withstand a motion to dismiss, see Fame Jeans, 525 F.3d at 17-18.
2. The Plaintiff's Allegations Against the Individual Defendants Are Sufficient
a. Individuals Are Amenable to Suit in Their Personal Capacities for Retaliation Under the ADA and the Rehabilitation Act
The question of whether individuals can be personally liable for retaliation under the ADA and the Rehabilitation Act in the public services context has not been addressed in the D.C. Circuit. Two other circuit courts have addressed the issue and come to opposing conclusions.[13]Shotz v. City of Plantation, 344 F.3d 1161, 1180 (11th Cir.2003) (allowing personal liability); Baird v. Rose, 192 F.3d 462, 471 (4th Cir.1999) (precluding personal liability). The Fourth Circuit relied on precedent from employment discrimination disputes that prohibit individual liability for retaliation under the ADA. Baird, 192 F.3d at 471 (relying on the remedies provided by the ADA "in the employment context" to preclude individual liability in the public services context). The Eleventh Circuit criticized this approach for failing to recognize that the public services context is distinct from the employment context. Shotz, 344 F.3d at 1174. For the reasons that follow, this court concludes the Eleventh Circuit's exhaustive analysis is more persuasive.
Initially, the plain language of the retaliation provision of the ADA indicates that individuals may be held liable for retaliation. See 42 U.S.C. § 12203 (prohibiting any "person" from retaliating). Indeed, § 12203 is the only section of the ADA that prohibits discrimination using "the unqualified term `person'" rather than a more specific actor. Shotz, 344 F.3d at 1168. The Supreme Court has held that when Congress selects different language in one part of a statute from that used elsewhere, the choice is intentional and purposeful. Russello v. United States, 464 U.S. 16, 23, 104 S.Ct, 296, 78 L.Ed.2d 17 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972)). Although the relevant provisions of the ADA provide no definition of "person," "Congress has been consistent: the meaning of a `person' in comparable civil rights statutes has always included an individual." Shotz, 344 F.3d at 1168 (citing Title VII, the Age Discrimination in Employment Act, the Family and Medical Leave Act and the Fair Labor Standards Act). This is evidence that Congress similarly intended the ADA to allow retaliation suits to proceed against individuals. See Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (noting that the "meaning of one statute may be affected by other Acts").
This conclusion garners further support when read in context with other provisions of the Act. In the employment context,[14] courts have held that individuals are not amenable to suit under Title I of the ADA. See id. at 1174 & n. 20 (cataloging cases). But, the applicable remedies and procedures for a retaliation claim under Title I come from Title VII of the Civil Rights Act, sec 42 U.S.C. § 12203(c), § 12117(a), and it is well-settled that individuals are not amenable to suit under Title VII, Gary v. Long, 59 F.3d 1391, 1398 (D.C.Cir.1995). Title VII and Title I of the ADA prohibit discrimination by precisely the same entities, Albra v. Advan, Inc., 490 F.3d 826, 833 (11th Cir.2007), and because Title I is such a close analog to Title VII and Congress was aware that individuals were not amenable to suit under Title VII when it enacted the ADA, courts can fairly infer that Congress intended to preclude such suits for retaliation under Title I, see id. Title II and Title VI of the Civil Rights Act, however, are not such close analogs because Title VI only applies to funds recipients and Title II applies to all public entities.[15]Shotz, 344 F.3d at 1174. These differences indicate that "Congress did not intend for [courts] to rely only on the [references to Title VI] to the exclusion of the plain language" of the retaliation provision itself. Id. at 1175.
Even if this court were to determine that the plain language of the statute is ambiguous, the Chevron doctrine requires the court to give deference to agency interpretations.[16]Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Department of Justice's interpretation of the retaliation provision includes "private entities," which in turn includes individuals. Id. at 1176-80. Likewise, the relevant regulations for the Rehabilitation Act prohibit retaliation by any "recipient or other person." 34 C.F.R. § 100.7(c).[17]
Because the ADA itself recognizes a difference between the employment and public services context by placing its prohibitions in different titles with different remedies and procedures, it is inappropriate to use analysis from the former for the latter. Shotz, 344 F.3d at 1174. Therefore, individuals may be sued in their personal capacities for retaliation under the ADA and the Rehabilitation Act.
b. The Plaintiff Alleges Sufficient Facts Against the Individual Defendants
As individuals are amenable to suit under both the ADA and the Rehabilitation Act for retaliation, the' court applies the three prima facie elements to determine whether the plaintiff has alleged facts that would exceed those necessary under the general notice pleading requirements. See Shotz, 344 F.3d at 1180 (discussing the prima facie case in the context of a suit against individuals). First, filing a formal complaint alleging that an entity denied the plaintiff reasonable accommodations by reason of her disability is a protected activity. Woodruff v. Peters, 482 F.3d 521, 529 (D.C.Cir.2007) (holding that filing an EEOC complaint is a protected activity). Additionally, seeking reasonable accommodations from school officials so that a child can return to school is a protected activity. Weixel, 287 F.3d at 149. Here, the plaintiff alleges that she attended IEP meetings to advocate for her daughter and filed "due process complaints and court actions to obtain the services" her daughter needs. Compl. ¶ 107. In at least some of these actions, she complained that her daughter was not receiving the educational benefits of DCPS programs to which she was entitled. Id. ¶¶ 48-49. Also, throughout the time period in question, the plaintiff claims she was seeking reasonable accommodations for her daughter's disability. See id. ¶¶ 22-40. The plaintiff, therefore, alleges engagement in protected activities. See Woodruff, 482 F.3d at 529; Weixel, 287 F.3d at 149.
Under the second step, a school refusing to evaluate and place a student according to her abilities is an adverse action. Weixel, 287 F.3d at 149 (sustaining a retaliation claim where the plaintiff child was placed in a lower-level math class instead of the Regents class for which she was likely qualified). Similarly, the revocation of one's accommodations qualifies as an adverse action. Woodruff, 482 F.3d at 529. Here, the plaintiff alleges that C.A. was excluded from the appropriate educational program for the 2003-04 and 2004-05 school years and excluded from school entirely from February 2006 to November 2006. Compl. ¶¶ 24, 53. Such exclusions are a removal of the child's educational accommodations and more severe than being placed in a lower-level math class. Consequently, they qualify as adverse actions.
Finally, a close temporal connection between the protected activity and the adverse action "can indeed support an inference of causation." Woodruff, 482 F.3d at 529. A continuing series of back and forth protected activities and adverse actions over a year and a half is sufficient to allege a retaliation claim. Weixel, 287 F.3d at 149. The plaintiff avers that she filed lawsuits in 2002 and 2005 and hearing office complaints in 2003, 2005 and 2006. Compl. ¶¶ 22-40. The adverse actions allegedly continued from 2003 through 2006. Id. ¶¶ 24, 53. As in Weixel, the plaintiff alleges a continuing series of retaliatory acts in response to a series of protected actions all regarding the proper educational placement of C.A. Therefore, the plaintiff has alleged sufficient facts so that a jury could infer a causal connection between the protected activities and the adverse actions. See Woodruff, 482 F.3d at 529.
Because the plaintiff has alleged facts that, if taken as true, demonstrate a series of protected activities followed by a series of adverse actions that are causally connected, she has pled a prima facie case for retaliation. See Mayers, 478 F.3d at 369. As such, she has stated more than what is necessary to give "notice of `the general nature of the case and the circumstances or events upon which it is based.'" See Fame Jeans, 525 F.3d at 17 (quoting Charles E. Clark, Simplified Pleading, 2 F.R.D. 456, 457, 460 (1943)). Therefore, the court denies the defendants' motion to dismiss the retaliation claims against the individual defendants.
3. The Plaintiff's Allegations Against the District Are Sufficient
To begin, the District, as a local government, is a public entity and therefore subject to the ADA. See 42 U.S.C. § 12131(1)(a) (defining "public entity" as "any state or local government"). Because the plaintiff alleged that the District was responsible for all of the adverse actions taken, the analysis regarding the sufficiency of her claim against the individuals applies equally here. Therefore, the plaintiff has stated a claim upon which relief may be granted, and the court denies the defendants' motion to dismiss the retaliation claims against the District.
F. The Court Denies the Defendants' Motion to Dismiss the Plaintiff's Claims Under the D.C. Human Rights Act
The defendants moved to dismiss the claims under the DCHRA against the seven defendants sued in their personal capacities. Defs.' Mot. at 1, 9. The defendants have not moved to dismiss DCHRA claims against the District or Superintendent Janey, id., and those claims continue.[18] The defendants argue that the individual capacity suits should be dismissed because "the alleged discriminatory actions described by Plaintiffs in the Complaint are acts that were committed while the seven were acting in their official capacities as employees of DCPS" and therefore the suits against the individuals merge with the suit against the city.[19]Id. at 9. The plaintiff responds that individual capacity suits are permissible under the DCHRA and only the official capacity suits should merge. Pls.' Opp'n at 4.
The DCHRA makes it unlawful for "an educational institution ... to deny, restrict, or to abridge or condition the use of, or access to, any of its facilities, services, programs, or benefits of any program or activity to any person otherwise qualified, wholly or partially, for a discriminatory reason, based upon ... disability." D.C. CODE § 2-1402.41.[20] An educational institution is defined as "any public or private institution including [a] ... school system or university; ... and includes an agent of an educational institution." Id. § 2-1401.02(8). An agent is "[o]ne who is authorized to act for or in the place of another; a representative." BLACK'S LAW DICTIONARY 68 (8th ed.2004). The D.C. Court of Appeals has interpreted a nearly identical provision of the DCHRA prohibiting discrimination by employers to apply to the plaintiffs supervisors in their individual capacities. Wallace v. Skadden, Arps, Slate Meagher & Flom, 715 A.2d 873, 888 (D.C.1998) (holding that the definition of employer, which includes "`any person acting in the interest of such employer, directly or indirectly,' necessarily includes a partner"). Although this case only addresses the individual liability of law partners, the U.S. District Court for the District of Columbia has twice extended this holding to non-partner individual supervisors in other contexts. See Lance v. United Mine Workers of Am.1973 Pension Trust, 400 F.Supp.2d 29, 32 (D.D.C.2005); Macintosh v. Bldg. Owners & Managers Ass'n Int'l, 355 F.Supp.2d 223, 228 (D.D.C. 2005). MacIntosh, written by Judge Sullivan, is particularly persuasive given that he served for years on the D.C. Court of Appeals and "is uniquely qualified to state how [that court] will interpret" the DCHRA. Lance, 400 F.Supp.2d at 32 n. 2.
Here, DCPS, as a school system, is an educational institution, and the defendants, who represented DCPS at meetings and hearings and by signing agreements and authorizing payments, were its agents. As such, the plaintiff may maintain a cause of action against them in their personal capacities under the DCHRA. Because such a claim is cognizable, the court denies the motion to dismiss any of the claims under the DCHRA.
G. The Court Dismisses the § 1983 Claims
The defendants argue that the plaintiff failed "to establish that the municipality has a custom or practice that caused the alleged" violation. Defs.' Mot. at 6. The plaintiff does not respond to this argument. See Pls.' Opp'n. It is therefore conceded, Twelve John Does, 117 F.3d at 577, and the court dismisses the § 1983 claims against the District and Superintendent Janey.[21] Regarding the individual defendants, the defendants' motion seeks dismissal of these claims but presents no argument. See Defs.' Mot. at 1. In contrast, the plaintiff responds that individuals who, acting under color of state law, violate a person's rights are liable under § 1983. Pls.' Opp'n at 6.
The plaintiff is correct that § 1983 creates a cause of action against any person who, acting under the color of state law, abridges rights guaranteed by the Constitution or the laws of the United States. Washington v. District of Columbia, 802 F.2d 1478, 1480 (D.C.Cir.1986). Relief under § 1983, however, may not be available if the statute that creates the right also provides a comprehensive remedial scheme. Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 20, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). The federal courts are consistently clear that the IDEA is such a comprehensive scheme. A.W. v. Jersey City Public Schs.. 486 F.3d 791, 802 (3d Cir.2007) (reviewing precedent from other courts and concluding the IDEA precludes § 1983 relief); see also Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 29 (1 st Cir.2006) (requiring that "where the underlying claim is one for violation of the IDEA, plaintiffs may not use § 1983 ... in an attempt to evade the limited remedial structure of the IDEA"); Bradley v. Ark. Dept. of Educ., 301 F.3d 952, 957 (8th Cir.2002) (holding that remedies not available under the IDEA may not be sought under § 1983); but cf. Howell v. Waterford Pub. Schs., 731 F.Supp. 1314, 1319 (E.D.Mich.1990) (rejecting similar reasoning and allowing a § 504 claim to remedy an alleged failure to provide a FAPE). This is true even though the IDEA contains a savings clause, 20 U.S.C. § 1415(l), which provides: "Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the [ADA], [the Rehabilitation Act], or other Federal laws protecting the rights of children with disabilities." A. W., 486 F.3d at 802 (concluding in light of the Supreme Court's decision in City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005), that § 1415(l) does not apply to § 1983 suits). Several circuits have also held that § 1983 may not be used to remedy violations of the ADA and § 504. Stevenson v. Indep., Sch. Dist. No. 1, 393 F.Supp.2d 1148, 1151 (W.D.Okla.2005) (cataloging cases from the Fifth, Eighth, Ninth, and Eleventh circuits); but see Goonewardena v. New York, 475 F.Supp.2d 310, 330 (S.D.N.Y.2007) (allowing such claims to go forward).
Here, the plaintiff's claims are essentially for injuries under the IDEA: the defendants' failure to place C.A. in an appropriate residential facility in a timely manner denied her a FAPE. See Compl. ¶¶ 61-62. The remedial scheme of the IDEA provides for appeal of the Hearing Officer's determination, injunctive relief and awards of compensatory education and attorney's fees. See 20 U.S.C. § 1415. Indeed, the plaintiff seeks to take advantage of these provisions. Compl. at 41. To the extent that her § 1983 claims are predicated on the ADA and § 504, the proper avenue for relief is under those statutes, and again, she has sought such relief. Id. ¶¶ 71-76, 84-86. Because the plaintiff has alleged no violations of federal rights for which there is not an existing, comprehensive, remedial scheme, the court dismisses her § 1983 claims against the individual defendants.
IV. CONCLUSION
For the foregoing reasons, the court grants the defendants' motion to dismiss, in part, and dismisses the § 1983 claims against the District and the individual capacity suits under the IDEA, Title II of the ADA, § 504 of the Rehabilitation Act and § 1983. An order consistent with the Memorandum Opinion is separately and contemporaneously issued this 19th day of June, 2008.
NOTES
[1] For clarity, the court refers to the mother as "the plaintiff" and to the student as C.A.
[2] On June 12, 2007, D.C. Mayor Adrian Fenty assumed control of DCPS, fired Janey, eliminated the position of Superintendent and named Michelle Rhee as the Chancellor of Schools the newly created top position in DCPS. Fenty to Oust Janey Today, WASH. POST, June 12, 2007, at Al. Federal Rule of Civil Procedure 25(d)(1) provides for the automatic substitution of a public official's successor in an official capacity suit. As Rhee now occupies a different position from the one Janey held, the application of this rule is unclear. The parties, despite having six months to consider it before filing their motions, make no mention of this issue and do not ask that the court specifically dismiss claims against Janey. See Defs.' Mot. While the court is not prepared to dismiss the claims against Janey, suffice it to say, because the District does not enjoy sovereign immunity or Eleventh Amendment protection, any remedies available from a suit against Janey are also available in a suit against the District. See Atchinson v. District of Columbia, 73 F.3d 418, 424 (D.C.Cir.1996) (holding that official capacity suits for damages under § 1983 are equivalent to suits against the municipality).
[3] The Individuals with Disabilities Education Act ("IDEA") requires that schools provide each eligible child with a free, appropriate public education ("FAPE"). See 20 U.S.C. § 1400(d)(1). A FAPE is "special education and related services ... provided at public expense ... in conformity with the [student's] individualized education program." Id. § 1401(9).
[4] An IEP "sets forth the child's educational level, performance, [and] goals," and "is the governing document for all educational decisions concerning the child." Bd. of Educ. v. Ill. State Bd. of Educ, 103 F.3d 545, 546 (7th Cir. 1996). It is determined by an IEP team, which consists of regular and special education teachers, the student's parents, and appropriate school and district officials. See 20 U.S.C. § 1414(d).
[5] A Hearing Officer is an impartial adjudicator of special education disputes between parents and school districts. 20 U.S.C. § 1415(f)(3)(a).
[6] In contrast, students assigned to a day program receive educational services during school hours.
[7] The IDEA provides that a student should remain in his or her "then current educational placement" while a due process complaint, administrative hearing or civil action is pending. 20 U.S.C. § 1415(j). If a school district attempts to change the student's placement while such an action is pending, a parent may ask a court to order that the child "stay put." Lunceford v. D.C. Bd. of Educ, 745 F.2d 1577, 1582 (D.C.Cir.1984).
[8] DCPS does not operate special education residential facilities, so students requiring those services must attend private schools at DCPS's expense. D.C. PUB. SCHS., OFFICE OF SPECIAL EDUCATION PROGRAMS: PROGRAM DESCRIPTIONS (2007), http://www.k12.dc.us/offices/ose/programdescriptions.html. Before a student may enroll in a private school, she must be accepted, and because it is the school district's responsibility to provide the FAPE, it is its responsibility to secure the student's admission. See A.K. ex rel. J.K. v. Alexandria City Sch. Bd., 484 F.3d 672, 679 (4th Cir. 2007). Parents who have the means may unilaterally place their children in private facilities pending the school district's (or a court's) approval and be reimbursed for that expense. Sch. Comm. v. Dep't of Educ, 471 U.S. 359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). Parents who cannot afford that option must wait for the school district to authorize payment before the child enrolls in the private school. See id. at 370, 105 S.Ct. 1996.
[9] The defendants also assert that this and other claims should be dismissed under Federal Rule of Civil Procedure 12(b)(1). Defs.' Mot. at 1. As the ADA, IDEA, § 1983 and § 504 claims are all based on federal statutes, this court has subject matter jurisdiction over these claims as well as supplemental claims arising from the same facts. See 28 U.S.C. § 1331 (allowing that "district courts shall have original jurisdiction of all civil actions arising under the ... laws ... of the United States"); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (allowing pendant state claims that arise from a "common nucleus of operative facts" with the federal law claims).
[10] For clarity, the court addresses the retaliation claims in Section E.
[11] The ADA has four Titles that each regulate a different aspect of discrimination against individuals with disabilities. Title I prohibits discrimination in employment. 42 U.S.C. § 12112. Title II prohibits discrimination by public entities. Id. § 12132. Title III prohibits discrimination in public accommodations. Id. § 12182. Title IV contains miscellaneous prohibitions such as retaliation. Id. §§ 12203-10.
[12] For clarity, the court addresses the retaliation claims in Section E.
[13] There is also conflicting precedent from two district courts in New York. Compare Smith v. Univ. of the State of N.Y., 1997 WL 800882, at *6 (W.D.N.Y. Dec.31, 1997) (allowing personal liability), with Warren v. Goord, 2006 WL 1582385, at *19 (W.D.N.Y. May 26, 2006) (precluding personal liability).
[14] All the cases relied upon by the defendants are in the employment context and/or apply Title VII analysis. See Baird, 192 F.3d at 471 (relying on the remedies provided by the ADA "in the employment context" to preclude individual liability in the public services context); Butler v. City of Prairie Village, 172 F.3d 736, 743-44 (10th Cir.1999) (denying individual liability in the employment context); MendezVazquez v. Tribunal General de Justicia, 477 F.Supp.2d 406, 413 (D.P.R.2007) (same); Stevenson v. Indep. Sch. Dist. No. I-038, 393 F.Supp.2d 1148, 1152 (W.D.Okla.2005) (denying individual liability in a discrimination, not a retaliation, claim).
[15] The ADA makes the "remedies and procedures" available under Title VI of the Civil Rights Act of 1964 applicable to retaliation claims under Title II. See 42 U.S.C. § 12203(c), § 12133; 29 U.S.C. § 794(a). Courts have held that individuals are not personally liable under Title VI. See Shotz, 344 F.3d at 1173 (cataloging cases), This is because Title VI was enacted under the Spending Clause, which relies on an inherent contract between those entities receiving funds and the government. Id. at 1170. In contrast, the ADA was enacted under the Commerce Clause and applies to all public entities, not only those receiving federal funds. Id. at 1174. The limitations of the Spending Clause's inherent contract, therefore, do not apply to the ADA. Id.
[16] After a comprehensive examination of the legislative history of the ADA, the Eleventh Circuit found it to be unilluminating. Shotz, 344 F.3d at 1177.
[17] This regulation implements Title VI of the Civil Rights Act but is also the applicable regulation for the .Rehabilitation Act. See 34 C.F.R. § 104.61.
[18] The defendants, in one sentence in their reply, suggest that the court should also dismiss claims against the District. Defs.' Reply at 5. This, however, was not part of their motion, Defs.' Mot. at 1, and therefore, the court will not consider this argument, Gilmore v. Palestinian Interim Self-Gov't Auth., 422 F.Supp.2d 96, 102 (D.D.C.2006) (refusing to dismiss claims against defendants who did not move for dismissal).
[19] The defendants argue for the' first time in their reply that the plaintiff failed to allege facts to support her discrimination claims. Defs.' Reply at 6. But arguments raised for the first time in a reply are waived. Walker v. Pharm. Research & Mfg. of Am., 461 F.Supp.2d 52, 58 n. 9 (D.D.C.2006); see also In re Asemani, 455 F.3d 296, 300 (D.C.Cir. 2006). Even if the court were to consider this argument, the defendants' focus is misplaced. They argue that the plaintiff did not state a claim for intentional discrimination because she admits that the defendants "voluntarily placed C.A. in a public school program ... at Kramer Middle School in 2003, convened meetings in May and June, 2006, to determine a new placement for C.A ..... and issued referral packets to schools in an attempt to place C.A." Defs.' Reply at 6. The plaintiff is clear, however, that the discrimination she claims lay in the defendants' failure to place C.A. in an appropriate setting, which the Kramer program was not, according to the 2003 Hearing Officer decision, Compl. ¶ 23, and in their failure to provide a prompt replacement for Grafton's closure, which was announced in December, 2005 and occurred in February, 2006, id. ¶¶ 35, 38. The defendants' tardy arguments are, therefore, not responsive to the plaintiff's claims. The court determines she has pled enough facts for her DCHRA claims to go forward. See Macintosh v. Bldg. Owners & Managers Ass'n Int'l, 355 F.Supp.2d 223, 228 (D.D.C.2005).
[20] It is also an unlawful discriminatory practice to "coerce, threaten, [or] retaliate against" any individual in the enjoyment of "any right granted or protected" by the DCHRA, D.C. CODE § 2-1402.61, or to "aid, abet, invite, compel, or coerce the doing of any of the acts forbidden under" the DCHRA, id. at § 2-1402.62. The plaintiff alleged causes of action for discrimination, retaliation, and aiding and abetting. Compl. at ¶¶ 93-110.
[21] Official capacity suits for damages under § 1983 are equivalent to suits against the municipality. Atchinson v. District of Columbia, 73 F.3d 418, 424 (D.C.Cir. 1996).
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731 N.W.2d 719 (2007)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Robert Michael ANTHONY, Jr., Defendant-Appellant.
Docket No. 132994. COA No. 265918.
Supreme Court of Michigan.
May 30, 2007.
On order of the Court, the application for leave to appeal the October 5, 2006 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
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288 F.2d 819
Paul H. SEIGLER, Sr.,v.W. M. O'KEEFFE, Acting Deputy Commissioner, Department of Labor, Bureau of Employee's Compensation, Sixth Compensation District.
No. 18615.
United States Court of Appeals Fifth Circuit.
March 30, 1961.
James J. Reid, Columbia, S. C., A. L. Hardee, Florence, S. C., Willcox, Hardee, Houck & Palmer, Florence, S. C., for appellant.
John L. Briggs, Asst. U. S. Atty., Jacksonville, Fla., E. Coleman Madsen, U. S. Atty., Miami, Fla., Harold C. Nystrom, Acting Sol. of Labor, Herbert P. Miller, Asst. Sol. of Labor, George M. Lilly, Attorney, U. S. Department of Labor, Washington, D. C., of counsel, for appellee.
Before JONES and BROWN, Circuit Judges, and CONNALLY, District Judge.
PER CURIAM.
1
The appellant sustained injuries on December 3, 1957, which were compensable under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. The Deputy Commissioner, after a hearing, found that the injuries did not result in any disability after October 16, 1958. The appellant claimed total and permanent disability and brought suit for a review of the Deputy Commissioner's order through injunction proceedings under Section 21 of the Act, 33 U.S.C.A. § 921. The district court affirmed the Deputy Commissioner. The only question before the district court and the only question before us on the merits, is whether the findings of the Deputy Commissioner are supported by substantial evidence. The evidence has been reviewed but need not be here related. We agree with the district court that the evidence is ample to sustain the order.
2
The appellee moved to dismiss the complaint as not having been timely filed. The last day for filing the complaint was May 9, 1959. It was sent by air mail special delivery from Columbia, South Carolina, to the clerk of the district court in Jacksonville, Florida, on May 8, 1959. May 9 was a Saturday. The clerk's office did not open that day nor, of course, on the following day which was Sunday. It was marked as filed March 11, 1959. The complaint was placed through the slot of the door of the office of the clerk on Saturday. The requirement of the rule is satisfied. See Reynolds v. United States, 5 Cir., 288 F.2d 78.
The judgment of the district court is
3
Affirmed.
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195 P.3d 65 (2008)
345 Or. 318
STATE
v.
JAMES.
No. (S056372).
Supreme Court of Oregon.
October 3, 2008.
Petition for review denied.
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493 F.2d 11
UNITED STATES of America, Plaintiff-Appellee,v.Carlos Dean HODGES, Defendant-Appellant.
No. 73-3520.
United States Court of Appeals, Fifth Circuit.
April 26, 1974, Rehearing Denied May 21, 1974.
Raymond W. Russell, Fort Lauderdale, Fla., for defendant-appellant.
Robert W. Rust, U.S. Atty., Miami, Fla., Karen L. Atkinson, Atty., Crim. Div., Justice Dept., Mark S. Geraghty, Narcotic and Dangerous Drug Section, Washington, D.C., for plaintiff-appellee.
Before ALDRICH, Senior Circuit Judge,* and BELL and GEE, Circuit Judges.
ALDRICH, Senior Circuit Judge:
1
Defendant appeals from a conviction for violation of 21 U.S.C. 846 (conspiracy) and 841(a)(1) (possession with intent to distribute and the distribution of cocaine). The appeal presents only one matter of substance.1 Defendant complains of the fact that the court refused to require disclosure of the identity of an informer, alleging that it failed to follow the delineations of Roviaro v. United States, 1957, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, as applied in Gilmore v. United States, 5 Cir., 1958, 256 F.2d 565. We find no error.
2
In Roviaro the Court recognized that a defendant might have a legitimate interest in the identity of an informer, but held that the government had an interest, quite apart from the case, in maintaining informer secrecy. It therefore held that the court should weigh the government interest in secrecy against the defendant's need for the information in light of the particular facts of each case. In Gilmore the informer, on the government's evidence, not only acted 'in creating the atmosphere of confidence beforehand,' but 'in continuing it by his close presence during the moments of (a) . . . conversation of critical importance. If what Morris (the under-cover agent) said was said was said, it authorized the inference of possession which set in motion the whole train of statutory presumptions. 21 U.S.C.A. 174. If no such conversation took place, or if it was substantially different, the inferences warranted might likewise be different . . ..
3
'Here was a person affirmatively shown to have been within hearing distance who was an actual witness to the crucial part of this transaction. The conversation, both what was said, how it was said, and what was not said, presented matters of great materiality . . .. As the inferences from it covered the full spectrum from innocence to guilt, the process of truthfinding, which should be the aim of every trial, compelled its disclosure.' 256 F.2d at 567.
4
In the case at bar the government's evidence was considerably less helpful to the defendant. The informer was undoubtedly active 'in creating the atmosphere of confidence beforehand.' However, he had disappeared by the time the relevant transactions occurred. In the affidavit submitted by defendant in support of his claim of lack of sufficient knowledge to enable him to find the informant, there was no contrary showing; nor was there a showing of anything else the witness could be expected to testify to. In these circumstances we asked counsel at oral argument to suggest as a matter of theory, in the full exercise of his imagination, in what way the informer could be of possible assistance. He replied that the informer might be able to supply evidence showing that defendant's apparent willingness to deal, so far as his relations with the government agent were concerned, was due to some form of earlier entrapment by the informer.
5
Quite aside from the question whether a defendant's need for a witness can ever be supplied by speculations of counsel unsupported by anything in the record, it would be particularly inappropriate so to find in the case at bar. Entrapment is an affirmative defense, in the sense that there is an initial burden of going forward upon the defendant. United States v. Costello, 5 Cir., 1973, 483 F.2d 1366, 1367-1368; United States v. Groessel, 5 Cir., 1971, 440 F.2d 602, 606, cert. denied 403 U.S. 933, 91 S.Ct. 2263, 29 L.Ed.2d 713; Kadis v. United States, 1 Cir., 1967, 373 F.2d 370. Since defendant, by hypothesis, knew whatever, if anything, the informer had said or done to entrap him, he cannot plead ignorance or inability to supply the missing substantiation. We see no infirmity, constitutional or otherwise, in requiring him to do so. It may be that he could not make a sufficient proffer as to entrapment without, at least indirectly, admitting the commission of the offense. Of this, however, he cannot complain. It is settled law that a defendant who wishes to claim entrapment ordinarily cannot, in the same breath, testify that he did not commit the acts charged. United States v. Groessel, ante, 440 F.2d at 605; Sylvia v. United States, 1 Cir., 1963, 312 F.2d 145, cert. denied 374 U.S. 809, 83 S.Ct. 1694, 10 L.Ed.2d 1032; Rodriguez v. United States, 5 Cir., 1955, 227 F.2d 912, 914. Even if a defendant who does not take the stand, but introduces independent evidence of entrapment, may keep his options open in the hope that the jury will acquit him either on the ground that the government has not proved the offense, or has not rebutted the evidence of entrapment, cf. Gorin v. United States, 1 Cir., 1963, 313 F.2d 641, 654 n. 10, such possibility cannot outweigh the government's interest in preserving the informer's anonymity. Indeed, it would seem, as a broad proposition, that to hold that need for an informer as a witness can be met purely by speculations of counsel would be to defenestrate Roviaro.
6
Affirmed.
*
Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation
1
Defendant's objection based on a claim that some of his telephone conversations were monitored or taped by the government without his knowledge requires lettle comment. There are three answers to this, not the least significant being that none of the substance of the conversations was used by the government, testimonially or otherwise
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140 U.S. 647 (1891)
CHICAGO DISTILLING COMPANY
v.
STONE.
No. 130.
Supreme Court of United States.
Argued and submitted January 6, 1891.
Decided May 25, 1891.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.
Mr. Joseph Kirkland for plaintiff in error, submitted on his brief.
*648 Mr. Solicitor General for defendant in error.
MR. JUSTICE BRADLEY delivered the opinion of the court.
This was an action brought by the Chicago Distilling Company, the plaintiffs in error, against Rensselaer Stone, a collector of internal revenue, to recover a certain sum alleged to have been unlawfully exacted by him from the plaintiffs, by assessing them for a pretended excess of grain distilled by them beyond the rated capacity of their distillery, in the month of September, 1885. A jury was waived and the cause was tried by the court upon an agreed statement of facts, and judgment rendered for the defendant. The case is now here on writ of error. In order to a better understanding of it a few explanatory observations will be proper.
The law requires that every distillery, before operations are commenced, shall be surveyed for the purpose of estimating and determining its true spirit-producing capacity for a day of twenty-four hours. Rev. Stat. § 3264. This is done by ascertaining the number of fermenting tubs, the capacity of each, and the fermenting period required for the particular process to be followed. The distiller may use all of his tubs or only a part of them. Those not used are sealed up by the collector or his deputy, and the distiller is only charged for those which are open; but he is obliged to pay the excise due for the full spirit-producing capacity of the latter whether he manufactures the amount or not. If he uses any grain in excess of the capacity of his distillery as estimated according to law, an assessment is made against him at the rate of ninety cents for every proof gallon of such excess. It is an assessment of this kind of which the plaintiffs complain. Whenever a distiller desires to open or close any of his tubs for the purpose of increasing or reducing the capacity of his distillery, he must give notice to that effect to the collector, who makes the change by sealing or opening the tubs designated. Rev. Stat. § 3311. It is not pretended that the plaintiffs failed in any respect to comply with this requirement of the law, or that they used, or ceased to use, any fermenting tubs without the knowledge and sanction of the collector of internal revenue.
*649 Another provision of the law requires that on the first of each month a return shall be made to the collector by the distiller, or his principal manager, under oath, of the amount of materials used for the production of spirits each day during the previous month, and the number of gallons and proof-gallons of spirits produced and placed in the warehouse. Rev. Stat. §§ 3307, 3309.
In the present case there is no dispute as to the bona fides of the plaintiffs, or as to their business being conducted regularly and lawfully in every way, unless the matter hereafter referred to should be regarded as open to exception. The controversy is explained by the agreed statement of facts, the material parts of which are as follows:
"1. The Chicago Distilling Co., plaintiff herein, a corporation duly organized and existing under the laws of Illinois, paid to the defendant (then collector of internal revenue for the first district of Illinois), under protest, the sum of fifty-seven dollars and eighty-three cents, on the 26th day of August, 1886.
"2. The said company, in September, 1885, operated a duly bonded and registered distillery, known as distillery No. 5, first district of Illinois.
"3. By government survey the said distillery contained fifteen fermenting tubs, numbered No. 1 to No. 15, inclusive, each having a total working capacity of 438.46 bushels of grain. It was using, under the said survey, a three-day fermenting period, and under the regulations of the Treasury Department the daily capacity of each fermenting tub was one-third of the total working capacity that is to say, 146.15 bushels of grain.
"4. The following table is a true statement of the openings and closings of fermenting tubs and the mashings of grain and distillations of spirits during September, 1885, and also of the grain in mash brought forward from the preceding month, and of the grain in mash carried forward to the succeeding month, and the notices for such openings and closings of fermenting tubs were duly filed in apt time and proper form, and the designated fermenting tubs were regularly, by the *650 authorized agents of the government, opened at the times specified, and the respective quantities of grain named in the said table as mashed and distilled were the quantities which were actually made and distilled; all as therein set forth under appropriate headings."
[Omitting the first part of the month as not material, the headings and details of the latter part, from the 18th to the 30th, are as follows:]
=================================================================================================================================
| MASHING. || | DISTILLATION.
--------------|------------------------------------------------||---------------|------------------------------------------------
| Fermenting tubs opened by | Grain || | Fermenting tubs empt'd by | Grain
Day of month. | collector and filled by distiller. | mashed. || Day of month. | distiller and closed by collector. | used, i.e.
| | || | | distilled.
--------------|------------------------------------------------||---------------|------------------------------------|-----------
| Serial Nos. | Bushels. || | Serial Nos. | Bushels.
| | || | |
18 | No. 10, No. 11, No. 12 ........... | 1,315.50 || 21 | No. 7, No. 8, No. 9 .............. | 1,315.50
19 | No. 13, No. 14, No. 15 ........... | 1,315.50 || 22 | No. 10, No. 11, No. 12 ........... | 1,315.50
21 | No. 1, No. 2 ..................... | 877.00 || 23 | No. 13, No. 14, No. 15 ........... | 1,315.50
22 | No. 3, No. 4 ..................... | 877.00 || 24 | No. 1, No. 2 ..................... | 877.00
23 | No. 5, No. 6, No. 7 .............. | 1,315.50 || 25 | No. 3, No. 4 ..................... | 877.00
24 | No. 8, No. 9, No. 10 ............. | 1,315.50 || 26 | No. 5, No. 6, No. 7 .............. | 1,315.50
25 | No. 11, No. 12, No. 13 ........... | 1,315.50 || 28 | No. 8, No. 9, No. 10 ............. | 1,315.50
26 | No. 14, No. 15, No. 1 ............ | 1,315.50 || 29 | No. 11, No. 12, No. 13 ........... | 1,315.50
28 | No. 2, No. 3 ..................... | 877.00 || 30 | No. 14, No. 15, No. 1 ............ | 1,315.50
29 | No. 4, No. 5 ..................... | 877.00 || | |
30 | No. 6, No. 7, No. 8 .............. | 1,315.50 || | |
| | _________ || | |
| | 33,326.00 || | |
| Deduct mashing of 28th, | || | |
| 29th and 30th Sept., | || | |
| carr. for'd to Oct. ............. | 3,069.50 || | |
| | _________ || | | _________
| | 30,256.50 || | | 30,256.50
=================================================================================================================================
"5. A certain assessment of tax in the sum of fifty-seven dollars and eighty-three cents was made in regular form and apt time against the Chicago Distilling Company by the Commissioner of Internal Revenue, acting on behalf of the U.S., and was duly certified to the defendant herein for collection from the plaintiff herein. The ground for said assessment was that during the month of September, 1885, as decided by said Commissioner, there was used at said distillery for the production of spirits by the distiller, this plaintiff, a certain quantity of grain, to wit, 294 81/100 bushels, in excess of the capacity of said distillery for said month as *651 estimated according to law; said Commissioner deciding that said capacity for each and every working day during said month was as set forth in that part of the following tabular statement which is marked A, but this plaintiff claiming it to be as set forth in that part of said statement which is marked B.
=====================================================================================
A. || B.
------------------------------------------||-----------------------------------------
Sept. 1 ............... 876.93 bushels. || Sept. 1 ............. 877.00 bushels.
" 2 ............... 876.93 " || " 2 ............. 877.00 "
" 3 ............... 876.93 " || " 3 ............. 877.00 "
" 4 ............... 1,023.08 " || " 4 ............. 877.00 "
" 5 ............... 1,023.08 " || " 5 ............. 877.00 "
" 7 ............... 1,023.08 " || " 7 ............. 1,315.50 "
" 8 ............... 1,023.08 " || " 8 ............. 877.00 "
" 9 ............... 1,023.08 " || " 9 ............. 877.00 "
" 10 ............... 1,023.08 " || " 10 ............. 1,315.50 "
" 11 ............... 1,315.39 " || " 11 ............. 1,315.50 "
" 12 ............... 1,315.39 " || " 12 ............. 1,315.50 "
" 14 ............... 1,315.39 " || " 14 ............. 1,315.50 "
" 15 ............... 1,315.39 " || " 15 ............. 1,315.50 "
" 16 ............... 1,315.39 " || " 16 ............. 1,315.50 "
" 17 ............... 1,315.39 " || " 17 ............. 1,315.50 "
" 18 ............... 1,315.39 " || " 18 ............. 1,315.50 "
" 19 ............... 1,315.39 " || " 19 ............. 1,315.50 "
" 21 ............... 1,315.39 " || " 21 ............. 1,315.50 "
" 22 ............... 1,169.24 " || " 22 ............. 1,315.50 "
" 23 ............... 1,169.24 " || " 23 ............. 1,315.50 "
" 24 ............... 1,169.24 " || " 24 ............. 877.00 "
" 25 ............... 1,169.24 " || " 25 ............. 877.00 "
" 26 ............... 1,169.24 " || " 26 ............. 1,315.50 "
" 28 ............... 1,169.24 " || " 28 ............. 1,315.50 "
" 29 ............... 1,169.24 " || " 29 ............. 1,315.50 "
" 30 ............... 1,169.24 " || " 30 ............. 1,315.50 "
=====================================================================================
"6. The demand for and collection of the said sum of money from the plaintiff by the defendant was made by the defendant under and by virtue of the said assessment by the Commissioner of Internal Revenue.
"7. The plaintiff, before the said tax was assessed, petitioned the Commissioner of Internal Revenue that the same be not *652 assessed; after the assessment was made he petitioned that the assessment might be abated, and after payment as above set forth he petitioned that the sum paid might be refunded; all which petitions were denied by the said Commissioner."
The agreed statement then sets forth a document known as Circular 238, being a regulation of the Treasury Department issued in due form, and known to the plaintiffs. As we understand the counsel for the government, it is claimed by the defendant that this Circular fixes and defines the daily producing capacity of a distillery by taking the average capacity of the fermenting period of three days, four days, or whatever it may be. Thus if the fermenting period is three days, and the producing capacity is 500 bushels of grain the first day, 500 the second day, and 200 the third day, the average for the three days is 400 bushels; and the Circular makes this average the daily capacity. So long as the fermenting period comes wholly within the calendar month no difficulty occurs; for then the actual results of the three days' work agree with the result for the same days produced by the fictitious daily capacity imposed by the Circular. But when, as in the present case, it happens that two of the days come in one month (September) and the third comes in the next month (October), a discrepancy arises in the former month between the fiction and the fact. The three days in group came on the 29th and 30th of September and the 1st of October. The actual production, as well as capacity, on the first two days was 1315.50 bushels of distilled mash each day, being the product of three tubs filled on the 25th of September and three others on the 26th of that month, whilst on the 1st of October the production was only 877 bushels, being the product of two tubs filled on the 28th of September (Sunday, the 27th, not being counted). The production of the whole three days, therefore, was 3508 bushels (or, precisely, 3507.71 bushels), one-third of which, namely, 1169.24, being the average production per day, was prescribed by the department Circular as the daily producing capacity of the distillery at that time. This fictitious estimate made the producing capacity of the last two days of September equal to only 2338.48 bushels, whilst the actual production *653 for those two days was 2631 bushels, an excess of 292.52 bushels, which, together with some minute fractional differences during the rest of the month, amounted in all to 294.81 bushels, for which the assessment complained of by the plaintiffs was made. Now, although this very excess of production over the estimated capacity in September will be balanced by a corresponding deficiency in October, yet the distiller gets no benefit from that. He never gets any credit for deficiency; but is always charged extra for any excess.
It seems to us perfectly apparent from this statement that the distiller is subjected to an unjust mulct, or assessment, by a mere fiction. The counsel for the government argues that the Commissioner of Internal Revenue could not do otherwise than as he did in prescribing the requirements of Circular 238, because the statute requires that the original survey of the distillery shall determine its true spirit-producing capacity for a day of twenty-four hours, and the same expression, producing capacity "for every twenty-four hours," is prescribed in the form of notice to be given by the distiller in declaring his intention to carry on the business, and in applying for a reduction or change of capacity in his establishment. Rev. Stat. §§ 3259, 3311. But those expressions evidently mean no more than average producing capacity in a given time. "A day of twenty-four hours" is named for the purpose of expressing with greater certainty and precision the exact period of duration for which the average capacity of production was to be ascertained or fixed. That nothing but "average" was intended is manifest from the fact that no distillery under ordinary conditions has any spirit-producing capacity in twenty-four hours. It requires three days, four days and sometimes six days, to produce the article desired. And the statute which imposes an extra assessment for over-production does not make the average daily capacity the standard, but merely the capacity of the distillery. The words are: "If the commissioner finds that the distiller has used any grain or molasses in excess of the capacity of his distillery as estimated according to law, he shall make an assessment against the distiller at the rate of ninety cents for every proof-gallon of spirits that *654 should have been produced from the grain or molasses so used in excess." Rev. Stat. § 3309. The expression, "the capacity of his distillery as estimated according to law," clearly refers to the real capacity as thus ascertained, and not to a fictitious capacity for any particular day or days.
As the judgment of the court below was based upon the view taken by the counsel of the government, we think it was erroneous, and must be reversed. The judgment is accordingly
Reversed, and the cause remanded with directions to enter judgment for the plaintiff, and take such further proceedings as may be in accordance with this opinion.
| {
"pile_set_name": "FreeLaw"
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