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[Not for Publication - Not to be Cited as Precedent] United States Court of Appeals For the First Circuit No. 01-1270 SIMONE-ALYS ALWYN, INDIVIDUALLY AND AS PARENT AND NEXT FRIEND, B/N/F PERIELL ALWYN, B/N/F SIDANNEN ALWYN, B/N/F CERRIDWEN ALWYN; MICHAEL ALWYN, INDIVIDUALLY AND AS PARENT AND NEXT FRIEND OF PERIELL ALWYN, SIDANNEN ALWYN AND CERRIDWEN ALWYN, Plaintiffs, Appellants, v. JOHN DUVAL; MICHAEL RUSSELL, LT., Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph A. DiClerico, Jr., U.S. District Judge] Before Boudin, Chief Judge, Torruella, Circuit Judge, and Stahl, Senior Circuit Judge. Paula J. Werme for appellant. Charles P. Bauer, with whom John T. Alexander and Ransmeier & Spellman Professional Corporation were on brief, for appellee. November 5, 2001 STAHL, Senior Circuit Judge. Michael and Simone-Alys Alwyn appeal from the dismissal of their civil rights action against two Concord police officers, filed in June of 1999 pursuant to 42 U.S.C. § 1983. The appellants first claimed that Officer John Duval and Lieutenant Michael Russell violated their constitutional rights by making misrepresentations about the condition of their apartment, which resulted in the appellants temporarily losing custody of their children. The district court dismissed this claim for lack of subject matter jurisdiction pursuant to the Rooker-Feldman doctrine. Second, the appellants alleged that the officers violated their Fourth and Fourteenth Amendment constitutional rights by conducting a warrantless search of their home. This claim was dismissed by the district court on defendants' motion for summary judgment after finding that there were no genuine issues of material fact in dispute. The Alwyns appeal these adverse rulings. We affirm. I. On June 12, 1996, Mrs. Alwyn reported to the Concord Police Department that two of her children were missing. Officer Duval was dispatched to the Alwyns' home, and upon his arrival, asked the Alwyns whether he could search the house because “missing” children are frequently found to have been -3- hiding inside their own home. Duval became suspicious when appellants insisted that they had already searched the house and refused to allow him to enter. Duval asked Mrs. Alwyn if there was any reason why they would not want the police to enter the apartment. She responded that the apartment merely was not “very well kept inside.” Officer Duval was then joined by a canine officer of the New Hampshire State Police. The officers explained to the Alwyns that, in order for the police dog to search for the children, it needed to obtain the girls' scent. Notwithstanding this advice, appellants continued to refuse to allow the officers entry to the apartment. Instead, they brought out articles of the children's clothing for the police to use. Officer Duval informed them that it was still necessary for the canine officer and search dog to enter the apartment because the search dog needed to sniff the clothing without any other person having touched it, so that only the children's scent would be present on the garment. Duval then told the Alwyns that he did not think they were giving their full cooperation and that precious time was slipping away. Finally, Mr. Alwyn agreed to let the police enter the apartment. However, the parties disagree as to the scope of the consent ultimately given, with the appellants insisting that they consented only to the canine officer entering the premises -4- solely for the purpose of obtaining articles of their daughters' clothing, and with the appellees, on the other hand, maintaining that Mr. Alwyn stated "I don't care, go in the apartment," signifying unrestricted consent to enter and search for the children as well. Mr. Alwyn went into the apartment with the canine officer, and Duval followed. The canine officer found what he needed near the door and left. Upon entering, Officer Duval observed an extremely unkempt and dirty apartment,1 and summoned his supervisor, Lieutenant Russell, to assist him in searching the premises until they were satisfied that the missing children were not there. Shortly thereafter, the girls were discovered in the neighborhood and were taken to the Concord Police Station. When the Alwyns were notified by the police that their missing daughters had been located, they were instructed to bring their other children to the station house. Based on 1 According to the affidavit of Officer Duval, “[t]he entire apartment floor, including living room, kitchen, bathroom and bedrooms were [sic] covered with piles of trash, garbage and spoiled food, which was mixed up with piles of clothing. The odor in the house was consistent with rotting food.” Officer Duval also claims to have observed “the kitchen counters completely covered with meals which appeared to be several days old. . . [and] a foil pan containing the carcass of cooked turkey which appeared to be several days old.” Lieutenant Russell's affidavit offers a description consistent with that provided by Officer Duval. -5- Duval's and Russell's observations about the conditions in the Alwyn home, all of the children were taken into protective custody and placed in foster homes.2 On June 14, 1996, the New Hampshire Division of Children, Youth and Families ("DCYF") filed child neglect petitions in Concord District Court. On February 13, 1997, after a full evidentiary hearing, the Concord District Court entered a finding of neglect. On April 10, 1997, the Concord District Court issued a dispositional order, authorizing the DCYF to continue its legal supervision over the children. In May 1997, the Alwyns appealed the dispositional order to the Merrimack County Superior Court. However, because the conditions described in the complaint had been corrected, DCYF agreed to terminate the neglect petitions if the Alwyns agreed to terminate their appeal of the February order. The Alwyns agreed and DCYF filed a “Withdrawal of Petitions” on June 11, 1997, and the appeal was terminated.3 Appellants raise two issues in this appeal: first, that the district court erred in ruling that the Rooker-Feldman 2 Although the child welfare proceedings continued for almost a year, the children were returned to the custody of their parents within days of their removal from the Alwyn home. 3 As the district court noted, “the parties have not explained the process that ended the superior court proceeding,” and no further information about the termination of the state court litigation has been provided to this Court. -6- doctrine mandated the dismissal of their misrepresentation claim against the officers; and second, that summary judgment on the unlawful search claim was inappropriate. We turn first to the Rooker-Feldman issue. II. A federal district court is without subject matter jurisdiction to review the final decisions of a state court of competent jurisdiction. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). A district court also may not hear federal claims that are “inextricably intertwined” with the state court's denial of a claim in a judicial proceeding. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983).4 Even when a party does not actually raise the federal claims in the state court proceeding, “Rooker-Feldman forecloses lower federal court jurisdiction over claims that are 'inextricably intertwined' with the claims adjudicated in state court.” Sheehan v. Marr, 207 F.3d 35, 40 (1st Cir. 2000). A federal claim is inextricably intertwined with the state court claims "if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it." Hill v. Town of 4 For a more detailed discussion of the origin of the Rooker- Feldman doctrine, see Wilson v. Shumway, 264 F.3d 120, 123-24 (1st Cir. 2001), and Hill v. Town of Conway, 193 F.3d 33, 34 n.1 (1st Cir. 1999). -7- Conway, 193 F.3d 33, 39 (1st Cir. 1999). This court reviews de novo a dismissal for lack of subject matter jurisdiction pursuant to the Rooker-Feldman doctrine. Wilson v. Shumway, 264 F.3d 120, 123 (1st Cir. 2001). In the present case, the U.S. District Court held that, pursuant to the Rooker-Feldman doctrine, it had no subject matter jurisdiction to hear the Alwyns' misrepresentation claim in light of the Concord District Court's February 13, 1997 finding of neglect. The district court reasoned that, in order for appellants' claim to succeed, the fact-finder would have to reject the officers' testimony regarding the condition of the Alwyns' home, which would directly contradict the determination already made by the state tribunal. Consequently, the district court dismissed the count. Appellants maintain that there is no final state judgment that would trigger the Rooker-Feldman doctrine in this case. Citing State v. Anderson, 142 N.H. 918 (1998), appellants argue that once they filed their appeal to the Merrimack County Superior Court, the Concord District Court's finding of neglect was vacated and rendered a legal nullity. Anderson held that the state does not violate a guarantee against double jeopardy when it honors a defendant's request for a second de novo trial after the first proceeding has resulted -8- in a conviction. See 142 N.H. at 922. Anderson does not suggest, however, that the filing of an appeal renders all prior proceedings a legal nullity, regardless of what transpires thereafter. In child welfare proceedings, absent a specific directive by the court, a dispositional order remains in effect unless and until the superior court overrules the decision after conducting a second de novo hearing. See N.H. R.S.A. § 169-C:28 (“An appeal under this chapter may be taken to the superior court by the child or the child's authorized representative or any party having an interest, including the state, or any person subject to any administrative decision pursuant to this chapter, within 30 days of the final dispositional order; but an appeal shall not suspend the order or decision of the court unless the court so orders.”). Therefore, even though the Alwyns would have been entitled to a de novo rehearing on the issue of neglect, the mere filing of their appeal did not vacate the finding of the Concord District Court. Furthermore, the Alwyns chose not to appeal the initial finding of neglect in exchange for the termination of state supervision, which, as they conceded at oral argument, makes this case indistinguishable from a nonsuit. The New Hampshire Supreme Court has explicitly held that "the effect of a nonsuit taken after an appeal is to let the judgment of the court below -9- 'stand as if no appeal had been taken.'" Appeal of Nolan, 134 N.H. 723, 730 (1991) (quoting Simpson v. Gafney, 66 N.H. 477, 477 (1891)). Consequently, the finding of neglect qualifies as a final judgment of a state court, from which no appeal can be heard in federal district court under the Rooker-Feldman doctrine.5 Accordingly, this count of the Alwyns' complaint was properly dismissed.6 III. The Alwyns also appeal the decision of the district court granting summary judgment for the defendants on their claim that the officers violated their Fourth and Fourteenth Amendment rights by conducting a warrantless search of their apartment. Summary judgment is appropriate where there are no issues of material fact in dispute and “the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). This Court reviews a grant of summary judgment de novo, examining the record in the light most favorable to the non- 5 Appellants have conceded that the Rooker-Feldman doctrine applies and dismissal was required if the Concord District Court's finding of neglect was, in fact, a final state court judgment. 6 In light of the disposition above, we need not address any other obstacles that appellants would need to overcome in order to sustain a section 1983 claim stemming from the officers' alleged misrepresentations. See, e.g., Anderson v. Creighton, 483 U.S. 635 (1987) (qualified immunity); Briscoe v. LaHue, 460 U.S. 325 (1983) (absolute immunity). -10- moving party. Euromotion, Inc. v. BMW of N. Am., Inc., 136 F.3d 866, 869 (1st Cir. 1998). A search conducted without a warrant is presumptively unreasonable and violates the Fourth Amendment unless an exception to the warrant requirement exists. Bilida v. McCleod, 211 F.3d 166, 171 (1st Cir. 2000). Valid consent overcomes this presumption and renders the search constitutionally valid, United States v. Perez-Montanez, 202 F.3d 434, 438 (1st Cir. 2000), but the search must not exceed the scope of the consent given. United States v. Coraine, 198 F.3d 306, 310 (1st Cir. 1999). The appropriate inquiry for determining the scope of the consent given asks, “what would the typical reasonable person have understood by the exchange between the officer and the suspect?” United States v. Turner, 169 F.3d 84, 87 (1st Cir. 1999). In the affidavit filed in conjunction with their opposition to the defendants' motion for summary judgment, the appellants claim that Mr. Alwyn gave only the canine officer and not Officer Duval permission to enter the home, and only for the purpose of obtaining an article of clothing from the missing children, so that the search dog could acquire the scent. 7 7The Alwyns have not argued that consent was given involuntarily. -11- However, at the state neglect hearing, Mr. Alwyn was explicitly asked whether he told Officer Duval, “I don't care, go in the apartment,” to which he responded “Yes, I did say that.” In granting summary judgment, the district court relied upon Torres v. E.I. Dupont De Nemours & Co., 219 F.3d 13 (1st Cir. 2000), where this Court held that “[w]hen an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory answer of why the testimony is changed.” Id. at 20 (quoting Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994)). The appellants have offered no adequate explanation as to why the admission made by Mr. Alwyn during the state adjudicatory proceedings should now be disregarded or called into question.8 The transcript from the state adjudicatory proceeding indicates that the officers asked the Alwyns multiple 8 The record belies the Alwyns' contention that they could not adequately explain the inconsistency because they were precluded by New Hampshire state law, see N.H. R.S.A. § 168- C:25, from making reference to the state court neglect proceedings, which were under seal. The state court record had been released to the parties, pursuant to an order by the U.S. District Court, prior to the district court's ruling. The Alwyns had the ability to supplement their opposition to the officers' motion for summary judgment with whatever information from the state court proceedings that they believed would have been helpful, but failed to do so. -12- times what they were hiding and why they would not let the police conduct a search of the apartment for the missing children. The district court's determination that a reasonable person would have understood Michael Alwyn's statement, “I don't care, go in the apartment,” as his relenting to the repeated request of the police officers to enter the home to search for the children was appropriate. Accordingly, the district court properly granted the officers' motion for summary judgment. IV. Having found no error in the proceedings below, the decision of the district court is hereby affirmed. Affirmed. -13-	{ "pile_set_name": "FreeLaw" }
858 F.2d 385 Troy DACE, Appellant,v.Herman SOLEM, Warden, Dean Hinders, Richard Rist, CliffordHoff, Associate Wardens, Dr. Michael Olson, Dr. DelbertBrown, South Dakota State Penitentiary, all sued in theirindividual and official capacities, Appellees. No. 87-5268. United States Court of Appeals,Eighth Circuit. Submitted Feb. 10, 1988.Decided July 19, 1988. Timothy M. Gebhart, Sioux Falls, S.D., for appellant. Janine Kern, Asst. Atty. Gen., Pierre, S.D., for appellees. Before BOWMAN and MAGILL, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.* PER CURIAM. 1 Troy Dace appeals from the district court's dismissal of his complaint as frivolous. We reverse and remand for further proceedings. I. BACKGROUND 2 Dace, a prisoner at the South Dakota State Penitentiary (Penitentiary), brought this pro se action under 42 U.S.C. Sec. 1983, seeking monetary, declaratory, and injunctive relief. Dace was also granted permission to proceed in forma pauperis. He named as defendants the warden and three associate wardens of the Penitentiary, as well as the prison physician and prison psychologist (defendants). 3 Dace's complaint contains four claims. In claim one, Dace asserts that he was scheduled for surgery to repair a nasal defect before his incarceration and was denied this surgery after he was imprisoned. This denial of surgery, Dace argues, constitutes a denial of necessary medical treatment in violation of his eighth amendment rights. 4 In claim two, Dace asserts that on April 8, 1986, another inmate struck him on the side of his head with a pipe. He claims that he suffers from a variety of ailments as a result, that he was initially denied adequate treatment, and that the medication eventually prescribed by the prison physician was ineffective. He also asserts that he was given drugs without being told of their possible side effects and that those medications were abruptly terminated. 5 Dace asserts in claim three that, because he refused to testify against his assailant in state court assault proceedings, he has been verbally abused, threatened, and intimidated by the warden and associate wardens on numerous occasions, and that he has been denied trusty status by the prison classification board. Claim three also alleges that by allowing Dace to be attacked in the shop area of the prison, the defendants failed to provide a properly staffed shop area, and failed to properly train, control and supervise those persons responsible for inmates' safety in the shop area. 6 Dace asserts in claim four that the warden and associate wardens conspired to retaliate against him because of his involvement in lawsuits against prison personnel. Dace argues that his medium custody classification was revoked without any reason or prior hearing. 7 The district court dismissed the complaint as frivolous under 28 U.S.C. Sec. 1915(d), before any of the defendants were served. Counsel appointed for Dace on appeal argues that under the liberal standards governing pro se prisoner complaints, his complaint alleged sufficient facts to state a claim that could entitle him to relief. He asserts that the district court thus abused its discretion in dismissing his complaint. The defendants respond that the district court properly dismissed Dace's complaint because it was factually and legally insufficient. II. DISCUSSION A. Standard of Review 8 The Seventh Circuit in Williams v. Faulkner, 837 F.2d 304 (7th Cir.1988), recently set out the framework for appellate review of district courts' dismissals of in forma pauperis litigation: 9 To ensure that indigents have access to the courts, Congress enacted 28 U.S.C. Sec. 1915 which established a system for in forma pauperis litigation. Congress recognized, however, the danger that without the monetary disincentives to filing suit, the federal courts could be opened to a flood of spurious litigation. To address these competing concerns, Congress gave district courts the authority to dismiss frivolous or malicious in forma pauperis complaints. 28 U.S.C. Sec. 1915(d); * * . A frivolous complaint is one in which "the petitioner can make no rational argument in law or facts to support his [or her] claim for relief." 10 Williams, 837 F.2d at 306 (citations and footnote omitted). 11 Reviewing the factual allegations in Dace's complaint, which we must accept as true, Cline v. Herman, 601 F.2d 374, 375-76 (8th Cir.1979) (per curiam), we conclude that the face of his complaint does not show an "insuperable bar to relief" as required before we may dismiss. Munz v. Parr, 758 F.2d 1254, 1258 (8th Cir.1985). Nor, stated another way, is Dace's complaint irreparably defective. Martin-Trigona v. Stewart, 691 F.2d 856, 857 (8th Cir.1982) (per curiam). This is so because, as to each of his claims, Dace has set forth a legally and factually rational argument. B. Medical Claims 12 In Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976), the Supreme Court held that a prisoner who alleges acts or omissions sufficiently harmful to show deliberate indifference to serious medical needs states a cognizable claim under 42 U.S.C. Sec. 1983. Dace alleges not only that his nasal condition causes pain, but that he was scheduled for surgery to treat the condition before being imprisoned and that penitentiary officials, despite being aware of his condition, have refused to provide him with necessary medical treatment. Because Dace's complaint was dismissed before discovery was had, there is no way to assess the seriousness of Dace's condition or the necessity of treatment. 13 The Second Circuit reversed a district court's dismissal of a similar claim in Corby v. Conboy, 457 F.2d 251, 254 (2d Cir.1972), a case which was quoted and cited with approval in Jones v. Lockhart, 484 F.2d 1192, 1194 (8th Cir.1973) (per curiam). As Dace points out, this court has reversed and remanded dismissals of prisoners' claims that were less serious than refusal to allow surgery scheduled before imprisonment. See, e.g., Mullen v. Smith, 738 F.2d 317, 318 (8th Cir.1984) (per curiam) (head injury untreated for four hours, then Valium given to prisoner); Cummings v. Roberts, 628 F.2d 1065, 1067-68 (8th Cir.1980) (back injury untreated for three days). We therefore conclude that Dace should be given a "chance to develop his case to the point at which the courts can determine whether it has merit." East v. Lemons, 768 F.2d 1000, 1001 (8th Cir.1985). 14 Similarly, with regard to Dace's head injury, we think he should be entitled to further develop his claim. Although the district court was correct in concluding that disagreement over medical treatment does not constitute a medical violation, see Martin v. Sargent, 780 F.2d 1334, 1339 (8th Cir.1985), we think Dace's claim on this issue can be read to allege more than mere disagreement. Dace argues that penitentiary officials were dilatory in giving him medication after the attack, and that the medication he received was either inappropriate or improperly administered. We think that Dace is at least entitled to an evidentiary hearing on this claim. C. Threatened Reprisals 15 After Dace was attacked by another inmate, that inmate was charged with aggravated assault. Dace alleges that penitentiary officials threatened him with various reprisals if he testified about the attack, including leaving him at the mercy of the inmate population as a "snitch." In claim three, Dace asserts that prison officials failed to protect him from inmate attack while in custody. It is well established that the constitution requires prison officials to take reasonable measures to protect prisoners from inmate attack while in custody. Miller v. Solem, 728 F.2d 1020, 1024 (8th Cir.), cert. denied, 469 U.S. 841, 105 S.Ct. 145, 83 L.Ed.2d 84 (1984); Harmon v. Berry, 728 F.2d 1407, 1409 (11th Cir.1984) (per curiam). Accordingly, Dace's arguments on this ground are not frivolous. 16 D. Retaliation for Prison-Related Litigation 17 Finally, Dace argues that his medium custody classification was adversely affected due to his involvement in prison-related litigation. Dace argues that under Dace v. Mickelson, 816 F.2d 1277, 1279 (8th Cir.1987), a genuine issue exists whether the custody classification regulations used to demote him contain "mandatory language" sufficient to create a liberty interest, see Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 871-72, 74 L.Ed.2d 675 (1983), and thus whether Dace is entitled to due process procedural protections before having his classification changed. Although expressing no opinion on the validity of Dace's argument, we think that, in view of the liberal construction given pro se prisoner complaints, Dace's argument cannot be called so frivolous as to justify summary dismissal. There is no question that state officials may not retaliate against a prison inmate for exercising his legal right of access to the courts. Johnson v. Avery, 393 U.S. 483, 485-87, 89 S.Ct. 747, 748-50, 21 L.Ed.2d 718 (1969). It is conceivable that Dace can prove facts in support of his claim that prison officials retaliated against him because of his previous use of the courts. Accordingly, Dace should be given an opportunity to further develop this claim. 18 For the foregoing reasons, the district court's order dismissing Dace's complaint is reversed, and the case is remanded for further proceedings. THE HONORABLE THOMAS E. FAIRCHILD, Senior United States Circuit Judge for the Seventh Circuit, sitting by designation	{ "pile_set_name": "FreeLaw" }
164 P.3d 99 (2007) 2007-NMCA-093 STATE of New Mexico, Plaintiff-Appellee, v. Elmer Ray BURKE, Defendant-Appellant. No. 27,109. Court of Appeals of New Mexico. May 30, 2007. Certiorari Granted July 20, 2007. 100 Gary K. King, Attorney General, Santa Fe, NM, for Appellee. John Bigelow, Chief Public Defender, Joseph P. Walsh, Assistant Appellate Defender, Santa Fe, NM, for Appellant. Certiorari Granted, No. 30,474, July 20, 2007. Certiorari Granted, No. 30,474, July 20, 2007. OPINION KENNEDY, Judge. {1} Defendant appeals his conviction for failing to register in compliance with the Sex Offender Registration and Notification Act (SORNA). He argues that his failure to comply with SORNA is attributable to a protocol adopted by the local sheriff's department, whereby registration is only permitted during specific hours. Defendant attacks this protocol on the theory that it restricts access to the statutorily designated registrar so severely that it is inconsistent with SORNA. To the extent that the protocol is invalid, Defendant contends that his conviction should be overturned. For the reasons that follow, we find Defendant's arguments to be unpersuasive. We therefore affirm. BACKGROUND {2} Defendant was convicted of a sex offense in Texas in 1988. He satisfied his sentence in 1999, and later moved to New Mexico. It is undisputed that as a consequence of his conviction, Defendant is required by SORNA to register annually with the local sheriff's department. See NMSA 1978, § 29-11A-4(A)-(M) (2005). {3} Defendant is a resident of Curry County, and he complied with SORNA by registering with the Curry County Sheriff's Department (the CCSD) in June of 2003 and 2004. However, he failed to register similarly before the end of the year in 2005. As a consequence, he was arrested and charged with failing to register as required by law. {4} At trial, Deputy Sheriff Loomis described the registration protocol adopted by the CCSD in 2005. He testified that although special accommodation is allowed in unusual cases and when the demand for assistance is greatest at the end of each calendar year, generally speaking SORNA registrations are conducted on Wednesdays between the hours of 1:00 and 4:00 in the afternoon. He indicated that this protocol was implemented when the responsibility for overseeing SORNA registrations was internally transferred from the civilian staff to the officers. Given the shortage of resources at the CCSD, Deputy Sheriff Loomis explained that the 1:00 to 4:00 limitation was designed to address staffing concerns. {5} At trial, Defendant argued that his failure to comply with SORNA was directly attributable to the registration protocol adopted and implemented by the CCSD, which he claimed failed to take steps to accommodate him when he sought to register at the end of the year. Defendant then challenged the validity of the CCSD protocol, asserting that the limited time frame within which registrations are processed is inconsistent with the registration scheme established by the Legislature and the purposes underlying SORNA, such that the protocol represents an unauthorized and invalid regulation. He renews these arguments on appeal. STANDARD OF REVIEW {6} Defendant's arguments primarily implicate questions of statutory interpretation. We therefore conduct de novo review. State 101 v. Rivera, 2004-NMSC-001, ¶ 9, 134 N.M., 768, 82 P.3d 939. {7} As in all cases involving the construction of a statute, our goal is to identify and effectuate legislative intent. State v. Smith, 2004-NMSC-032, ¶ 8, 136 N.M. 372, 98 P.3d 1022. Our inquiry begins with an examination of the language utilized by the Legislature. Rivera, 2004-NMSC-001, ¶ 10. Additionally, we may consider the structure, context, history and background of the statute, as well as the likely policy implications of various constructions. Id. ¶¶ 13-14. DISCUSSION {8} SORNA describes who must register as a sex offender, as well as where and how often registration must be accomplished. See § 29-11A-4(A)-(M). However, SORNA provides no specifications relating to the time, place, and manner in which the process of registration is to be conducted. Instead, SORNA provides that county sheriffs are responsible for implementing the registration scheme at the local level. Section 29-11A-4(A); NMSA 1978, § 29-11A-5(A)-(B) (2005). In light of SORNA's silence on the specifics of the registration process, we regard Section 29-11A-4(A) as a statutory delegation of authority to the local sheriff's departments to adopt appropriate procedures. [MIO 3-5] Cf. City of Albuquerque v. N.M. Pub. Regulation Comm'n, 2003-NMSC-028, ¶ 16, 134 N.M. 472, 79 P.3d 297 ("[I]t is presumed, in the context of administrative matters . . . that the Legislature intended for the agency to interpret legislative language, in a reasonable manner consistent with the legislative intent, in order to . . . respond to unaddressed or unforseen issues."). We decline to dictate to sheriff's departments what might be reasonable time, place, and manner restrictions on discharging their duties under SORNA. {9} "Rules and regulations enacted by an agency are presumed valid and will be upheld if reasonably consistent with the statutes that they implement." Tenneco Oil Co. v. N.M. Water Quality Control Comm'n, 107 N.M. 469, 473, 760 P.2d 161, 165 (Ct.App. 1987), superceded by statute on other grounds as stated in N.M. Mining Ass'n v. N.M. Water Quality Control Comm'n, 2007-NMCA-010, ¶ 19, 141 N.M. 41, 150 P.3d 991. Accordingly, we presume that the protocol adopted by the CCSD is valid to the extent that it is consistent with the goals that the Legislature sought to achieve through SORNA. {10} Defendant contends that the registration protocol adopted by the CCSD undermines the essential purpose of SORNA. Insofar as SORNA seeks to establish an accurate and comprehensive registry, see NMSA 1978, § 29-11A-2(B) (1999), Defendant asserts that implementation at the local level should be designed to facilitate the registration process. Defendant argues that the CCSD has so severely restricted the hours and circumstances under which registration is permitted that individuals are obstructed and / or prevented from registering, thereby frustrating the goals of SORNA. We do not share Defendant's view. {11} As previously described, the CCSD routinely processes SORNA registrations between the hours of 1:00 and 4:00 every week, thereby allocating a minimum of 156 hours per year to the registration process. Furthermore, viewing the evidence in the light most favorable to the district court's ruling, see generally State v. Lopez, 2005-NMSC-018, ¶ 9, 138 N.M. 9, 116 P.3d 80 (observing that where questions of historical fact are concerned, all reasonable inferences in support of the district court's decision will be indulged, and all evidence to the contrary will be disregarded), the CCSD also accommodates registrants at unscheduled times and allocates additional resources to the registration process when demand was high at the end of each calendar year. We do not regard this as an impermissibly narrow window of opportunity for registrants. {12} On the whole, the CCSD's policy appears to represent a balancing of interests. By setting aside specific hours every week to address sex offender registration and by simultaneously assigning the responsibility of overseeing registration to an officer rather than a civilian, the CCSD has adopted an approach that facilitates registration in a manner that is solicitous of both the public *102 interest in efficiently gathering and maintaining accurate information, and the private interest of sex offenders in having reasonable opportunity to complete the registration process. We regard both of these considerations as consistent with the SORNA. {13} Defendant objects to the registration protocol on grounds that it accommodates staffing concerns at the CCSD at the expense of the "convenience of those who are required to register." However, we find nothing in SORNA to suggest that the convenience of sex offenders was the preeminent concern of the Legislature. To the contrary, it seems clear that by delegating the business of implementation to the various sheriff's departments, the Legislature evinced the intent to permit reasonable time, place, and manner restrictions to be adopted in order to accommodate concerns about the efficient allocation of resources to the registration process. Insofar as the protocol adopted by the CCSD represents a reasonable balance of interests, we reject Defendant's challenge to it. CONCLUSION {14} For the reasons stated above, we conclude that the CCSD's approach to processing SORNA registrations is consistent with statutory mandate. We therefore reject Defendant's assertions of error, and uphold his conviction. {15} IT IS SO ORDERED. WE CONCUR: JAMES J. WECHSLER and MICHAEL D. BUSTAMANTE, Judges.	{ "pile_set_name": "FreeLaw" }
309 N.W.2d 457 (1981) In re the MARRIAGE OF Geraldine L. JONES and Charles C. Jones. Upon the Petition of Geraldine L. Jones, Appellee, and Concerning Charles C. Jones, Appellant. No. 65453. Supreme Court of Iowa. August 26, 1981. 458 Morton A. Teitle, Davenport, for appellant. Harold J. DeLange II, Davenport, for appellee. Considered by UHLENHOPP, P.J., and HARRIS, McGIVERIN, LARSON, and SCHULTZ, JJ. 459 UHLENHOPP, Justice. This appeal involves several terms of a marriage dissolution decree. Charles C. and Geraldine L. Jones were married on August 27, 1962. Charles was twenty-two and Geraldine nineteen. Charles had been in the United States Navy approximately four years at the time, and subsequently remained in the service until he was eligible for military retired pay in 1976. Thereafter he was employed as a security guard by International Harvester Company. After two temporary layoffs, he was laid off again in 1979. He has since had part-time work as a trailer loader for Roadway Express, and other jobs, limited by a hernia condition requiring surgery. At time of trial he was receiving military retired pay and unemployment benefits. Geraldine did not work outside of the home during the first twelve years of the seventeen-year marriage. This was largely due to Charles' extensive service overseas, during which the family accompanied him to various points. Geraldine has subsequently become a bookkeeper with a business firm. The parties have three children, William, age 12 at the time of decree, Charles, Jr., 16, and Jacquelyn, 19, a child of Geraldine's first marriage. Charles adopted Jacquelyn during this marriage. The trial court dissolved the marriage and granted custody of William to Geraldine and custody of Charles, Jr. to Charles. Liberal visitation rights were granted each party. Charles appeals from this split custody arrangement, and Geraldine cross appeals for custody of both boys should this court disapprove the split custody. The court also divided the parties' assets. The parties appear content with the division except as to Charles' military retired pay. Charles appeals as to that item. The court did not award alimony to either party, but granted Geraldine $30 weekly as child support for William and directed Charles to continue to help Jacquelyn with college expenses. Geraldine cross appeals from these terms, asking for increased child support, for specification of the amount Charles is to provide Jacquelyn for college, and for attorney fees in connection with this appeal. I. Military retired pay. The trial court analyzed the retired pay question as follows in its conclusions of law: In this case the parties were married for approximately 14 of the 18 [19?] years that Respondent spent in the Navy. She participated in the hardships of being a Navy wife in that as Respondent was transferred from one post to another she moved with him and established and maintained a home under many adverse conditions, raised a family and did some work outside the home. It was always contemplated that upon his retirement she would participate in the benefits of his Navy pension. Upon the granting of the dissolution decree she no longer will be able to enjoy benefits under his Navy pension and provision must be made to compensate her for loss of such benefits. The Court is powerless to split the pension into two parts so that the United States government would pay her a proper portion thereof; and this matter should be provided for by granting the Petitioner ownership of a portion of such pension and ordering Respondent to pay to her her portion thereof as he receives the pension payments. As part of the property division, the court included paragraph of in its decree, granting Geraldine about 37% of Charles' future military retired pay, as follows: f. 7/19ths of Respondent's Navy pension (being ½ of 14/19ths thereof, said 14/19ths arrived at by the 14 years of marriage during the 19 years he built up his pension), or currently $205.00 per month. As the pension is increased her interest shall be increased by the same percentage as the whole pension is increased. He shall pay said $205.00 and the increased amount from time to time to the Clerk of this Court monthly as the 460 monthly pension checks are received by him, and within three days after each check is so received by him, to be paid by said Clerk to Petitioner. Judgment hereby is entered in favor of Petitioner and against Respondent for each of said payments as it becomes due. On apportioning pensions between non-marital and marital periods, see In re Marriage of Wilson, 10 Cal.3d 851, 854, 519 P.2d 165, 167, 112 Cal.Rptr. 405, 407 (1974). With respect to this term of the decree, Charles asserts the retired pay is income and not property which is subject to division; the division violates the Supremacy Clause of the United States Constitution, federal statutes, and case law; the division is contrary to decisions of this court; and if a division is otherwise permissible, the trial court should have taken the income tax consequences into consideration. The courts have made various dispositions of pensions in dissolution cases. See Annot., 94 A.L.R.3d 176 (1979). Our course is already charted by our decisions. The starting point is Schantz v. Schantz, 163 N.W.2d 398 (Iowa 1968). We there outlined the principal factors to be considered in resolving the finances of spouses in dissolution cases. The final one relates to "any other relevant factors" which bear upon an equitable solution of the financial issues. Id. at 405. See also 1980 Sess., 68 G.A., ch. 1175, § 3 (amending § 598.21, The Code); In re Marriage of Williams, 199 N.W.2d 339, 345 (Iowa 1972). Subsequently a case came before us involving both private and public pensions, In re Marriage of Ralston, 242 N.W.2d 269 (Iowa 1976). There the trial court took the pensions into consideration by granting the other spouse a sum of alimony payable over a number of years. We approved the decree but extended the time period for the payments in order to allow for income tax consequences. Id. at 271-72. See also § 598.21, The Code 1979; Seiler v. Seiler, 48 Wis.2d 400, 404-07, 180 N.W.2d 627, 629-31 (1970); Annot., 51 A.L.R.3d 461 (1973). Later we dealt with social security benefits as a form of pensions, and held that a spouse's loss of social security resulting from dissolution could be considered by the dissolution court in framing the financial clauses of its decree. Locke v. Locke, 263 N.W.2d 694, 696 (Iowa 1978). We then decided In re Marriage of Schissel, 292 N.W.2d 421 (Iowa 1980). That case like this one involved military retired pay of a husband, but the time for payment of the retired pay had not yet arrived. Without attempting to divide the retired pay itself, the trial court in that case, in its property division, took the future retired pay into consideration and added an estimated sum, $8000, to the wife's side in adjusting the parties' equities. We deemed this also to be an appropriate way to handle pension benefits, id. at 427; see Annot., 22 A.L.R.2d 1421 (1952), and we found no interference with federal law which would run afoul Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979). See also In re Marriage of Musser, 70 Ill.App.3d 706, 710, 27 Ill.Dec. 240, 388 N.E.2d 1289, 1292 (1979). More recently the United States Supreme Court, following Hisquierdo, decided McCarty v. McCarty, ___ U.S. ___, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) (state court cannot divide military retired pay as community property). With these decisions charting our course, we hold that the trial court could not split the military retired pay itself, but properly took it into consideration in requiring Charles to pay Geraldine monthly sums of money. The alimony issue involves the wife's need by way of support and the husband's ability to pay toward that support. Freel v. Freel, 253 Iowa 327, 330, 112 N.W.2d 371, 373 (1961). Geraldine's need is evident. Charles' ability to pay is also evident; factually, his income from retired pay cannot be realistically ignored, and it is subject to levy for support. 42 U.S.C. §§ 659, 662(c) (Supp. III 1978). See Howard v. Howard, 196 Neb. 351, 358, 242 N.W.2d 884, 888 (1976). An allowance of periodic alimony which takes Charles' income from military retired pay into account does not impinge 461 on McCarty. The payments that the trial court required of Charles appear reasonable in amount, but for the tax reasons stated in Ralston, and see 26 U.S.C. §§ 61(a)(8), 71, 215 (1976), and to take into consideration the provisions of federal exemption statutes, 42 U.S.C. §§ 659, 662(c) (Supp. III 1978), and the changes which may occur in Charles' retired pay, we direct the district court to enter a supplemental decree upon remand striking present paragraph f from the decree and substituting the following: f. Commencing September 1, 1981, and for as long as Charles and Geraldine both live and Geraldine remains unmarried, Charles is required to pay Geraldine through the Scott District Court Clerk on the first business day of each calendar month, as periodic alimony and not as part of Charles' military retired pay or as a division of property, a sum of money equal in amount to 37% of Charles' full, gross military retired pay for that particular month undiminished by any adjustments, deductions, or reductions. In addition, by September 1, 1981, Charles is required to pay Geraldine in one amount as part of the periodic alimony, through the clerk, a sum of money equal in amount to 37% of his total military retired pay from May 1, 1980, through August 31, 1981, undiminished by any adjustments, deductions, or reductions. Thus if Charles' full, gross military retired pay for a given future month is $800 but Charles remarries and receives less than $800 by virtue of the Survivor Benefit Plan, or he receives less than $800 as a result of any other reduction, he is nonetheless required to pay Geraldine an amount equal to 37% of $800 for that month, if she is alive and still unmarried, as a payment of periodic alimony and not as part of the military retired pay itself. With the substitution of this paragraph f, we find no merit in Charles' arguments regarding the retired pay. II. Split custody. In trying to foster children's best interests, In re Marriage of Carrico, 284 N.W.2d 251, 254 (Iowa 1979), we ordinarily endeavor to keep children of broken homes together. Doan Thi Hoang Anh v. Nelson, 245 N.W.2d 511, 517 (Iowa 1976). The rule is not ironclad, however, and circumstances may arise which demonstrate that separation may better promote the long-range interests of children. In re Marriage of Wahl, 246 N.W.2d 268, 270 (Iowa 1976) ("they should not be denied this benefit except when their best interests require it"). Children's expressed preferences are entitled to consideration but are not controlling; deciding custody issues is more complicated than merely asking the children which parent they wish to live with. In re Marriage of Burham, 283 N.W.2d 269, 276 (Iowa 1979). The trial court was fully aware of these principles. The court stated in its findings of fact: The evidence discloses that Charles [Jr.] has certain undesirable habits. He also has a strong influence over William and there is great danger that such influence would have a bad effect on him. William also has expressed a desire to live with Respondent, but such desire is not as strong as in the case of Charles. His age, 12 years old, is such that some consideration should be given to his desire but the same weight should not be given to his stated desire, especially since he gets along well with Petitioner. In view of the special circumstances of this case the Court finds it is in the best long range interest of William that he be placed in the permanent custody of Petitioner with liberal visitation rights in Respondent. In its conclusions of law the court stated, "However, there is a good and compelling reason why William should be separated from Charles as set forth in the Findings of Fact." The trial court consulted the various sources of information which were in evidence, and considered the lengthy interrogations of the parties. One of these sources, a psychologist's report, stated in part: It is my recommendation to the court, that Charles Shawn be placed in the legal *462 custody of his father. My reason for this recommendation rests in the strong hostile feelings Charles has toward his mother and her inability to control him. I believe the more disciplined environment would be better for [Charles], but this is outweighed by the expressed hostile feelings. I recommend that William be placed in the legal custody of Mrs. Jones. Even though this goes against Billy's stated preference, I sincerely believe he will be better placed in the security of Mrs. Jones' care. I am also concerned about the continuing influence Charles may have over Billy if Billy were living with Mr. Jones and Charles. We have examined the record and find that it fully supports the trial court's findings and conclusions. An extended statement of the circumstances would be helpful to no one, and very possibly harmful to the boys. See Wright v. Thomas, 306 Ky. 763, 766, 209 S.W.2d 315, 317 (1948); Gorslin v. Gibson, 301 Ky. 706, 707-08, 192 S.W.2d 962, 962-63 (1946). The trial court had the added advantage of being able personally to watch and listen to the parties and the other witnesses. Jacobs v. Jacobs, 216 N.W.2d 312, 314 (Iowa 1974). We approve the court's disposition of the custody issue. III. Child supportcollege expenses. Geraldine contends that the trial court should have allowed her more than $30 per week toward the support of William. Factors to be considered are discussed in our decision of In re Marriage of Zoellner, 219 N.W.2d 517, 525 (Iowa 1974). We agree that the allowance of $30 is not extravagant in these times, that Charles' earning capacity exceeds Geraldine's capacity, and that Charles has not been earning up to capacityperhaps in anticipation of this litigation. Nonetheless, with the other burdens laid on Charles in the decree, including his maintenance of Charles, Jr., and the requirement we subsequently impose regarding Jacquelyn, we are unwilling to interfere with the trial court's conclusion on the figure for child support. As to Jacquelyn, Geraldine's objection is well taken that an amount should be fixed. We think, however, that it should be a minimum amount, and we encourage Charles to provide Jacquelyn additional assistance if he is able to do so, in this period of mounting educational costs. We require Charles to pay Jacquelyn at least $1000 annually toward her college expenses commencing September 1, 1980, so long as she continues her college career pursuant to section 598.1(2) of the Code, but not beyond her twenty-second birthday. We direct the district court to alter the original decree appropriately, in the supplemental decree. We tax the court costs of this appeal to Charles, including the sum of $750 to apply on the fee of Geraldine's attorney. MODIFIED, AFFIRMED, AND REMANDED WITH DIRECTIONS.	{ "pile_set_name": "FreeLaw" }
316 F.3d 154 AMEX ASSURANCE COMPANY, Plaintiff-Counter-Defendant-Appellee,v.Cristina CARIPIDES, Defendant-Cross-Claimant-Appellant, andEstate of William G. Caripides, Defendant Appellee, Estate of Gabriella M. Caripides, Defendant-Cross-Defendant, Ted Caripides, Helen Agabides and Vera Grozdav and Rita Catar, Defendants-Cross-Defendants-Appellees. Docket No. 02-7044. United States Court of Appeals, Second Circuit. Argued: August 29, 2002. Decided: January 9, 2003. Gary L. Rubin, Mazur, Carp & Rubin, P.C., New York, NY, for Defendant-Cross-Claimant-Appellant. Charles T. Locke, Locke & Herbert, New York, NY, for Plaintiff-Counter-Defendant-Appellee. Robert A. Cohen, Dechert Price & Rhoads, New York, N.Y. (Debra D. O'Gorman, on the brief), for Defendants-Cross-Defendants-Appellees. Before: LEVAL, SOTOMAYOR, Circuit Judges and KOELTL, District Judge.* Judge LEVAL also files an opinion expressing separate views. LEVAL, Circuit Judge. 1 AMEX Assurance Company ("AMEX") brought this interpleader action pursuant to 28 U.S.C. § 1335 to determine the rightful beneficiaries of two $1 million insurance policies covering accidental death during airline travel for William ("William") and Gabriella ("Gabriella") Caripides, husband and wife, who perished in the Swissair crash off Nova Scotia on September 2, 1998. The rival contenders for the proceeds of the policies were 1) their 28-year-old daughter Cristina Caripides; 2) William's siblings Ted Caripides, Helen Agabides, and Vera Grozdav ("the Siblings") with respect to the policy covering William, and Gabriella's parents Peter and Rita Catar ("the Parents") with respect to the policy covering Gabriella; and 3) the estates of William and Gabriella ("the Estates"). Because the insured had made no designation of beneficiaries, the proceeds were payable under the default schedule of beneficiaries listed in the policies. That schedule listed "dependent children" after "spouse," and thereafter listed siblings and parents; it made no provision whatsoever for non-dependent children. The court therefore granted summary judgment to the Siblings and the Parents, rejecting the claim of the insureds' independent daughter Cristina. 2 We affirm. BACKGROUND 3 William and Gabriella Caripides, together with their son Peter, died September 2, 1998 when Swissair flight 111 crashed off Nova Scotia. Their only surviving child was Cristina, then age 28. At the time, William and Gabriella were each covered by two separate accidental death insurance policies issued by AMEX. The first, which is not involved in this appeal, was a $100,000 policy, AX0948 (hereinafter "0948"), under which William and Gabriella were each automatically covered because they purchased their airline tickets with a standard American Express card. Because no beneficiary had been designated under this policy, the proceeds were payable pursuant to the default provisions of the policy. The default provisions specified that in the absence of a designation the proceeds would go to a surviving spouse, and in the absence of a surviving spouse to the insured's children. No party contested Cristina's entitlement as a surviving child to the $200,000 payable under these two policies. 4 In addition, William had subscribed for himself and Gabriella to a $1 million Automatic Flight Insurance Policy issued by AMEX. Once again, William had designated no beneficiary; payment of the $2 million is accordingly governed by the default provisions of the policy. The proper disposition of these benefits under the default provisions of the policy is the subject of this appeal. The evolution of these default provisions is significant. 5 William's original enrollment in AMEX's program of Automatic Flight Insurance was in March 1984 under a policy designated as GA 5145 (hereinafter "5145"), sponsored by the Fireman's Fund Insurance Company. Under this policy, in exchange for a fee per covered person per trip charged each time airline tickets were purchased with an American Express card, the holder of this policy could choose $250,000, $500,000 or $1,000,000 of coverage. William selected coverage at the $1 million level for both himself and Gabriella. 6 Such a policy invites the subscriber to designate who will be the beneficiary of the proceeds, but goes on to specify a hierarchy of default beneficiaries who will take in the event no designation is made. Under 5145, in the absence of a designation, the benefits were to be paid first to the surviving spouse, and if there was no surviving spouse, to the covered person's "children." (The list went on to name other categories that would take in the absence of surviving spouse or surviving children.) From 1984 through May 1989, William maintained coverage under that policy, without ever making a designation of beneficiary. 7 In May 1989, AMEX replaced the 5145 policy. For all insureds other than residents of the State of New York, the replacing policy was designated AX 0950 (hereinafter "0950"). This policy provided for default beneficiaries in a manner similar to its predecessor, naming first the spouse, and in the absence of a surviving spouse, any surviving children. 8 As to New York residents, 5145 was replaced with a different policy designated as AX 0910 (hereinafter "0910"). New York resident subscribers to 5145 were solicited to enroll under 0910. William enrolled, again choosing the $1 million level of protection, covering both himself and Gabriella. 9 The enrollment was by means of a summary form, which did not reveal the detailed terms of the policy, including the schedule of default beneficiaries. It was only after sending the enrollment form that the subscriber would receive the full policy. The pre-printed form that William signed in order to subscribe to coverage stated, "I understand that this coverage will replace any coverage previously in effect under the policy." 10 The default provisions of 0910, however, were significantly different from the predecessor policy and from 0950. The new default hierarchy of 0910 begins like the predecessor policy by giving the proceeds to the surviving spouse. If there is no surviving spouse, the proceeds go not to the covered person's "children," but to "dependent children." "Dependent children" is defined to include primarily unmarried children under 19 who are dependent on the covered card member.1 If the deceased covered person is survived by neither a spouse nor dependent children, the next takers are the decedent's parents or, if none of them survives, brothers and sisters, and finally, if there is no survivor among any of those categories, the decedent's estate. Thus, for a covered person who has not designated a beneficiary, the default provisions of 0910 completely exclude children who are not "dependent." Cristina, who was 28 years old at the time of her parents' death, was not a dependent child. 11 Approximately six years after subscribing to the replacement policy 0910, on March 17, 1995, William and Gabriella executed wills. Each of William and Gabriella, in subparagraph Third of their respective wills, made a conditional bequest of $10,000 to Cristina, which was payable only if the testator's spouse had predeceased. Each will went on to specify, "I intentionally make no provisions, other than those set forth in this Subparagraph, for my daughter, Cristina Caripides." 12 After the Swissair disaster that killed her parents, Cristina filed claims with AMEX, asserting that she was the beneficiary of the two $100,000 policies and the two $1 million policies. As to the latter, Cristina incorrectly believed the pertinent policy was 0950, the policy issued to replace the original 5145, for residents of all states other than New York. Under the terms of 0950, in the absence of a surviving spouse, the "children" were the default beneficiaries. 13 Thereafter, the estates of William and Gabriella each filed a claim as the beneficiary of the other's policy. The estate of Gabriella claimed that Gabriella was the default beneficiary of the policy covering William. The estate pointed to subparagraph Tenth of William's will, which provided that if William and his wife died "simultaneously ... or under such circumstances as to render it impossible or difficult to determine who predeceased the other, then [William] shall be deemed to have predeceased ... Gabriella." Giving effect to that provision, Gabriella's estate argued that Gabriella was William's surviving spouse and was therefore the prime default beneficiary. 14 William's estate asserted that Gabriella's will contained a similar mirror-image provision, deeming William to be the survivor if he and Gabriella died in circumstances making it difficult to determine which one predeceased.2 On that basis, William's estate argued that William should be deemed to have survived Gabriella and to have been the default taker under Gabriella's policy. Proceedings Below 15 On May 14, 1999, faced with competing claims for the proceeds of the two policies, AMEX commenced this interpleader action to determine whether Cristina or the Estates were the proper beneficiaries of the policies. It deposited the proceeds of the pertinent policies into the court. In its interpleader complaint, AMEX incorrectly asserted that the pertinent $1 million policies were 0950, and attached a copy of 0950. The parties agreed to a stipulation discharging AMEX as a party in the suit with the proviso that it would make itself amenable to the court's jurisdiction, discovery demands, and subpoenas as though it remained a party to the litigation. 16 Within the next year apparently, AMEX discovered its error as to which $1 million policy was involved. In February 2000, Eric Marhoun, Vice President and General Counsel of AMEX, submitted an affidavit in which he revealed that AMEX had been incorrect in its assertion that William and Gabriella were covered by the 0950 policy when in fact, because they were residents of New York State, they were covered by 0910. The recognition that William and Gabriella were covered not by 0950 but 0910 substantially undermined Cristina's claim because, as noted above, while under 0950 the second place default beneficiary after surviving spouse is "children," in the case of 0910 that place is occupied by "dependent children," and "children" alone does not appear on the default schedule. 17 In June 2000, the district court became aware that at the time of the crash William was survived by three siblings, Ted Caripides, Helen Agabides and Vera Grozdav, and Gabriella was survived by her parents Rita and Peter Catar. Because the default provisions of 0910 provided for siblings and parents, the court ordered that William's siblings and Gabriella's parents be joined as parties to the action.3 18 The district court appointed an expert witness on insurance, Alexander Chernoff, to report on the issues presented. In his report filed January 24, 2001, Chernoff stated that he had "never encountered a beneficiary default provision which differentiates dependent and non-dependent children" as in 0910. 19 Cristina retained her own expert, Martin Minkowitz. Minkowitz asserted the concept "dependent children" was pertinent only in the area of health insurance (it is a defined term in New York Insurance Law § 3216 which regulates health coverage) and that its use in the AMEX life insurance policy was an error and was "inconsistent with the necessary and appropriate use" of the term. Although Minkowitz acknowledged that the "dependent children" language in 0910 had been ratified by the New York Insurance Department along with the rest of the policy (consistent with statutory requirements), he maintained that that had been an oversight. Minkowitz appended an affidavit of Frederic Bodner, former Chief of the Life and Health Bureau of the Department of Insurance, to the effect that the approval of the term "dependent children" in the context of this policy was a mistake. Minkowitz opined that the court should "reform" the 0910 policy, substituting "children" for "dependent children," bringing it in line with 5145, the policy it had replaced. 20 On July 18, 2001, Cristina filed an amended answer to the AMEX complaint, asserting various counterclaims and cross-claims. Among her claims, she asserted that the default beneficiary provision of 0910 is unenforceable under New York Estates, Powers, and Trusts Law ("EPTL") § 13-3.2, which stipulates that all beneficiary designations under life insurance policies must be "made in writing and signed by the person making the designation." She also claimed that the default provision in favor of children to the exclusion of non-dependent children violates the public policy espoused in EPTL § 4-1.1, which provides that the property of a decedent, if not covered by a will, go to a spouse and children, indicating that children are given priority in inheritance over the siblings and parents of the decedent. Cristina also sought reformation of the contract under the teaching of Hay v. Star Fire Insurance Co., 77 N.Y. 235 (1879), on the grounds that the substitution of "dependent children" in 0910 for "children" under the predecessor policy was a mistake on AMEX's part, and that William had enrolled in the policy believing that its default beneficiary provision still included non-dependent children. 21 On October 9, 2001, the district court directed the parties to show cause why summary judgment should not be awarded on the two $1 million policies to the Siblings and the Parents, respectively. On January 3, 2002, the district court granted summary judgment, awarding the proceeds of William's policy to the Siblings, and the proceeds of Gabriella's policy to the Parents. The court rejected Cristina's claims and those of the Estates. Cristina appealed. The Estates have not. DISCUSSION 22 Cristina raises three principal arguments on appeal: 1) The district court erred in determining that the contract was unambiguous, because when William signed the generic enrollment card in December 1989, he probably believed that he was subscribing to a policy with terms similar, at least as to default beneficiaries, to the previous policy 5145; 2) the default beneficiary provisions are unenforceable because they do not satisfy the writing requirement of EPTL § 13-3.2; 3) Policy 0910 should be reformed under the doctrine of Hay and its progeny. 23 1. Is the Contract Ambiguous? 24 Cristina's first argument on appeal is that the court should not have granted summary judgment under the default provisions because the insurance contract was ambiguous. We do not agree. 25 To be sure, as discussed below, the circumstances under which an insured subscribed to the policy 0910 created a significant risk of confusion as to who would take in the absence of a designation of beneficiary. But the potential for confusion resulted from the piecemeal disclosure of terms, not from inherent ambiguity in the terms. If one reads the listing of default beneficiaries provided in 0910, there is no doubt that the second slot (after surviving spouse) is occupied by "dependent children" and not by children. The policy is not ambiguous on its face. 26 2. Do the Beneficiary Default Provisions Violate EPTL § 13-3.2? 27 Cristina next argues that the default beneficiary provisions of 0910 are unenforceable because they do not comply with the requirement under New York law that all designations of beneficiaries of life insurance policies be attested in writing. New York Estates, Powers, and Trusts Law § 13-3.2(e) provides 28 A designation of a beneficiary or payee to receive payment upon death of the person making the designation or another must be made in writing and signed by the person making the designation.... 29 Cristina relies on two cases, Androvette v. Treadwell, 73 N.Y.2d 746, 536 N.Y.S.2d 43, 532 N.E.2d 1271 (1988), and Mohawk Airlines, Inc. v. Peach, 61 A.D.2d 346, 402 N.Y.S.2d 496 (4th Dep't 1978). They stand for the general proposition that the writing requirement in § 13-3.2(e) will be interpreted strictly, but do not address the application of that provision to default terms. We agree with the district court that William's reliance on the default beneficiary provision of the underlying contract was not a "designation of a beneficiary" within the meaning of the statute. It was the opposite. 30 William had the option of either designating his beneficiaries, or, in the absence of an adequate designation, relying on the default list provided by the policy. He chose the latter course. Cristina's argument depends on a distortion of the literal meaning of designation; it reads a failure to designate as a designation. Second, her argument would have the effect of undermining and distorting the reasonable expectations of countless subscribers to such insurance. We can see no reason to believe that New York intended its statute to be construed in such a capricious fashion. 31 3. Should the Schedule of Default Beneficiaries Be Reformed? 32 Cristina argues that William and Gabriella's 0910 policies should be reformed so that they conform to the default beneficiary provision of the policy they replaced. She contends that authority for such reformation can be found in the decision of the New York Court of Appeals in Hay. In Hay, the plaintiff was insured against fire by defendant Star Fire Insurance on her interest as a mortgagee in property. 77 N.Y. at 238. After increasing the size of the mortgage from $2500 to $3000, plaintiff applied to Star for a renewal of the policy, to which Star agreed. Without advising the plaintiff, however, Star inserted into the renewal a subrogation clause, providing that in the event of a loss, plaintiff would assign to defendant her right to be compensated by other parties, and defendant would be liable on the policy only to the extent she had not already been adequately compensated for her loss by those other parties. 33 The Court of Appeals granted plaintiff's application for reformation of the policy. The Court observed, 34 It was bad faith on the part of the defendant to change so radically the terms of the policy, and deliver it as a policy simply renewing the old one, without notice of the change. A party, whose duty it is to prepare a written contract, in pursuance of a previous agreement, to prepare one materially changing the terms of such previous agreement and deliver it as in accordance therewith, commits a fraud which entitles the other party to relief according to the circumstances presented. Equity will reform a written instrument in cases of mutual mistake, and also in cases of fraud, and also where there is a mistake on one side, and fraud on the other. 35 Hay, 77 N.Y. at 240. 36 Unlike Hay, the new policy was not described by the insurer as a simple "renewal" of the preexisting policy. Nonetheless, AMEX, while leading its subscribers to believe that the replacement policy would substantially conform to its predecessor, changed a very important term without calling the change to the subscribers' attention. AMEX did nothing to alert its subscribers to the fact that it had changed a default beneficiary class from "children" to "dependent children." 37 On the other hand, the undisclosed change made by the insurer in Hay was for its own benefit; for that reason, the insurer's failure to draw the insured's attention to it was described as a fraud. In our case, the insurer had no interest whatsoever in the order of priority of default beneficiaries. The insurer provides such default provisions as a convenience to the insured and has no interest in who takes the proceeds. Thus, while AMEX may well have been at fault either in making the change or in failing to call attention to it, that fault seems to be more in the nature of carelessness or negligence; it cannot easily be characterized as fraud, in the usual sense of the word. 38 The question we face is whether on our facts New York courts would allow reformation of the default beneficiary provisions of the policy. Hay and other New York cases conventionally recite that reformation is available in cases of fraud and mutual mistake. See Chimart Assocs. v. Paul, 66 N.Y.2d 570, 573, 498 N.Y.S.2d 344, 489 N.E.2d 231 (1986); George Backer Mgmt. Corp. v. Acme Quilting Co., Inc., 46 N.Y.2d 211, 413 N.Y.S.2d 135, 139, 385 N.E.2d 1062 (1978). Our facts do not fit under either rubric. 39 For the reason stated, AMEX's conduct was not fraudulent. Nor is this a case of mutual mistake. While William may have mistakenly believed the policy, in the event either he or Gabriella perished without leaving a surviving spouse, would pay its benefit to their children, in preference to their parents and siblings, this mistake was not mutual. AMEX had drafted the policy and knew what it provided. See RESTATEMENT (SECOND) OF CONTRACTS § 155 cmt. a (1981) (as used in the doctrine of "mutual mistake," mistake means being in error in one's belief as to what the contract states); L. Lewitt & Co., Inc., v. Jewelers' Safety Fund Soc'y, 249 N.Y. 217, 221-23, 164 N.E. 29 (1928). We therefore hold that these facts do not come within the circumstances in which New York law will allow reformation of a contract. There having been neither fraud nor mutual mistake, the mistake of a single party as to a term of the contract does not justify reformation under New York law. We therefore affirm the district court's rejection of Cristina's third argument. 4. Other Arguments 40 We have considered Cristina's other arguments and find them to be without merit. Accordingly, we affirm the judgment of the district court. Judge Leval's Separate Views 41 In the remainder of this opinion, I speak for myself alone and not for my colleagues or for the court. 42 a. Reformation 43 I believe that in the case of an insured's mistake, relating to the default beneficiary provisions of such a policy, the New York courts might contemplate broadening their rule to allow reformation in circumstances going beyond fraud or mutual mistake. Ordinarily when parties have agreed to a written contract, disputes will be governed by its terms. If one party is favored by a term of the contract, that party is presumed to have bargained for that term and relied on it, and is therefore entitled to judgment on the basis of that term unless a powerful reason exists to the contrary. Courts have generally found that sufficient reason exists to deprive the party of its reliance on the advantageous term where the party has procured the contract term through fraud on the other party to the contract. In such cases, the contract will be reformed. See Welles v. Yates, 44 N.Y. 525, 530 (1871). And where there was mutual mistake, so that the advantaged party in fact believed the particular contract term was otherwise and favored the other party, then the hypothesis that the advantaged party bargained for the advantageous term and relied on it is inapplicable; there is little reason to protect a party's interest in a contract term that the party believed was otherwise. See Harris v. Uhlendorf, 24 N.Y.2d 463, 301 N.Y.S.2d 53, 248 N.E.2d 892 (1969); Hart v. Blabey, 287 N.Y. 257, 39 N.E.2d 230 (1942). 44 Those models presuppose that the term in dispute favors one party to the contract over the other. See, e.g., Shaw v. Aetna Cas. & Sur. Ins. Co., 274 S.C. 281, 262 S.E.2d 903, 905 (1980) (party seeking reformation on the basis of fraud must prove that it was "induced by the fraud, deceit, misrepresentation, concealment, or imposition in any form of the party opposed in interest to the reformation" (emphasis added)). On our facts, that is not the case. The listing of default beneficiaries is of interest to only one party to the contract — the insured. The insurer allows the insured complete freedom to override the default schedule by designating the policy's beneficiaries and provides the default schedule to avoid a gap in the event the insured has not made adequate designation, presumably designing the schedule to reflect the likely preferences of the great majority of its customers. (AMEX's lack of interest in who gets the proceeds is reflected by the fact that AMEX proceeded by interpleader, paying the proceeds into court with a prayer that the court direct distribution to whomever may be entitled to receive them and asked to be excused from the case, except to provide disclosure as sought by the parties.) 45 It seems to me illogical in such circumstances for the rule of law to bar reformation unless the insurer either committed a fraud or was mistaken as to what the term provided. If a contract term, such as the description of default beneficiaries, affects the interest of only the insured, and a clear showing is made that the insured was mistaken as to what the term provides, while no party to the contract has relied to its detriment on the term as written, those circumstances would seem to provide substantial justification for reformation without any significant reason to deny the remedy. The insurer will not be adversely affected by reformation if the reformed term is one in which it had no interest. In my view, there is no persuasive reason to require, as a prerequisite for reformation, that the insurer have been mistaken as to a term in which it had no interest. 46 As suits for reformation generally involve a term that favors one of the contracting parties to the other's detriment, the courts of New York have not, it appears, considered whether the circumstances in which reformation is allowed should be broadened to include unilateral mistake on the part of an insured as to a term (such as the specification of beneficiaries) in which the insurer has no interest. Should a case arise involving a convincing demonstration4 that the insured decedent was mistaken as to the beneficiary specified by the policy, courts might find it appropriate to address whether the circumstances justifying reformation should be broadened.5 47 b. The Danger Created by AMEX's Policy 0910 48 I add a comment, which pertains not to the dispute between the parties over the proceeds of the insurance, but rather to AMEX's position in relation to its customers. It seems likely from the limited information in the record that AMEX made an error of judgment in the composition of the default beneficiary provisions of policy 0910 insofar as it provided insurance for accidental death. Such default beneficiary provisions, which take effect only when the insured has failed to provide adequate designation, are designed to reflect the predictable desires of the policyholders. There is little reason to suppose that the majority of policyholders would wish that the large benefits be paid on their death only to underage or dependent children to the exclusion of their adult independent children; even less likely is it that they would wish to prefer their siblings and parents over their children. The unanimous testimony of the expert witnesses suggested that this listing of "dependent children," to the exclusion of "children" in an accidental death policy was unique in their experience. Alexander Chernoff, the court-appointed insurance expert, testified that he had never encountered such an instance. 49 The affidavit of AMEX Vice President Eric Marhoun suggests how this happened. Policy 0910 was not merely an accidental death policy. It also provided medical benefits for accidental injury. Marhoun asserts that the New York Insurance Department had required AMEX to limit the persons a policyholder could cover for medical benefits to dependent children. AMEX complied by "changing the definition of `Covered Person' and adding the definition of `Dependent Children.'" Then, Marhoun asserts, "For ease of administration, the default beneficiary provision for death benefits was also revised to reference `Dependent Children.'" (emphasis added). It thus appears that AMEX adopted for the accidental death protection an unsuitable schedule of default beneficiaries, excluding children, simply to conform to terminology appropriately employed in other portions of the policy. Marhoun's reference to "ease of administration" suggests the change was made in the schedule of default beneficiaries without considering whether policyholders would wish to exclude their children from benefits in the event of the policyholder's death. 50 I believe persons subscribing to such a policy could reasonably expect that the insurer, in preparing default provisions, would list the default beneficiaries according to the widespread understanding of the wishes of the majority of customers to benefit their children. I think it likely that many purchasers of insurance under policy 0910 believe that their children are named as default beneficiaries, and would be startled to learn that in the event of their death, dependent children, parents and siblings would take to the exclusion of their independent children. It would be a serious misfortune if, in the case of conventional parents who, like most, intend to benefit their children and reasonably believe they are doing so, the million dollar proceeds would go instead to their parents or siblings, or to their children under the age of 19 to the exclusion of the mature children. 51 Whether in the interest of protecting its customers or in the interest of protecting itself from liability, I think it incumbent on AMEX to adopt measures to guard against the risk of such mistake. The danger exists not only for customers who were originally covered by 5145, but also for new purchasers of 0910. While the likelihood of mistake is greater for customers who purchased 0910 to replace 5145, new purchasers as well were likely to assume that the default provisions of AMEX's policy would reflect the conventional desire of parents to benefit their children at their death. CONCLUSION 52 The judgment of the district court is affirmed. Notes: * The Honorable John G. Koeltl, United States District Judge for the Southern District of New York, sitting by designation 1 The policy's definition of "Dependent Children" is as follows: the unmarried children, step-children, proposed adopted children placed with the Cardmember before finalization of adoption, or legally adopted children under age 19 who are chiefly dependent upon such Cardmember. Any child resident in the State of New York who, prior to attainment of age 19, became so handicapped as to be incapable of self-sustaining employment because of mental illness, developmental disability, mental retardation as defined in the mental hygiene law of the State of New York or physical handicap and who continues to be chiefly dependent upon such Cardmember for support and maintenance, shall be deemed a Dependent Child, regardless of age at the time enrollment for insurance is made. 2 The copy of Gabriella's will attached to the papers in the district court omitted the page which specified which spouse should be deemed the survivor in the event of death in a common disaster 3 Peter Catar died before the district court became aware of the need to join him. Neither he nor his estate was joined as a party because the court was satisfied that his wife Rita would adequately represent his interests in the litigation. Against the district court's repeated advice, the Siblings and Parents initially represented themselves in this matter. In March 2001, the Siblings retained counsel, whom the district court directed to represent Mrs. Catar as well 4 Given the very unusual circumstances of the Caripides family, however, it is not clear that Cristina has made a convincing showing that William was mistaken. As noted, there was substantial evidence of estrangement between Cristina and her parents. In addition we were advised by counsel at argument (although it is not a matter of record) that Cristina's brother, who went down with his parents on the plane, was dependent by reason of disability. Thus, there is a reasonable possibility that William might have been aware of and approved the policy terms that would benefit his dependent son but not his independent daughter 5 Judge Sotomayor disagrees with the views here expressed by Judge Leval. She argues as follows: New York case law makes clear that "the thrust of a reformation claim is that a writing does not set forth the actual agreement of the parties ...."Chimart, 66 N.Y.2d at 573, 498 N.Y.S.2d 344, 489 N.E.2d 231. A disputed term can reflect the actual agreement of the parties even if not all parties are advantaged by that term. A rule of law allowing reformation in cases of unilateral mistake where the provision in question allegedly benefits only the mistaken party would invite variance from the terms of unambiguous, otherwise valid contracts, and would disturb the certainty and predictability of contract interpretation.	{ "pile_set_name": "FreeLaw" }
776 F.2d 1064 dRoden, In re 85-852 United States Court of Appeals,Federal Circuit. 8/26/85 PTO Affirmed 1 --------------- d Denotes patent appeals	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-7548 In Re: ANTHONY FEURTADO, Petitioner. On Petition for Writ of Mandamus. (3:96-cr-00325-SB; 3:03-cv-02949-SB) Submitted: February 28, 2008 Decided: March 7, 2008 Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges. Petition denied by unpublished per curiam opinion. Anthony Feurtado, Petitioner Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Anthony Feurtado petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his motion to reconsider the denial of his 28 U.S.C. § 2255 (2000) filed on August 2, 2006, and amended on August 14, 2006, and his motion to correct clerical error under Fed. R. Crim. P. 36. He seeks an order from this court directing the district court to act. Because the district court has now ruled on both motions, we deny the mandamus petition as moot. 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. PETITION DENIED - 2 -	{ "pile_set_name": "FreeLaw" }
In the United States Court of Appeals For the Seventh Circuit No. 11-2457 U NITED S TATES OF A MERICA, Plaintiff-Appellee, v. M ARGARITO S AUCEDO , Defendant-Appellant. Appeal from the United States District Court for the Central District of Illinois. No. 3:10-cr-30010-RM—Richard Mills, Judge. A RGUED A PRIL 2, 2012—D ECIDED A UGUST 6, 2012 Before R OVNER, S YKES, and T INDER, Circuit Judges. T INDER, Circuit Judge. Margarito Saucedo appeals the denial of his motion to suppress, contending that the search of his tractor-trailer exceeded the scope of his consent to search. We affirm. I. On January 11, 2010, Trooper Nathan Miller of the Illinois State Police stopped a Peterbilt tractor-trailer 2 No. 11-2457 because it had a paper registration plate that appeared to be expired. The truck was driven by Margarito Saucedo. Trooper Miller confirmed that the plate had expired in November 2009 and ran the truck’s U.S. D.O.T. number. Trooper Miller advised Saucedo of the reason for the stop—the expired plate—and Miller also advised Saucedo that he would be conducting a motor carrier safety inspection. Trooper Miller requested Saucedo’s driver’s license, logbook, and paperwork for the truck, trailer, and load. Saucedo handed over his license, documentation referencing his license, and other paperwork; he had no information pertaining to the load because his trailer was empty. Trooper Miller ran Saucedo’s license and learned that it was invalid. Trooper Miller and Saucedo proceeded to Miller’s squad car to speak further. The trooper checked Saucedo’s criminal history and learned that he had prior convictions for drug distribution and aggravated assault with a deadly weapon. Trooper Miller asked Saucedo whether he had any weapons or was carrying any drugs in the truck or trailer. Saucedo volunteered that the trooper could “open it.” Trooper Miller then asked Saucedo if he could search his truck and trailer, and Saucedo said, “yes.” The trooper again asked Saucedo if he had any weapons, marijuana or cocaine, and Saucedo said he had “nothing.” At no time did Saucedo limit the scope of the search. While speaking with Saucedo, Trooper Miller was in contact with other law enforcement officers because of Saucedo’s criminal history and because Miller saw some No. 11-2457 3 things that raised his suspicions, including an overabun- dance of religious paraphernalia and air fresheners and three cell phones. In addition, Saucedo had given Miller documentation that noted problems with Saucedo’s driver’s license. Trooper Miller contacted a certified canine unit for assistance. With Saucedo still in the squad car and having ob- tained his consent to search, Trooper Miller conducted a search of the truck and trailer. He began with the trailer, which was empty. He moved to the tractor and escorted the passenger, Saucedo’s cousin, to an offi- cer’s vehicle. Miller returned to the cab of the truck and began his search. Within a few minutes, he found what he thought was an alteration to a small alcove that housed a compartment in the sleeper/bunk area behind the driver’s seat. Trooper Miller was familiar with the bunks in Peterbilt trucks and that drew his attention to the alcove’s black TV and its silver outlining. Using his flashlight, he could see that the alcove appeared altered—the TV’s silver outlining showed a depth of the alcove that, in his words, “was most certainly not cor- rect.” So he searched. He used a screwdriver to disas- semble one screw, pulled back the plastic molding around the alcove, peered in, and found a hidden com- partment. Trooper Miller returned to his squad car and placed Saucedo in a deputy’s squad car with his cousin. By then the canine unit, Trooper Maro and his dog Vik, had arrived. Trooper Miller returned to the cab, removed the TV and three remaining screws from the molding, and 4 No. 11-2457 removed the hidden compartment from the alcove. He opened it up and found 10 kilograms of cocaine inside. Trooper Maro then walked Vik around the truck and Vik alerted at the truck’s side. At that point, Trooper Miller had further discussions with Saucedo. At no time did Saucedo indicate that he had any difficulty with the English language. Miller told Saucedo what he had found. But before telling Saucedo where he found the cocaine, Trooper Miller asked him where he thought it had been found. Saucedo said he thought the cocaine was found behind the TV. Saucedo did not object to the nature of the search or the fact that Trooper Miller had looked in the hidden com- partment. Trooper Miller asked Saucedo whether his truck had been searched before; Saucedo said that it had. Unsurprisingly, Saucedo was arrested. Trooper Miller asked Saucedo why he had given his permission to search even before Miller asked for it. Saucedo ex- plained that he’d been searched before and nothing was found. At one point, Saucedo advised Trooper Miller that he had diabetes, wasn’t feeling well, and asked Miller to retrieve one of his prescriptions. Miller did so. A grand jury charged Saucedo with conspiracy to possess with intent to distribute five or more kilograms of cocaine. Saucedo moved to suppress the cocaine and the magistrate judge held an evidentiary hearing. The judge found that Saucedo “clearly understood English fluently at the time of the stop and knew that he was consenting to the search of the entire tractor-trailer” and that “Saucedo was suffering no ill effects due to his No. 11-2457 5 condition at the time of the traffic stop . . . that affected his ability to comprehend his situation or to make in- telligent decisions.” The judge also found that Saucedo volunteered his consent, that Trooper Miller confirmed that he could search both the tractor and trailer, and that “Saucedo did not indicate any limitations on the scope of his consent.” The district judge adopted the recommendations and denied the suppression motion. Saucedo was tried by a jury, convicted as charged, and sentenced to 240 months’ imprisonment. He appeals the denial of his suppression motion. II. Saucedo argues that Trooper Miller exceeded the scope of his general consent to search the tractor-trailer by using a flashlight and screwdriver to remove screws holding the molding in place that covered a hidden compartment in the tractor. (Saucedo does not contest that his consent was freely and voluntarily given.) We review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Jackson, 598 F.3d 340, 344 (7th Cir.), cert. denied, 131 S. Ct. 435 (2010). Consent to search is an exception to the Fourth Amend- ment’s warrant requirement, id. at 346, but the search must remain within the scope of consent, id. at 348. Whether a search remains within the scope of consent “is a question of fact to be determined from the totality of all the circumstances.” Id. (quotations and citation omitted). “The standard for measuring the scope of 6 No. 11-2457 consent under the Fourth Amendment is one of objec- tive reasonableness and asks what the typical rea- sonable person would have understood by the exchange between the law enforcement agent and the person who gives consent.” Id. “The scope of a search is generally defined by its ex- pressed object.” Florida v. Jimeno, 500 U.S. 248, 251 (1991) (citation omitted) (holding that suspect’s general consent to search his car included consent to search containers within the car that might contain drugs where suspect placed no explicit limitation on the scope of the search and was aware that the officer would be looking for drugs). “Where someone with actual or ap- parent authority consents to a general search, law enforce- ment may search anywhere within the general area where the sought-after item could be concealed.” Jackson, 598 F.3d at 348-49. We have stated, albeit in an unpub- lished order: “When a person is informed that an officer is looking for drugs in his car and he gives consent without explicit limitation, the consent permits law enforcement to search inside compartments and con- tainers within the car, so long as the compartment or container can be opened without causing damage.” United States v. Calvo-Saucedo, 409 F. App’x 21, 24 (7th Cir. 2011). And as the Supreme Court explained, “[a] reasonable person may be expected to know that narcotics are gen- erally carried in some form of a container. Contraband goods rarely are strewn across the trunk or floor of a [vehicle].” Jimeno, 500 U.S. at 252. Here, Trooper Miller asked Saucedo if he had any weapons, cannabis or cocaine in his truck or trailer, and No. 11-2457 7 Saucedo answered “no.” At that point, Saucedo volun- teered that Miller could search, even before Miller re- quested permission. Trooper Miller specifically asked Saucedo if he could search his truck and trailer, and Saucedo answered, “yes.” So Saucedo was well aware that Miller was looking for drugs. And Saucedo gave his consent to search without any express limitation. Thus, his consent allowed Miller to search inside com- partments in the tractor-trailer, including in the sleeper area, where drugs could be concealed. This necessarily included the hidden compartment, which one could reasonably think might, and in fact did, contain drugs. If Saucedo didn’t want the hidden compartment to be searched, he could have limited the scope of the search to which he consented. See id. (stating that one may “delimit as he chooses the scope of the search to which he consents. But if his consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization.”). He did not. A rea- sonable person would have understood that by con- senting to a search of his tractor and trailer for drugs, Saucedo agreed to permit a search of any compartments or containers therein that might contain drugs, including the hidden compartment where the cocaine was ulti- mately found. See, e.g., id. at 251. Saucedo argues that the search exceeded the scope of his consent because Trooper Miller used a flashlight and screwdriver to look behind a TV, unscrew the molding, and remove the hidden compartment from the alcove. The trooper’s actions, Saucedo claims, contradicted the 8 No. 11-2457 principle that “general permission to search does not include permission to inflict intentional damage to the places or things to be searched.” United States v. Torres, 32 F.3d 225, 231-32 (7th Cir. 1994) (quotation omitted); see also United States v. Garcia, 897 F.2d 1413, 1419-20 (7th Cir. 1994) (concluding that the dismantling of door panels extends beyond a general consent to search a vehicle because “[t]he opening of door panels is not normally included in this set of areas to be searched [for drugs or weapons]” and “[s]uch a search is inherently invasive”). Saucedo did not assert in the district court that Trooper Miller damaged the truck and thus forfeited this argument. Forfeiture aside, the argu- ment has no traction. Trooper Miller’s actions were not as invasive as the dismantling of the doors in Garcia. 897 F.2d at 1416 (officers peered through window slot in door panels and removed door panel). Rather, this case is similar to Torres and United States v. Garcia, 604 F.3d 186 (5th Cir.), cert. denied, 131 S. Ct. 291 (2010). In Torres, an officer used a screwdriver to remove six screws that secured the cover of a wooden compartment in a trailer. See 32 F.3d at 228. We held that it was objectively reasonable for the officer to believe that the scope of consent allowed him to open the com- partment by unscrewing the screws. Id. at 232. We dis- tinguished the officer’s actions in merely releasing and removing the screws to allow inspection of the com- partment’s contents with a dismantling of the fabric of the trailer. Id. In Garcia, while searching the cab of a truck, an officer used a screwdriver to remove screws No. 11-2457 9 securing a stereo speaker, removed the speaker cover, and found cocaine. 604 F.3d at 189. In concluding that the search was within the scope of consent, the court noted that there was no structural demolition and the defendant knew the speaker cover was easy to unscrew and replace without causing damage. Id. at 190-91. Saucedo suggests that Trooper Miller’s actions caused damage, but without any evidence that either the com- partment or tractor was damaged. The removal of the hidden compartment did not dismantle any functional part of the tractor; the compartment had no function other than to conceal drugs, as Saucedo conceded at oral ar- gument. In contrast, the door panel removed during the search in Garcia, 897 F.2d at 1416, in part had a legiti- mate function, as Saucedo also conceded at argument. Next, Saucedo argues that a reasonable person in his shoes would have believed he was consenting to a search for items that could be identified with the five senses alone, without the assistance of tools. He com- pares the hidden compartment to a locked briefcase found in a trunk. In Jimeno, the Court said that it would be “likely unreasonable to think that a suspect, by con- senting to the search of his trunk, has agreed to the break- ing open of a locked briefcase within the trunk, but it is otherwise with respect to a closed paper bag.” 500 U.S. at 251-52. But accessing and opening a hidden compart- ment is quite different from opening a locked briefcase or other container. Even though the hidden compart- ment was covered by a panel, it was not a locked com- partment that would routinely be present in such a 10 No. 11-2457 vehicle, and it was easy for Trooper Miller to unscrew the molding and remove the compartment. Although Saucedo focuses on the hidden compart- ment’s location in the tractor’s sleeping area rather than in the cab, he doesn’t offer any reason why the location matters, particularly since he gave broad consent to search his tractor and trailer without limitation. His view contradicts the rule that officers conducting a consent search “may search anywhere within the general area where the sought-after item could be con- cealed.” Jackson, 598 F.3d at 348-49. The sleeping area is within the tractor and, as the facts demonstrate, drugs could be—and were—concealed there. Saucedo complains that he did not have the oppor- tunity to object to the search’s scope because he was seated in the squad car and out of view. He acknowl- edges that we have permitted officers to search for and open hidden compartments in vehicles based on a general consent to search the vehicle. See, e.g., Torres, 32 F.3d at 231-32 (upholding search where officer used screwdriver to release six screws and allow removal of the cover of a wooden compartment); accord Garcia, 604 F.3d at 190-91 (upholding search of truck cab where officers used screwdriver to remove screws securing speaker cover as within the scope of consent to search the truck and trailer). In those cases, that the suspect observed the search and did not object was not a necessary condition to finding that the search was within the scope of consent. See, e..g., Calvo-Saucedo, 409 F. App’x at 24 (holding district court did not clearly err No. 11-2457 11 in finding that “even if [suspect’s] initial consent was somehow limited in scope, he agreed to broaden his consent . . . by watching but failing to protest” the officer’s actions in removing the molding and “even if [the suspect] could not see [the] search, lifting the molding was within the scope of [his] initial consent”); Torres, 32 F.3d at 231 (relying on the breadth of consent given to search “any part, compartment, or trunk of the vehicle and the contents of any object or container found therein”). Instead, we contrasted what the suspect did or didn’t do with what he could have done to limit or withdraw the scope of the broad consent he had already given. See, e..g., Torres, 32 F.3d at 231 (suspect stood by silently as officer requested, obtained, and used a screwdriver to open the box); United States v. Maldonado, 38 F.3d 936, 940 (7th Cir. 1994) (suspect gave agents consent to search his luggage for drugs and nodded his head in response to agent’s request for further consent to search juicer boxes found inside luggage). As for Saucedo’s other arguments, the magistrate judge found that Saucedo was not suffering ill effects due to his diabetes at the time of the traffic stop or during the search that affected his ability to compre- hend the situation or make intelligent decisions. The district judge adopted the magistrate judge’s findings. Saucedo has not shown that these findings were clearly erroneous. Nor has he shown that the court clearly erred in finding that he spoke and understood English fluently at the time of the stop and knew he was consenting to the search of the entire tractor-trailer. 12 No. 11-2457 Furthermore, contrary to Saucedo’s claim, upholding the district court’s decision does not mean that when- ever law enforcement officers mention drugs and then ask for consent to search a vehicle, they may take apart any portion of the vehicle in search of drugs. Officers would still be limited by what is objectively reasonable under the circumstances, and a general consent to search does not authorize them to “inflict intentional damage to the places or things to be searched.” Torres, 32 F.3d at 231-32. Of course, as noted, suspects may limit the scope of a consent search. See, e.g., Jimeno, 500 U.S. at 252. III. We affirm Saucedo’s conviction and the district court’s judgment. 8-6-12	{ "pile_set_name": "FreeLaw" }
878 F.2d 1443 Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(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.UNITED STATES of America, Plaintiff-Appellee,v.DAEWOO INTERNATIONAL (AMERICA) CORPORATION and DaewooCorporation, Defendants-Appellants. No. 89-1238. United States Court of Appeals, Federal Circuit. March 21, 1989. Before FRIEDMAN, BISSELL and ARCHER, Circuit Judges. ARCHER, Circuit Judge. ORDER 1 The United States moves to dismiss the appeal of Daewoo International (America) Corporation and Daewoo Corporation (Daewoo). Daewoo opposes the motion. 2 This matter stems from a suit brought by the United States in the Court of International Trade alleging that Daewoo filed materially false and fradulent statements with the Customs Service. During the pretrial proceedings, the United States moved to strike certain of Daewoo's affirmative defenses and opposed Daewoo's motion to amend its answer to assert an additional affirmative defense and counterclaim. On September 29, December 9, and December 12, 1988, the trial court issued orders granting the United States' motion to strike Daewoo's first affirmative defense, granting the United States' motion to strike Daewoo's fifth affirmative defense, and denying Daewoo's motion to amend. 3 Daewoo noticed this appeal from the interlocutory orders and, in the alternative, petitioned for writ of mandamus. On February 15, 1989, this court denied Daewoo's mandamus petition and, sua sponte, directed the parties to brief the issue of whether Daewoo's appeal should be dismissed. 4 In its brief, Daewoo argues that the interlocutory orders are appealable pursuant to the Cohen exception to the finality rule. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). Three requirements must be met in order to appeal from an interlocutory order under this exception: (1) the order must conclusively determine the disputed question, (2) the order must resolve an important issue completely separate from the merits of the action, and (3) the order must be effectively unreviewable on appeal from final judgment. Gulfstream Aerospace Corp. v. Mayacamas Corp., 108 S.Ct. 1133, 1135-37 (1988). 5 The exception is a narrow one whose reach is limited to trial court orders affecting rights that will be "irretrievably lost" in the absence of an immediate appeal. Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 431 (1985). The possibility that a ruling may be erroneous and may impose additional litigation expense is not sufficient to set aside the finality requirement imposed by Congress. Koller, 472 U.S. at 436. Here, the third requirement is not met. These orders may be as effectively reviewed on appeal after final judgment as on interlocutory appeal. See Koller, 472 U.S. at 438. Hence, the Cohen exception is not applicable to this case.* 6 Accordingly, IT IS ORDERED THAT: 7 The United States' motion to dismiss is granted. * Daewoo argues that Lariscey v. United States, 861 F.2d 1267 (Fed.Cir.1988) supports its position that the Cohen exception applies. However, Lariscey dealt with the issue of whether the denial of a request for court-appointed counsel was immediately appealable. The facts in that case are such that Lariscey is distinguishable	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued December 11, 1997 Decided March 20, 1998 No. 97-3072 United States of America, Appellee v. Sun-Diamond Growers of California, Appellant Appeal from the United States District Court for the District of Columbia (No. 96cr00193-01) Eric W. Bloom argued the cause for appellant. With him on the briefs were Richard A. Hibey, Michael K. Atkinson and Charles B. Klein. Theodore S. Greenberg, Deputy Independent Counsel, ar- gued the cause for appellee. With him on the briefs were Donald C. Smaltz, Independent Counsel, and Charles M. Kagay, Chief Appellate Counsel. Carter G. Phillips and Griffith L. Green were on the brief for amicus curiae American League of Lobbyists. Before: Williams, Henderson and Tatel, Circuit Judges. Opinion for the Court filed by Circuit Judge Williams. Williams, Circuit Judge: Sun-Diamond is a large agricul- tural cooperative owned by individual member cooperatives including Diamond Walnut Growers, Sun-Maid Growers of California, Sunsweet Growers, Valley Fig Growers, and Ha- zelnut Growers of Oregon. It came within the sights of an independent counsel, Donald C. Smaltz, who was responsible for investigating allegations of unlawful activity by former Secretary of Agriculture Mike Espy. The independent counsel charged Sun-Diamond with making illegal gifts to Espy, committing wire fraud, and making illegal campaign contribu- tions. Linking Sun-Diamond and Espy was the figure of Richard Douglas. As Sun-Diamond's vice president for corporate affairs, Douglas was responsible for (among other things) representing the interests of the corporation and its member cooperatives in Washington. Given Sun-Diamond's business, the Department of Agriculture ("USDA") was naturally part of his bailiwick. According to performance evaluations signed by Sun-Diamond's president, Douglas was a diligent and able representative. He once described his approach to lobbying by paraphrasing Lord Palmerston: "We have no permanent friends or permanent enemies, only a permanent interest in Sun-Diamond Growers of California." Permanent friends aside, he had a long-time friend in Mike Espy--the two had gone to college together at Howard University and had stayed close in the years since. The crimes charged to Sun-Diamond grow out of two largely independent stories. One involves illegal gratuities given to Espy while he was Secretary of Agriculture, the other wire fraud and illegal contributions to the congressional campaign of the Secretary's brother, Henry Espy. We save the recitation of facts for the discussion of the distinct legal issues raised by each story. Sun-Diamond argues that under the facts alleged and proven it could not properly be found guilty of any of the offenses, and, as to the illegal gratuities, that the trial court's charge allowed the jury to convict on a theory precluded by the statute. We disagree with Sun-Diamond's claims of entitlement to dismissal of the indictment and to acquittal, but we agree that the jury charge on the gratuity counts was error and requires a remand for a new trial. Sun-Diamond also attacks the sentence, saying that the trial judge, having increased the offense level by eight for Espy's high-level status as required by the Guidelines, wrongly bumped it up another two levels on the theory that the Guidelines inade- quately took that status into account. It also objects to the trial court's imposition of probationary conditions on Sun- Diamond's member cooperatives, who were neither defen- dants nor agents of the defendant. We agree with Sun- Diamond on both sentencing points. * * * IllegalGratuities The key dispute here is over how close a link the govern- ment must show between Sun-Diamond's gifts and official acts that the Secretary of Agriculture performed or might perform. The indictment detailed two specific issues on which Sun-Diamond had a clear interest in favorable action by the Secretary. The first was the market promotion pro- gram ("MPP"), a grant fund administered by USDA and designed to prop up U.S. agricultural exports. See 7 U.S.C. s 5623. The Secretary of Agriculture was authorized to allocate MPP money to trade organizations like Sun- Diamond, who would in turn use it to defray overseas market- ing expenses. According to the independent counsel, be- tween 1990 and 1995 the Sun-Diamond member cooperatives received $23.9 million from MPP. In August 1993 Congress enacted budget legislation requiring the Secretary to give preference to "small-sized entities" in disbursing MPP funds. Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103- 66, s 1302(b)(2)(A), 107 Stat. 312, 331 (1993). Sun-Diamond and its members were hardly mom-and-pop organizations-- they reported net sales of $648 million for fiscal year 1993-- but many of their constituent growers were quite modest in size. Sun-Diamond therefore wanted the Secretary to adopt a regulatory definition of "small-sized entities" that would include cooperatives such as its members. Sun-Diamond also took an interest in federal regulation of methyl bromide, a pesticide used by some of the growers who belonged to its member cooperatives. In late 1992 the Envi- ronmental Protection Agency began review of a proposal to phase out the use of the chemical in the United States because of its potential to contribute to ozone depletion. Although the methyl bromide issue was not technically before USDA, a rational jury could conclude from the trial evidence that Sun-Diamond wanted Espy to help persuade EPA to delay or reject the proposed phase-out. Count I of the indictment charged the company with giving Espy (via Douglas) around $5,900 in illegal gratuities: tickets to the 1993 U.S. Open Tennis Tournament worth $2,295, luggage worth $2,427, meals worth $665, and a framed print and crystal bowl worth $524.1 The indictment further alleged that Sun-Diamond reimbursed Douglas for these outlays, treating them as business expenses. Sun-Diamond challenges Count I, asserting that the gratui- ty statute, 18 U.S.C. s 201(c)(1)(A), requires the government to prove a nexus between each unauthorized gift and some specifically identified official act--performed or hoped to be performed--for which the gift was given. Because the indict- __________ 1 Count II charged Sun-Diamond with paying $3,100 for Espy's girlfriend to accompany him to the International Nut Conference in Athens. The jury acquitted on this count. ment failed to allege any such one-to-one relationship, con- tends Sun-Diamond, the district court erred in denying its motion to dismiss Count I. See United States v. Sun- Diamond Growers of California, 941 F. Supp. 1262 (D.D.C. 1996) (denying motion to dismiss); United States v. Sun- Diamond Growers of California, 964 F. Supp. 486 (D.D.C. 1997) (denying renewed motion for acquittal). In a narrower variation on this argument, Sun-Diamond also challenges the jury instructions, saying that they impermissibly allowed the jury to convict if it found that Sun-Diamond gave Secretary Espy things of value merely in recognition of his official position, regardless of official acts that might have supplied the motivation. We reject Sun-Diamond's broader argument but agree with its challenge to the jury instructions, and it is with that challenge that we begin. The gratuity statute provides: Whoever ... otherwise than as provided by law for the proper discharge of official duty ... directly or indirectly gives, offers, or promises anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act per- formed or to be performed by such public official, former public official, or person selected to be a public official ... shall be fined under this title or imprisoned for not more than two years, or both. 18 U.S.C. s 201(c)(1)(A) (emphasis added). The statute defines an "official act" as "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit." 18 U.S.C. s 201(a)(3). The trial court charged the jury in full accord with the independent counsel's theory that gifts motivated by an offi- cial's status or position run afoul of the statute, regardless of whether the donor had any intent to affect or reward official conduct. Indeed, time and again the jury instructions ham- mered home that theme: The gratuity statute makes it a crime for a person or company to knowingly and willingly give a public official a thing of value because of his official position whether or not the giver or receiver intended that particular official's acts be influenced. * * * The essence of the crime is the official's position of [sic] as the receiver of the payment not whether the official agrees to do anything in particular, that is, not whether the official agrees to do any particular official act in return. Therefore ... to prove that a gratuity offense has been committed, it is not necessary to show that the payment is intended for a particular matter then pending before the official. It is sufficient if the motivating factor for the payment is just to keep the official happy or to create a better relationship in general with the official. * * * It is sufficient if Sun-Diamond provided Espy with unau- thorized compensation simply because he held public office. * * * In order for you to convict Sun-Diamond of violating the gratuity statute, you must find beyond a reasonable doubt that Sun-Diamond gave the gifts to Mr. Espy for or because of Mr. Espy's official government position and not solely for reasons of friendship or social purpose. * * * [T]he government must prove that Sun-Diamond Grow- ers of California, acting through its senior vice president for corporate affairs, Richard Douglas, and knowingly and willingly gave the gratuities, at least in part, because of the Secretary's position in appreciation of Sun-Dia- mond Growers of California's relationship with him as a public official or in anticipation of the continuation of its relationship with him as a public official. The government need not prove that the alleged gratuity was linked to a specific or identifiable official act or any act at all. (Emphases added.) The language of the charge is far broader than that of the statute. To satisfy the criminal intent requirement embodied in the phrase "for or because of any official act," the giver must intend either to reward some past concrete official act or acts, or to enhance the likelihood of some future act or acts. This is the meaning we found in our most extensive discussion of the gratuity statute, United States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974). In addressing the claim that a violation of the gratuity statute is a lesser included offense subsumed within a violation of the bribery statute, now codified at s 201(b)(1)(A),2 we necessarily compared the two provisions, explaining that the bribery provision required a more exacting showing of intent. Id. at 71-74. We charac- terized one aspect of the difference as follows: The bribery section makes necessary an explicit quid pro quo which need not exist if only an illegal gratuity is involved; the briber is the mover or producer of the official act, but the official act for which the gratuity is given might have been done without the gratuity, al- though the gratuity was produced because of the official act. Id. at 72 (emphasis added). As this passage makes tolerably clear, to say that the gratuity provision lacks a quid pro quo __________ 2 Section 201(b)(1)(A) imposes criminal penalties upon: Whoever ... directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent ... to influence any official act. Because Brewster involved the acceptance rather than the giving of gratuities and bribes, the court in fact focused on 18 U.S.C. s 201(c)(1) (1969) (covering receipt of bribes, now codified with minor differences in language at s 201(b)(2)(A)), and 18 U.S.C. s 201(g) (1969) (covering receipt of gratuities, now codified with minor differences in language at s 201(c)(1)(B)). The elements of the offense at issue here are the same, however, regardless of whether the defendant is the donor or donee, so Brewster stands as a controlling precedent for our case. requirement is not to read the "official act" language out of the statute. It is only to say that, in contrast to bribery, the gratuity and the official act need not each motivate the other. But the gratuity statute by its terms does still require at least a unidirectional relationship--the gift must be "for or because of" the act. The relation may be simply one of reward. "As the word 'gratuity' implies, the intent most often associated with the offense is the intent to 'reward' an official for an act taken in the past or to be taken in the future." United States v. Sawyer, 85 F.3d 713, 730 (1st Cir. 1996) (construing virtually identical Massachusetts gratuity statute). Even in such a case, the giver presumably hopes that his gratuity will affect the recipient's future conduct--and this was undoubtedly the concern that motivated Congress to bring rewards for past acts within the coverage of the statute. But, in contrast to bribery, it is enough under the gratuity statute if the defen- dant gives an unpromised benefit for a past governmental favor. And, whatever degree of intent to influence may be necessary for a bribe, a gift looking to future acts can be an unlawful gratuity where the giver is motivated simply by the desire to increase the likelihood of one or more specific, favorable acts. In summary, as we explained in Brewster, "under the gratuity section, 'otherwise than as provided by law ... for or because of any official act' carries the concept of the official act being done anyway, but the payment only being made because of a specifically identified act." 506 F.2d at 82 (emphasis added). The independent counsel appears to accept this analysis of Brewster, but claims that in that decision we restricted appli- cation of the official act requirement to cases involving elect- ed officials or candidates for elective office. Indeed, Brew- ster was a senator, and we noted that in cases involving elected officials the official act requirement served the impor- tant function of distinguishing illegal gratuities from ordinary campaign contributions. See id. at 73 n.26, 81. But in a footnote we postponed the question of non-elected officials to another day, distinguishing and declining to express ultimate disagreement with United States v. Umans, 368 F.2d 725 (2d Cir. 1966), a decision that dispensed altogether with the intent requirement in a case involving gratuities offered to I.R.S. agents. Brewster, 506 at 73 n.26. Even assuming the footnote could be read as suggesting a readiness to jettison the intent requirement in cases involving appointed officials, we disappointed any such expectation eight years later by reaffirming the official act requirement in United States v. Campbell, 684 F.2d 141 (D.C. Cir. 1982). Campbell concerned a Superior Court judge who received free moving services from a trucking firm that he had treated remarkably lightly, issuing nominal or suspended sentences on over 1,000 traffic tickets. We approved a jury charge requiring "that the alleged gratuities be given and received 'knowingly and willingly,' and 'for or because of an official act.' " Id. at 150 (emphasis added). To be sure, the attack in Campbell came from the defendants, who claimed a right to an even more restrictive charge. But Campbell cannot possi- bly be said to have stripped the statute of its "for or because of" requirement. A detail from that case underscores how we have refused to allow the official act requirement to be satisfied by some vague hope of inducing warm feelings toward the donor. Campbell had served as Assistant Corporation Counsel for the District of Columbia before becoming a judge in 1973, and was reputed to have been "sympathetic to trucking interests" during that time. Id. at 149 n.13. Yet, responding to a somewhat unclear claim that the jury might have convicted for uncharged prior acts, we noted that "[i]t is not even clear which 'acts' of Robert Campbell could have been the basis for [the trucking company's] gratuities prior to 1973, because 'sympathy to trucking interests' does not constitute an official act." Id. at 149 n.14.3 Here, too, if Douglas furnished Espy with gifts merely to win his generalized sympathy for Sun- __________ 3 The independent counsel claims that these passages in Campbell turn on the notion that an Assistant Corporation Counsel is not in a position to perform official acts. The notion is false--under District law an Assistant Corporation Counsel may, for example, choose to Diamond, those gifts would not be illegal gratuities, unless the jury could find that Douglas sought this generalized sympathy to influence Espy to perform one or more official acts sometime in the future. At oral argument we questioned the representative of the independent counsel on the application of his theory to in- stances where an old friend of some newly appointed office- holder took him to a meal or sports event while his firm had matters pending before the officeholder. Counsel appeared to assert that this scenario fell within his view of the statute.4 Indeed, it would have been squarely within the district court's charge to the jury. But we trust that, should Congress __________ prosecute (or not prosecute) traffic violations, D.C. Code ss 23-101, 40-622. Perhaps because of its falsity, the notion is never men- tioned by the Campbell court. Had the government charged Camp- bell with a pre-1973 decision not to prosecute the trucking compa- ny, rather than alleging mere "sympathy," such a decision might well have constituted an official act sufficient to support a gratuity charge. 4 The colloquy at oral argument was as follows: THE COURT: So if an old friend of mine from law school who's a partner in a firm that has a pending case before this Court takes me to a baseball game, as we've done for years, that's an illegal gratuity? COUNSEL: It may well be, yes. THE COURT: You're serious? COUNSEL: If you have a case, if [counsel for Sun-Diamond] takes you to the game tomorrow, takes you to the Redskins game on Sunday while you have this case pending before you, that's a gratuity. Oral Arg. Tr. at 30-31. The independent counsel's theory here seems truly sweeping: if this hypothetical baseball arrangement has been in place "for years," stretching back to before the judge's investiture, it is difficult to see how it could be motivated by the judge's position. Even if the baseball invitation represented an increment in the donor's hospitality to his friend since the latter's appointment, under this circuit's reading of the statute it would violate s 201(c)(1)(A) only if offered, as the statute says, "for or because of any official act." someday decide to criminalize such conduct, it will not require that the gifts be given "for or because of any official act." The independent counsel points to United States v. Secord, 726 F. Supp. 845, 847 (D.D.C. 1989), as well as several decisions by other courts of appeals apparently holding that gifts motivated solely by the recipient's official position may be illegal gratuities. See United States v. Evans, 572 F.2d 455, 480 (5th Cir. 1978); United States v. Standefer, 610 F.2d 1076, 1080 (3d Cir. 1979) (en banc);5 Umans, 368 F.2d at 730; United States v. Bustamante, 45 F.3d 933, 940 (5th Cir. 1995); cf. United States v. Alessio, 528 F.2d 1079, 1082 (9th Cir. 1976) (suggesting that donee's ability to use his position for donor's benefit was enough to satisfy the official act require- ment). These decisions appear to leap from the gratuity statute's lack of a reciprocal quid pro quo requirement to an assumption that it has dispensed with any need to show intent focused on an official act or acts. Thus, the court in Busta- mante says, "Generally, no proof of a quid pro quo is required; it is sufficient for the government to show that the defendant was given the gratuity simply because he held public office." 45 F.3d at 940. Any such leap disregards the explicit language of the statute and contradicts Brewster and Campbell. Other out-of-circuit cases seem to take the official act requirement more seriously. See, e.g., United States v. Muldoon, 931 F.2d 282, 287 (4th Cir. 1991) ("an illegal gratuity is a payment made for an act by the recipient that might have been done without any payment") (citing Brew- ster ); cf. Sawyer, 85 F.3d at 735-36 (construing virtually identical Massachusetts gratuity statute). Finally, the independent counsel asserts that in United States v. Baird, 29 F.3d 647 (D.C. Cir. 1994), we embraced his broad interpretation of the gratuity statute. The question in Baird was whether the conflict of interest statute, 18 U.S.C. s 203(a), requires the government to prove that a defendant knew the statute covered him. We held that the clause "otherwise than as provided by law," which appears both in _____________ 5The independent counsel's brief made no mention of Standefer, but in a petition for reharing he notes that the Supreme Court, in affirming the judgment on other grounds, Standefer v. United States, 447 U.S. 10 (1980), said in a footnote that "the instructions to the jury on criminal intent" were "correct." Id. at 14 n. 8. Standefer's briefs in the Supreme Court and the Third Circuit's unpublished panel opinion, United States v. Standefer, 1979 WL 4863 (3d Cir. 1979), however, make clear the defendant's challenge was to the absence of a quid pro quo requirement, and to the trial court's refusal to instruct the jury that the defendant's gifts to an I.R.S. agent had not in fact resulted in the favorable audit sought by the donor. Id.at 4-8. In any event, tahe instructions in Standefer, reprinted in relevant part in the Third Circuit's panel opinion, id. at 5, 6, were far narrower than the charge in this case, repeatedly emphasizing the requirement that the gifts be given for or because of tax audits performed by the donee. s 203(a) and in s 201(c) (then codified at ss 201(f) and (g)), did not embody such a scienter requirement; rather, it merely required a showing that the public official received money to which he was not lawfully entitled. Id. at 652. Although the Baird opinion cited approvingly to both Evans and Standefer, see id., it did not address directly the "for or because of any official act" language--doubtless because the conflict of interest statute at issue contained no such lan- guage. Given that the "for or because of any official act" language in s 201(c)(1)(A) means what it says, the jury instructions invited the jury to convict on materially less evidence than the statute demands--evidence of gifts driven simply by Espy's official position. The difference may not seem very great, for whenever a donor has matters actually or potential- ly pending before his donee, gifts motivated by the latter's position will usually also be motivated by a desire to reward or elicit favorable official action. But the terms of the statute require a finding that the gifts were motivated by more than merely the giver's desire to ingratiate himself with the official generally, or to celebrate the latter's status. In his effort to salvage the instructions, the independent counsel points to other portions of the charge in which the judge simply repeated the terms of the statute or the indict- ment verbatim, e.g., by reciting the words "for or because of an official act." These recitations could not possibly, howev- er, have overcome the broader message. Thus the charge failed to give the jury an adequate understanding of the issues, see United States v. DeFries, 129 F.3d 1293, 1304 (D.C. Cir. 1997), and the error cannot be called technical or harmless, see United States v. Lemire, 720 F.2d 1327, 1339 (D.C. Cir. 1983). We reverse and remand for a new trial on Count I.6 __________ 6 We reject Sun-Diamond's contention that the gratuity statute is unconstitutionally vague as applied to its conduct. United States v. At the same time, we reject Sun-Diamond's broad attack on the indictment. Again Campbell controls. Campbell ar- gued, much as Sun-Diamond does here, that the jury should have been required "to find that the gratuity was conferred with 'specific knowledge' of 'a definite official action for which compensation was intended.' " 684 F.2d at 149. We rejected that argument, holding that it was sufficient for the jury to find that the trucking company had provided free services to Campbell because it believed the judge had been, or would later be, "generally lenient" in dealing with the company's voluminous traffic citations. Id. at 149-50. The government, we held, was not required to show that any particular free service provided to Campbell was earmarked for any particu- lar ticket or tickets; leniency in a multitude of specific acts was enough. That an official has an abundance of relevant matters on his plate should not insulate him or his benefac- tors from the gratuity statute--as long as the jury is required to find the requisite intent to reward past favorable acts or to make future ones more likely. The Fraudulent Scheme Sun-Diamond was found guilty on Counts III and IV of committing wire fraud in violation of 18 U.S.C. ss 1343 & 1346, and on Counts V through IX of violating the Federal Election Campaign Act, 2 U.S.C. ss 441b(a) & 441f ("FECA"). Both sets of convictions flow from a scheme of Richard Douglas and James H. Lake to help repay the debts of the failed congressional campaign of Mike Espy's brother Henry. The following facts about the scheme come from the testimony of Lake, who was granted immunity by prosecutors in exchange for his cooperation. Lake was one of the founding partners of a Washington- based firm, Robinson Lake Sawyer & Miller ("RLSM"), which handled communications and public relations matters for __________ Campbell, 684 F.2d 141, 150 n.17 (D.C. Cir. 1982); cf. United States v. Brewster, 506 F.2d 62, 76-78 (D.C. Cir. 1974). Sun-Diamond.7 Sun-Diamond retained RLSM for a fee of $20,000 a month; Douglas oversaw Sun-Diamond's dealings with RLSM and maintained his own office there. RLSM was a wholly-owned subsidiary of Bozell Worldwide, Inc. ("Bo- zell"). After Mike Espy became Secretary of Agriculture, Henry Espy unsuccessfully pursued election to his brother's vacant seat in Congress, building up a sizable campaign debt in the process. In February 1994 Douglas left a telephone message at Lake's office--a crucial act for jurisdiction over one of the wire fraud counts. When Lake contacted Douglas, he learned that Secretary Espy had asked Douglas for help in retiring his brother's campaign debt. Lake immediately of- fered to donate $1,000, the maximum permissible individual contribution. Douglas replied that he had to raise at least $5,000 fast, and that he needed Lake's help. He then pro- posed a way around the campaign finance restrictions. If Lake would get five RLSM employees (including Lake him- self) to write a check for $1,000 each, Douglas would find a way for Sun-Diamond to reimburse them all. Lake knew the scheme was illegal--corporations are forbidden to make con- tributions "in connection with any election" for Congress, 2 U.S.C. s 441b(a), and no one may make a campaign contribu- tion in the name of another person, 2 U.S.C. s 441f--but agreed to participate anyway. Lake testified that no one else at RLSM or Bozell knew about the plan. Lake wrote a $1,000 check in his own name and then approached the four RLSM employees identified by Douglas. Three of them agreed to pay up. (A fourth--presumably suspicious about the notion of a reimbursable campaign con- tribution--declined.) Lake then passed the checks worth __________ 7 At certain points in the record this firm is referred to by somewhat different names, such as "RLLM/SMG" (Robinson, Lake, Lerer, Montgomery/Sawyer, Miller Group). For simplicity we will refer to Lake's partnership as RLSM throughout. $4,000 to Douglas, who deposited them in a "Henry Espy for Congress" account he had opened. As the vehicle for reimbursement, Douglas settled on the Joint Center Dinner, an annual benefit for which RLSM and Lake had in the past routinely bought tickets on Sun- Diamond's behalf. Lake's staff prepared an internal RLSM document authorizing reimbursement to Lake for his sup- posed purchase of tickets to the dinner in the amount of $5,000 (even though he had raised only $4,000 for Henry Espy). The same document became part of the monthly invoice sent to Sun-Diamond, billing the client $5,000 for the fictitious dinner attendance on top of its $20,000 monthly retainer and other expenses. Lake received a $5,000 reim- bursement check from Bozell, which he cashed and used to pay back the three other individual contributors (apparently pocketing the extra $1,000 for himself). Douglas, as part of his normal duties at Sun-Diamond, approved the payment to RLSM, which eventually went through. The net result: a $5,000 expenditure by Sun-Diamond, $4,000 of which went into Henry Espy's campaign coffers and $1,000 into James H. Lake's pocket.8 The independent counsel charged that the scheme worked a fraud on Bozell and RLSM, depriving the former (albeit temporarily) of $5,000, and depriving the latter of the "honest services" of its agent Lake under 18 U.S.C. s 1346. The jury convicted, evidently convinced that at least one such deprivation occurred. The jury also found Sun- Diamond guilty of making illegal campaign contributions in violation of FECA, 2 U.S.C. ss 441b(a) & 441f. As a threshold matter, Sun-Diamond raises a challenge which it says goes equally to the wire fraud and FECA counts. Richard Douglas's campaign contribution scheme cannot be attributed to it, Sun-Diamond argues, because Douglas was not acting with an intent to benefit the corpora- __________ 8 In October 1995 RLSM terminated its relationship with Sun- Diamond and returned the $5,000 payment. tion. It is true, as the district court instructed the jury in this case, that an agent's acts will not be imputed to the principal in a criminal case unless the agent acts with the intent to benefit the principal.9 Here, Sun-Diamond says, Douglas's scheme was designed to--and did in fact--defraud his employer, not benefit it. In this circumstance, it strenu- ously argues, there can be no imputation: "[T]o establish precedent holding a principal criminally liable for the acts of an agent who defrauds and deceives the principal while pursuing matters within his self-interest merely because the agent's conduct may provide some incidental benefit to the principal serves to punish innocent principals with no counter- vailing policy justifications." Appellant's Reply Br. at 16 n.9. This argument has considerable intuitive appeal--Sun- Diamond does look more like a victim than a perpetrator, at least on the fraud charges. The facts in the record, howev- er--that Douglas hid the illegal contribution scheme from others at the company and used company funds to accomplish it--do not preclude a valid finding that he undertook the scheme to benefit Sun-Diamond. Part of Douglas's job was to cultivate his, and Sun-Diamond's, relationship with Secre- tary Espy. By responding to the Secretary's request to help his brother, Douglas may have been acting out of pure friendship, but the jury was entitled to conclude that he was acting instead, or also, with an intent (however befuddled) to further the interests of his employer. The scheme came at some cost to Sun-Diamond but it also promised some benefit. See, e.g., United States v. Automated Medical Laboratories, Inc., 770 F.2d 399, 406-07 (4th Cir. 1985) (agent's conduct which is actually or potentially detrimental to corporation may nonetheless be imputed to corporation in criminal case if __________ 9 In a civil case, there may be no need to show that the agent acted to further the principal's interests--a showing of "apparent authority" is often enough. See American Society of Mechanical Engineers v. Hydrolevel Corp., 456 U.S. 556, 573-74 (1982) (private antitrust action). motivated at least in part by intent to benefit it); cf. Local 1814, International Longshoremen's Association, AFL-CIO v. NLRB, 735 F.2d 1384, 1395 (D.C. Cir. 1984) ("[T]he acts of an agent motivated partly by self-interest--even where self- interest is the predominant motive--lie within the scope of employment so long as the agent is actuated by the princi- pal's business purposes 'to any appreciable extent.' ") (quoting Restatement (Second) of Agency s 236 & comment b (1957)). Where there is adequate evidence for imputation (as here), the only thing that keeps deceived corporations from being indicted for the acts of their employee-deceivers is not some fixed rule of law or logic but simply the sound exercise of prosecutorial discretion. And the answer to Sun-Diamond's claim of the absence of any "countervailing policy justification" is simply the justifica- tion usually offered in support of holding corporate principals liable for the illegal acts of their agents: to increase incen- tives for corporations to monitor and prevent illegal employee conduct. See Kevin B. Huff, Note, The Role of Corporate Compliance Programs in Determining Corporate Criminal Liability: A Suggested Approach, 96 Colum. L. Rev. 1252, 1263 & n.49 (1996). One might well question this justifica- tion--and scholars have. See, e.g., Daniel R. Fischel and Alan O. Sykes, Corporate Crime, 25 J. Legal Stud. 319 (1996) (arguing that corporate criminal liability spurs excessive mon- itoring and litigation costs and should be discarded in favor of civil liability); Jennifer Arlen, The Potentially Perverse Ef- fects of Corporate Criminal Liability, 23 J. Legal Stud. 833 (1994) (arguing that strict corporate liability may deter corpo- rate monitoring by making criminal exposure more likely, so that its imposition may increase the likelihood of crime). Moreover, the justification may be at its weakest in cases like this one, where the offending employee breaches a duty of honesty to the very corporation whose goals he aims to advance. In any event, Sun-Diamond's argument here, what- ever its merit as an issue of policy, has no real grounding in the relevant statutes. And Sun-Diamond does not invoke the Constitution, which in any event would require either an overruling of the Supreme Court's rejection of a due process attack on corporate liability, New York Cent. & Hudson River R.R. Co. v. United States, 212 U.S. 481 (1909), or the develop- ment of some new theory. Sun-Diamond also raises a narrower objection concerning imputation, one which goes only to the fraud counts. To the extent Douglas's conduct is to be imputed to his employer, argues Sun-Diamond, then so must Lake's be imputed to his employers (RLSM and Bozell). Both men occupied high-level management positions in their respective firms, and both men's firms sought to establish and maintain good relations with Secretary Espy. If Douglas's knowledge can be imput- ed to Sun-Diamond to hold it responsible for Douglas's acts, then Lake's must be imputed to his employers, RLSM and Bozell, and they cannot be victims. Even assuming the evidence showed the balance of private and corporate purpose in Douglas's and Lake's motivation to be identical, Sun-Diamond's argument rests on a faulty as- sumption--that the imputation rules must be the same on both the perpetrator and victim sides. They need not be, and indeed are not. Imputation is a legal fiction designed to assist in the allocation of liability, not a literal description of the state of a principal's knowledge. The law imputes the wrongdoer's conduct to the corporation in order to encourage monitoring, but it is not at all clear that imputation on the other side of the equation would be useful in eliciting addi- tional caution on the part of would-be fraud victims. A rule that makes victim wariness a condition of criminally punish- ing the perpetrator--unlike, say, a rule of contributory negli- gence in tort--might not inspire much extra precaution in potential victims. However much they may benefit from the criminalization of fraud generally, potential victims (who have many incentives to avoid being gulled, independent of the criminal law) seem unlikely to step up their precautions just to increase the ex ante chances that their deceivers will face criminal sanctions--or so Congress could reasonably con- clude. Thus, when an individual is swindled, the offender does not escape mail or wire fraud liability just because the victim was unwary, or even "gullible." See United States v. Brien, 617 F.2d 299, 311 (1st Cir. 1980). Indeed, Congress's adoption of 18 U.S.C. s 1346, specifying that the term "scheme or artifice to defraud," as used in various federal criminal fraud statutes, should include schemes to deprive a principal "of the intangible right of honest services," is hard to square with an imputation rule on the victim side as broad as the one governing corporate criminal responsibility. We pause briefly over a final threshold issue before ad- dressing the core of Sun-Diamond's challenge to the fraud convictions. The wire fraud statute forbids the use of the interstate telephone system "for the purpose of executing" a scheme or artifice to defraud. 18 U.S.C. s 1343. Sun- Diamond says the telephone message left by Douglas for Lake preceded their joint concoction of the campaign contri- bution scheme and thus could not, as a matter of law, have furthered the scheme.10 There was, however, ample evidence from which the jury could find that Douglas already had some sort of fraudulent plan in mind when he placed the initial call and left the message. In other words, the jury could have found that Douglas used the telephone system "prior to, and as one step toward, the receipt of the fruits of the fraud," Kann v. United States, 323 U.S. 88, 94 (1944), placing the case within the coverage of s 1343. Sun-Diamond's core challenge to the wire fraud counts raises more serious concerns. The district court charged the jury on two alternative routes to fraud liability. It could convict, said the court, if it found "that Sun-Diamond Grow- ers of California devised a scheme or artifice to defraud with one or both [of] the two following objectives. One, to obtain even temporarily $5,000 from Bozell, Inc. by means of false pretense and representations in order to make an illegal corporate campaign contribution to Henry Espy for Congress Committee. Two, to deprive Bozell, Inc. and [RLSM] of the honest, conscientious, faithful, loyal, disinterested and unbi- __________ 10 This challenge goes only to Count III. The wire communication underlying Count IV was the electronic transmission of the $5,000 billable expense report from RLSM to Bozell. ased services of its employee, James Lake." Because the jury charge was phrased in the disjunctive we must examine the legal sufficiency of each basis for liability, to ensure that the jury did not convict on a legally impermissible ground. See Griffin v. United States, 502 U.S. 46, 59 (1991) (general verdict based on alternative grounds of liability will be upheld as long as both grounds are legally adequate, even if one is factually inadequate). As for the first possible objective, we admit that it is not immediately obvious how the contribution scheme could have been designed to deprive Bozell even temporarily of its money or property. Sun-Diamond, through Douglas, caused Bozell to make a routine advance of $5,000 with every expec- tation that Sun-Diamond would provide prompt reimburse- ment, and in fact it reimbursed the expense promptly and in full. As the district court correctly noted in the sentencing phase, Bozell was deprived only of the time value of the sum advanced, a deprivation it surely considered negligible judg- ing from the routine and informal nature of the transaction. In a case involving fraudulently obtained consumer credit, however, we held that where a defendant makes "material misrepresentations designed to induce an extension of credit that would not otherwise be made, the jury [may] reasonably infer intent to defraud," even if the borrower intended in good faith to repay the loan. United States v. Alston, 609 F.2d 531, 538 (D.C. Cir. 1979). Moreover, other courts have held that actual repayment is no defense to a charge of fraudulently obtaining a loan, presumably because a loan obtained by fraud subjects the lender to a greater risk of loss than it would have voluntarily borne were it fully informed. United States v. Scott, 701 F.2d 1340, 1346-48 (11th Cir. 1983); United States v. Sindona, 636 F.2d 792, 800 (2d Cir. 1980); see also United States v. Hollis, 971 F.2d 1441, 1452- 53 (10th Cir. 1992) (repayment not a defense to bank fraud under 18 U.S.C. s 1344); United States v. Allen, 76 F.3d 1348, 1358-59 (5th Cir. 1996) (bank was defrauded, at least temporarily, when cashier's checks were fraudulently drawn on bank's account, even though bank was reimbursed in full by holding company at end of month). Notably, to the extent repayment in those cases included interest they did not even feature the time-value deprivation that is present here. Moreover, although the misrepresentation here did not go to the likelihood of the advance being repaid, it was nonetheless material: had Bozell known that the $5,000 was being used to launder an illegal campaign contribution rather than to re- serve a table at a charitable dinner, it would not have authorized the advance. Just as deceitful assurances of legal- ity in a conventional loan expose the lender to costly legal entanglements (quite apart from risks of non-repayment), so too did the concealment here.11 The second alternative ground of liability was that Sun- Diamond defrauded RLSM of the honest services of its agent, James H. Lake, in violation of 18 U.S.C. s 1346. Congress enacted that provision in response to the Supreme Court's decision in McNally v. United States, 483 U.S. 350 (1987), which held that the mail fraud statute's coverage was limited to deprivations of property.12 Section 1346 says simply that "[f]or the purposes of this chapter, the term 'scheme or __________ 11 Sun-Diamond also offers another reason why Douglas could not have intended to defraud Bozell. According to Sun-Diamond, Douglas anticipated that Sun-Diamond would reimburse Lake di- rectly, or at least that Lake's employer would await payment from Sun-Diamond before reimbursing Lake, thus avoiding even a tem- porary deprivation. (In fact Sun-Diamond contends, implausibly, that there was no evidence from which a jury could infer that Douglas even knew of Bozell's existence.) Given Douglas's experi- ence with Sun-Diamond/RLSM billing practices, however, he could reasonably have foreseen the possibility that Lake would seek an advance from his employer or its parent company at the time he hatched the scheme. 12 The elements required for conviction under s 1341 (mail fraud) and s 1343 (wire fraud) are identical except for the means of artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services." 18 U.S.C. s 1346. The "honest services" theory has typically been used, both in cases up to McNally and again under s 1346, as a tool for prosecuting corrupt public officials who have de- prived citizens of their right to honest representation. See United States v. Paradies, 98 F.3d 1266, 1283 n.30 (11th Cir. 1996) (collecting cases). But it has also been used, as here, to prosecute private citizens who defraud private entities. See, e.g., United States v. Lemire, 720 F.2d 1327 (D.C. Cir. 1983); United States v. DeFries, 129 F.3d 1293, 1305-06 (D.C. Cir. 1997); United States v. Jain, 93 F.3d 436 (8th Cir. 1996); United States v. Frost, 125 F.3d 346 (6th Cir. 1997); United States v. D'Amato, 39 F.3d 1249 (2d Cir. 1994); United States v. Cochran, 109 F.3d 660 (10th Cir. 1997); United States v. Gray, 96 F.3d 769 (5th Cir. 1996). In the private sector context, s 1346 poses special risks. Every material act of dishonesty by an employee deprives the employer of that worker's "honest services," yet not every such act is converted into a federal crime by the mere use of the mails or interstate phone system. Aware of the risk that federal criminal liability could metastasize, we held in Lemire that "not every breach of a fiduciary duty works a criminal fraud." Lemire, 720 F.2d at 1335, quoting United States v. George, 477 F.2d 508, 512 (7th Cir. 1973). Rather, "[t]here must be a failure to disclose something which in the knowl- edge or contemplation of the employee poses an independent business risk to the employer." Id. at 1337.13 Absent rea- sonably foreseeable economic harm, "[p]roof that the employ- er simply suffered only the loss of the loyalty and fidelity of __________ communication. United States v. Lemire, 720 F.2d 1327, 1334-35 n.6 (D.C. Cir. 1983). 13 Lemire was a pre-s 1346 decision, but Congress's evident intent in enacting that provision was to revive pre-McNally caselaw, at least with respect to the deprivation of honest services. See, e.g., the [employee] is insufficient to convict." Frost, 125 F.3d at 368. The independent counsel says that Douglas and Lake's fraudulent scheme threatened serious economic harm to RLSM, because disclosure of a name partner's fraudulent use of RLSM's offices to funnel illegal contributions to a political candidate would severely damage the firm's reputation. The district court agreed, 964 F. Supp. at 493-94. As Lake testified, the chief assets of a public relations firm are its legitimacy and credibility in the eyes of current and potential clients. Both stood to be undermined by Douglas and Lake's actions. There is no doubt that Douglas and Lake could have foreseen that their actions would cause substantial economic harm to RLSM once word of the scheme got out. Sun-Diamond, however, says this is not enough. It con- tends that in the private sector context s 1346 and Lemire demand a showing that the defendant intended to cause economic harm to his victim, not merely that he could have reasonably foreseen such harm. Since the economic harm identified by the independent counsel flows exclusively from disclosure of the contribution scheme, and since Douglas surely did not intend for his scheme to be revealed (except possibly to Mike Espy, so that the Secretary's gratitude could be properly directed), Sun-Diamond reasons that it is free from liability under s 1346. In response to this argument, it will not do to cite "the presumption, common to the criminal and civil law, that a person intends the natural and foresee- able consequences of his voluntary actions." Personnel Ad- ministrator of Mass. v. Feeney, 442 U.S. 256, 278 (1979). Applying the presumption to the actual detection and revela- tion of an illegal scheme would threaten to turn the word __________ Frost, 125 F.3d at 364 ("We therefore hold that s 1346 has restored the mail fraud statute to its pre-McNally scope, according to previous opinions interpreting the intangible right to honest ser- vices."). "intent" inside out. Is a criminal who foresees his own capture thereby said to intend it? If so, are especially elusive criminals, whose apprehension is ex ante relatively unlikely, in a better legal position than clumsy ones? We need not address these questions, because we disagree with Sun-Diamond's contention that s 1346 and Lemire re- quire the government to show that the defendant intended to cause economic harm to his victim. Sun-Diamond appears to confuse the requirement of an intent to defraud (amply met here, since the crux of the scheme was the submission of a fictitious expense report to RLSM) with a requirement of intent to cause economic harm. But Lemire did not go so far as to say that economic harm must be part of the defendant's intent in a private-sector "honest services" case--only that economic harm be within the defendant's reasonable contem- plation. Although Lemire dealt with failure to disclose a conflict of interest rather than with an active scheme to defraud, its treatment of the foreseeability issue governs this case: So long as the jury finds the non-disclosure furthers a scheme to abuse the trust of an employer in a manner that makes an identifiable harm to him, apart from the breach itself, reasonably foreseeable, it may convict the employee of wire fraud. The crucial determination must be whether the jury could infer that the defendant might reasonably have contemplated some concrete business harm to his employer ... Lemire, 720 F.2d at 1337 (emphasis added); see also United States v. Barta, 635 F.2d 999, 1005-06 n.14 (2d Cir. 1980) (relied on in Lemire). As we reaffirmed recently, "Lemire held that breaches of fiduciary duty are criminally fraudulent only when 'accompanied by a misrepresentation or non- disclosure that is intended or is contemplated to deprive the person to whom the duty is owed of some legally significant benefit.' " DeFries, 129 F.3d at 1306, quoting Lemire, 720 F.2d at 1335 (emphasis added). See also Frost, 125 F.3d at 368 (holding that, in cases where employee is charged with defrauding private employer of his own honest services, "[t]he prosecution must prove that the employee intended to breach a fiduciary duty, and that the employee foresaw or reasonably should have foreseen that his employer might suffer an economic harm as a result of the breach.") (emphasis added); D'Amato, 39 F.3d at 1257 (pre-s 1346 case holding that misrepresentations amounting only to a deceit "must be coupled with a contemplated harm to the victim"). We therefore affirm the convictions for wire fraud on Counts III and IV.14 SentencingIssues Sun-Diamond challenges two aspects of its sentence: the district court's upward departure based on Espy's position as Secretary of Agriculture, and the imposition of reporting requirements on the member cooperatives. We agree with Sun-Diamond and reverse on both points. District courts may make upward departures from the Sentencing Guidelines only if "there exists an aggravating ... circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulat- ing the guidelines." 18 U.S.C. s 3553(b); U.S. Sentencing Guidelines Manual ("U.S.S.G.") s 5K2.0. We review district court determinations that a given factor is present in a particular case to a degree not adequately considered by the Commission only for abuse of discretion, because "[d]istrict courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do." Koon v. United States, 116 S. Ct. 2035, 2047 (1996). But whether a given factor could ever be a permissible basis for departure is a question of law which we address de novo. Id. Here, the issue is in a sense one of degree--how much authority and status might elevate a position above even the __________ 14 Sun-Diamond does not challenge the adequacy of the jury charge on the "honest services" theory of liability under ss 1343 & 1346. rank for which the Guidelines prescribe an eight-level hike-- but it also poses the onetime issue of whether cabinet-level officers enjoy such lofty status, hardly the sort of fact- intensive issue calling for extreme deference. The guideline applicable to violations of the gratuity statute prescribes a base offense level of 7. U.S.S.G. s 2C1.2. It calls for a two-level increase if the offense involved more than one gratuity, and an eight-level increase [i]f the gratuity was given, or to be given, to an elected official or any official holding a high-level decision- making or sensitive position. Id. The district court imposed both the two-level and the eight-level increase, bringing the offense level to 17. It then appended an additional two-level increase, finding that the Guidelines did not adequately take into account Espy's posi- tion as a cabinet-level official. This increase in offense level from 17 to 19 doubled Sun-Diamond's base fine from $250,000 to $500,000. U.S.S.G. s 8C2.4. The court then assigned Sun-Diamond a "culpability score" of 9 out of a possible 10, see id. s 8C2.5, a determination Sun-Diamond does not challenge here. This culpability score dictated a minimum multiplier of 1.8 and a maximum of 3.6, id. s 8C2.6, leading to an applicable fine range of $900,000 to $1,800,000, from which the court chose a figure in the "upper range"-- $1,500,000. In support of departing upward on account of the high level of the donee's position, the district court reasoned: The President has but one cabinet with select members who the court deems to be on a higher level with regard to the type of responsibility which is otherwise contem- plated by the guidelines, and the Secretary of Agricul- ture, in fact, is tenth in the order of succession to the Office of the Presidency. That is not an insignificant fact, and as unlikely as it may be that the Secretary of Agriculture would assume the Presidency of the United States because circumstances would not normally present that opportunity, nevertheless, there is a reason for creating a pecking order to the position which many believe is the position of the most powerful person on the face of the earth. In any event, the court [notes] for example that Secre- tary Espy administered a budget of $65 and one half billion, this figure represents 4.3 percent of the total federal budget. He's responsible for a great work force and makes decisions frequently that have a significant and broad and wide-ranging effect on the American population, and some might believe on the population of ... other parts of the world. As the Secretary of Agriculture obviously holds a "high-level decision-making or sensitive position," it is clear that the district court rested its departure not on a finding that cabinet-level status was the kind of factor the Sentencing Commission failed to consider in formulating s 2C1.2, but on a belief that his position is so high-level that it represents an aggravating circumstance present to a degree not taken into account by the Commission. This conclusion is at odds with the Sentencing Commis- sion's explanation of s 2C1.2.15 The Application Notes ex- plain that " 'Official holding a high-level decision-making or sensitive position' includes, for example, prosecuting attor- neys, judges, agency administrators, supervisory law enforce- ment officers, and other governmental officials with similar levels of responsibility." U.S.S.G. s 2C1.2, App. Note 1. We do not think the Secretary of Agriculture holds a position that in level or sensitivity differs in any material degree from persons the Application Note explicitly says were within the Commission's contemplation. Since the Secretary administers an agency, a straightfor- ward reading of the Application Note strongly suggests that he falls within the "agency administrator" category. The independent counsel says that this term was meant to refer to lower-level program administrators, of which it says there are __________ 15 "In determining whether a circumstance was adequately taken into consideration the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sen- tencing Commission." 18 U.S.C. s 3553(b). 85 or so within USDA alone, Appellee's Br. at 43 n.15, but never explains why we should assume the Sentencing Com- mission had such a limited category in mind. The Application Note expressly lists judges as the sort of high-level officials for which the eight-level departure is appropriate. Perhaps our perspective is skewed, but offering a gratuity to a life- tenured federal judge seems to us at least as culpable as offering one to a cabinet secretary--indeed, we suspect most citizens would consider the former a more troubling breach of public trust than the latter. To permit a two-level departure for the latter, when such a departure is specifically precluded for the former, appears illogical. Nor is the district court's decision rescued by its observa- tions about presidential succession. The Guideline includes elected officials without apparent regard to the loftiness or sensitivity of their positions, and the Application Note says nothing to suggest variation within the elected-official catego- ry. Thus it appears to sweep in officials ranging in rank from Representative to President. Even assuming that a case involving the President might present a sui generis situation warranting departure, Sun-Diamond points out that the Speaker of the House is second in line to the presidency after the Vice President, 3 U.S.C. s 19, and yet is also presumably taken into account by s 2C1.2 as an "elected official." The independent counsel responds that "perhaps the Sentencing Commission did not take into consideration the position and power of the Speaker of the House when it drafted the bribery and gratuity guidelines." Appellee's Br. at 45 n.16. Conceivably, but more likely the Commission meant, as it said, to lump all federal elected officials together, in contrast with other officials whose rank was seen to vary enough to require consideration of levels of responsibility. Similarly, the Attorney General--seventh in line to the presidency-- seems to fit within the Application Note's "supervisory law enforcement officers" category. Though we need not, and do not, decide today the status of these officials with respect to s 2C1.2, their seeming inclusion argues strongly against the idea that the Sentencing Commission failed to take adequate- ly into account the degree of responsibility of an official further down the line of presidential succession. Moreover, the district court's approach makes one wonder how far one must go down the line of succession before one finally reaches the heartland of s 2C1.2. The Secretary of Agriculture is in fact ninth in the line of succession, 3 U.S.C. s 19, not tenth as the district court stated.16 This makes his connection to ultimate power just as attenuated as that of the anti-hero of "Kind Hearts and Coronets," who had to murder eight Alec Guinnesses to become Duke of Chalfont. What of the Secretary of Health and Human Services, at number twelve in the queue, id., or the Secretary of Veterans Affairs, at seventeen, id.? Of course, questions of line-drawing are often difficult, and in the sentencing arena such questions are normally best resolved by the district courts on a case-by- case basis. Here, however, the factor invoked in support of departure--cabinet-level status--is not one that the district courts enjoy any comparative advantage in assessing, unlike such fine-grained, fact-bound circumstances as extreme psy- chological injury, see U.S.S.G. s 5K2.3, or victim misconduct, see id. s 5K2.10. We conclude that the two-level upward departure was impermissible. Sun-Diamond also challenges the imposition of reporting requirements on its member cooperatives. The district court declared, as a condition of probation, that "Sun-Diamond and its members [sic] cooperatives shall provide quarterly submis- sions to the probation officer reporting all of the organiza- tion's expenditures related to all federal employees, office holders or candidates for federal office [including] any expen- diture related [to] the procurement of any federal govern- ment contract, creation of a federal law or regulation, or the __________ 16 The current Secretary of Agriculture, however, is in practical effect eighth in line, since Secretary of State Madeleine Albright, having been born abroad, is ineligible. See U.S. Const. art. II, s 1, cl. 5. development of any federal policy." These requirements were to continue in force for five years. We recognize that the sentencing judge has broad discre- tion to establish conditions of probation. Lemire, 720 F.2d at 1352. But we know of no precedent for the imposition of probationary conditions on entities who are not defendants, nor even agents of defendants--the latter category proble- matic in its own right, but much more plausibly legitimate than the present case. Although the independent counsel paints Sun-Diamond as a mere alter ego of the cooperatives that own it, we are not persuaded. The member cooperatives have their own corporate identities, boards of directors, em- ployees, assets and liabilities, as does Sun-Diamond. Their power to control Sun-Diamond seems no greater than the power of ordinary shareholders to control a corporation. As the Ninth Circuit has explained, imposition of a condi- tion on a third party exposes the defendant to revocation of probation for "violations" by persons not under his control. United States v. Sweeney, 914 F.2d 1260, 1263 (9th Cir. 1990). Cf. Fiore v. United States, 696 F.2d 205, 208-09 (2d Cir. 1982) (reversing condition of probation imposed on defendant who was president, secretary, sole stockholder and only full-time employee of corporate co-defendant, which had required him to pay fine imposed on corporation). And 18 U.S.C. s 3563, which enumerates mandatory and discretionary conditions of probation, specifies in every one of them the "defendant" as the person to be burdened. See Sweeney, 914 F.2d at 1263. As the member cooperatives were not made defendants and given an opportunity to be heard, they may not now be subjected to probation. * * We reverse and remand for new trial on Count I; we affirm the convictions on Counts III through IX; and we vacate Sun-Diamond's sentence and remand for further pro- ceedings consistent with this opinion. So ordered.	{ "pile_set_name": "FreeLaw" }
46 F.3d 1148 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Carlos Santos PEREZ-ESTRADA, Defendant-Appellant. No. 93-50378. United States Court of Appeals, Ninth Circuit. Submitted July 18, 1994.Filed July 21, 1994.Withdrawn Nov. 4, 1994.Decided Nov. 4, 1994. Before: FARRIS, KOZINSKI, and NOONAN, Circuit Judges. ORDER 1 The memorandum filed July 21, 1994 is ordered withdrawn. The attached memorandum is ordered filed. 2 The panel has voted to deny appellant's petition for rehearing and to reject the suggestion for rehearing en banc. 3 The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35. 4 The petition for rehearing is denied and the suggestion for rehearing en banc is rejected. 5 MEMORANDUM* 6 Carlos Santos Perez-Estrada appeals his conviction, following a bench trial, and his 52-month sentence for being found in the United States after having been deported subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. Sec. 1326(b)(2). Perez-Estrada challenges his conviction on the grounds that (1) his prior state convictions for selling, administering, importing, or transporting marijuana in violation of Cal. Health & Safety Code Sec. 11360(a) do not constitute "aggravated felonies," and (2) the evidence was insufficient to prove that he was found in the United States at the time alleged in the indictment. He also contends the district court should have limited his sentence to two years because the Immigration and Naturalization Service (INS) incorrectly informed him when he was deported that two years is the maximum prison term for illegal reentry. We have jurisdiction under 28 U.S.C. Sec. 1291 and affirm. A. Background 7 A grand jury returned a one-count indictment charging Perez-Estrada with illegal reentry in violation of 8 U.S.C. Sec. 1326(b)(2). The indictment alleged that Perez-Estrada was found in the United States on or about October 19, 1992, after having been deported in 1988 and 1991. It further alleged that prior to deportation Perez-Estrada had been convicted of aggravated felonies, namely, selling or furnishing marijuana in violation of Cal.Health & Safety Code Sec. 11360(a), in 1981, 1986, and 1990. Perez-Estrada was convicted after a bench trial based in part on stipulated facts. B. Aggravated Felony Determination 8 Perez-Estrada contends that his three convictions for violations of Cal.Health & Safety Code Sec. 11360(a) do not constitute "drug trafficking crimes," and thus are not aggravated felonies, because a conviction under section 11360(a) could be for mere transport of marijuana for personal use. We review de novo whether an offense constitutes an aggravated felony. See United States v. Chaidez, 916 F.2d 563, 564 (9th Cir.1990) (whether conspiracy is drug trafficking crime under 18 U.S.C. Sec. 924(c)). 9 For purposes of the offense of illegal reentry, an aggravated felony includes any drug trafficking crime as defined in 18 U.S.C. Sec. 924(c)(2), which in turn includes "any felony punishable under the Controlled Substances Act" (the Act), "whether in violation of Federal or State law." 8 U.S.C. Sec. 1101(a)(43). 10 Perez-Estrada was convicted three times of violating Cal.Health & Safety Code Sec. 11360(a), which makes it a felony "to sell, furnish, administer, give away, import, attempt to import, [or] transport" marijuana or hashish. California's statutory scheme suggests that a violation of section 11360(a) constitutes drug trafficking. The punishment range for a violation of section 11360(a) is two, three, or four years. In contrast, under Cal.Health & Safety Code Secs. 11360(b), giving away or transporting less than 28.5 grams of marijuana is a misdemeanor punishable by a fine of not more than $100. Possession of small amounts of marijuana for personal use is also a misdemeanor. See Cal.Health & Safety Code Sec. 11357 (West 1994). Because section 11630(a) criminalizes distribution of marijuana on a scale that constitutes drug trafficking, the district court did not err when it determined that Perez-Estrada's convictions under that statute constitute drug trafficking crimes. See Chaidez, 916 F.2d at 565-66 (conspiracy to possess with intent to distribute a drug trafficking crime under 18 U.S.C. Sec. 924(c)). Accordingly, the district court did not err by determining that Perez-Estrada had been convicted of an aggravated felony.1 C. Sufficiency of Evidence 11 Perez-Estrada contends the evidence that he was "found in" the United States after deportation, an element of 8 U.S.C. Sec. 1326, is insufficient to support his conviction. Although Perez-Estrada moved for acquittal on other grounds, he never raised this issue before the district court. Furthermore, Perez-Estrada failed to object to the government's assertion in its trial memorandum that he had stipulated to all elements of the offense except for deportation after an aggravated felony. Accordingly, he failed to preserve this issue for appeal. See United States v. Reyes-Alvarado, 963 F.2d 1184, 1187 (9th Cir.) (failure to raise sufficiency of evidence claim at trial level ordinarily precludes defendant from raising it on appeal), cert. denied, 113 S.Ct. 258 (1992).2 D. Sentence Exceeding Two Years 12 Perez-Estrada's challenge to his sentence is foreclosed by our decision in United States v. Ullyses-Salazar, No. 93-50144, slip op. 6543 (9th Cir. June 20, 1994). 13 The judgment of conviction and sentence is AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, appellant's request for oral argument is denied ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 1 Because we conclude based on the language of section 11360(a) that Perez-Estrada's convictions under that statute constituted aggravated felonies, we need not decide what other types of evidence are admissible for the purpose of proving the aggravated felony element of section 1326(b)(2) 2 Were we to review the sufficiency claim on the merits, Perez-Estrada would not prevail. First, he stipulated that he was deported in 1988, subsequently reentered the United States illegally, and was again deported in 1991. This sequence of events establishes that he was found in the United States after having been deported. The INS produced evidence that fingerprint cards dated October 19, 1992, the date the indictment alleged Perez-Estrada was found in the United States, matched the fingerprints on his two previous deportation warrants. This evidence, together with Perez-Estrada's presence at his trial, was sufficient to support a reasonable inference that he had been found in the United States again after his 1991 deportation. See Reyes-Alvarado, 963 F.2d at 1188 ("circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction")	{ "pile_set_name": "FreeLaw" }
625 F.2d 660 Dennis Harry MITCHELL et al., Plaintiffs-Appellants,v.BOARD OF TRUSTEES OF OXFORD MUNICIPAL SEPARATE SCHOOLDISTRICT et al., Defendants-Appellees. No. 80-3167. United States Court of Appeals,Fifth Circuit. Sept. 11, 1980. Alvin O. Chambliss, Willie L. Rose, Oxford, Miss., for plaintiffs-appellants. Will A. Hickman, S. T. Rayburn, Oxford, Miss., for defendants-appellees. Appeal from the United States District Court for the Northern District of Mississippi. Before KRAVITCH, HENDERSON and REAVLEY, Circuit Judges. KRAVITCH, Circuit Judge. 1 Dennis Mitchell and Leon Coleman, together with their mothers as next friends, brought this action for injunctive and declaratory relief and for damages against the Oxford Municipal Separate School District (hereafter the School Board) and its members. The plaintiffs alleged that their substantive due process rights were violated by application of a School Board policy which mandates the automatic expulsion1 of "(a)ny student who brings a knife or any other object which would be classified as a weapon to school . . . ." Final judgment was entered for the defendants. We affirm. 2 A detailed explanation of the facts is not necessary. Both plaintiffs admitted violating the rule against bringing knives or other weapons to school. Mitchell is 16 years old and actually threatened another student with a knife.2 Coleman is 12 years old and asserted that he found the knife he brought to school on the school bus. While at school he showed the knife to at least two of his classmates; one of the classmates testified Coleman threatened to cut him if he reported the incident. 3 Both students were expelled for the remainder of the semester,3 after hearings before the School Board at which only two factual issues were addressed: whether the student was in possession of a knife at school and whether he knew there was a School Board policy which prohibited students from bringing knives to school.4 4 The legal issue in the case as advanced by the plaintiffs is whether, as a matter of substantive due process, a student is guaranteed some discretion by the School Board in fixing the punishment for violation of a rule. The plaintiffs argue they have such a right; we disagree. 5 The policy as issued by the School Board states: 6 It is the policy of the Oxford Municipal Separate School District Board of Trustees that no knives are to be brought to school by any student. Any student who brings a knife or any other object which would be classified as a weapon to school or on the school grounds with him shall be immediately expelled from school for the remainder of the semester with no grades and credits being given. 7 Although by its terms the policy is mandatory,5 based on the reasoning in Fisher v. Burkburnett Independent School District, 419 F.Supp. 1200 (N.D.Tex.1976), the district court held that the School Board has inherent authority to ignore the mandatory language and impose a lesser punishment. The court went on to hold that the punishment imposed here was not so excessive that it lacks a rational relationship to a legitimate educational purpose. 8 The plaintiffs argue that the district court was wrong in concluding that the rule is not mandatory and, when properly viewed as mandatory, the rule is unconstitutional. We are not completely comfortable with the conclusion that the School Board has inherent authority to ignore its own rule. The rule as written is mandatory and we will consider it as such. 9 As revealed in reported court cases, school rules for disciplining students fall into one of two categories. On one side are rules which provide that the punishment must fit the misbehavior and be tailored to the pupil's age, intelligence and personal history. In the other category are rules which decree consistency in the punishment of certain misbehavior in all pupils. If the broken rule is in the first category, then the disciplinarian will consider such factors as whether the child has engaged in the same misbehavior before, how well the child understood that his behavior would be unacceptable, and what circumstances surrounded the misconduct. For example, schools which use corporal punishment tend to tailor it to the child rather than setting down fixed rules such as: "Misbehavior A will be punished by a spanking." See, e. g., Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (corporal punishment policy provided: "Corporal punishment may be used in the case where other means of seeking cooperation from the student have failed. . . . The principal will determine the necessity for corporal punishment. . . . In any case, the student should understand clearly the seriousness of the offense and the reason for the punishment.")6 10 In the other category are mandatory rules which represent the administration's response to certain articulable and well-defined problems. These rules tell the students that if misbehavior A occurs, punishment B will follow. See, e. g., Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) (the use or possession of intoxicating beverages at school shall be punished by suspension for the balance of the semester); Caldwell v. Cannady, 340 F.Supp. 835 (N.D.Tex.1972) (school altered a rule which gave the school board discretion to expel a student who uses, sells or possesses a dangerous drug to a rule which required expulsion in such cases); Fielder v. Board of Education, 346 F.Supp. 722 (D.Neb.1972) (in an effort to reduce tardiness and absenteeism, the school set up a very specific schedule of punishment).7 11 The School Board in Oxford has adopted a rule in the latter category to insure the safety of students. Undeniably, the School Board has the right, power, and duty to make and enforce a rule against bringing weapons to school. To satisfy that responsibility, the Board responded with a rule which is consistent and simple to apply. 12 We have discovered no circuit court cases and few district court cases in which the validity of a rule which mandated a certain punishment for violation of a certain rule was directly at issue. 13 In Caldwell v. Cannady, 340 F.Supp. 835 (N.D.Tex.1972), the plaintiffs levied a substantive due process challenge against a school board policy which required the expulsion from school of any student who sells, uses or possesses any dangerous drug or narcotic. The mandatory expulsion rule had superseded a prior discretionary expulsion rule. The district court upheld the mandatory rule as a "reasonable exercise of the power vested in (the) local school board." 340 F.Supp. at 838. 14 In Fisher v. Burkburnett Independent School District, 419 F.Supp. 1200 (N.D.Tex.1976), the plaintiff had been expelled from school because of drug abuse. The district court held that despite the mandatory language of the policy violated, the school board had had a hearing on the correctness of the punishment and thus there was no procedural due process violation. The district court also rejected a claim that the punishment was so disproportionately harsh compared to the misbehavior that it constituted a violation of substantive due process. 15 These district courts protected from constitutional challenges rules which resulted in virtually no discretion in the disciplinarian. Once a violation was found, a punishment mandated by the rule followed. Appellants argue, however, that Lee v. Macon County Board of Education, 490 F.2d 458 (5th Cir. 1974), requires a different result here. 16 In Lee, the plaintiffs were permanently expelled from school for a series of misbehavior. A board member testified in district court that the Board's policy is to grant expulsion upon recommendation of the principal. The district court held that the permanent expulsion from school was not an arbitrary punishment and that there was sufficient evidence before the Board of Education to support the determination that the children were guilty of the infractions charged. The Fifth Circuit reversed stating: 17 Formalistic acceptance or ratification of the principal's request or recommendation as to the scope of punishment, without independent Board consideration of what, under all the circumstances, the penalty should be, is less than full due process. Appropriate punishment is for the Board to determine, in the exercise of its independent judgment. 18 490 F.2d at 460 (footnote omitted). 19 Appellants argue that Lee constitutionally requires the Board to exercise discretion before expelling a child. We do not read Lee so broadly. Rather, the discretion Lee mandates was exercised; it was exercised when the Board adopted the rule setting expulsion as the punishment for bringing a knife to school. That the Board exercised its discretion to opt for consistency of punishment rather than a tailoring of punishment to the child, simply does not implicate the due process clause of the Constitution.8 20 This court has consistently stated that school disciplinary matters are best resolved in the local community and within the school system. Lee v. Macon County Board of Education, 490 F.2d 458, 460 (5th Cir. 1974), citing Stevenson v. Board of Education of Wheeler County, 426 F.2d 1154 (5th Cir.), cert. denied, 400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265 (1970); Wood v. Alamo Heights Indep. School District, 433 F.2d 355 (5th Cir. 1970). If the plaintiffs believe the rule mandating expulsion for the bringing of weapons to school is too harsh, their remedy is to persuade the School Board to change it. 21 The School Board is under an obligation to educate the children of Oxford County. The Board is also under an obligation to provide a safe environment for the children so they can learn. Unfortunately, violence in the schools is increasingly becoming a way of life. This School Board has responded to that problem by making a strict rule, and punishing violations with one of the most severe weapons in its arsenal of punishments. Because the rule and the punishment for violating the rule clearly are rationally related to the goal of providing a safe environment in which children can learn, it comports with substantive due process. 22 AFFIRMED. 1 Expulsion as used in this case means exclusion from school for the balance of the semester 2 Mitchell and the student he threatened apparently were involved in a running dispute. As they departed from the school bus on the day in question, they were directing abusive language at each other. The other student struck Mitchell with a flag stick and Mitchell responded by brandishing a knife. The dispute was quelled immediately by other students and the bus driver. Mitchell testified he did not intend to cut the other student and only had the knife because he understood his nemesis was going to bring a knife. The other student was not in possession of a knife and was suspended from school for three days for his part in the disturbance 3 Both incidences were early in the second semester, so both children were excluded from school approximately four and a half months The expulsion ruling from the School Board as to plaintiff Mitchell provided that he would be allowed to attend summer school to make up his missed semester and "if he conducts himself in keeping with school policies, upon graduation, this expulsion will be expunged from his record." We were informed at oral argument that Mitchell did enroll in summer school. The school system does not provide summer school for credit for elementary students, so plaintiff Coleman was given no such option. Nor did plaintiff Coleman's expulsion provide that it would be expunged from his school record if he properly deports himself for the remainder of his years in school. 4 The plaintiffs have raised limited procedural due process challenges, but concede generally that procedural due process requirements were complied with. That is, the students and their parents were given notice of the hearings before the School Board and of their right to counsel at those hearings The hearing before the School Board is challenged, however, as not comporting with procedural due process (1) because the School Board's attorney had the dual role of prosecuting the case and advising the Board that they must impose expulsion and (2) because the superintendent and School Board attorney sat with the Board during its deliberation in executive session though both were involved in the prosecution of the case. These points were not raised in the district court and cannot be asserted for the first time on appeal. Appellant Mitchell individually raises another procedural due process claim which was arguably not considered by the district court. The chronology of events is important to understand his argument. The fracas out of which his expulsion arose occurred on Friday, January 11, 1980. On January 14, after a conference with the Assistant Principal and his mother, Mitchell was suspended pending the hearing before the School Board. That hearing was held on January 22, seven school days later, and resulted in his expulsion. Before the district court Mitchell argued the eleven-day span between the suspension and the hearing violated the rule in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). The School Board countered arguing the conference on the 14th satisfied Goss, given the full-fledged hearing on the 22nd before he was actually expelled. As we understand Mitchell's argument before this court, he has abandoned his argument that the eleven-day lapse violated Goss. Now, he argues that under Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) and Goss a student cannot be excluded from school pending a hearing before the School Board unless his presence poses a continuing danger to persons or property or an ongoing threat to the academic process. We disagree. Goss permits informal notice and hearings to precede suspensions of ten days or less. The Assistant Principal suspended Mitchell for seven school days pending a resolution of the issue by the School Board. The conference with the Assistant Principal before Mitchell was suspended comported with the Goss requirements. 5 The policy is mandatory only in the sense that once the Board finds a violation, the punishment is mandated. As we understand the Board's position, however, it could rule that there is no violation if the student inadvertently or unknowingly brings a weapon to school. In the Mitchell case there was no question about whether he intentionally brought the weapon to school. If in the Coleman case, the child had brought the knife to school but had immediately turned it in to a teacher or the principal, he would not have violated the rule 6 For other cases involving disciplinary rules falling in this category, see Sims v. Waln, 536 F.2d 686 (6th Cir. 1976), cert. denied, 431 U.S. 903, 97 S.Ct. 1693, 52 L.Ed.2d 386 (1977); Lee v. Macon County Board of Education, 490 F.2d 458 (5th Cir. 1974) 7 The rule provided: 1 Each unexcused tardiness will mean one-half hour of detention after school the same day 4 Unexcused absence will mean a detention of two hours on the day of attendance in school 6 Skipping of school will mean detention for twice the time skipped or two hours, whichever is more 7 Unexcused and intentional skipping of detention any day will mean doubling of the time of detention next day 346 F.Supp. at 725 n.2 (emphasis in original) 8 This is not a case where the Board opted for a mandatory rule which imposed a grossly disproportionate punishment for a given offense. See, e. g., Lee v. Macon County Board of Education, 490 F.2d at 460 n.3. As the court in Lee stated, such cases can arise. When they do, however, they are unconstitutional because there is not a rational relationship between the punishment and the offense, Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961), not because the punishment is mandatory	{ "pile_set_name": "FreeLaw" }
[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT June 28, 2007 No. 06-13473 THOMAS K. KAHN ________________________ CLERK BIA Nos. A97-185-755 & A97-185-756 CARLOS RAMON LOAIZA, NAZLY DE LOS REMEDIOS BECERRA, CARLOS IVAN LOAIZA, MARIA CAMILA LOAIZA, JULIANA REMEDIOS LOAIZA, Petitioners, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals _________________________ (June 28, 2007) Before ANDERSON, BARKETT and COX, Circuit Judges. PER CURIAM: Carlos Ramon Loaiza, Nazly de los Remedios Becerra, Carlos Ivan Loaiza, Maria Camila Loaiza, and Juliana Remedios Loaiza, through counsel, appeal a final order of the Bureau of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of their claims for asylum and withholding of removal under the Immigration and Nationality Act (“INA”) and the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”).1 We deny the petition. On appeal, Petitioners, who are Colombian citizens, argue that the BIA erred by denying their petition for asylum because Loaiza suffered past persecution on account of his political opinion.2 Loaiza, who the IJ found credible, testified that he was a member of a political organization called MORAL, and that he received threatening phone calls and pamphlets from a Colombian terrorist organization known as the National Liberation Army, or ELN. The threatening messages demanded that Loaiza cease his political activities and that he “collaborate” with 1 Carlos Loaiza’s wife and children were listed as derivative applicants on his asylum application. As the petitioners’ claims relate primarily to Loaiza, we will refer largely to him only. 2 Petitioners do not raise any challenge in their brief to the denial of withholding of removal or relief under the CAT and have thus abandoned these claims. When an appellant fails to offer argument on an issue, that issue is abandoned. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). 2 the ELN.3 The ELN also sent Loaiza a “condolence letter” which he took to be a death threat. The IJ made no adverse credibility finding, so we accept Loaiza’s testimony as true for the purposes of evaluating his asylum claim. We “review only the BIA’s decision, except to the extent that it expressly adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well.” Id. Because the BIA agreed with the IJ’s findings as to Loaiza’s eligibility for asylum and made additional observations, we review both decisions. In reviewing the IJ’s and the BIA’s factual determinations, we apply the substantial evidence test. Id. at 1283. When a decision is based on a factual determination, we “must affirm the BIA’s decision if it is ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’” Id. at 1283-84 (citations omitted). To the extent that the BIA’s decision is based on a legal determination, our review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001). Under the INA, the Attorney General or the Secretary of Homeland Security may grant asylum if an alien meets the statutory definition of a “refugee.” See 8 U.S.C. § 1158(b)(1); Al Najjar, 257 F.3d at 1284. A “refugee” is: 3 Because we find that the mistreatment Loaiza suffered does not rise to the level of persecution, we do not reach the question of whether the mistreatment he suffered was “on account of” his political opinion. 3 any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Id. § 1101(a)(42)(A). The asylum applicant has the burden of proving the “refugee” status that entitles him or her to be considered for asylum. Al Najjar, 257 F.3d at 1284. In order to carry this burden, the applicant must demonstrate either: (1) past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion; or (2) a well-founded fear of persecution on account of one of the five listed factors. 8 C.F.R. § 208.13(a), (b). In order to be “well-founded,” a petitioner’s fear of persecution must be “subjectively genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289. In assessing past persecution we are required to consider the cumulative impact of the mistreatment the petitioners suffered. Ruiz v. U.S. Att’y Gen., 479 F.3d 762, 766 & n.2 (11th Cir. 2007). A petitioner’s credible testimony that he fears persecution is generally sufficient to establish the subjective component. Al Najjar, 257 F.3d at 1284. An applicant who has demonstrated past persecution is presumed to have a well-founded fear of future persecution. 8 C.F.R. § 208.13 (b)(1).4 4 That presumption can be rebutted if the government demonstrates that there has been a “fundamental change in circumstances” such that the fear is no longer well-founded, or that the applicant can safely relocate within the country of nationality. 8 C.F.R. § 208.13 (b)(1). 4 In this case Loaiza argues that the threats made against him meet the definition of persecution. However not every intimidating message constitutes past persecution or the basis for a well-founded fear of future persecution. See Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1237 (11th Cir. 2006) (“[A]s with the ‘condolence note,’ the receipt of anonymous threats . . . without more, does not qualify as persecution, because mere harassment does not amount to persecution.”) (internal quotations and citation omitted); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231-32 (11th Cir. 2005); see also Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir. 2005) (threats did not amount to persecution where they were not imminent and concrete); Vatulev v. Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2003) (“Threats alone generally do not constitute actual persecution” unless “they are so immediate and menacing as to cause significant suffering or harm in themselves.”) (citing Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869 n.6 (9th Cir. 2003)); Boykov v. INS, 109 F.3d 413, 416 (7th Cir. 1997)). In this case the IJ and BIA did not err in concluding that the phone calls and three written messages Loaiza received did not rise to the level of persecution. While the phone calls and letters were undoubtedly upsetting, they were not sufficiently severe, imminent, or concrete as to constitute persecution. Nor has Loiaza shown that the threats inflicted such harm or suffering as to themselves constitute persecution. In short, these threats were akin to the “harassment” 5 suffered by the petitioners in Silva and Sepulveda. And because Loaiza has not established past persecution, he is not entitled to a presumption of a well-founded fear of future persecution. Without the benefit of that presumption, the evidence he has presented does not demonstrate such a well-founded fear. Upon review of the record and consideration of the parties’ briefs, we discern no reversible error. Accordingly, we deny this petition for review. PETITION DENIED. 6	{ "pile_set_name": "FreeLaw" }
15 Wis.2d 374 (1962) McCONVILLE, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and another, Respondents. Supreme Court of Wisconsin. November 27, 1961. January 15, 1962. 377 For the appellant there was a brief and oral argument by Frank E. Huettner of Cadott. For the respondents there was a brief by Stafford, Pfiffner & Stafford of Chippewa Falls, and oral argument by Robert F. Pfiffner. FAIRCHILD, J. The verdict in the instant case was rendered December 2, 1960. No objection was made to the submission of the issue of assumption of risk. On January 10, 1961, our decision and concurring opinions were announced in Baird v. Cornelius.[1] Two justices stated that acts of implied acquiescence of an automobile guest in the negligent acts of the host-driver, which evince a disregard by the guest for his safety, constitute negligence and properly should be subject to the comparative-negligence statute. Three other justices indicated that the question of assumption of risk should be re-examined. Thereafter in the instant case motions after verdict, including a motion for a new trial in the interest of justice, were made by plaintiff, relying in part on the Baird opinions, and denied by the circuit court. Plaintiff claims here that he is entitled to a new trial on several grounds, but argues principally that he is entitled to a new trial in which the issue with respect to plaintiff's willingness to ride as Mrs. Licht's guest would be submitted in terms of negligence and not assumption of risk. When certain relationships, founded on consent, exist between an actor and an injured party, the law has declined to impose liability on the actor for conduct which would constitute negligence but for the implication that the injured party has assumed the risk of the particular conduct. The implication has arisen from the injured party's willingness 378 to proceed in the face of a hazard to his safety, known and appreciated by him. One of the relationships in which the doctrine of assumption of risk has been applied is that between host and guest in an automobile.[2] Whether the principle of assumption of risk be explained in terms of consent to receiving harm (actually consent only to being exposed to danger which one hopes will not materialize in harm) or in terms of a limitation on the duty of a host to a guest, the principle reflects a policy judgment that an automobile host should not be held to as high a standard of responsibility for injury to his guest as for injury to one not in that relationship. The principle represents an evaluation of the relationship itself, including a concept that the guest is in the automobile as a matter of grace, not right, that he is free to ride or not ride, and must protest or else be silent, at his own risk, and that the host as a benefactor of the guest merits protection from liability to one to whom the host has extended a favor. This evaluation, this policy judgment, and these concepts do not appear sufficiently valid under present-day customs and community attitude toward the use of automobiles. We therefore adopt the following rules of law: (1) The driver of an automobile owes his guest the same duty of ordinary care that he owes to others; (2) a guest's assumption of risk, heretofore implied from his willingness to proceed in the face of a known hazard is no longer a defense separate from contributory negligence; (3) if a guest's exposure of himself to a particular hazard be unreasonable and a failure to exercise ordinary care for his own safety, such conduct is negligence, and is subject to the comparative-negligence statute. There may be circumstances where a guest's willingness to proceed in the face of a known hazard for which the host 379 is responsible is not unreasonable. In a particular situation the utility of riding with the host and the inadequacy of any alternative course may both be so obvious that the guest's acquiescence might constitute assumption of risk as heretofore existing, but not a lack of ordinary care. In such circumstances the guest's acquiescence will constitute no defense under the rule we are now adopting. We make the policy judgment, however, that much-more injustice will be avoided in the instances where acquiescence ceases to raise a complete defense and becomes a matter for comparison by the trier of the fact than will be created in the instances where the acquiescence is not unreasonable and therefore raises no defense at all under the principles of contributory and comparative negligence. Under the new rule, the trier of the fact may determine that a guest failed to exercise ordinary care in riding with a particular host with knowledge of the host's deficiencies in driving, but may also evaluate such failure in the light of all the circumstances and then compare it with the failures of the host which contribute to the injury. In O'Shea v. Lavoy,[3] one of the earliest Wisconsin cases to apply the doctrine of assumption of risk in automobile host-guest cases, we held that the legal relation of licensor-licensee existed between the host and the guest. The court said, at page 462: "According to those rules the guest accepts the premises of his host as he finds them, subject only to the limitation that the licensor must not set a trap or be guilty of active negligence which contributed to the injury. Here the accident happened, as said before, because of a broken spring, and the question is, Did that constitute a trap within the meaning of the rule? That is the only basis upon which liability can be predicated. A trap, within the meaning of this rule as we understand it, is a hidden danger lurking 380 upon the premises which may be avoided if known. Hence it is the duty of the host to advise his guest of its presence so that the guest may enjoy the premises in a security equal to that enjoyed by the host. The guest has no right to a greater security than that enjoyed by the host or other members of his family. The host simply places the premises which he has to offer at the disposal and enjoyment of his guest upon equal terms of security." The court also stated, at page 459: "It is an act of kindness and consideration for the owner of a car to lend its comfort and pleasure through an invitation extended to his less-fortunate neighbor for a ride in the country, to join a picnic party, or to enjoy an evening at the theater in the nearby city. This is a species of hospitality which should be encouraged rather than discouraged, and the law should not couple with this friendly act a duty which makes its exercise an unreasonable hazard." In Cleary v. Eckart[4] the doctrine of assumption of risk was expanded to include the skill and judgment of the driver. We held that the guest has no right to demand of the host a degree of skill which the host is unable to exercise. This perforce was a holding that the host owes no duty to the guest to exercise more skill than he possesses. In that opinion we noted, at page 119: "It would be interesting to inquire whether under such circumstances the guest should not be held to have accepted the risk incident to the situation, but we think the case may well be disposed of on the ground that plaintiff accepted such hospitality as the host had to offer, ..." This doctrine was further expanded in Olson v. Hermansen[5] which held the guest assumes the dangers incident to the known habits of the driver, as well as the driver's proficiency. 381 In Howe v. Corey[6] decided prior to O'Shea v. Lavoy, supra, footnote 3, we held, at page 542: "To permit Corey to proceed in this reckless manner without remonstrance, in the light of plaintiff's knowledge of the probable dangers at the Soo crossing, amounts to acquiescence in Corey's conduct and an assumption of the hazards and dangers incident thereto. It is wholly inconsistent with the idea that he exercised such reasonable care as the ordinarily prudent person exercises under like or similar circumstances. There is but one inference permissible to be drawn from the facts shown by the evidence, namely, that plaintiff was guilty of a want of ordinary care on the occasion in question and that such want of care contributed to produce the injury complained of." In that case acquiescence in the active negligence of the defendant was held to constitute an assumption of risk, and contributory negligence. Because contributory negligence was at that time a complete defense, the court refused to consider further other aspects of the liability of an automobile host to his guest arising out of acquiescence. In Sommerfield v. Flury[7] it became clear that where the guest acquiesced without protest in the active negligence of the host, the defense of assumption of risk was available, and consisted of a further limitation of the duty owed by the host to the guest. The court said, at page 169: "This is the duty which the driver of a car owes to its occupants under our present decisions." The court also stated, at page 170: "Apparently the trial court did not appreciate the difference between the duty which Krueger owed to other users of the highway and the duty which he owed to the occupants of the car. The verdict as submitted inquired only 382 with reference to such matters as constituted negligence on the part of Krueger to third persons using the highway. The verdict did not adequately ascertain whether Krueger had breached the duty which he owed to the occupants of the car." The court further stated, at page 171: "The court told the jury that the fact that they were going to a fire could not affect the situation at all; that Krueger had no right to drive faster because he was going to a fire than he had if he was going on another errand. This would have been true so far as other users of the highway were concerned, but it was not necessarily true with reference to the occupants of the car if it was their common desire to hurry to the fire. So far as they were concerned, Krueger incurred no liability to them in driving at any rate of speed in which they might acquiesce." We feel that the limitation on the duty of the automobile host under these, and other decisions, is no longer consistent with sound policy. A driver of an automobile should be held to the full standard of duty of ordinary care to his guests, as he is to other users of the highways. The analogy to the licensor-licensee relationship, which doctrine limits the liability of the possessor of land to a licensee,[8] may have been validly applied to the relationship of automobile host-guest in 1921 when O'Shea v. Lavoy, supra, footnote 3, was decided. Forty years ago automobiles were fewer; they were incapable of great speed, and automobile accidents caused by a defective vehicle, an inexperienced driver, or an unsafe course of driving were less frequent and probably had less-disastrous results. The serious consequences following automobile accidents today are well known. Modern, highly powered vehicles, with the ability to perform at great speeds, are capable of inflicting vast destruction and personal 383 injury. In view of the seriousness of many injuries, and the burdens falling upon the community as well as the individuals and families affected, it is doubtful whether the type of consent or acquiescence to danger, heretofore called assumption of risk, should be permitted to cut off completely the right to recover damages. It seems to us that the standard of care owed by the host to the automobile guest should be the same duty of ordinary care as is owed by any driver to other members of the community. In O'Shea v. Lavoy, supra, footnote 3, the doctrine of limited liability seems to have been developed in sympathy for the host who had extended his hospitality to another. At that time it was evidently considered unfair to impose upon the individual host the burden of the injuries to the gratuitous guest. Liability insurance is widely prevalent today. In few cases will the new rule shift the burden of loss from the injured guest to the negligent host personally. In the great majority of cases it will shift part or all the burden of loss from the injured individual to the motoring public. The policy concept that it is unfair to shift the burden from the injured person to his host where the injured person knowingly and voluntarily exposed himself to dangers created by the host is no longer applicable. The state licenses motor vehicle operators in the public interest.[9] An applicant must satisfy an examiner of his ability to read and understand highway signs, his knowledge of traffic laws, and demonstrate his ability to exercise ordinary and reasonable control of a motor vehicle.[10] These requirements evince a legislative policy to impose the same minimum standards of operation of automobiles upon all drivers. 384 It has been suggested that the doctrine of assumption of risk is one of implied consent where the guest has acquiesced in a course of negligent driving.[11] Consent seems not to be a satisfactory basis for retaining the doctrine of assumption of risk. The consequences of an automobile accident to a guest may be so disastrous that it would be contrary to public policy to hold that an individual who consents by implication to a dangerous situation will go uncompensated for his injuries.[12] Conduct which has heretofore been denominated assumption of risk may constitute contributory negligence as well. The unreasonable assumption of risk constitutes negligence.[13] In the present case the jury should have been asked whether McConville was negligent for his own safety in riding with Mrs. Licht. Illustrations of unjust results stemming from the old rule of assumption of risk are pointed out in the concurring opinion of Mr. Justice CURRIE and the writer in Baird v. Cornelius, supra, footnote 1. Defense counsel calls attention to the so-called guest statutes in many other states, denying recovery to a guest unless the host is guilty of something more than ordinary negligence. He correctly states that the passage of such statutes is a step in the opposite direction from the one we are now taking. Suffice it to say that the Wisconsin legislature has never made the policy judgment made by the legislatures of these other states in adopting such statutes, and we ourselves would not make such policy judgment. We are of the opinion that the new rule announced 385 herein is more in harmony with the principle of comparative negligence adopted by our legislature than was the former rule. Counsel does point out one matter which will require care and attention in framing a verdict under some situations.[14] Active negligence of a guest may be a cause of the collision and consequently a cause of his injuries. In the instant case, for instance, McConville's inadequate lookout, and presumably his failure to warn Mrs. Licht, were found by the jury to be a cause of the collision. A guest's negligence in riding with a host-driver whose known habits or lack of skill present a hazard would not be a cause of a collision, but would be a cause of the guest's injury resulting from that hazard. Here the second driver, Mr. Peterson, has been eliminated from the case, and if McConville should be found causally negligent as to lookout and as to riding with Mrs. Licht, both types of negligence should be taken together and compared with Mrs. Licht's causal negligence. If there were still an issue with respect to negligence of a second driver causing the collision, and if there were claims of one driver against the other for damages, it would be necessary to have more than one comparison question. The guest's negligence with respect to riding with the host would affect the guest's right to recover from the host or the other driver or both, and would enter into the comparison of the guest's causal negligence with that of each driver but would be immaterial with respect to the right of one driver to recover from the other. Defense counsel argues that the facts of the instant case were such that McConville's causal negligence with respect to riding with Mrs. Licht equals or exceeds her negligence as a matter of law. We do not agree. Although there was evidence that Mrs. Licht had drunk a number of glasses of 386 beer, if not whiskey, and that McConville saw her or was with her from time to time in a small group of patrons in the tavern, there was no testimony by anyone who saw them before or after the collision that Mrs. Licht appeared to be under the influence of intoxicants. A jury might well find McConville negligent for his own safety in riding with Mrs. Licht, just as the first jury found he assumed the risk. Although the evidence would probably support a finding attributing 50 per cent of the total negligence to McConville, it would not compel such a finding as a matter of law. No attack is made upon the finding that Peterson was not negligent, and there need be no new trial of that issue. Counsel for McConville argues that the damages awarded were inadequate. Whether or not inadequate, they were low, and the new trial should extend to all issues between McConville, Mrs. Licht and her insurer. By the Court.The portion of the judgment dismissing the complaint and awarding costs against plaintiff is reversed, and the cause remanded for a new trial. In other respects, the judgment is affirmed. GORDON, J., took no part. NOTES [1] (1961), 12 Wis. (2d) 284, 297, 303, 107 N. W. (2d) 278. [2] Knipfer v. Shaw (1933), 210 Wis. 617, 621, 246 N. W. 328, 247 N. W. 320. [3] (1921), 175 Wis. 456, 185 N. W. 525. [4] (1926), 191 Wis. 114, 210 N. W. 267. [5] (1928), 196 Wis. 614, 220 N. W. 203. [6] (1920), 172 Wis. 537, 179 N. W. 791. [7] (1929), 198 Wis. 163, 223 N. W. 408. [8] See Restatement, 2 Torts, p. 927 et seq., secs. 340-342. [9] See ch. 343, Stats. [10] Sec. 343.16 (1), Stats. [11] See Campbell, Host-Guest Rules in Wisconsin, 1943 Wisconsin Law Review, 180, 192. [12] See Metz v. Medford Fur Foods (1958), 4 Wis. (2d) 96, 90 N. W. (2d) 106. [13] Scory v. LaFave (1934), 215 Wis. 21, 254 N. W. 643; Meyer v. Val-Lo-Will Farms (1961), 14 Wis. (2d) 616, 111 N. W. (2d) 500. [14] See discussion in Note, 1961 Wisconsin Law Review, 677.	{ "pile_set_name": "FreeLaw" }
613 F.Supp.2d 502 (2009) OPTIMUM SHIPPING & TRADING, S.A., Plaintiff, v. PRESTIGE MARINE SERVICES PTE. LTD., Defendant. No. 08 Civ. 9533(JSR). United States District Court, S.D. New York. May 15, 2009. Peter Judge Gutowski, Freehill, Hogan & Mahar, LLP, New York, NY, for Plaintiff. Brian Douglas Starer, Squire, Sanders & Dempsey, L.L.P., New York, NY, for Defendant. MEMORANDUM ORDER JED S. RAKOFF, District Judge. On February 26, 2009, the Court issued an Opinion and Order vacating the underlying Rule B maritime attachment in the above-captioned case. The Court held, in accordance with Second Circuit precedent, that a contract for the sale of a vessel does not properly give rise to maritime jurisdiction. See Optimum Shipping & Trading, S.A. v. Prestige Marine Services Pte. Ltd., No. 08 Civ. 9533, slip op., 2009 WL 497341 (S.D.N.Y. Feb.26, 2009). On March 6, 2009, plaintiff Optimum Shipping & Trading, S.A. ("Optimum") sought an expedited appeal of the vacatur, see Optimum Shipping & Trading, S.A. v. Prestige Marine Services Pte. Ltd., 09-0894 (now consolidated with the appeal in Vrita Marine Co. Ltd. v. Seagulf Trading LLC, 08-4565 and to be heard in tandem with the appeal in Annapolis Shipping Co. Ltd. v. China Nat'l Machinery Import & Export Corp., 09-0686), which is scheduled to be heard by the Court of Appeals in July, 2009. By motion filed April 6, 2009, Optimum now 503 seeks to stay the vacatur of the attachment under Fed.R.Civ.P. 62(c) pending resolution of the consolidated appeal. After hearing oral argument on May 13, 2009 and carefully considering the parties' written submissions, the Court hereby denies the plaintiff's motion for a stay of the vacatur. In considering a motion to stay under Rule 62(c), the Court is obligated to consider four factors: (1) whether there is a substantial possibility, although less than a likelihood, of success on appeal; (2) whether there is a risk of irreparable injury to the movant absent a stay; (3) whether there is substantial harm to the non-movant stemming from a grant of the stay; and (4) any public policy interest that may be affected by the stay. See Thapa v. Gonzales, 460 F.3d 323, 334 (2d Cir.2006); Hirschfeld v. Bd. of Elections, 984 F.2d 35, 39 (2d Cir.1993). Although the weighing of these factors is flexible and within the Court's discretion, the movant's "burden of establishing a favorable balance of these factors is a heavy one and more commonly stay requests will be denied." SEC v. Finazzo, 2008 WL 1721517, 2008 U.S. Dist. LEXIS 29838 (S.D.N.Y. Apr. 9, 2008) (internal quotations and citation omitted). As to the possibility of success on appeal, even though most recent decisions support this Court's conclusion that a contract for a sale of a vessel does not give rise to maritime jurisdiction, see, e.g., Polestar Maritime Ltd. v. Nanjing Ocean Shipping Co. Ltd., No. 09 Civ. 2673, slip op., 2009 WL 1009868, at 3-4 (S.D.N.Y. Apr.14, 2009) (surveying cases), at least one court in this district has found otherwise, see Kalafrana Shipping Ltd. v. Sea Gull Shipping Co. Ltd., 591 F.Supp.2d 505, 509-10 (S.D.N.Y.2008) (discussing Supreme Court cases). This at least raises a possibilityhow substantial it is hard to sayof reversal on appeal. Plaintiff, however, has not remotely demonstrated irreparable harm, which is always a central inquiry in assessing any motion for injunctive relief. See New York v. Nuclear Regulatory Com., 550 F.2d 745, 750 (2d Cir.1977) ("the threat of irreparable harm is a necessary precondition to the granting of any preliminary injunctive relief"). Plaintiff's underlying claim is one for damages, and the parties have already commenced arbitration in London to resolve that claim. Defendant is a Singapore company, and while plaintiff does not necessarily accept the representation of defendant's counsel that defendant is an established company with very substantial assets, see transcript 5/13/09, neither has plaintiff shown that defendant is a "fly-by-night" outfit that may be unable to respond to a valid judgment. If the arbitral proceedings result in a judgment in plaintiff's favor, plaintiff is thus free to pursue enforcement in Singapore, which is where the defendant entity is headquartered. See id. As represented by defendant's counsel at oral argument (and unopposed by plaintiffs counsel), Singapore is a jurisdiction which honors foreign judgments. See id. With respect to the third factorsubstantial harm to the non-movantdefendant has adduced convincing evidence that, notwithstanding its size, the attachment of its funds passing through New York and the threat it presents to defendant's carrying out the ordinary course of its business has already had a negative impact and, if the attachment is not vacated, will continue to have a deleterious effect on the conduct of defendant's business. See Declaration of Dato Mohd Zain Abdullah dated April 1, 2009 ¶¶ 4-5. Finally, the Court findsand the parties appear to agree, see transcript 5/13/09 that any public policy interest affected by a stay is negligible, and the Court accordingly *504 gives less weight to this factor than to the other three in the context of this action. Accordingly, after assessing the factors determining whether a stay is appropriate under the circumstances, the Court concludes that the plaintiff has failed to carry its burden, and therefore denies plaintiffs motion to stay the vacatur pending appeal. The Clerk of the Court is directed to close document number 16 in the docket of this case. SO ORDERED.	{ "pile_set_name": "FreeLaw" }
Opinion filed November 3, 2005 Opinion filed November 3, 2005 In The Eleventh Court of Appeals __________ No. 11-05-00156-CV __________ VAN LEE BREWER, Appellant V. S. SCHUMACHER ET AL, Appellees On Appeal from the 350th District Court Taylor County, Texas Trial Court Cause No. 6998-D M E M O R A N D U M O P I N I O N Van Lee Brewer sued S. Schumacher, Warden Adonay Davila, Sergeant James Hebner, Galela Wofford, and Officer Ramos for $46,500 in damages resulting from the alleged 2001 loss of his religious cross with 8 diamonds, his gold rope chain, and his 15-diamond gold ring. Brewer alleged that the loss occurred when he was received into the Texas Department of Criminal Justice - Institutional Division=s Middleton Unit from the Dallas County Jail. Brewer asserted that a conspiracy occurred in which his property was confiscated and reports were falsified. The trial court dismissed the action for failure to comply with TEX. CIV. PRAC. & REM. CODE ANN. ' 14.005(a)(2) & (b) (Vernon 2002). We affirm. Brewer has briefed six issues on appeal. First, Brewer contends that the trial court erred in allowing the attorney general to represent Schumacher in this case. In his second and third issues, Brewer argues that the trial court erred in denying his motion for summary judgment. In his fourth and fifth issues, Brewer challenges the dismissal of his suit. In his final issue, Brewer argues that he was denied due process of law. Brewer sued Schumacher for damages that allegedly resulted from her actions as Aan assistant to the TDCJ=s Regional Grievance Officer.@ Pursuant to TEX. CIV. PRAC. & REM. CODE ANN. ' 104.004 (Vernon 2005), the attorney general Ashall@ defend or represent a public servant in this type of action. The trial court did not err in allowing the attorney general to represent Schumacher. The first issue is overruled. Brewer filed a motion for summary judgment on the grounds that Schumacher=s answer should be Arendered null and void@ because the attorney general filed the answer, that he was entitled to a summary judgment on the merits of his claims, and that he was entitled to a Anon-evidence summary judgment@ on Schumacher=s defenses. On appeal, Brewer contends that the trial court erred in denying his motion. We disagree. If the movant in a traditional motion for summary judgment establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law, then the trial court must grant the motion. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). Upon review of a traditional motion for summary judgment, we take as true evidence favorable to the non-movant indulging in every reasonable inference and resolving any doubt in the favor of the non-movant. American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). In reviewing the trial court=s ruling on a no-evidence summary judgment motion, the appellate court applies the same standard of review as in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003), cert. den=d, 541 U.S. 1030 (2004). The mere statement in a motion for summary judgment that there is Ano evidence@ does not constitute a request for the relief provided for a Ano-evidence@ motion for summary judgment under TEX.R.CIV.P. 166a(i). As stated above, the attorney general was charged under Section 104.004 with the duty to represent Schumacher in this type of suit. In his pleadings and in his motion, Brewer alleged that he no longer had possession of his diamond cross, his gold chain, and his ring due to the actions of the defendants and that the defendants= actions were a result of a conspiracy. Brewer sued Schumacher in Aher individual capacity.@ In his pleadings and in his motion, Brewer complained of the actions that Schumacher took while handling grievance proceedings in the course and scope of her employment. Brewer did not establish that there was no genuine issue of material fact concerning the disappearance of his property or the existence of a conspiracy to deprive him of his property. Brewer did not establish that he was entitled to a judgment as a matter of law. Moreover, Brewer=s general statements that he was entitled to a Ano-evidence summary judgment@ did not constitute a Rule 166a(i) motion for summary judgment. The second and third issues are overruled. The trial court did not err in dismissing Brewer=s case. The record before this court reflects that Brewer failed to file an adequate affidavit or unsworn declaration as required under TEX. CIV. PRAC. & REM. CODE ANN. ' 14.004 (Vernon 2002), that he failed to provide the information required by Section 14.005(a), and that he failed to file his claim within 31 days from the date he received the written decision of the grievance system as required by Section 14.005(b). Section 14.005(b) provides that, where the inmate has failed to comply with the 31-day deadline, the trial court Ashall@ dismiss the claim. Brewer also claims that the trial court should have conducted a hearing before dismissing his claims. TEX. CIV. PRAC. & REM. CODE ANN. ' 14.008 (Vernon 2002) provides that the trial court Amay@ conduct a hearing but does not require a hearing. Nothing in the record before this court supports Brewer=s contentions that the trial court erred when it did not conduct a hearing. The fourth and fifth issues are overruled. Finally, Brewer challenges that the trial court=s actions during the time his claim was pending constituted a denial of due process. The record does not support Brewer=s allegations that the trial court denied his rights to due process in the handling of this case. The sixth issue is overruled. All of Brewer=s arguments have been considered. Each is overruled. The judgment of the trial court is affirmed. PER CURIAM November 3, 2005 Not designated for publication. See TEX.R.APP.P. 47.2(a). Panel consists of: Wright, C.J., and McCall, J., and Strange, J.	{ "pile_set_name": "FreeLaw" }
432 F.2d 558 70-2 USTC P 9655 UNITED STATES of America, Appellee,v.Wentworth E. GRIFFIN, Appellant. No. 20054. United States Court of Appeals, Eighth Circuit.Oct. 19, 1970. Paul Anthony White, Asst. U. S. Atty., Kansas City, Mo., for appellee; Bert C. Hurn, U. S. Atty., Kansas City, Mo., on the brief. Before MATTHES, Chief Judge, HEANEY, Circuit Judge, and VAN PELT, Senior District Judge. PER CURIAM. 1 The appellant is a lawyer, having been admitted to the bar in 1941. Except for military service from 1942 to 1945 during World War II, appellant has practiced law in Kansas City, Missouri. 2 Appellant was charged by informations with willful failure to timely file federal income tax returns for the calendar years 1962, 1963 and 1964, in violation of 26 U.S.C. § 7203. A jury trial was waived and the issues were tried before the Honorable William H. Becker, Chief Judge, United States District Court for the Western District of Missouri. 3 After a plenary evidentiary hearing on October 21 and 22, 1968, the court on June 16, 1969, filed findings of fact, conclusions of law and judgment. Appellant was found not guilty of the alleged 1962 offense and guilty of the alleged 1963 and 1964 violations. Judgment of conviction was entered on November 12. The maximum sentence and fine were imposed and pursuant to 18 U.S.C. § 4208(b), appellant was committed for a study and report. 4 The sole issue in controversy for resolution in the district court was whether appellant's failure to timely file the tax returns was "willful." By a pre-trial written stipulation appellant admitted his gross income for the calendar years 1963 and 1964 was $33,315.35 and $32,511.20, respectively, and that his taxable income for the same years was $23,887.46 and $23,159.38, respectively. Appellant also admitted before trial and so testified that he had failed to file the returns for the years in question at the times required by law. Appellant contested the Government's claim of willfulness on the ground that his mental and physical condition at the time of the alleged willful failures to file the returns demonstrated lack of willfulness. This defense manifestly presented an issue of fact upon conflicting evidence. The district court, after a thorough analysis of the evidence, resolved this issue against appellant as to the years 1963 and 1964. 5 Appellant submits several arguments on appeal in support of his contention that the evidence established as a matter of law that his failure to timely file the returns was not willful. 6 We have with painstaking care examined the record in light of the question in issue and are convinced that the findings of the able and seasoned trial judge are supported by substantial evidence and that his ultimate judgment of conviction should not be disturbed. 7 Accordingly, we affirm.	{ "pile_set_name": "FreeLaw" }
80 So.3d 439 (2012) Thomas R. HORTON, Petitioner, v. Grady JUDD, Sheriff of Polk County, Respondent. No. 2D11-4365. District Court of Appeal of Florida, Second District. February 22, 2012. James Marion Moorman, Public Defender, and Debra L. Munchel, Assistant Public Defender, Bartow, for Petitioner. Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Respondent. PER CURIAM. Thomas R. Horton, a criminal defendant in circuit court who was previously adjudicated incompetent to proceed to trial, filed a petition for writ of habeas corpus in this court seeking review of the order of the trial court committing him to the state hospital. Horton alleges that he is being illegally detained because he does not meet the criteria for involuntary commitment as outlined in section 916.13(1), Florida Statutes (2011). We previously granted the petition by order with directions that if the State did not initiate civil commitment proceedings, the trial court should release Horton on appropriate conditions pursuant to Florida Criminal Rule of Procedure 3.212(d).[1] We write to explain our reasoning in this instance. If there is an issue regarding a defendant's competency, at least two mental health experts must examine the defendant to determine whether he is competent to proceed to trial. § 916.12(2). If a felony defendant is adjudged to be incompetent, section 916.13(1) sets forth the conditions that must be met before that defendant *440 can be involuntarily committed. Among other things, it requires the court to find by clear and convincing evidence that "[t]here is a substantial probability that the mental illness causing the defendant's incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future." § 916.13(1)(c). Here, both appointed experts testified that it was unlikely that Horton could ever be restored to competency. In the order of involuntary commitment, the trial court found that a "witness testified that the Defendant might be restored to competency in the state hospital."[2] The finding that Horton "might" be restored to competency is neither supported by the evidence nor does it satisfy the statutory requirement of clear and convincing evidence that there be a "substantial probability" that the petitioner will regain competency in the foreseeable future. Accordingly, Horton's commitment was not authorized by section 916.13(1). See Oren, 940 So.2d at 1273; Abreu-Gutierrez, 1 So.3d at 265-66. For this reason, we granted the petition for writ of habeas corpus. Petition granted. ALTENBERND, KELLY, and CRENSHAW, JJ., Concur. NOTES [1] Typically we would convert this habeas petition to a petition for writ of certiorari. See Oren v. Judd, 940 So.2d 1271, 1272 (Fla. 2d DCA 2006) (citing Patton v. State, 712 So.2d 1206 (Fla. 1st DCA 1998)); see also Abreu-Gutierrez v. James, 1 So.3d 262, 266 (Fla. 4th DCA 2009). Treating it as a petition for writ of certiorari rather than habeas corpus would avoid any problems that would arise if, during the pendency of the proceeding, the petitioner was transported outside of the territorial jurisdiction of this court for purposes of treatment. A challenge to an order of the trial court improperly committing a defendant for the purpose of restoring his competency may, however, be raised in a habeas proceeding. See, e.g., Graham v. Jenne, 837 So.2d 554, 555 (Fla. 4th DCA 2003). Because Horton's petition was not timely filed as a petition for writ of certiorari, we review it pursuant to our habeas jurisdiction. [2] One of the experts testified that it was possible that Horton could be restored to competency if there was some new type of treatment that had not been tried before, but that because of Horton's history of not responding and his inability to benefit from competency training, this was highly doubtful.	{ "pile_set_name": "FreeLaw" }
Opinion filed January 6, 2017 In The Eleventh Court of Appeals ___________ No. 11-16-00295-CV ___________ COBALT OPERATING, LLC; COBALT OPERATING; BLUE RIDGE RESOURCES, LLC; CROSSTEX SERVICES, LLC; AND MARK BURKETT, Appellants V. ARISMENDEZ CONSTRUCTION, LLC, Appellee On Appeal from the 106th District Court Dawson County, Texas Trial Court Cause No. 15-11-19697 MEMORANDUM OPINION The parties have filed in this court a joint motion to affirm in part, modify in part, and remand. In the motion, the parties state that they have reached a settlement, and they ask that we grant the relief requested in their joint motion in order to effectuate their settlement. See TEX. R. APP. P. 42.1(a)(2)(A). The motion indicates that the parties have agreed to the following: [1] The appeal of the Final Summary Judgment as against Cobalt Operating LLC shall be and hereby is withdrawn, and such portion of the Final Summary Judgment shall be affirmed and become final and non-appealable. [2] The Final Summary Judgment as against the remaining Appellants: Cobalt Operating, Crosstex Services, LLC, Blue Ridge Resources, LLC, and Mark Burkett, shall be vacated, and a take- nothing judgment shall be entered in favor of such Appellants and against Appellee Arismendez. [3] Following the above modifications to the Final Summary Judgment, this case shall be remanded to the 106th Judicial District Court. We grant the parties’ joint motion. As requested in the motion, the judgment of the trial court is affirmed insofar as it relates to Appellant Cobalt Operating, LLC; the judgment of the trial court is vacated insofar as it relates to the remaining Appellants and is modified to reflect a take-nothing judgment in their favor; and the cause is remanded to the trial court. PER CURIAM January 6, 2017 Panel consists of: Wright, C.J., Willson, J., and Bailey, J. 2	{ "pile_set_name": "FreeLaw" }
108 F.3d 338 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Jiming James JYAN, Plaintiff-Appellant,v.Thomas N. FRANKOVICH; Clyde C. Cates; Donald A. Wilson;Govcon Systems, Inc., Defendants-Appellees. No. 95-16416. United States Court of Appeals, Ninth Circuit. Submitted Feb. 18, 1997.Decided Feb. 20, 1997. Before: ALARCN, CANBY, and TASHIMA, Circuit Judges. 1 MEMORANDUM* 2 JiMing James Jyan appeals pro se the dismissal of his action for failure to state a claim. Jyan attempts to state a variety of claims based on the alleged failure of defendants to pay a debt owing on a debenture. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court's dismissal for failure to state a claim, see Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir.1995), and for abuse of discretion, its denial of a request to file an amended complaint, see Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 798 (9th Cir.1991). We affirm for the reasons stated in the district court's order entered on June 30, 1995. 3 Defendants' requests for sanctions pursuant to Fed.R.Civ.P. 38 are denied. See Fed.R.Civ.P. 38. Defendants' additional requests for sanctions pursuant to Fed.R.Civ.P. 11 and 28 U.S.C. § 1912 are denied. Defendants' requests for attorney's fees are denied. With respect to defendants' requests for costs on appeal, because defendants are the prevailing party on appeal defendants are entitled to costs on appeal. See Fed.R.Civ.P. 39(d) ("A party who desires such costs ... shall state them in [a] bill of costs [filed] within 14 days after the entry of judgment."); 9th Cir.R. 39-1. 4 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument. Accordingly, Jyan's request for oral argument is denied. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3	{ "pile_set_name": "FreeLaw" }
661 So.2d 282 (1995) STATE of Florida, Petitioner, v. Richard BLACKWELL, Respondent. STATE of Florida, Petitioner, v. Jessie BROWN, II, Respondent. STATE of Florida, Petitioner, v. Darryl HOLMES, Respondent. STATE of Florida, Petitioner, v. Robert JONES, Respondent. STATE of Florida, Petitioner, v. Willie T. THOMPSON, Respondent. Nos. 84071, 84176, 84148, 84150 and 83951. Supreme Court of Florida. July 20, 1995. Rehearing Denied October 11, 1995. 283 Robert A. Butterworth, Atty. Gen.; and Robin Compton Jones and Bonnie Jean Parrish, Asst. Attys. Gen., Daytona Beach, for petitioner. James B. Gibson, Public Defender; and Nancy Ryan, Brynn Newton, M.A. Lucas, Daniel J. Schafer and S.C. Vanvoorhees, Asst. Public Defenders, Daytona Beach, for respondents. SHAW, Justice. We have for review the following decisions based on conflict with Ashley v. State, 614 So.2d 486 (Fla. 1993): Blackwell v. State, 638 So.2d 119 (Fla. 5th DCA 1994); Brown v. State, 638 So.2d 120 (Fla. 5th DCA 1994); Holmes v. State, 639 So.2d 151 (Fla. 5th DCA 1994); Jones v. State, 639 So.2d 147 (Fla. 5th DCA 1994); and Thompson v. State, 638 So.2d 116 (Fla. 5th DCA 1994). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We quash Blackwell, Brown, Holmes, Jones, and Thompson. The defendants in the above consolidated cases pled guilty to various crimes, submitting written pleas containing the following provisions: 4. I have read the information or indictment in this case and I understand the charge(s) to which I enter my plea(s). My attorney has explained to me the total maximum penalties of the charge(s) and as a result I understand the following: a. That should the Judge impose a guidelines sentence, I could receive up to a maximum sentence of ____ years imprisonment and a maximum fine of ____ or both. b. That should the Judge impose a departure sentence, I could receive up to a maximum sentence of ____ years imprisonment and a fine of ___ or both. c. That should I be determined by the Judge to be a Violent Habitual Felony Offender, and should the Judge sentence me as such, I could receive up to a maximum sentence of ____ years imprisonment and a mandatory minimum of ____ years imprisonment and that as to any habitual offender sentence I would not be entitled to receive any basic gain time. d. That should I be determined by the Judge to be a Non-Violent Habitual Felony Offender, and should the Judge sentence me as such, I could receive up to a maximum sentence ____ years imprisonment and a mandatory minimum of ____ years imprisonment and that as to any habitual offender sentence I would not be entitled to receive any basic gain time. e. That whether a guidelines sentence or departure sentence or habitual offender sentence, I will receive a mandatory minimum sentence of ____ years imprisonment. The blank spaces in each plea were filled in with appropriate data. The court discussed the pleas with the defendants and accepted the pleas. Later, the defendants were served with written notice of a separate proceeding to determine if they qualified for habitual offender treatment. After concluding that they qualified, 284 the court habitualized each defendant. The district court reversed the sentences pursuant to Ashley v. State, 614 So.2d 486 (Fla. 1993), and remanded for resentencing. The State petitioned for review. This Court in Ashley held that before a court can habitualize a defendant pursuant to a plea two steps must be completed: In sum, we hold that in order for a defendant to be habitualized following a guilty or nolo plea, the following must take place prior to acceptance of the plea: 1) The defendant must be given written notice of intent to habitualize, and 2) the court must confirm that the defendant is personally aware of the possibility and reasonable consequences of habitualization. Ashley, 614 So.2d at 490 (footnote omitted).[1] In the present cases, each defendant was informed of the possibility and consequences of habitualization via the provisions of his written plea. Additionally, prior to accepting the pleas, the court discussed the pleas with the defendants. The issue posed by these cases is whether these circumstances were sufficient to satisfy the requirements of Ashley. In Ashley, the defendant was given no notice whatsoever of habitualization prior to acceptance of his plea. The entire discussion at the plea hearing centered on the sentencing guidelines, indicating a guidelines sentence would be forthcoming. Habitualization was never mentioned. Not until three days after acceptance of Ashley's plea did the State file notice of intent to seek habitualization. Ashley's motion to withdraw his plea was denied and he was sentenced to an habitual offender term. We vacated Ashley's sentence because his plea was not knowing and intelligent. At the time his plea was entered and accepted, he did not have a clue he would be habitualized or what habitualization meant he had in effect been blindsided. We do not have that situation in the present consolidated cases. Each of the present defendants signed a written plea acknowledging the possibility and consequences of habitualization. The maximum terms, loss of gain time, and possible mandatory minimum terms were spelled out in detail. Before accepting the pleas, the court confirmed with each defendant that he had read the plea and understood it, and the court offered each defendant an opportunity to ask questions. Each defendant said he had read the plea, understood it, and had no questions. The present pleas, we conclude, were knowing and intelligent under Ashley. Indeed, it would be difficult to give a defendant a clearer picture of his or her sentencing possibilities. We hold that the first prong of Ashley ("[t]he defendant must be given written notice of intent to habitualize") is satisfied where the defendant receives written notice of the possibility of habitualization before his or her plea is accepted. The scenario to be avoided is where a defendant like Ashley receives no pre-plea notice whatsoever. We quash Blackwell, Brown, Holmes, Jones, and Thompson, and remand for proceedings consistent with this opinion. It is so ordered. GRIMES, C.J., and OVERTON, KOGAN, HARDING, WELLS and ANSTEAD, JJ., concur. NOTES [1] We explained the "consequences of habitualization" in Ashley v. State, 614 So.2d 486, 490 n. 8 (Fla. 1993): The defendant should be told of his or her eligibility for habitualization, the maximum habitual offender term for the charged offense, the fact that habitualization may affect the possibility of early release through certain programs, and, where habitual violent felony offender provisions are implicated, the mandatory minimum term.	{ "pile_set_name": "FreeLaw" }
630 N.W.2d 85 (2001) 2001 SD 76 STATE of South Dakota, Plaintiff and Appellant, v. Kenneth L. YOUNG, Defendant and Appellee. No. 21665. Supreme Court of South Dakota. Considered on Briefs April 24, 2001. Decided June 13, 2001. 86 Mark Barnett, Attorney General, Jason A. Glodt, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and appellant. Gary Colbath, Jr., Rapid City, SD, Attorney for defendant and appellee. AMUNDSON, Justice. [¶ 1.] The State filed a petition for intermediate appeal, granted by this Court, from a judgment holding that the double penalty provision provided by SDCL 32-22-56 does not apply to overweight axle violations. We affirm. FACTS AND PROCEDURE [¶ 2.] On March 2, 2000, Kenneth Young picked up a load of hay near Worland, Wyoming and was headed home to Wisconsin. He was driving his own semi-tractor pulling a new 1999 flatbed trailer. At Worland, his total truck weight was 73,560 pounds with each axle weighing less than 20,000 pounds, weighed on a certified elevator scale. Pursuant to SDCL 32-22-16, Young was entitled to carry up to 20,000 pounds per axle and have a total vehicle weight of 80,000 pounds. [¶ 3.] He entered South Dakota on interstate I 90 in Meade County and was weighed at the Tilford Port of Entry near Sturgis. His total weight on this scale was 76,080 pounds, with one axle weighing 32,420 87 pounds. This was found to be over the 20,000 pound weight limit per axle. [¶ 4.] Young was convicted of violation of SDCL 32-22-16 in magistrate court and, under the schedule provided by SDCL 32-22-55, assessed a penalty of 37½ cents per pound for the 12,420 pound overage, a total of $4,657.50. The magistrate then doubled Young's penalty, applying SDCL 32-22-56, since the overage exceeded 10,000 pounds. Young appealed to the circuit court, where his conviction was upheld but remanded to magistrate court for recalculation of the penalty. The circuit court held that SDCL 32-22-56 did not apply where the individual axle weight exceeded statutory limits, but applied only to the gross vehicle weight. The State appeals this determination of the circuit court. ANALYSIS AND DECISION [¶ 5.] The sole issue on appeal is whether the double penalty provision of SDCL 32-22-56 applies to overweight axle violations where the whole truck weight is less than the 80,000 pound maximum allowed by SDCL 32-22-16(3). This is our first opportunity to interpret SDCL 32-22-56, which was amended in 1999. As this appeal requires we engage in statutory construction, the applicable standard of review is de novo. Mattis v. Weaver Electric Inc., 2000 SD 150, ¶ 8, 619 N.W.2d 526, 528. The statute provides: In any case where the motor vehicle is absolutely overweight beyond ten thousand pounds, the pounds by which the vehicle is so overweight shall be assessed at double the penalties prescribed in § 32-22-55.[1] [¶ 6.] Interpreting statutes according to their plain language is a primary rule of statutory construction. Nickerson v. American States Ins., 2000 SD 121, ¶ 11, 616 N.W.2d 468, 470. The plain meaning definition of "absolutely" is "definitely and completely," with "completely" defined as "having all necessary or normal parts, components, or steps; entire." American Heritage Dictionary 5, 285 (3d ed. 1997). Black's Law Dictionary defines "absolutely" as "completely; wholly; without qualification." Black's at 9 (6th ed. 1990). By its plain language, SDCL 32-22-56 refers to the weight of the motor vehicle itself and by the phrase "absolutely overweight," refers to the weight of the total vehicle rather than any of its individual parts. The statute refers to a vehicle 88 that is completely, entirely or wholly overweight, not merely overweight on a separable part of the vehicle. The language of the statute is "the pounds by which the vehicle is so overweight," not an identified part of the vehicle. [¶ 7.] The plain language of SDCL 32-22-55 also supports this conclusion. In providing the schedule of penalties for overweight named parts of a motor vehicle, it includes this instruction: "The fine schedule in this section is assessed at a single rate according to the cents per pound penalty for the highest weight violation." (emphasis added). This language precludes assessment of multiple rates, or a double penalty for an overweight part of a vehicle.[2] The Legislature has already, in this statute, enhanced the penalty based on increasing amounts of weight on the axle. The next statute, SDCL 32-22-56, applies to the whole vehicle.[3] [¶ 8.] Another primary and well-settled rule we adhere to when construing statutes is the presumption that the Legislature does not insert surplusage into its enactments. Nielson v. AT & T Corp., 1999 SD 99, ¶ 16, 597 N.W.2d 434, 439. If the Legislature did not mean this statute to apply to the weight of the total vehicle, the phrase "absolutely overweight" is unnecessary. In fact, if the absolute or entire weight of the vehicle was not the concern of SDCL 32-22-56, the whole statute becomes surplusage. SDCL 32-22-55 provides a schedule that lists increasing amounts of penalty for increasing degrees of overweight up to and in excess of five thousand pounds. By its plain language, it applies where the overweight is "upon any wheel, axle, or groups of axles...." If the double penalty for weight in excess of ten thousand pounds provided by SDCL 32-22-56 was meant to apply to an overweight axle (or wheel or group of axles) the Legislature could have included this provision into the schedule provided by SDCL 32-22-55, which already existed and applies to overweight parts of the vehicle. [¶ 9.] Examination of legislative history reveals that in 1953, both statutes were part of the same session law.[4] However, 89 while the categories of penalties for overweight axles, wheels and groups of axles were dependent clauses of the same first paragraph of that session law, the double penalty for an absolutely overweight motor vehicle, a separate class from the individual vehicle parts, was provided by separate paragraph. [¶ 10.] In 1967, the Legislature revised our system of codified laws, renumbering and amending the single predecessor statute by enacting two statutes, which separated the schedule of penalties for overweight parts of vehicles from the double penalty provision that is only invoked "where the motor vehicle is absolutely overweight." Our affirmance of the circuit court's decision is the only interpretation that permits these two statutes to be construed together and harmonized, giving effect to all their provisions, another primary and well-settled rule of statutory construction. Barton, 2001 SD 52 at ¶ 26, 625 N.W.2d at 281; Hot Springs Ind. Sch. Dist. No. 10 v. Fall River Landowners Ass'n, 262 N.W.2d 33, 36 (S.D.1978). [¶ 11.] We assume that the Legislature, when enacting a provision, has in mind previously enacted statutes relating to the same subject. Meyerink v. Northwestern Public Service Co., 391 N.W.2d 180, 184 (S.D.1986); Feiok, 364 N.W.2d at 539. Both SDCL 32-22-55 and 32-22-56 were amended in 1999. SDCL 32-22-55, providing the schedule of penalties for Young's overweight axle, was amended by 1999 SD Sess.L. ch. 162, § 4.[5] SDCL 32-22-56, the statute at issue, was amended by § 5 under the same Session Laws.[6] It cannot be conceived the 1999 Legislature did not have 32-22-55, providing the penalties for specific parts of a vehicle found to be overweight, in mind when it enacted and amended 32-22-56, providing the penalty "where the motor vehicle is absolutely overweight beyond ten thousand pounds." [¶ 12.] Finally, we recognize that the Legislature knows how to exempt or include items in its statutes. See Therkildsen v. Fisher Beverage, 1996 SD 39, ¶ 10, 545 N.W.2d 834, 836 (excluding a person's right to collect worker's compensation benefits); Jasper v. Smith, 540 N.W.2d 399, 403 (S.D.1995) (exempting property from attachment of a lien); Sander v. Geib, Elston, Frost Pro. Ass'n, 506 N.W.2d 107, 124 (S.D.1993) (including an entity as a beneficiary). If the Legislature had meant that a single axle, overweight beyond ten thousand pounds, could invoke the double penalty, it would have said so. As noted above, there already existed a provision scheduling the penalties for specific parts of the vehicle found to be overweight, and the provision imposing a penalty for axles exceeding weight restrictions by more than five thousand pounds necessarily includes weights in excess of ten thousand pounds. That penalty is 37½ cents per pound of excessive weight, whether the axle is 5001, 7001 or 10,001 pounds in excess, or, as in this case, 12,420 pounds overweight. 90 [¶ 13.] The order of the circuit court is affirmed. [¶ 14.] SABERS and KONENKAMP, Justices, concur. [¶ 15.] MILLER, Chief Justice, and GILBERTSON, Justice, dissent. GILBERTSON, Justice (dissenting). [¶ 16.] I respectfully dissent. SDCL 32-22-55 and SDCL 32-22-56, when construed together, double the ordinary statutory penalty for various types of an overweight vehicle. As such I would reverse the circuit court. [¶ 17.] This is a case of statutory construction. Statutory intent must be construed from the statute as a whole as well as other statutes relating to the same subject. US West Communications v. PUC, 505 N.W.2d 115, 123 (S.D.1993). In reviewing SDCL chapter 32-22, it is clear that the intent of the Legislature is to reduce damage to the highways of South Dakota. "The evil sought to be avoided [is] the destruction of the public roads by excessively heavy vehicles." State v. Boze, 472 S.W.2d 35, 38 (1971). Indeed, "[i]t is beyond question that the destructive potential of the [excess] weight is determined not only by its [total] amount but the degree to which that amount is concentrated in one spot or area." Id. [¶ 18.] I agree with the Court that under State v. Feiok, 364 N.W.2d 536, 539 (S.D.1985), previous laws in this jurisdiction are an appropriate basis upon which to gain assistance in determining legislative intent. In 1953, the Legislature enacted what the Court correctly determines to be the predecessor of SDCL 32-22-55 and 32-22-56. 1953 SD Sess.L. ch. 247 states: Any person who is convicted of the offense of operating a motor vehicle upon the public highways of this state with weight upon any wheel, axle or groups of axles or upon more than one thereof greater than the maximum permitted by section 44.0336 of the South Dakota Code of 1939 and acts amendatory thereof shall be fined in addition to and not in substitution for any and all penalties now provided by law for such offense in the following amounts: In an amount equal to three cents per pound for each pound of such excess or combined excess weight over one thousand pounds when such excess is two thousand pounds or less. In an amount equal to five cents per pound for each pound of such excess or combined excess weight when such excess exceeds two thousand pounds and is three thousand pounds or less. In an amount equal to six cents per pound for each pound of such excess or combined excess weight when such excess exceeds three thousand pounds and is four thousand pounds or less. In an amount equal to eight cents per pound for each pound of such excess or combined excess weight when such excess exceeds four thousand pounds and is five thousand pounds or less. In an amount equal to ten cents per pound for each pound of such excess or combined excess weight when such excess is five thousand pounds or more. In any case where the motor vehicle is absolutely overweight beyond the greatest permissible compensation plate weights for a vehicle of its class, the pounds by which the vehicle is so overweight may be assessed at double the penalties hereinbefore prescribed. (emphasis added). In construing this act as a whole it is clear that a vehicle is "absolutely overweight" whether the source of that weight is a "wheel, axle or groups of axles" or total 91 weight. The act makes no differentiation between the sources. [¶ 19.] This statute remained intact until the adoption of the South Dakota Compiled Laws in 1967. At that point, the statute was split into two statutes which became SDCL 32-22-55[7] and 56.[8] However, there were no amendments to the substance of the law. Further, the 1967 Code declared that: "[t]he provisions of this code, so far as they are the same as those of existing laws, shall be construed as a continuation of those laws and not as new enactments." SDCL 2-16-14. Although there were additional amendments in 1999, the pertinent language of the 1953 act, which is determinative of this appeal, survives and is still controlling.[9] [¶ 20.] Thus, the phrase "absolutely overweight" is not limited to the total weight of the entire vehicle. Under SDCL 32-22 the term is inclusive of four ways an overweight violation can result. These statutes must be construed with a view to effect the *92 object and underlying purpose of the Legislature. SDCL 2-14-12. See also Estate of Wolff, 349 N.W.2d 33, 35 (S.D.1984). The phrase "absolutely overweight" simply reinforces the legislative intent that the vehicle must be substantially overweight before the doubling of the penalty is instituted. For the doubling under SDCL 32-22-56 to apply, the violation must be in excess of 10,000 pounds over the applicable legal weight limit. This simply means that if the vehicle is carrying a weight beyond 10,000 pounds in excess of the legal limit of SDCL 32-22-16 on (1) a wheel, (2) axle, (3) group of axles, or (4) gross weight of the vehicle, the double penalty is applied to the schedule of SDCL 32-22-55. This law has now been in effect 48 years. If the Legislature felt the penalty doubling provision should be limited to gross weight of the entire vehicle, it would have simply amended the statutes to say so. It has not so done. [¶ 21.] The case of Alexander v. State, 228 Ga. 179, 184 S.E.2d 450 (1971) is instructive. Therein the defendant argued that the penalty provision of the law for overweight vehicles referred only to the total weight of the vehicle and not the axle weight. The Court rejected this argument, declaring that its statutory construction was consistent with the clear intent of the Legislature to maintain and protect the highways of that state from unnecessary wear, not only due to the total weight of the vehicle, but also the results of the same excessive weights on individual axles. Id. at 452. [¶ 22.] The State also calls our attention to Steven Karamihas & Thomas Gillespie, Trucks and Pavement Wear, University of Michigan Transportation Research Institute Research Review, 8-9 (May June, 1994). This study reports that: The individual axle loads of a truck have a greater influence on fatigue of pavements than any other vehicle factor.... This is because fatigue is exponentially related to pavement response (stress and strain) and hence, axle load.... [S]preading the load over several axles and keeping individual axle loads low can significantly reduce pavement fatigue. ... [G]ross vehicle weight is not directly linked with fatigue of pavements. Fatigue varies in accordance with the axle loads and number of axles on each vehicle combination, and is only related to vehicle weight if a higher gross weight causes an increase in individual axle loads. It is difficult to accept a rationale that for the last 48 years, the Legislature has been willing to protect the untold millions of dollars spent on highway construction and repair in this state by authorizing double penalties for total overweight vehicles, but casting that aside and giving a "50% discount" to those perpetrators who would destroy or damage our roads by illegal amounts of weight per "wheel, axle or groups of axles." [¶ 23.] For the above reasons I respectfully dissent. [¶ 24.] MILLER, Chief Justice, joins this dissent. NOTES [1] This is the schedule of penalties under which Young was assessed 37½ cents per pound of overweight. It provides: Any person who is convicted of the offense of operating a motor vehicle upon the public highways of this state with weight upon any wheel, axle, or groups of axles or upon more than one thereof greater than the maximum permitted by §§ 32-22-2 to 32-22-33, inclusive, 32-22-47 and 32-22-48 shall be fined in addition to, and not in substitution for, any other penalties now provided by law for such offense in the following amounts: In an amount equal to five cents per pound for each pound of such excess or combined excess weight over one thousand pounds if such excess is three thousand pounds or less. In an amount equal to fifteen cents per pound for each pound of such excess or combined excess weight if such excess exceeds three thousand pounds and is four thousand pounds or less. In an amount equal to twenty-two and one-half cents per pound for each pound of such excess or combined excess weight if such excess exceeds four thousand pounds and is five thousand pounds or less. In an amount equal to thirty-seven and one-half cents per pound for each pound of such excess or combined excess weight if such excess is more than five thousand pounds. The fine schedule in this section is assessed at a single rate according to the cents per pound penalty for the highest weight violation. (emphasis added). [2] According to the hearing transcript, this is precisely how the magistrate court interpreted the statute when it assessed Young double the 37½cent per pound penalty for his overweight axle; that is, any axle more than 5,001 pounds overweight was assessed at 75 cents per pound penalty. However, SDCL 32-22-55 already provides that the penalty for overweight axles in excess of 5,000 pounds (which would include those weights over 5,001 pounds) is 37½ cents per pound overweight. [3] The dissent cites to a Georgia case, Alexander v. State, 228 Ga. 179, 184 S.E.2d 450 (1977), as instructive to the determination of the question before this Court. However, the Georgia court applied a statute different from our own to facts that did not involve a question of a double penalty for an overweight vehicle. There, the plaintiff was charged a penalty for overweight axle load to which he filed a motion to dismiss claiming the statute did not prescribe a penalty for overweight axle loads, only overweight trucks. Mr. Young does not dispute the penalty for overweight axle, only that our statutes do not permit enhancement of that penalty by application of SDCL 32-22-56 which applies to overweight of the total vehicle. No one disputes that the state has an interest in unnecessary wear on our highways, see State v. Barton, 2001 SD 52, ¶ 14, 625 N.W.2d 275, 279 ("The state has a substantial interest in protecting its highways from overweight violations."), however, the Georgia case is inapposite to the one before us. [4] The statute imposing weight restrictions on motor vehicles using our state highways and providing a criminal penalty for violation of that statute was first enacted in 1929. SDCL 32-22-16; State v. Feiok, 364 N.W.2d 536, 539 (S.D.1985); 1929 SD Sess.L. ch. 251, §§ 39, 61. In 1951, the predecessor of SDCL 32-22-55 was enacted. 1951 SD Sess.L. ch. 235. By 1953, language from the predecessors of both SDCL 32-22-55 and 32-22-56 can be found in the same session law. 1953 SD Sess.L. ch. 247. [5] This statute was originally enacted in 1951. The 1999 amendment increased the penalties in each overweight category. [6] As previously noted, this statute was originally enacted in 1953, two years after enactment of SDCL 32-22-55. The 1999 amendment substituted "ten thousand pounds" for the previous statutory language of "the greatest permissible compensation plate weights for a vehicle in its class," and substituted "shall be assessed" for "may be assessed," making the double penalty mandatory. In re Groseth Int'l, Inc., 442 N.W.2d 229, 231-32 (S.D.1989). The phrase "[i]n any case where the motor vehicle is absolutely overweight" has remained unchanged since 1953. [7] From 1967 to 1999, SDCL 32-22-55 stated: Any person who is convicted of the offense of operating a motor vehicle upon the public highways of this state with weight upon any wheel, axle or groups of axles or upon more than one thereof greater than the maximum permitted by §§ 32-22-2 to 32-22-33, inclusive, 32-22-47 and 32-22-48 shall be fined in addition to, and not in substitution for, any other penalties now provided by law for such offense in the following amounts: In an amount equal to five cents per pound for each pound of such excess or combined excess weight over one thousand pounds if such excess is three thousand pounds or less. In an amount equal to ten cents per pound for each pound of such excess or combined excess weight if such excess exceeds three thousand pounds and is four thousand pounds or less. In an amount equal to fifteen cents per pound for each pound of such excess or combined excess weight if such excess exceeds four thousand pounds and is five thousand pounds or less. In an amount of twenty-five cents per pound for each pound of such excess or combined excess weight if such excess is more than five thousand pounds. The fine schedule in this section is assessed at a single rate according to the cents per pound penalty for the highest weight violation. (emphasis added). [8] From 1967 to 1999, SDCL 32-22-56 stated: In any case where the motor vehicle is absolutely overweight beyond the greatest permissible compensation plate weights for a vehicle of its class, the pounds by which the vehicle is so overweight may be assessed at double the penalties prescribed in § 32-22-55. (emphasis added). [9] As of July 1, 1999, SDCL 32-22-55 reads: Any person who is convicted of the offense of operating a motor vehicle upon the public highways of this state with weight upon any wheel, axle, or groups of axles or upon more than one thereof greater than the maximum permitted by §§ 32-22-2 to 32-22-33 inclusive, 32-22-47 and 32-22-48 shall be fined in addition to, and not in substitution for, any other penalties now provided by law for such offense in the following amounts: In an amount equal to five cents per pound for each pound of such excess or combined excess weight over one thousand pounds if such excess is three thousand pounds or less. In an amount equal to fifteen cents per pound for each pound of such excess or combined excess weight if such excess exceeds three thousand pounds and is four thousand pounds or less. In an amount equal to twenty-two and one-half cents per pound for each pound of such excess or combined excess weight if such excess exceeds four thousand pounds and is five thousand pounds or less. In an amount equal to thirty-seven and one-half cents per pound for each pound of such excess or combined excess weight if such excess is more than five thousand pounds. The fine schedule in this section is assessed at a single rate according to the cents per pound penalty for the highest weight violation After July 1, 1999, SDCL 32-22-56 now states: In any case where the motor vehicle is absolutely overweight beyond ten thousand pounds, the pounds by which the vehicle is so overweight shall be assessed at double the penalties prescribed in § 32-22-55.	{ "pile_set_name": "FreeLaw" }
259 B.R. 440 (2000) In the Matter of HMH MOTOR SERVICES, INC., Debtor. Anne Moore, Chapter 7 Trustee, Plaintiff, v. Linda B. Brewer, Defendant. Bankruptcy No. 89-20232. Adversary No. 97-2054. United States Bankruptcy Court, S.D. Georgia, Brunswick Division. September 18, 2000. 441 442 William Orange, Donald Napier, Brunswick, Georgia, for plaintiff. Jerome Kaplan, Ronald Thomason, Macon, Georgia, for defendant. Anne Moore, Statesboro, Georgia, for trustee. MEMORANDUM AND ORDER LAMAR W. DAVIS, Jr., Bankruptcy Judge. FINDINGS OF FACT HMH Motor Services, Inc. ("Motor Services") filed a petition for relief under Chapter 11 of Title 11 U.S.Code on April 28, 1989. Prior to confirmation of the plan, the case was converted to a Chapter 7 liquidation on December 9, 1996, and Plaintiff was appointed Trustee to liquidate the assets of Debtor. She brings this action seeking to recover post-petition payments by Motor Services to or for the benefit of Linda Brewer, d/b/a Brewer Leasing Company, a proprietorship. Motor Services was at all relevant times a Georgia corporation, all of the stock of which was owned by Larry C. Brewer who served as president and chief executive officer during the pendency of the case. Linda B. Brewer, Defendant herein, is the wife of Larry C. Brewer and is and was, during the pendency of the bankruptcy case, an "insider" as defined under 11 U.S.C. § 101(31)(B)(vi). In 1967 Linda Brewer began operating a sole proprietorship known as Brewer Leasing Company. Brewer Leasing Company was in the business of purchasing tractors and trailers which it leased or rented to other entities including entities controlled by Larry Brewer. These included HMH Enterprises, a sole proprietorship of Larry Brewer[1], and B & H Direct Delivery, Inc., a corporation wholly owned by Larry Brewer. Motor Services began leasing vehicles from Brewer Leasing Company in 1983. Prior to that time Brewer Leasing Company had leased vehicles to other entities, but its dealings with non-affiliated businesses ceased beginning in 1983 when Larry Brewer purchased HMH Motor Services. Therefore, at the time Motor Services filed Chapter 11 in 443 1989, it and the other Brewer entities were the sole customers of Brewer Leasing Company and continued to be so until the date of the Chapter 7 conversion. At no time in Debtor's Schedules or Disclosure Statements was the existence of lease arrangements between Motor Services and Brewer Leasing Company revealed. At all times, Larry Brewer had full ownership and control of Motor Services, HMH Enterprises, and B & H. He also made all decisions for and on behalf of Linda Brewer, d/b/a Brewer Leasing Company, inasmuch as Linda Brewer is a full-time employee of the State of Georgia and does not operate Brewer Leasing Company in any meaningful sense. Ostensibly separate entities were utilized by Larry Brewer, in part, because the nature of their business differed. Motor Services was a certificated over-the-road common carrier. HMH Enterprises operated off the road spotter services moving and placing trailers on private terminals of its clients, notably K-Mart. B & H performed similar work and also authorized independent driver-operators to haul loads, utilizing its ICC Certificate. Despite their "separate" entity status, Larry Brewer merged these business interests. The fact that HMH Enterprises, B & H, or Brewer Leasing Company existed separately was never revealed in Debtor's Schedules filed in this Court or in its Disclosure Statements.[2] Although HMH Enterprises allegedly operated as a separate entity, Larry Brewer commingled the revenues of all the entities. He acknowledged that he never maintained separate bank accounts for them. All the dollars received by HMH Enterprises flowed to Motor Services and the operating reports filed throughout the pendency of this case all included monies earned by HMH Enterprises. During the calendar year 1995 and 1996, Motor Services "leased" various vehicles and pieces of equipment from Brewer Leasing Company. There are and were no written instruments evidencing any of 444 the terms of the lease agreements between Motor Services and Brewer Leasing Company. Motor Services did not seek Bankruptcy Court approval to assume any existing pre-petition leases or to enter into any new lease agreements with Brewer Leasing Company. As described, these leases were "Triple Net" leases. The "terms" of the oral leases were that Motor Services would pay directly or on behalf of Brewer Leasing Company the monthly debt service payments owed by Brewer Leasing Company and other expenses such as repair, maintenance, and insurance, plus some profit to Linda Brewer. "Terms" is a rather loose term as used in this Order because there never was any real meeting of the minds as between Larry Brewer and Linda Brewer. She relied on him to make all decisions on behalf of all related entities, including Brewer Leasing Company. He, in turn, just did as he pleased. There was no evidence that these "terms" were normal and customary in the industry, that the amounts paid by Motor Services were reasonable in amount, how much was paid on any given piece of equipment, how much it was used, how much revenue it generated for Motor Services, and whether the value of the equipment owned by Brewer Leasing Company was exceeded by the payments made by Motor Services. While Larry Brewer testified, and I find, that leasing equipment is an ordinary business practice in the trucking industry, there was no evidence to establish how much was paid to or on behalf of Brewer Leasing Company by Motor Services. At least in part as a result of the leases by Motor Services which paid the debt service obligations of Brewer Leasing Company on approximately 30 vehicles, Brewer Leasing now has unencumbered title to all those vehicles. Linda B. Brewer is a co-borrower on a promissory note numbered 37340 in favor of Southeastern Bank, evidenced by a note dated June 1, 1993 (Exh. P-8). This note evidenced a line of credit extended to Linda Brewer and Larry Brewer which they utilized to assist all the various Brewer entities in funding their cash operational needs. Collateral for the loan included Linda Brewer's real estate and a certificate of deposit, but no assignment of accounts receivable or other assets of Motor Services was executed at the outset. Later, Motor Services executed a UCC financing statement pledging its accounts receivable to Southeastern Bank which financing statement was filed on February 18, 1994 (Exh. D-123). However, Motor Services never obtained Court permission to execute its guarantee of the pre-existing debt of Mr. and Mrs. Brewer. Therefore, while Mr. Brewer, as president of Motor Services, did execute a guarantee on behalf of the company of the line of credit he and Mrs. Brewer previously obtained individually, that action was never authorized by this Court as required by 11 U.S.C. § 364(c).[3] During calendar year 1995, Motor Services, or other Brewer entities, paid to, or on behalf of Brewer Leasing Company, the sum of $152,000.00. (Exh. P-1, Sch. C, line 1). This amount was shown as income to Brewer Leasing Company on Larry and Linda Brewer's 1995 personal income tax return. The Trustee stipulated that she cannot recover any transfers made prior to July 3, 1995. There was no evidence offered by either the Trustee or Defendant to establish when during 1995 the $152,000.00 payments were made. During the calendar year 1996, HMH Enterprises 445 reported paying the sum of $252,000.00 for vehicle leases, which was paid to or on behalf of Brewer Leasing Company. (Exh. P-2, HMH Enterprises., Sch. C, line 20a). These sums represent payments on the "leases" of equipment by Brewer Leasing to all the Brewer companies. There is no breakdown to show how much of the equipment was used by HMH Enterprises and how much by Motor Services. In contrast to the information shown on the tax returns, the figures reported to this Court differed. Motor Services filed monthly operating reports with the Office of the United States Trustee as required by law during the pendency of its Chapter 11 case. From July 1, 1995, through August 31, 1996, the last monthly report filed prior to the conversion of the case to Chapter 7, the operating reports were admitted as Plaintiff's Exhibits 47-60. A summary of those exhibits was admitted as P-Summary # 1 and reveals that for the period from July 1, 1995, through August 31, 1996, the advances on the line of credit made by Southeastern Bank for the benefit of Motor Services totaled $5,086,728.19. (Exh. P-Summary 1). Exhibit P-Summary # 2 reveals that repayments were made on the line of credit by Motor Services which directly benefitted Linda Brewer, d/b/a/ Brewer Leasing Company, in the amount of $5,110,297.67, or a net excess payment by Motor Services for the direct benefit of Linda Brewer of $23,569.48 for the relevant period of time. (Exh. P-Summary 2). During the 1996 calendar year, $28,376.69 was deposited by Motor Services into the Brewer Leasing Company bank account. (Exh. D-2, p. 23). There were no offsetting disbursements made to benefit Motor Services from the Brewer Leasing bank account during 1996. (Exh. D-2 p. 92). In addition, Motor Services made direct trailer loan payments to Allstar of $24,668.69 and Great Dane of $10,307.52. Taking all the transactions together, $86,922.38 was paid by Motor Services for the benefit of Brewer Leasing Company during the relevant time frame. The contradiction in reports made by Motor Services to the Court in its monthly operating reports and its income tax returns is both bewildering and confusing.[4] Linda Brewer owns the building that all the various Brewer enterprise companies occupied. She entered into a lease agreement with Motor Services to rent the real estate which Motor Services used during the pending bankruptcy case. Rental payments were sporadic, and there was no evidence to establish the precise amount of real estate rentals paid by Motor Services 446 to Linda Brewer. She owes a mortgage to Baxley Federal and that mortgage was paid by one of the various Brewer companies, but she is not sure which entity, and is not sure of the amount that was paid. Schedule "E" on the 1996 tax return shows that Mr. and Mrs. Brewer reported rents received on a commercial building in the amount of $41,128.00 (Exh. P-2, HMH Enterprises, Sch. E). However, there was no evidence to show whether this is the same building or in fact if the payments in this amount were made by Motor Services. At the time that Motor Services filed its last monthly operating report prior to its conversion to Chapter 7 it showed accounts receivable in an amount in excess of $600,000.00 due and owing to the company. (Exh. P-60). Following conversion of Motor Services from Chapter 11 to Chapter 7, from and including December 24, 1996, until May 29, 1997, one hundred and twenty-four (124) separate checks made payable to the Debtor, HMH Motor Services, Inc., totaling $255,287.56 were endorsed by Larry C. Brewer, as president of HMH Motor Services, Inc. (Exh. P-45). They were then deposited directly into Southeastern Bank for payment to and debt reduction on account 37340 directly benefitting Linda Brewer. Larry Brewer contends that the services for which these payments were received were actually rendered by HMH Enterprises, not Motor Services. However, there was no other evidence to establish that these sums were not proceeds of pre-conversion accounts receivable or that Motor Services did not, in fact, simply continue, post-conversion, to do business and bill its customers. The notion that the services were rendered by HMH Enterprises and not Motor Services is pure fantasy. After conversion, Motor Services' customers continued to receive service with the same equipment, from the same employees, emanating from the same location, using the same telephone number as before the conversion. The only thing that changed was that employees began to answer the phone with the name "Enterprises." Numerous bills were rendered in Motor Services' name and checks in payment for those services were written to Motor Services. Larry Brewer elected to use the proceeds to pay down the debt of Linda Brewer, not to apply the proceeds to Motor Services' debt nor to account to the Trustee for these funds or for his use of Motor Services' corporate assets leased vehicles, name, goodwill, customer list, etc. It was stipulated that Defendant's Exhibit 136 correctly shows total receipts of $211,332.64 received by Motor Services post-conversion with backup documentation showing that the services were either invoiced by Motor Services or that the checks were made payable to Motor Services by pre-conversion customers of Motor Services. It was further stipulated that Defendant's Exhibit 138 shows additional receipts in the amount of $46,071.31 which were payable to Motor Services from pre-existing customers of Motor Services, but without any backup documentation to show by whom the services were rendered or by whom they were billed. The Trustee contends she is entitled to recover the total of those two sums less a credit of approximately $3,200.00 for a net recovery of $255,314.96[5]. Finally, it was stipulated that Defendant's Exhibit 139 represents payments received for spotter services in the amount of $56,300.43. Brewer argues that at most the $255,314.96 less $46,071.31, less $56,300.43 447 should be the limit on the recovery because that is the maximum amount which could be deemed "earned" by Motor Services, but which was paid over to the direct benefit of Brewer Leasing Company. The Trustee argues that the entire $255,314.96 is recoverable either because it was earned by Motor Services and diverted for the benefit of Brewer Leasing Company, or because Larry Brewer diverted Motor Services' business to HMH Enterprises and its earnings subsequently were paid to benefit Brewer Leasing Company. Larry Brewer contends that HMH Enterprises was actively engaged in spotter services prior to the Fall of 1996 and that $56,300.43 should be excluded from any recovery by the Trustee because it represents income properly attributed to HMH Enterprises, not the Debtor. However, he previously testified that HMH Enterprises was not actively engaged in business prior to the Fall of 1996 with the exception of one tractor doing nominal business. (Exh. P-61, p. 100). I therefore find that the funds received for spotter services were earned by Debtor Motor Services. Larry Brewer also testified that Motor Services had historically performed both over-the-road and spotter services. He testified that HMH Enterprises had simply picked up the over-the-road business after conversion of Motor Services thus "earning" the $46,071.31 in post-conversion over-the-road income which was not linked by any document directly to Motor Services. (Exh. D-138). That testimony was contradicted and impeached, however, by Mr. Brewer's testimony at earlier stages in this case to the effect that HMH Enterprises had done no over-the-road hauling of freight prior to February of 1997 (Exh. P-61, p. 79) and his further testimony that monies received by HMH Enterprises had not originated from accounts previously serviced by Motor Services (Exh. P-61, p. 57). I find his earlier testimony to be credible and his testimony at the trial of this case to be lacking in credibility. Alternatively, I find that he should be estopped from now taking a contradictory position under the doctrine of judicial estoppel. See Hardy v. Hardy, No. 496-274, slip op. at 9 (S.D.Ga. Oct. 6, 1997). "This doctrine `prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken by him in the same or some earlier legal proceeding' . . . Generally, the doctrine applies to prevent a party from contradicting his own sworn statements." U.S. v. McCaskey, 9 F.3d 368, 378 (5th Cir.1993), cert. denied, 511 U.S. 1042, 114 S.Ct. 1565, 128 L.Ed.2d 211 (1994) (citing Rand G. Boyers, Comment, Precluding Inconsistent Statements: The Doctrine of Judicial Estoppel, 80 Nw. U.L.Rev. 1244, 1244 (1986) and Brandon v. Interfirst Corp., 858 F.2d 266, 268 (5th Cir.1988)). Debtor Motor Services never sought permission of the Bankruptcy Court to transfer these funds to the benefit of Linda B. Brewer or Brewer Leasing Company and none of the transfers were authorized by the Bankruptcy. Court. All of the transfers complained of made by Motor Services to or on behalf of Brewer Leasing Company or Linda B. Brewer were made after the commencement of the case. All of the transfers complained of made by Motor Services to or on behalf of Brewer Leasing Company or Linda B. Brewer were property of the estate. CONCLUSIONS OF LAW 11 U.S.C. Section 549(a) provides: (a) Except as provided in subsection (b) or (c) of this section, the trustee may avoid a transfer of property of the estate (1) that occurs after the commencement of the case; and (2) (B) that is not authorized under this title or by the court. 11 U.S.C. Section 550(a) provides: (a) Except as otherwise provided in this section, to the extent that a transfer is avoided under section . . . 549 . . . of this 448 title, the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from (1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or (2) any immediate or mediate transferee of such initial transferee. I hold that the Trustee has made a prima facie case for recovery of substantial sums of money on account of the post-petition transfers enumerated in this Order. The funds were property of the estate, transferred post-petition without court order. Linda Brewer, d/b/a Brewer Leasing Company, was the recipient of those transfers and is liable under Section 550 for the return of the funds to the Chapter 7 Trustee unless she establishes a defense. I. The Pre-Conversion Payments These payments made to or for the benefit of Linda Brewer were paid post-petition and prior to conversion to Chapter 7. Debtor Motor Services, while in Chapter 11, drew down on a line of credit arranged by Linda Brewer on which Motor Services was not liable, and repaid more than the amounts received by the sum of $23,569.48 from July 1, 1995 through August 31, 1996. (Exh. P-Summary 2). During 1996, Motor Services also deposited $28,376.69 into the Brewer Leasing bank account without receiving the benefit of any disbursements from that account. (Exh. D-2, pp. 23 and 92). Motor Services also made direct loan payments for which Linda Brewer was liable of $34,976.21.[6] These pre-conversion payments total $86,922.38. 11 U.S.C. Section 541(a) provides in relevant part: (a) The commencement of a case under section 301, 302, or 303 of this title creates an estate. Such estate is comprised of all the following property, wherever located and by whomever held: (1) Except as provided in subsections (b) and (c)(2) of this section, all legal or equitable interests of the debtor in property as of the commencement of the case. (6) Proceeds, product, offspring, rents, or profits of or from property of the estate, except such as are earnings from services performed by an individual debtor after the commencement of the case. (7) Any interest in property that the estate acquires after the commencement of the case. The source of these pre-conversion payments was post-petition earnings of the Debtor, Motor Services, which are property of the estate pursuant to Sections 541(a)(6) and (7). They were not authorized by any court order and are therefore voidable under § 549 unless Linda Brewer establishes a defense as is her burden under Bankruptcy Rule 6001. Linda Brewer asserts as a defense to this claim the ordinary course of business "safe harbor" of 11 U.S.C. § 363(c)(1) which provides: (c)(1) If the business of the debtor is authorized to be operated under section 721, 1108, 1203, 1204, or 1304 of this title and unless the court orders otherwise, the trustee may enter into transactions, including the sale or lease of property of the estate, in the ordinary course of business, without notice or a hearing, and may use property of the estate in the ordinary course of business without notice or a hearing. The Bankruptcy Code does not define "ordinary course of business." "The `ordinary course of business' standard is intended to allow a debtor `the flexibility it needs to run its business and respond quickly to changes in the business climate' . . . At the same time, it protects 449 creditors from dissipation of the estate's assets." Habinger, Inc. v. Metropolitan Cosmetic and Reconstructive Surgical Clinic, P.A., 124 B.R. 784, 786 (D.Minn. 1990) (citations omitted). "[T]he authorization in § 363 that the trustee may use property of the estate in the `ordinary course of business' without notice or a hearing cannot be construed to permit payments that frustrate the theory and philosophy of the Bankruptcy Code." U.S. ex rel. Harrison v. Estate of Deutscher (In re H & S Transp. Co., Inc.), 115 B.R. 592, 599 (M.D.Tenn.1990) (citations omitted). I hold that she has failed to establish this defense. Courts have developed two complementary tests, known as the horizontal and vertical tests, which provide a framework in analyzing whether a transaction falls in the "ordinary course of business." If the transaction fails to meet the requirements of either test, then it cannot be considered in the "ordinary course of business." See Burlington Northern Railroad Co. v. Dant & Russell, Inc. (In re Dant & Russell, Inc.), 853 F.2d 700 (9th Cir.1988) (post-petition lease transactions were found to be within the ordinary course of debtor-in-possession's business under § 549(a) because both the horizontal and vertical dimension tests were met); See also In re Media Central, Inc., 115 B.R. 119 (Bankr. E.D.Tenn.1990) (post-petition severance pay contracts between debtor and members of its management team failed the vertical/creditor expectation test and were not in the debtor's ordinary course of business). The first line of factual inquiry, known as the horizontal test, is "whether, from an industry-wide perspective, the transaction is of the sort commonly undertaken by companies in that industry." In re Roth American, Inc., 975 F.2d 949, 953 (3rd Cir.1992) (citation omitted). It compares the transaction against the typical transactions of like businesses. "[T]he test is whether the post petition transaction is of a type that other similar businesses would engage in as ordinary business." Habinger, Inc. v. Metropolitan Cosmetic, 124 B.R. at 786, citing Dant & Russell, Inc., 853 F.2d at 704. As part of the ordinary course of business defense, Defendant asserts that these pre-conversion payments made to or for the benefit of Linda B. Brewer or Brewer Leasing Company cannot be set aside because all the payments, in the aggregate, represent the rental value of equipment provided by Brewer Leasing Company to Motor Services. While there was evidence that equipment leasing is in fact common in the trucking industry, there was no evidence that the "business practices of Motor Services' competitors," and in particular equipment leases, were comparable to the business practices of Motor Services and Brewer Leasing Company. 2 Norton Bankr.L. & Prac.2d § 37.3 (2000). There was no evidence of what period of time the leases covered, the payment amount, the profit margin built into compensate Linda Brewer as lessor, or the purchase options, if any, retained by Motor Services. There was no evidence that the terms, rate of payment, interest factor or any other element of the leases matched those typical in the industry. These pre-conversion payments thus failed to meet the horizontal test. Nor did they meet the so-called vertical test, i.e., did the leases conform to the reasonable expectations of a hypothetical creditor of Motor Services. In re Roth American, Inc., 975 F.2d at 953. This approach focuses on the creditor's expectation by viewing the transaction from the creditor's perspective and inquires whether the creditor would expect notice and hearing on the transaction. In re Media Central, Inc., 115 B.R. at 123. "The touchstone of `ordinariness' is thus the interested parties' reasonable expectations of what transactions the debtor in possession is likely to enter in the course of its business." Armstrong World Industries, Inc. v. James A. Phillips, Inc. (In re James A. Phillips, Inc.), 29 B.R. 391, 394 450 (S.D.N.Y.1983). Defendant Linda Brewer argues that these transactions were within the ordinary course of the business because the leases and pre-conversion payments were an established practice of the Debtor's business and there was nothing different which occurred post-petition that would require creditors to receive notice and a hearing. This Court disagrees. While such payments and transactions may have been the regular practice of the Brewer-controlled entities, the Court does not find that such practice makes them ordinary from the perspective of a hypothetical creditor's vantage point. In this case, the nature of the leases and other pre-conversion payments remove them from the scope of "ordinary course of business." First, these pre-conversion payments, which came from the Debtor's post-petition earnings, were not made solely for the Debtor's benefit, but also benefitted Brewer Leasing Company and/or Linda Brewer, an insider. See Johnston v. First Street Companies (In re Waterfront Companies, Inc.), 56 B.R. 31 (Bankr.D. Minn.1985)(holding that an indemnity and hold harmless agreement, which was for the benefit of a separate business in which the principal of the debtor had an interest, was not in the ordinary course of business because it failed the vertical dimension test). Second, the failure of proof of exact terms and lack of any evidence to show that, objectively, Motor Services was paying what would be expected in the industry dooms the defense. Creditor expectations would certainly be violated by a debtor's transaction at rates unfavorable on an industry-wide scale. Finally, the leases: (1) Were concealed from disclosure by Motor Service's failure to reveal them in the Petition, Schedules, Statement of Affairs, and Disclosure Statements; (2) Were never the subject of independent investigation or inquiry at a time when the fairness of the leases could have been most meaningfully analyzed; (3) Were between insiders and thus were not in any sense arms-length in nature; and (4) Were totally determined by Larry Brewer, the CEO of Motor Services and husband of the Lessor, who then had obvious conflicting motivations in managing these assets. I hold that no hypothetical creditor would reasonably expect a Debtor-in-possession with fiduciary duties to conceal the existence and substance of transactions involving hundreds of thousands of dollars and scores of estate assets from the Court, the United States Trustee, and the creditor body, especially when they were conducted with an insider. I find that these pre-conversion payments and lease transactions fail both the horizontal and vertical dimension tests and were not made in the ordinary course of business. Therefore, notice, a hearing, and Court approval were mandatory pre-requisites to the transfer of any funds by Debtor Motor Services post-petition to Linda Brewer/Brewer Leasing Company. Accordingly, I hold that the proven post-petition, pre-conversion, payments totaling $86,922.38 are recoverable by the Trustee. II. The Office Lease The office lease payments, in the amount of $41,128.00 as reflected in the Brewer's 1996 tax returns for rents received on a commercial building (Exh. P-2, HMH Enterprises, Sch. E), would likely fall in the same category as equipment lease payments but for the fact that the Trustee was unable to establish the precise amount paid by Motor Services to Linda Brewer as noted supra at 9 in the Findings of Fact. Nor was the Trustee able to establish that all commercial rental income shown on the Brewers' tax return or Schedules was paid by Motor Services. The deplorable condition of Motor Services' books and records may have contributed to the failure of proof of this point or the Brewers may have leased commercial 451 property to some party other than Motor Services. In any event, this claim was not established. III. The Post-Conversion Payments These payments, consisting of the 124 checks made payable to Debtor HMH Motor Services, Inc. totaling $255,287.56, are recoverable by the Trustee. (Exhibit P-45). Section 549(a) has four criteria for avoidance: (1) a transfer; (2) of property of the estate; (3) which occurred post-petition; and (4) was not authorized by the Bankruptcy Code or the court. Manuel v. Allen (In re Allen), 217 B.R. 952, 955 (Bankr.M.D.Fla.1998). Under Section 549 these sums were transferred after the commencement of the case and were not authorized by the Code or by any Court order. The sole issue is whether these sums were property of the estate. Defendant argues that these funds were not property of the estate because they were payment for services rendered by HMH Enterprises, another Larry Brewer-controlled entity, not Debtor Motor Services. Debtor, HMH Motor Services, ceased operations in October 1996, which was two months prior to conversion to Chapter 7 on December 9, 1996.[7] Defendant therefore asserts that these checks are not property of the bankruptcy estate because on the dates the checks were issued, the case had already been converted from Chapter 11 to Chapter 7 and there remained no Debtor-in-possession. The Trustee argues that the checks are property of the estate because they were proceeds of contracts or other assets of Motor Services, which constitute property of the estate. Under Sections 541(a)(6) and (7), property of the estate consists of proceeds, product, offspring, rents, or profits of or from property of the estate [except such as are earnings from services performed by an individual debtor after the commencement of the case] and any interest in property that the estate acquires after the commencement of the case. The concept of property of the estate is very broad. "Section 541 simply achieves the relatively basic congressional aim of casting a broad jurisdictional net over the interests in property that should justifiably be subject to the bankruptcy process." In re Herberman, 122 B.R. 273, 279-80 (Bankr.W.D.Tex.1990)(citing United States v. Whiting Pools, Inc., 462 U.S. 198, 203-05, 103 S.Ct. 2309, 2312-13, 76 L.Ed.2d 515 (1983)). Property of the estate includes proceeds which are generated by the operation of estate assets during the pendency of the debtor's reorganization attempt, until a plan is confirmed, even after a chapter 11 is converted to chapter 7. Kepler v. Independence Bank of Madison (In the matter of Ford), 61 B.R. 913, 917 (Bankr. W.D.Wis.1986). It also includes intangible assets of the debtor such as relationships with customers and parties dealing with the debtor, goodwill, and telephone numbers used by the debtor. Sheppard's Dental Centers, Inc. v. Southwest SDC, Inc. et al (In re Sheppard's Dental Centers, Inc.), 65 B.R. 274, 278 (Bankr.S.D.Fla.1986) (holding that a post-petition transfer of such assets of the estate was subject to being set aside under § 549). In this case, the funds were tendered post-conversion via checks made payable to Motor Services. These funds were not turned over to the Trustee, but were endorsed and paid to reduce Linda Brewer's personal debt at Southeastern Bank. The checks were issued by entities which either: (1) owed Motor Services money on the date of conversion; or (2) were billed on Motor Services invoices for services rendered by Motor Services and paid post-conversion; or (3) were payable to Motor Services for services rendered by Larry Brewer utilizing the trade name HMH Enterprises, 452 but operating from the Motor Services premises, using Motor Services equipment, phone number, personnel, customers, business relationships, and other intangible assets, including goodwill; none of which were abandoned as estate assets by the Chapter 7 Trustee. I conclude by a preponderance of the evidence that under any of the above theories the Trustee is entitled to recover these sums from Linda Brewer/Brewer Leasing Company, the entity for whose benefit the debt reduction payments were made. First, if any of these funds were payments on accounts receivable, they are unquestionably property of the estate since they constitute proceeds of an estate asset accounts receivable. 11 U.S.C. Section 541(a)(6). Second, if they were payments for work done directly by Motor Services then, again, they constitute estate property under Section 541(a)(6) since they represent post-petition earnings for services by a corporate, not individual, debtor. Third, although Larry Brewer contends, in the face of overwhelming evidence to the contrary, that these services were actually performed by HMH Enterprises, not Debtor Motor Services, I reject that contention because the facts simply do not bear it out. The checks were payable to Motor Services, the Debtor, and are presumptively funds of the Debtor. But even if Brewer's contention is true and the funds represent payment for work done under the HMH Enterprises name-plate, I hold that Larry Brewer's actual use of all the assets of Motor Services, under the guise of HMH Enterprises, renders the funds "proceeds . . . or profits" of intangible estate property wrongfully appropriated by Larry Brewer, and rightfully restored to the Chapter 7 Trustee. Sheppard's Dental Centers, Inc., supra. None of the payments of these funds benefitted Debtor Motor Services' estate. They were diverted to debt reduction on the Southeastern Bank line of credit on which Linda Brewer was an obligor. Motor Services was never an obligor on that line of credit, and its pledge of accounts receivable as security, executed eight (8) months later, was never authorized by any order of this Court. It is therefore voidable under Section 549. Moreover, the provisions of the Code allowing Debtors-in-possession to incur debt were not complied with. Motor Services could incur only unsecured debt without notice and a hearing. 11 U.S.C. § 364(a). Because Motor Services did not follow the notice and hearing requirements of 11 U.S.C. § 364(c), the pledge of its accounts receivable is a nullity. In general, actions for which prior notice is requisite are void if no such notice and hearing occurs. See generally Cedar Tide Corp. v. Chandler's Cove Inn, Ltd. (In re Cedar Tide Corp.) 859 F.2d 1127 (2nd Cir.1988), cert. denied, 490 U.S. 1035, 109 S.Ct. 1933, 104 L.Ed.2d 405 (1989)(Circuit Court affirmed the nullification of a post-petition transfer of debtor-in-possession's main asset because transfer was made without requisite notice and hearing under § 363); MMIA v. Hirsch (In re Lavigne), 114 F.3d 379 (2nd Cir.1997) (cancellation of a professional liability insurance policy by debtor-in-possession was void because cancellation was found not to be in the ordinary course of business and notice to creditors was required under § 363). Since the pledge of accounts receivable was ineffectual, there is no theory under which it was proper to take estate property to reduce the debt of Linda Brewer at Southeastern Bank. The Trustee is entitled to recover the sum of $255,287.56 as a voidable post-petition transfer. IV. Interest The Trustee requests an award of pre-judgment interest from July 3, 1997, the date of the filing of this adversary proceeding. Defendant asserts that the Court should only allow post-judgment interest as provided for in 28 U.S.C. Section 1961. In the alternative, Defendant *453 argues that if the Court awards pre-judgment interest, then the appropriate rate should be the rate determined by the federal statute. Consideration of an award of pre-judgment interest is left to the discretion of the Court. See Wilson v. First National Bank (In re Missionary Baptist Foundation of America, Inc.), 69 B.R. 536, 538 (Bankr.N.D.Tex.1987); 6 Norton Bankr.L & Prac.2d § 142:6 (2000). Courts which have considered an award of pre-judgment interest in § 549 actions have applied the same rationale to an award of interest in a preferential transfer action. See Wilson v. First National Bank, supra; Rieser v. Randolph County Bank (In re Masters), 137 B.R. 254 (Bankr.S.D.Ohio 1992). The considerations for awarding pre-judgment interest in a preference action include control and use of the property by the creditor, deprivation of control and use of the property by the estate, and the benefit or unjust enrichment to the party which retained the property. See Foreman Industries, Inc. v. Broadway Sand & Gravel (In the matter of Foreman Industries, Inc.), 59 B.R. 145, 155 (Bankr.S.D.Ohio 1986); In re Smith, 236 B.R. 91, 103-04 (Bankr.M.D.Ga.1999) "An award of prejudgment interest is compensatory, compensating the debtor's entire estate for the use of the funds for the period of time in which they were wrongfully withheld from the estate." Rieser v. Randolph County Bank, 137 B.R. at 262. I find that this rationale supports an interest award in this case. The Trustee and the estate have been deprived of these funds since 1996. The action to recover them was filed in 1997 and has been litigated at considerable cost. That cost should not be borne entirely by creditors. I hold that pre-judgment interest shall be awarded from the date of the filing of this adversary proceeding. See Smith v. Mark Twain National Bank, 805 F.2d 278, 291 (8th Cir.1986); In re Smith, supra. at 104. The appropriate rate of interest is determined by 28 U.S.C. Section 1961(a) which is "a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of the fifty-two week United States Treasury bills settled immediately prior to the date of the judgment." 28 U.S.C. § 1961(a)(2000). This adversary proceeding was filed on July 3, 1997. The rate of interest as determined by 28 U.S.C. § 1961 is 5.65%. Accordingly, the Trustee is entitled to pre-judgment interest on the amounts awarded herein at the rate of 5.65% from July 3, 1997 to the date of this Order. ORDER Pursuant to the foregoing Findings of Fact and Conclusions of Law, IT IS THE ORDER OF THIS COURT that judgment shall be entered in favor of Anne Moore, Chapter 7 Trustee, and against Linda B. Brewer in the amount of $342,209.94, plus interest from July 3, 1997, to date in the amount of $61,756.74. NOTES [1] Brewer believed that Enterprises had been incorporated, but it was not. When this fact was discovered in 1996, Brewer attempted to incorporate Enterprises, but that name had already been assigned to another unrelated company, and he was forced to select another name, HMH Transportation, which was formed in 1997. [2] Motor Services listed 5240 Old Dixie Highway, Forest Park, Georgia, as a location from which Motor Services conducted business without revealing that HMH Enterprises operated from that location as Mr. Brewer now contends. Statement of Affairs, question 17, required Motor Services to reveal the existence and terms of any lease of business property and it revealed a lease in California from Paul Driskell Properties, but did not reveal the existence of any lease of real estate or vehicles from Linda Brewer. The answer to question 17 also revealed a lease with Larry Brewer over property in Hazlehurst and a lease with Larry Brewer over property in Forest Park, but again did not show the existence of any lease with Linda Brewer. In Schedule B-2 Motor Services revealed $4.4 million in automobiles, trucks, trailers, and other vehicles and attached an Exhibit "C" running 41 pages in length identifying by make, model, and serial number, all the tractors and trailers owned by Motor Services which it claimed as assets at the outset of the case. In none of these Schedules does it show that Motor Services' interest was anything other than full ownership. In other words, none of them were shown as being leased vehicles. Under Schedule B-2(M), Tangible Personal Property of any other Description, Motor Services did not show its leasehold interest in any vehicles leased from Brewer Leasing Company nor were any leasehold rights shown in Schedule B-2(N) under general intangibles. Motor Services' Disclosure Statement filed November 6, 1989, listed creditor 14, Strick Lease, Inc., as a pure lease on various trailers. It showed creditors Strick Lease, Inc., and Trailer Rental Company, creditor number 16, as trailer rental and trailer lease creditors, but never revealed any existence of any leases or any creditor status of Linda Brewer or Brewer Leasing Company. The Disclosure Statement made no mention of any lease arrangements with Linda Brewer or Brewer Leasing Company nor any mention of the related Brewer entities such as HMH Enterprises. The Amended Disclosure Statement filed September 12, 1991, showed under secured creditors Avco Leasing, Enterprise Leasing, Don Kott Leasing, Strick Lease, Inc., and Trailer Rental Company, all of which leased tractors, trailers, or other business assets to Motor Services, and yet never was there any disclosure of lease arrangements as to tractors or trailers with Linda Brewer or Brewer Leasing Company. The Amended Disclosure Statement again failed to disclose the operation of HMH Enterprises or any other related businesses under common ownership of Mr. and Mrs. Brewer. [3] 11 U.S.C. Section 364(c) provides: (c) If the trustee is unable to obtain unsecured credit allowable under section 503(b)(1) of this title as an administrative expense, the court, after notice and a hearing, may authorize the obtaining of credit or the incurring of debt (2) secured by a lien on property of the estate that is not otherwise subject to a lien; or (3) secured by a junior lien on property of the estate that is subject to a lien. [4] This number is substantially lower than the sum of payments revealed on the tax returns. According to the testimony of the company's CPA, however, the 1996 lease expense of $252,000.00 paid by HMH Enterprises was a pro forma figure "pulled out of the air" in order to avoid the consequence of Mr. Brewer owing additional Social Security taxes as a self-employed person. The Court did not fully fathom why, and need not draw any legal conclusions as to why, it was necessary for these funds to be reported to the IRS as shown on the return. The CPA also testified that in toto Mr. and Mrs. Brewer's income tax return for 1996 was accurate in that all income of all of their enterprises was accounted for and all expenses were accounted for. The pro forma numbers, however, were allocated among their enterprises without any specific backup. All of this serves as further evidence that the Brewers merged and commingled all of their ostensibly separate enterprises into a single operating company. The CPA also testified that the operating reports on file with the Court were an accurate reflection of actual cash receipts and disbursements. He was not hired to perform an audit of the company, nor to set up the internal accounting of the companies, but rather to prepare returns from the best information available as maintained by Mr. and Mrs. Brewer, the Debtor corporation, and their affiliated companies. He concluded, and the Court agrees, that their books and records were "a mess." The tax returns would form a basis for awarding the Trustee the sums reflected on the return under the doctrine of judicial estoppel. See infra at 13. However, because the CPA testified, credibly, that the reports filed in this Court were correct, and that the tax returns in their entirety were correct, I decline to do so. [5] The figures do not match. The $255,314.96 figure claimed by the Trustee does not equal the $255,287.56 amount discussed supra and reflected in Exhibit P-45 (which is the total amount of the 124 checks payable to Debtor Motor Services received post-conversion, endorsed by Larry Brewer, and paid down on the line of credit of Linda B. Brewer). Because the parties stipulated to the admission of the Exhibits, I adopt the stipulated sum of $255,287.56 from Exhibit P-45. [6] This figure is the sum of direct trailer loan payments made to Allstar of $24,668.69 and Great Dane of $10,307.52 as outlined in the findings of fact. [7] This case was converted to Chapter 7 prior to confirmation of a plan of reorganization.	{ "pile_set_name": "FreeLaw" }
200 P.3d 504 (2009) 2009 MT 9 349 Mont. 10 STATE of Montana, Plaintiff and Appellee, v. Kyle Robert KOLB, Defendant and Appellant. No. DA 06-0691. Supreme Court of Montana. Submitted on Briefs January 4, 2008. Decided January 13, 2009. 505 For Appellant: Jim Wheelis, Chief Appellate Defender, Helena, Montana. For Appellee: Hon. Steve Bullock, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana, Ed Corrigan, Flathead County Attorney, Daniel Guzynski, Deputy County Attorney, Kalispell, Montana. Justice JAMES C. NELSON delivered the Opinion of the Court. ¶ 1 A jury in the Eleventh Judicial District Court, Flathead County, found Kyle Robert Kolb guilty of felony robbery. Kolb appeals. We affirm. ¶ 2 The issues are: ¶ 3 1. Did the District Court err when it quashed the subpoena of Missoulian reporter Tristan Scott? ¶ 4 2. Did the District Court abuse its discretion by excluding evidence of Brian Hughes' criminal charges and pretrial release conditions? ¶ 5 3. Did the prosecutor commit misconduct during closing argument by shifting the burden of proof to the defense? BACKGROUND ¶ 6 On the evening of January 14, 2006, Missoula, Montana, residents Matthew Madsen and Brian Hughes traveled to Whitefish, Montana, with plans to ski at Big Mountain Ski Resort the following day. They checked into a motel and then went out to play pool, socialize, and drink at local bars. ¶ 7 Madsen and Hughes met Jacob Hogsett, Brett Johnson, and defendant Kyle Kolb at a bar called Casey's. When Casey's closed, Madsen's and Hughes' new acquaintances agreed to give them a ride back to their motel. En route to the motel, they discussed the possibility of drinking more alcohol, smoking marijuana, and bringing some girls up to Madsen's and Hughes' motel room. They also stopped at an ATM machine, where Hughes withdrew $200, some of which he planned to use to purchase marijuana from Hogsett. Once at the motel, Madsen and Hughes invited the others to their room. ¶ 8 According to Madsen and Hughes, immediately after the group entered their motel room, Kolb, Hogsett, and Johnson placed both of them in headlocks and forced them down onto the beds. The trio choked and punched Madsen and Hughes and took their money, including the $200 Hughes had just withdrawn from the ATM. Both Madsen and Hughes testified at Kolb's trial that, during the melee, Kolb and Hogsett brandished a handgun with which they threatened to shoot Hughes. When the three left the room, Hughes ran after them out into the parking lot, where he kicked their truck and pounded on its windows before they drove away. He also noted the truck's license plate number and called 911. After law enforcement officers responded to his call, Hughes was taken to an emergency room for treatment of hematomas on both sides of his forehead and injuries to his hand and his ankle. Later that night, an officer from the Columbia Falls Police Department stopped the truck and arrested Kolb, Hogsett, and Johnson. Kolb had $203 in his pocket when he was arrested. ¶ 9 Kolb was charged with felony robbery for inflicting bodily injury upon another, threatening to inflict bodily injury upon another, or purposely or knowingly putting another in fear of immediate bodily injury in the course of committing a theft. At the end of a three-day trial, the jury found Kolb guilty. He appeals. STANDARDS OF REVIEW ¶ 10 Under circumstances similar to those presented here, we have reviewed a district court's quashing of a subpoena as trial error, employing harmless error analysis. See State v. Slavin, 2004 MT 76, ¶¶ 19-20, 320 Mont. 425, ¶¶ 19-20, 87 P.3d 495, ¶¶ 19-20. We review evidentiary rulings for abuse of discretion. State v. Snell, 2004 MT 334, ¶ 17, 324 Mont. 173, ¶ 17, 103 P.3d 503, ¶ 17. To determine whether comments by a prosecutor require reversal, we first examine whether the prosecutor's comments were improper 506 and, if so, we then determine whether the comments prejudiced the defendant's right to a fair and impartial trial. State v. Sanchez, 2008 MT 27, ¶ 51, 341 Mont. 240, ¶ 51, 177 P.3d 444, ¶ 51. ISSUE 1 ¶ 11 Did the District Court err when it quashed the subpoena of Missoulian reporter Tristan Scott? ¶ 12 Prior to trial, Kolb subpoenaed Tristan Scott, a reporter for the Missoulian newspaper who had interviewed Hughes for an article about the robbery. In that newspaper article, Scott attributed to Hughes a statement that a "shotgun" was pointed at him during the robbery. The Missoulian moved to quash the subpoena pursuant to § 26-1-902, MCAa provision of the Media Confidentiality Act (Act) which protects media representatives from being required to disclose information in a legal proceeding if the information was gathered, received, or processed in the course of the media representative's employment. The defense opposed the motion to quash on grounds that the information sought by subpoena was non-confidential and that the Act cannot restrict a criminal defendant's right to a fair trial. After reviewing the arguments from both sides, the District Court quashed the subpoena. ¶ 13 We acknowledge Kolb's argument that the District Court did not correctly balance his constitutional right to a fair trial as against Scott's rights under § 26-1-902, MCA, and the First Amendment to the United States Constitution. More accurately stated, the District Court avoided the constitutional issue by determining there was another way for Kolb to get the information he sought into evidence. This approach was proper; as a matter of longstanding principle, courts avoid constitutional issues whenever possible. See State v. Carlson, 2000 MT 320, ¶ 17, 302 Mont. 508, ¶ 17, 15 P.3d 893, ¶ 17. ¶ 14 Kolb sought to present evidence through Scott that Hughes had made an inconsistent statement about the type of guna shotgun, instead of a handgunused in the robbery. Relying on Slavin, he argues that, in order for the quashing of the subpoena to be upheld, other live witnesses must have been available to testify to his inconsistent statement about a "shotgun." ¶ 15 The District Court also relied on Slavin in relation to this issue. In that case, the district court quashed the defendant's subpoenas of a newspaper reporter and editor on grounds that several other witnesses were available to testify to the same facts as the witnesses whose subpoenas were quashed. On appeal, the defendant argued his right to compel attendance of witnesses should prevail over the reporter and editor's rights under § 26-1-902, MCA. We held that, even if quashing the subpoenas was error, any error would be harmless when considered in light of the abundant cumulative evidence that proved the same point. Slavin, ¶ 26. ¶ 16 Slavin does not stand for the proposition for which Kolb cites it; it represents an example of circumstances under which other available evidence made unnecessary the issuance of a subpoena. Here, like in Slavin, the District Court noted the information sought was otherwise available. The court stated that, given the Missoulian article's attribution to Hughes of a statement that a "shotgun" had been used in the robbery, Kolb's counsel could question Hughes on whether he told the reporter a shotgun was used. If Hughes replied affirmatively, the defense could suggest the jury use that information to assess Hughes' credibility. If, on the other hand, Hughes claimed he did not make the statement, the Missoulian article could be introduced as extrinsic evidence of a prior inconsistent statement by Hughes. ¶ 17 Under the circumstances presented here, the District Court determined Kolb had not established that the evidence sought was otherwise unavailable. Therefore, the court ruled, no constitutional analysis was triggered and the subpoena was properly quashed. We agree. We hold the District Court did not err in quashing Scott's subpoena. ISSUE 2 ¶ 18 Did the District Court abuse its discretion by excluding evidence of Brian 507 Hughes' criminal charges and pretrial release conditions? ¶ 19 Prior to trial, the State moved in limine to exclude all testimony regarding the criminal histories of any of the witnesses based on M.R. Evid. 609, which prohibits the use of evidence that a witness has been convicted of a crime to attack the witness's credibility. Kolb then filed a notice of intent to disclose evidence of a pending criminal charge against Hughes, relying on M.R. Evid. 404(b), which allows evidence of other crimes, wrongs, or acts for purposes including proof of motive. Kolb contended Hughes's admitted acts of entering bars and consuming alcohol on the night of January 14, 2006, violated the conditions of his pretrial release in a criminal case then pending against him and presented a motive for him to provide false testimony in this case. The District Court rejected that contention on the basis that Hughes had already admitted to violating his conditions of release in the pending criminal matter. The court also relied on the M.R. Evid. 609 prohibition on use of evidence that a witness has been convicted of a crime. The court granted the State's motion in limine and struck Kolb's notice of intent to disclose. ¶ 20 On appeal, Kolb argues evidence of Hughes' criminal record should have been admitted for purposes of establishing another motive for fabricating the robberyto conceal a drug deal and his possession of marijuana in the motel room. Kolb also argues the "other crimes" evidence should have been admitted under this Court's modified Just rule. See State v. Matt, 249 Mont. 136, 142, 814 P.2d 52, 56 (1991). ¶ 21 As a longstanding rule, we will not consider an issue first raised on appeal or a change in legal theory on appeal. State v. Peterson, 2002 MT 65, ¶ 24, 309 Mont. 199, ¶ 24, 44 P.3d 499, ¶ 24. Aside from being raised for the first time on appeal, neither of the two new legal theories raised here has merit. Why would Hughes fabricate a robbery to conceal a drug deal and his possession of marijuana, when he simply could have not reported the robbery and achieved the same "conceal" result with much less risk of being exposed? As to the modified Just rule, that rule relates to other crimes, wrongs, or acts of a criminal defendant. Kolb has cited no authority to support the proposition that the modified Just rule applies to evidence of other crimes, wrongs or acts of a non-defendant witness, except in limited circumstances where the defendant is attempting to inculpate another person for the crime. See e.g. State v. Clifford, 2005 MT 219, ¶ 44, 328 Mont. 300, ¶ 44, 121 P.3d 489, ¶ 44. Those circumstances are not presented here. ¶ 22 We hold Kolb has failed to establish that the District Court abused its discretion in excluding evidence of Hughes' criminal charges and pretrial release conditions. ISSUE 3 ¶ 23 Did the prosecutor commit misconduct during closing argument by shifting the burden of proof to the defense? ¶ 24 During the State's rebuttal closing argument, the prosecutor directed the jury's attention to the defense's failure to call three witnesses who allegedly observed Hughes following Kolb, Hogsett, and Johnson out into the motel parking lot after the robbery: [T]hey keep talking about maybe these three witnesses that were there. Well, [defense counsel] has subpoena power also, did he bring those people in? If he knew they were going to say something different, and this is a very important At that point, counsel for the defense objected that the defense had no obligation to prove anything, and the court commented, "Well, I've told the jurors about that." The prosecutor then proceeded with another line of argument. Kolb did not move for a mistrial. ¶ 25 Kolb contends the prosecutor's remark constitutes reversible error under State v. Newman, 2005 MT 348, 330 Mont. 160, 127 P.3d 374 (Nelson, J., specially concurring). We disagree. ¶ 26 In Newman, two members of this Court voted to reverse the criminal conviction based on a conclusion that prosecutorial comments during closing argument had deprived the defendant of a fair trial by referring 508 to the defense's failure to present witnesses to support his theory of the case. Because it represents the view of just two members of the Court, the concurring opinion in Newman does not constitute controlling authority. See Doll v. Major Muffler Cntrs., Inc., 208 Mont. 401, 408, 687 P.2d 48, 51-52 (1984). ¶ 27 Additionally, the prosecutor's comment must be placed in context. See State v. Roubideaux, 2005 MT 324, ¶ 15, 329 Mont. 521, ¶ 15, 125 P.3d 1114, ¶ 15. In Roubideaux, the prosecutor commented in closing argument that, as a result of the defense's presentation of an alternative theory of the events underlying the charges, "all [the jury] ha[d] to do [wa]s decide who is telling the truth." Roubideaux, ¶ 9. The prosecutor also clearly referred in closing argument to the State's burden of proving the case beyond a reasonable doubt. In that context, we ruled the prosecutor's statement was not improper. Roubideaux, ¶ 15. Here, like in Roubideaux, the prosecutor acknowledged during closing argument that he bore the burden of establishing his case beyond a reasonable doubt. ¶ 28 Moreover, in the present case, it was defense counsel who first introduced at trial the matter of the three witnesses from the parking lot. During his opening statement, defense counsel told the jury that three witnesses saw the men come running out of the motel and did not see a gun. Then, during cross-examination of Hughes, defense counsel asked if it was true that three witnesses had observed him running after and yelling at Kolb, Hogsett, and Johnson as they ran across the parking lot outside the motel. Finally, in his closing argument, Kolb's counsel pointed out the prosecution had failed to call any of the parking lot witnesses. ¶ 29 We hold that, placed in context, the prosecutor's comment was not improper. Thus, we need not consider whether the comment prejudiced Kolb's right to a fair trial. ¶ 30 Affirmed. We Concur: PATRICIA COTTER, JOHN WARNER, W. WILLIAM LEAPHART and JIM RICE, JJ.	{ "pile_set_name": "FreeLaw" }
In The Court of Appeals Ninth District of Texas at Beaumont __________________ NO. 09-17-00444-CV __________________ KRISTIN D. WILKINSON, Appellant V. COMMISSION FOR LAWYER DISCIPLINE, Appellee __________________________________________________________________ On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 16-09-10238-CV __________________________________________________________________ MEMORANDUM OPINION Kristin D. Wilkinson appeals a final judgment of disbarment following a jury trial. See Tex. Rules Disciplinary P. R. 3.15 (Feb. 26, 1991, Oct. 9, 1991), renumbered eff. June 1, 2018.1 In a pre-trial order granting a motion for partial 1 Current version reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. B (West 2019). Throughout this Opinion, we apply the Rules of Disciplinary Procedure in effect on the date the disciplinary proceeding commenced. See Tex. Rules Disciplinary P. R. 1.04 (Feb. 26, 1991, Oct. 9, 1991), amended eff. Jan. 1, 2004. 1 summary judgment, the trial court ruled that as a matter of law, Wilkinson violated a disciplinary judgment when she drafted and executed a trust document and powers of attorney while actively suspended from the practice of law. See Tex. Disciplinary Rules Prof’l Conduct R. 8.04(a)(7) (Oct. 17, 1989), amended eff. Oct. 1, 1994, amended eff. May 1, 2018. 2 The jury found that Wilkinson engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, and that Wilkinson committed a criminal act that reflects adversely on her honesty, trustworthiness or fitness as a lawyer in other respects. See id. R. 8.04(a)(2), (3) (Oct. 17, 1989), amended eff. Oct. 1, 1994, amended eff. May 1, 2018. In the final judgment, the trial court disbarred Wilkinson as a sanction for her professional misconduct. The three issues presented by Wilkinson in her brief contend: (1) the trial court erred by denying Wilkinson’s plea to the jurisdiction; (2) there were defects in the charge and legally and factually insufficient evidence to support the jury’s verdict; and (3) the trial court erred by granting the Commission’s partial summary judgment, in denying Wilkinson’s motion for reconsideration, and in denying her motion for summary judgment and her requests for jury questions. 2 Current version reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2019) (Tex. State Bar R. art. X § 9). 2 Appellant’s Plea to the Jurisdiction Wilkinson filed a post-judgment plea to the jurisdiction in which she argued that neither the Commission nor the lawyer who filed a grievance had standing to make allegations against Wilkinson on behalf of the beneficiary of the trust. Wilkinson further argued that the trial court interfered with the jurisdiction of the 190th District Court of Harris County where the beneficiary of the trust filed an action against Wilkinson. Additionally, Wilkinson challenged the Commission’s jurisdiction over the acts of a trustee in the administration of a trust when that trustee was not admitted to practice law in Texas. The trial court signed an order denying the plea to the jurisdiction on November 13, 2017. We review a challenge to the trial court’s subject matter jurisdiction de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Where a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause, construing the pleadings liberally in favor of the plaintiff and considering the plaintiff’s intent. Id. If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. Id. at 227. If the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the 3 trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228. The fact finder will resolve any fact question regarding the jurisdictional issue. Id. at 227–28. A court’s subject-matter jurisdiction traditionally consists of the power, conferred by constitutional or statutory provision, to decide the kind of claim alleged in the plaintiff’s petition and to grant relief. Sierra Club v. Tex. Nat. Res. Conservation Comm’n, 26 S.W.3d 684, 687 (Tex. App.—Austin 2000), aff’d on other grounds, 70 S.W.3d 809 (Tex. 2002). The Texas Supreme Court regulates the practice of law in Texas, exercises administrative control over the state bar, and adopts rules for the discipline of state bar members. In re State Bar of Texas, 113 S.W.3d 730, 732 (Tex. 2003); see also Tex. Gov’t Code Ann. § 81.011 (West 2013). Each attorney admitted to practice in Texas is subject to the disciplinary jurisdiction of the Supreme Court and the Commission. Tex. Gov’t Code Ann. § 81.071 (West 2013). The Commission files the disciplinary petition in a district court of the county of the attorney’s principal place of practice. See Tex. Rules Disciplinary P. R. 3.03. (Feb. 26, 1991, Oct. 9, 1991), amended eff. Oct. 1, 1994, amended eff. Jan. 1, 2004, amended eff. Oct. 1, 2012. The county in which the disciplinary action is filed is a matter of venue, not jurisdiction, and can be waived. Acevedo v. Comm’n for Lawyer Discipline, 131 S.W.3d 99, 103–04 (Tex. App.—San Antonio 2004, pet. denied). Furthermore, the Commission acts not as or on behalf of a private litigant to redress 4 a private wrong, but as an administrative agency under the administrative control of the Supreme Court to hold an attorney accountable for professional misconduct. Id. at 104. On September 1, 2016, the Supreme Court appointed a judge to preside over the disciplinary action against Wilkinson to be filed in a district court of Montgomery County, Texas. The Commission filed the petition in a Montgomery County district court on September 2, 2016. See Tex. Rules Disciplinary P. R. 3.01. (Feb. 26, 1991, Oct. 9, 1991), amended eff. Jan. 1, 2004, amended eff. Oct. 1, 2012. In its petition, the Commission alleged that Wilkinson was a licensed attorney and a member of the State Bar of Texas. The Commission alleged: (1) in 2011, Wilkinson received a judgment of partially probated suspension; (2) in 2013, the Texas Board of Disciplinary Appeals issued a judgment revoking her probation and ordered that Wilkinson be actively suspended from the practice of law from July 26, 2013, to July 25, 2015; (3) Wilkinson continued to practice law while on active suspension when in August 2014, she drafted and had executed an Irrevocable Living Trust Agreement and General Power of Attorney, by which the beneficiary transferred all of her assets to a trust with Wilkinson designated as the sole trustee; (4) on April 24, 2015, Wilkinson was removed as trustee in a proceeding filed in Probate Court Number One of Harris County; and (5) approximately $650,000 of liquid assets 5 diminished to about $200,000 while Wilkinson was trustee. The Commission’s petition invoked the trial court’s subject matter jurisdiction to adjudicate the disciplinary action against Wilkinson as an attorney licensed in Texas in the exercise of the Supreme Court’s administrative control over Texas attorneys. Wilkinson filed a general denial without seeking a transfer to another county. Wilkinson signed her original answer as “The Wilkinson Law Firm, Kristin Wilkinson, Attorney and Counselor at Law, by: /s/ Kristin Wilkinson” under the same State Bar Number as alleged by the Commission in its petition. Although she argued in the trial court and in her appeal that the actions for which she was disciplined were not taken in her capacity as an attorney, when the Commission filed the petition at the direction of the Supreme Court, Wilkinson was an attorney licensed in Texas subject to the disciplinary jurisdiction of the Supreme Court and the Commission. See Tex. Gov’t Code Ann. § 81.071. Likewise, as an attorney, Wilkinson was subject to the Texas Rules of Disciplinary Procedure and the Texas Disciplinary Rules of Professional Conduct. Id. § 81.072(d) (West Supp. 2018). Furthermore, the Commission filed the disciplinary petition as an administrative agency of the Supreme Court, not on behalf of the beneficiary of the trust or the person who initiated a grievance. See Acevedo, 131 S.W.3d at 104. As an exercise of the Supreme Court’s administrative control to hold an attorney accountable for 6 professional misconduct, the disciplinary action did not interfere with the district court’s jurisdiction over the litigation relating to the trust. See id.; see generally Favaloro v. Comm’n for Lawyer Discipline, 13 S.W.3d 831, 836 (Tex. App.—Dallas 2000, no pet.) (the trial court for the disciplinary proceeding did not interfere with the jurisdiction of the court in which the lawyer filed a suit against the state bar and the grievance committee). We conclude the trial court had the power to both try and enter judgment in the disciplinary action. See Tex. Rules Disciplinary P. R. 3.03, 3.09 (Feb. 26, 1991, Oct. 9, 1991). We overrule issue one. Charge Error and Sufficiency of the Evidence 1. Charge Error Wilkinson’s second issue complains of defects in the jury charge and claims the evidence is legally and factually insufficient to sustain the jury’s verdict. The trial court submitted two questions to the jury. Question One asked, “Did Kristin Wilkinson engage in conduct involving dishonesty, fraud, deceit or mis- representation?” The trial court instructed the jury that, “[t]he term ‘fraud’ denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information.” The trial court instructed the jury that [t]he term “misrepresentation” may be defined as one or both of the following: 1) The act or an instance of making a false or misleading 7 assertion about something, usually with the intent to deceive. The word denotes not just written or spoken words but also any other conduct that amounts to a false assertion. 2) The assertion so made; an incorrect, unfair, or false statement; an assertion that does not accord with the facts. Question Two asked, “Did Kristin Wilkinson commit a criminal act that reflects adversely on her honesty, trustworthiness or fitness as a lawyer in other respects?” In connection with Question Two, the trial court instructed the jury that [i]t is a “criminal act” to intentionally, knowingly, or recklessly misapply property held as a fiduciary in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held. A “fiduciary” includes a trustee, an attorney in fact or agent appointed under a durable power of attorney, or any other person acting in a fiduciary capacity. A person acts in a “fiduciary capacity” when the business she transacts, or the money or property which she handles, is not hers or for her own benefit, but for the benefit of another person with whom she has a relationship implying and necessitating great confidence and trust and a high degree of good faith. A person acts “intentionally” with respect to the nature or result of her conduct when it is her conscious objective or desire to engage in the conduct or cause the result. A person acts “knowingly” with respect to the nature of or the circumstances surrounding her conduct when she is aware of the nature of her conduct or that the circumstances exist or that her conduct is reasonably certain to cause the result. A person acts “recklessly” with respect to circumstances surrounding her conduct or the result of her conduct when she is aware of but 8 consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint. At Wilkinson’s request, the trial court instructed the jury that A fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or heard the words spoken. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved. A trustee must administer the trust solely in the interest of the beneficiary. The trustee must administer the trust as a prudent person would, in light of the purposes, terms, and other circumstances of the trust. A trustee must take all reasonable steps to secure possession of, and maintain control over, the trust property, and use the level of care and skill a person of ordinary prudence would use to preserve trust property. This duty applies not only to tangible property, but also to other rights of the trust estate. For example, a trustee must take reasonable actions to collect claims due to the trust estate. Although a trustee may deposit trust funds in a bank or other financial institution, the trustee must use reasonable care in selecting the institution and must designate all such deposits as trust deposits. The trustee may not subject the property to unreasonable restrictions on withdrawal or leave it in non-interest bearing accounts for unduly long periods of time. Pending investment, distribution, or payment of debts, a trustee is authorized to deposit trust funds in a bank that is subject to supervision by state or federal authorities. 9 A trustee shall invest and manage the trust assets solely in the interest of the beneficiaries. A beneficiary by written demand may request the trustee to deliver to each beneficiary of the trust a written statement of accounts covering all transactions since the last accounting or since the creation of the trust, whichever is later. If the trustee fails or refuses to deliver the statement on or before the 90th day after the date the trustee receives the demand or after a longer period ordered by a court, any beneficiary of the trust may file suit to compel the trustee to deliver the statement to all beneficiaries of the trust. The court may require the trustee to deliver a written statement of account to all beneficiaries on finding that the nature of the beneficiary’s interest in the trust or the effect of the administration of the trust on the beneficiary’s interest is sufficient to require an accounting by the trustee. However, the trustee is not obligated or required to account to the beneficiaries of a trust more frequently than once every 12 months unless a more frequent accounting is required by the court. Unless the terms of the trust provide otherwise, the trustee is entitled to reasonable compensation from the trust for acting as trustee. A trustee may discharge or reimburse herself from trust principal or income or partly from both for advances made for the convenience, benefit, or protection of the trust or its property or expenses incurred while administering or protecting the trust. The trial court refused Wilkinson’s request to include the following questions: QUESTION ___ On the occasion in question was Kristin Wilkinson employed as an employee or contractor by Attorney Larry Longer? Answer: ___________ If you answered “Yes” to the previous question, then do not answer the remaining questions. Otherwise, answer the remaining questions. QUESTION __ 10 Did Kristin Wilkinson commit theft? In answering this question, do not consider any conduct of Kristin Wilkinson that amounts to a duty of Attorney Larry Longer in supervising Kristin Wilkinson or conduct not required by the trust instrument. Answer “Yes” or “No.” Answer: _________ QUESTION __ Do you find by clear and convincing evidence that Kristin Wilkinson committed fraud? In answering this question, do not consider any conduct of Kristin Wilkinson that amounts to a duty of Attorney Larry Longer in supervising Kristin Wilkinson or conduct not required by the trust instrument. Answer: _____ The trial court refused Wilkinson’s requests for additional instructions regarding three subjects: (1) instructions and definitions relating to professional misconduct, supervised lawyers and non-lawyer assistants, and unauthorized practice of law; (2) instructions regarding trustees; and (3) instructions and definitions about theft and misrepresentation. In her appellate brief, Wilkinson suggests the trial court improperly used broad-form submissions to the jury. “When a single broad-form liability question erroneously commingles valid and invalid liability theories and the appellant’s objection is timely and specific, the error is harmful when it cannot be determined whether the improperly submitted theories formed the sole basis for the jury’s finding.” Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 389 (Tex. 2000). Likewise, 11 when over the appellant’s objection the trial court submits a broad-form question combining factually supported and factually unsupported theories of recovery, the error will be harmful unless we are reasonably certain that the jury was not significantly influenced by erroneously submitted questions. Romero v. KPH Consol., Inc., 166 S.W.3d 212, 226 (Tex. 2005). The Commission argues Wilkinson failed to preserve error on a complaint of broad-form submission. Wilkinson did not argue to the trial court that the charge commingled factually supported and factually unsupported claims as to Question One, but she did request a jury question on whether she committed fraud. In her appellate brief, Wilkinson argues that evidence of expenditures alone will not support a finding of dishonesty, fraud, deceit, or misrepresentation. She argues the Commission failed to prove that her expenditures from the trust were contrary to the trust agreement or unaccounted for by Wilkinson. In the arguments in her brief, Wilkinson does not differentiate the Commission’s fraud theory from theories involving dishonesty, deceit, or misrepresentation. Wilkinson has not shown that Question One combines a theory that has support in the evidence with a theory without evidentiary support. See Romero, 166 S.W.3d at 226. Similarly, Wilkinson requested that the trial court submit a question on whether she committed theft, but in her appeal, she has not shown that the trial court combined a factually supported 12 theory with a factually unsupported theory in its submission on Question Two. See id. Wilkinson argues the trial court erred by failing to include her requested instructions relating to the duties of a trustee and management of the trust. The trial court refused Wilkinson’s requests for instructions regarding: (1) a trustee’s duty to administer a trust in good faith; (2) a trustee’s duty to defend; (3) a requirement of a trustee to give bond; (4) the rights of a successor trustee; (5) a trustee’s accountability to a beneficiary; (6) a trustee’s duty to invest prudently; (7) the prudent investor rule; (8) the standard of care for a trustee; (9) diversification of investments; (10) a trustee’s duty to make trust property productive; (11) a trustee’s duties at inception of trusteeship; (12) a trustee’s duty of impartiality; (13) investment costs; (14) compliance with the prudent behavior rule; (15) delegation of investment and management functions; (16) a trustee’s actions taken prior to knowledge or notice of facts; (17) relieving a trustee of liability; (18) application of the Texas Trust Act; and (19) a trustee’s right to exoneration or reimbursement for a tort committed while properly engaged in a business activity for the trust. The Texas Rules of Civil Procedure require a trial court to submit “such instructions and definitions as shall be proper to enable the jury to render a verdict.” Tex. R. Civ. P. 277. Rule 277 “affords the trial court considerable discretion in 13 deciding what instructions are necessary and proper in submitting issues to the jury.” State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451 (Tex. 1997). “When a trial court refuses to submit a requested instruction, the question on appeal is whether the request was reasonably necessary to enable the jury to render a proper verdict.” Tex. Workers’ Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000). The trial court’s instructions to the jury described the trustee’s duty to administer the trust solely in the interest of the beneficiary, to administer the trust as a prudent person would, to take reasonable steps to maintain control over the trust property, to preserve it using ordinary prudence, to use reasonable care in depositing trust funds, to invest and manage trust assets solely in the interest of the beneficiary, and to account for transactions. Furthermore, the trial court instructed the jury on the trustee’s entitlement to reasonable compensation and reimbursement for expenses incurred while administering or protecting the trust. The charge sufficiently apprised the jury of the duties of a trustee and management of a trust without the additional instructions requested by Wilkinson. We conclude the trial court did not abuse its discretion. See Nicolau, 951 S.W.2d at 451. Wilkinson argues that the jury’s answer to Question One is immaterial and should have been disregarded by the trial court. The jury was asked if it found that Wilkinson engaged in conduct involving dishonesty, fraud, deceit or 14 misrepresentation. Wilkinson contends the question improperly required the jury to determine a question of law and claims she submitted questions in substantially correct form. The questions requested by Wilkinson would have required the jury to disregard any conduct of hers that occurred while she was employed by an attorney or that the attorney had a duty to supervise. This is not an accurate statement of the law. A lawyer is bound by the rules of professional conduct and is responsible for her own conduct. Crampton v. Comm’n for Lawyer Discipline, 545 S.W.3d 593, 598 (Tex. App.—El Paso 2016, pet. denied); see also Tex. Disciplinary Rules Prof’l Conduct R. 8.05(a) (Oct. 17, 1989), amended eff. Mar. 31, 1995. (A lawyer is “answerable for his or her conduct occurring in this state[.]”)); Tex. Gov. Code Ann. § 81.072(d). A lawyer is not relieved from compliance with the Rules of Professional Conduct because the lawyer acted under the supervision of an employer or other person. See Tex. Disciplinary Rules Prof’l Conduct R. 5.02 and cmt (Oct. 17, 1989). Wilkinson argues the jury’s answer to Question Two is also “immaterial” because “[i]nstructing the jury on an unindicted criminal offense to which the court cannot pronounce a proper judgment violates due process guarantees.” Compulsory disciplinary proceedings occur when a lawyer is convicted of an intentional crime. In re Caballero, 272 S.W.3d 595, 597 (Tex. 2008). Compulsory discipline for an intentional crime turns solely on the record of conviction. In re Lock, 54 S.W.3d 15 305, 306–07 (Tex. 2001). Absent a conviction for an intentional crime, the standard disciplinary proceedings such as the proceedings brought against Wilkinson apply. See id. Attorney disciplinary proceedings are civil matters, not criminal prosecutions. See Capps v. State, 265 S.W.3d 44, 50 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). Because the Commission did not bring compulsory discipline proceedings against Wilkinson, it was not required to prove that Wilkinson had been convicted. See Tex. Rules Disciplinary P. R. 8.01 (Feb. 26, 1991, Oct. 9, 1991), amended eff. Oct. 1, 1994 (“Proceedings under this part are not exclusive in that an attorney may be disciplined as a result of the underlying facts as well as being disciplined upon the conviction or probation through deferred adjudication.”). Wilkinson argues that by submitting a broad form question that asked the jury if she “committed a criminal act that reflects adversely on her honesty, trustworthiness or fitness as a lawyer in other respects” and by refusing her requested definitions of “professional misconduct”, “intentional crime”, and “serious crime”, the trial court did not require the Commission to prove that she committed a misapplication of fiduciary property. The trial court instructed the jury that [i]t is a “criminal act” to intentionally, knowingly, or recklessly misapply property held as a fiduciary in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held. 16 A “fiduciary” includes a trustee, an attorney in fact or agent appointed under a durable power of attorney, or any other person acting in a fiduciary capacity. A person acts in a “fiduciary capacity” when the business she transacts, or the money or property which she handles, is not hers or for her own benefit, but for the benefit of another person with whom she has a relationship implying and necessitating great confidence and trust and a high degree of good faith. The instructions tracked the language that describes the criminal offense of misapplication of fiduciary property. See Tex. Penal Code Ann. § 32.45 (West Supp. 2018). Under the Rules of Disciplinary Procedure, both “Intentional Crime” and “Serious Crime” include misapplication of fiduciary property. See Tex. Rules Disciplinary P. R. 1.06 (Feb. 26, 1991, Oct. 9, 1991), amended eff. Jan. 1, 2004, amended eff. Sept. 1, 2008, amended eff. Nov. 1, 2013, amended eff. June 1, 2018. Wilkinson complains that the instruction lacked a definition of “misapply” found in Penal Code section 32.45(a)(2), but she did not request its inclusion in the charge. Because she did not make the trial court aware of the complaint, Wilkinson did not preserve error for appellate review. See State Dep’t of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). “Controlling issues of fact must be submitted to the jury and may be submitted to the jury by questions, instructions, definitions, or through a combination of them.” McIntyre v. Comm’n for Lawyer Discipline, 247 S.W.3d 434, 443 (Tex. App.— 17 Dallas 2008, pet. denied). The questions presented to the jury in the charge tracked the language found in the subsections of the Rule of Professional Conduct that the Commission alleged Wilkinson violated. See Tex. Disciplinary Rules Prof’l Conduct R. 8.04(a)(2) and (3). Because the questions and the accompanying instructions and definitions submitted in the jury charge fairly placed the disputed issues before the jury, we conclude the trial court did not abuse its discretion. 2. Sufficiency of the Evidence Wilkinson challenged the legal and factual sufficiency of the evidence in her motion for new trial. Evidence is legally insufficient to support a jury finding when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 613 (Tex. 2016) (citation omitted). As the sole judges of the credibility of the witnesses and the weight to give their testimony, the jurors may choose to believe one witness and disbelieve another. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). “Jurors may disregard even uncontradicted and unimpeached testimony from disinterested witnesses.” Id. at 820. But “they are not free to believe testimony that is conclusively negated by undisputed facts.” Id. In our appellate review, we “credit 18 favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.” Id. at 827. “The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair- minded people to reach the verdict under review.” Id. When challenging the factual sufficiency of the evidence supporting an adverse finding on which the appellant did not have the burden of proof at trial, the appellant must demonstrate that there is insufficient evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 120 (Tex. App.—Beaumont 2005, pet. denied). When reviewing a factual sufficiency challenge, we consider and weigh all of the evidence in support of and contrary to the jury’s finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998). We only set aside a finding if it “is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985). William McCulloch, Jr. testified that a Harris County Probate Court appointed him as guardian ad litem for J.G. 3 after Wilkinson, acting in her capacity as trustee, filed a notice with the court asking for a determination of J.G.’s competency. 3 In this opinion, we refer to the trust beneficiary by her initials to protect her privacy. 19 Wilkinson gave McCulloch a copy of the trust agreement that was missing pages 29 through 33. The trust agreement did not require Wilkinson to post a bond. After McCulloch discovered that Wilkinson was managing J.G.’s assets of approximately $800,000, the probate court ordered Wilkinson to post a $350,000 bond. After Wilkinson did not post the bond and filed a notice of nonsuit of the guardianship proceeding, on March 26, 2015, the probate court removed Wilkinson as trustee and appointed Kyle Frazier as successor interim trustee. Kyle Frazier, an attorney, testified that J.G. and her family had been his clients for many years. In December 2014, J.G. came to see him and hired him to represent her because she was upset that Wilkinson had taken control of her assets and was not giving her much money. On February 4, 2015, Frazier drafted and filed an executed revocation of a power of attorney J.G. had given Wilkinson and wrote a demand letter on J.G.’s behalf asking Wilkinson to resign as trustee and reasserting J.G.’s previous request for an accounting of the trust’s assets and all of Wilkinson’s actions from August 20, 2014. Wilkinson responded by notifying the Harris County Probate Court that J.G. may not have the capacity to retain Frazier and requesting a determination of J.G.’s need for a court-appointed ad litem. Wilkinson wrote to Frazier and advised him that the revocation had no effect on her powers of trustee and that she refused to turn over assets or information. 20 Frazier stated that when he took over as successor trustee, approximately $200,000 remained in J.G.’s IRA account, Wilkinson turned over a cashier’s check in the amount of $8,000, and there was approximately $20,000 in cash on hand. In September 2014, $30,000 was deposited in a trust account. By March 2015, Wilkinson had removed all but approximately $4,300 from that same account. A second trust account had a balance of approximately $83,500 in October 2014, and approximately $500 remained when Wilkinson was removed as trustee. J.G.’s IRA account had a balance of approximately $375,000 in October 2014, and approximately $252,000 in March 2015. The withdrawals from the IRA account incurred an early withdrawal tax penalty. According to Frazier, four early withdrawals between December and April totaled $196,000. According to Frazier, while Wilkinson served as trustee from late August 2014 through April 2015, approximately $190,000 was disbursed from checking accounts held for the benefit of J.G. In at least ten instances, there were insufficient funds in the account to cover a check. Wilkinson wrote checks to herself: (1) on August 29, 2014, $3,500 for “trust expenses reimbursement, and fees”; (2) on October 24, 2014, $5,000 for “one quarter fees”; (3) on January 3, 2015, $7,000 for “trustee”; (4) on January 27, 2015, $5,600 for “fees” (5) on February 11, 2015, $20,692 for “trust services”; (6) on February 28, 2015, $5,600 for “fees”; (7) on 21 March 13, 2015, $2,225 for “trust services fees”; (8) on March 26, 2015, $15,000 for “fees”; and (9) on April 5, 2015, $25,000 for “trust services”. According to Frazier, $89,617 is not the type of fee a trustee receives for less than eight months of work. Frazier stated that he generally charges about $10,000 per year for trustee services. According to Frazier, most banks base their trustee services on the value of the assets and the type of assets, charging a minimum fee of perhaps one percent. At the time of the trial, Frazier had been serving as the successor trustee for approximately two years and three months. In addition to the checks Wilkinson wrote to herself, Frazier identified a number of checks payable to cash: (1) on October 16, 2014, $1,500 for “fees”; (2) on December 7, 2014, $1,700 for “fees”; (3) on December 20, 2014, $1,000 for “fees”; (4) on December 29, 2014, $1,500 for “fees”; (5) on January 6, 2015, $2,500 for “fees”; and (6) on January 30, 2015, $3,500 for “fees expense”. Frazier stated that Wilkinson gave him no records to account for her having expended $11,700 in cash. In addition to the checks payable to Wilkinson or to cash, Wilkinson made several cash withdrawals: (1) on October 1, 2014, $1,000; (2) on October 10, 2014, $2,500; and (3) on October 18, 2014 $2,000. According to Frazier, Wilkinson never explained the withdrawals to him. 22 Kelly Kearney, a financial advisor with Morgan Stanley, testified that they received a letter of instruction dated September 9, 2014, in which J.G. and Wilkinson requested that all of J.G.’s assets, which included one taxable account and several individual retirement accounts, be transferred into an irrevocable trust account with Wilkinson as trustee. She consulted the compliance officer and a decision was made not to follow the instructions in the letter. Another firm initiated a transfer of the accounts with a value of approximately $657,000 out of Morgan Stanley. Wilkinson called eight witnesses in her defense. Ginevra Hess, a technician at a 24-hour emergency and critical care veterinary facility, testified that she personally boarded one of J.G.’s dogs for $50 per day and arranged for a professional trainer to work with the dog. Hess eventually adopted the dog to a friend. The dog arrived at the veterinary facility about January 10, 2015, and the dog was adopted sometime in May 2015. Wilkinson paid her using trust funds. Terry Lindsey, a substandard building specialist for the City of Baytown, testified that in June 2014, he inspected and photographed J.G.’s premises. Copies of the photographs, which showed the poor condition of the premises, were admitted in the trial. 23 Yolanda Hernandez, a real estate agent, testified that she assisted Wilkinson’s attempt to find a home with a homeowners’ association that would accept J.G.’s three pets. She located a home, but J.G. did not lease it. Brent Haynes, an assistant district attorney of the Galveston County District Attorney’s Office, testified that an attorney named Larry Longer represented J.G. in an animal cruelty case. J.G.’s case resulted in the impoundment and forfeiture of 28 animals. He recalled seeing Wilkinson at a pretrial conference where Larry Longer appeared for J.G. and requested a 90-day continuance so J.G. could enter a 90-day treatment program. He recalled that Longer introduced Wilkinson as the trustee and that she presented the case to the court. Haynes and Longer worked out a plea agreement in principle; Haynes sent Longer a proposed agreed judgment but did not hear from Longer. Another attorney assumed J.G.’s defense and settled both the criminal case and the civil forfeiture of the animals. On October 27, 2014, J.G. agreed to pay approximately $45,000 for the animals’ expenses and forfeited 25 of the 28 animals. Gerard Duhon, an engineer who works with residential foundations, testified that in February 2015, his company prepared a report for a home that belonged to J.G. The slab had not failed but he recommended a repair to improve its resale value. 24 He charged $250 and did not perform any other work on the property. Wilkinson paid the invoice with trust account funds. Amy Garrou, a veterinarian, testified that her practice took over the care of three animals for J.G. Wilkinson and J.G. were both present when Dr. Garrou examined the animals. Michael Walker, the owner of a landscaping business, removed trees from J.G.’s Baytown veterinary clinic and mowed the lawn biweekly. In a separate project in Pasadena that took two to two-and-one half weeks, he removed an oak tree that had fallen on a covered patio deck, ground tree stumps, and removed debris. Walker estimated that he was paid $14,000. Wilkinson paid him using trust account funds. Stephen Desselle testified that Wilkinson hired his former company, College Hunks Hauling, to haul away junk from J.G.’s homes and clinic. Desselle charged approximately $11,000 in January 2015, and he was paid out of the trust account. In the charge to the jury, the trial court asked the jury “Did Kristin Wilkinson engage in conduct involving dishonesty, fraud, deceit or misrepresentation?” The trial court instructed the jury that fraud denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information. The trial court instructed the jury that “Misrepresentation” required making a false or misleading assertion about something, usually with the intent to 25 deceive, that does not accord with the facts. The jury found that Wilkinson engaged in conduct involving dishonesty, fraud, deceit or misrepresentation. The trial court asked the jury, “Did Kristin Wilkinson commit a criminal act that reflects adversely on her honesty, trustworthiness or fitness as a lawyer in other respects?” The trial court instructed the jury that (1) it is a “criminal act” to intentionally, knowingly, or recklessly misapply property held as a fiduciary in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held, (2) a “fiduciary” includes a trustee, an attorney in fact or agent appointed under a durable power of attorney, or any other person acting in a fiduciary capacity, and (3) a person acts in a “fiduciary capacity” when the business she transacts, or the money or property which she handles, is not hers or for her own benefit, but for the benefit of another person with whom she has a relationship implying and necessitating great confidence and trust and a high degree of good faith. The jury found Wilkinson committed a criminal act that reflects adversely on her honesty, trustworthiness or fitness as a lawyer in other respects. In her appeal, Wilkinson argues that without testimony from Wilkinson or J.G., the Commission presented no probative evidence of breach of the trust agreement, produced no witness with personal knowledge concerning the purpose of the expenditures from the trust, and failed to prove that the checks reflecting 26 “fees” were made contrary to an agreement or were improper. Wilkinson argues there is no probative value to evidence of expenditure alone, without showing knowledge of factual substantiation or explanation. She claims references to “fees” on the checks is not determinative because a notation on a check does not prove its application. She claims the Commission had no evidence of her intent to defraud or of a deception practiced on a person to whom a duty is owed. She argues no inference that her conduct was wrongful can be reasonably drawn from the evidence. The factual dispute before the jury was not whether Wilkinson breached the trust agreement but whether she engaged in professional misconduct by misapplying fiduciary property or by engaging in dishonest or fraudulent conduct. Wilkinson does not dispute that she was a fiduciary or that she was acting in a fiduciary capacity when she conducted financial transactions out of the trust account. Wilkinson took funds for herself that she held as a fiduciary without invoicing or otherwise justifying the expenditure. As a lawyer and as the successor trustee, Frazier had both expertise and personal knowledge of a reasonable fee for trustee services for J.G.’s living trust and the jury could accept as credible Frazier’s assertion that the amount of money Wilkinson took for herself was far more than could be justified. The jury could discern from her witnesses’ testimony and the records of her financial transactions what actions Wilkinson had engaged in for the benefit of J.G. 27 For instance, Wilkinson arranged for legal representation, medical care, animal care, debris removal, and paid property taxes. From the financial records and witness testimony, the jury could find that the funds Wilkinson took for her own benefit vastly outweighed the value of the efforts she expended in her role as trustee. The evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Wilson, 168 S.W.3d at 827. Furthermore, the evidence is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Dyson, 692 S.W.2d at 457. We hold the evidence is legally and factually sufficient. Accordingly, we overrule issue two. Summary Judgment In her third and final issue, Wilkinson challenges the trial court’s summary judgment rulings. In our de novo review of a summary judgment, “[w]e review the evidence presented in the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.” Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A party moving for traditional summary judgment has the burden to prove that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). “If the party 28 opposing a summary judgment relies on an affirmative defense, [she] must come forward with summary judgment evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment.” Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). In a no-evidence motion for summary judgment, the movant contends that no evidence supports one or more essential elements of a claim for which the nonmovant would bear the burden of proof at trial. Tex. R. Civ. P. 166a(i). “To defeat a no-evidence motion, the non-movant must produce evidence raising a genuine issue of material fact as to the challenged elements.” First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017). “When both sides move for summary judgment and the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both sides, determine all questions presented, and render the judgment the trial court should have rendered.” SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 641–42 (Tex. 2015). The trial court ruled that that the summary judgment evidence conclusively established that by drafting the trust agreement and power of attorney, Wilkinson practiced law while a judgment of the Board of Disciplinary Appeals prohibited her from practicing law in Texas. The trial court ruled that Wilkinson failed to raise a fact issue on her affirmative defenses that when she drafted the trust agreement and 29 the power of attorney she was acting as a paralegal under the supervision of Larry Longer, or that she has a good faith belief that the suspension of her law license was invalid. The trial court granted the Commission’s motion for partial summary judgment concluding that Wilkinson committed an act of professional misconduct by violating a disciplinary judgment when she practiced law while on active suspension. The trial court denied Wilkinson’s motion for summary judgment on the Commission’s claims that she engaged in professional misconduct by Rule 8.04(a)(2), (3) and (7) of the Texas Disciplinary Rules of Professional Conduct. First, the trial court denied Wilkinson’s motion for summary judgment on the Commission’s allegation that she violated Rule 8.04(a)(7) because the trial court granted the Commission’s motion for partial summary judgment on grounds that the summary judgment evidence conclusively established that Wilkinson practiced law while a judgment of the Board of Disciplinary Appeals prohibited her from practicing law in Texas. Second, the trial court denied Wilkinson’s motion for summary judgment on the Commission’s allegation that Wilkinson violated Rule 8.04(a)(2), which prohibits a lawyer from committing a serious crime or any other criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, because Wilkinson failed to identify which element of 30 the Commission’s claim lacked evidentiary support. The trial court further found that the summary judgment evidence raised a fact issue on whether Wilkinson committed the criminal offense of misapplication of fiduciary property. Third, the trial court denied Wilkinson’s motion for summary judgment on the Commission’s allegation that Wilkinson violated Rule 8.04(a)(3), which prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, because Wilkinson failed to identify which element of the claim had no evidence. Additionally, the trial court ruled that Wilkinson was not entitled to summary judgment because Wilkinson failed to establish that she is entitled to judgment as a matter of law. The trial court submitted the Commission’s allegations that Wilkinson violated Rule 8.04(a)(2) and (3) to the jury, which made an affirmative finding as to those allegations. The trial court incorporated its partial summary judgment into the final judgment. In its final judgment, the trial court found that Wilkinson committed professional misconduct and that she violated Rule 8.04(a)(2), (3) and (7) of the Texas Disciplinary Rules of Professional Conduct and that the imposed disbarment is an appropriate sanction for Wilkinson’s professional misconduct. In her appellate brief, Wilkinson argues that working as a paralegal is not the practice of law, and she claims the summary judgment record contains evidence that 31 she had a good faith belief that there was no valid prohibition on her practicing law. She argues the billing records in the summary judgment record fail to conclusively establish that she practiced law and raise a fact issue that she was performing work as a paralegal for Larry Longer when she drafted the trust agreement and the power of attorney. The summary judgment evidence includes Wilkinson’s invoice to J.G. for fees incurred from August 3, 2014 through August 19, 2014, before execution of the trust agreement and power of attorney vested Wilkinson with powers as a trustee and attorney-in-fact. Wilkinson charged J.G. $350 per hour to “review and analyze trust and living estate issues and recent opinions relating to preferred selection of form of trust for JGB”, “Begin drafting of Trust Agreement”, “Draft and revise Trust Agreement”, “Final drafting of trust before transmittal to client for review”, “Office conference with [J.G.] regarding trust revisions and disposition of her property to trust”, and “Draft and revise final version of trust.” Nothing in the record implies that Longer supervised Wilkinson’s drafting of the trust agreement and power of attorney. Wilkinson asserted that she worked as a paralegal for an attorney while she was suspended from the practice of law—in her motion for summary judgment, in her response to the Commission’s motion for summary judgment, in her 32 supplemental answer, in her motion for leave to submit additional evidence, and in her motion to reconsider—but she failed to raise a fact issue as to any of these assertions because she failed to file a summary judgment affidavit. See Laidlaw Waste Systems (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660–661 (Tex. 1995). Wilkinson complains that the trial court shifted the burden of proof from the Commission to Wilkinson, but in summary judgment procedure, if the party opposing a summary judgment relies on an affirmative defense, she must come forward with summary judgment evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment. See Brownlee, 665 S.W.2d at 112. In her appellate brief, to support her argument that a question of fact exists regarding whether she was practicing law when she drafted the trust documents or was merely performing the activities of a paralegal under Longer’s supervision, Wilkinson relies on two documents that she offered, and the trial court admitted in the later sanctions hearing. Assuming without deciding that we may consider these documents, at least to the extent that they address her argument that the trial court erred by denying her motion for new trial, we conclude that the documents support rather than undermine the trial court’s judgment. Respondent’s Exhibit Number 20 is an invoice from “Kristin Wilkinson, On Behalf of Larry G. Longer, P.C.” that 33 reflects work Wilkinson performed between July 25, 2014, and August 11, 2014, on the appeal of the justice court order of dispossession of J.G.’s animals. Most of the work was billed at a rate of $54.53 per hour. No mention of Wilkinson’s work on the trust agreement or the power of attorney appears anywhere in the document. Longer paid Wilkinson for the work reflected in the invoice. Respondent’s Exhibit Number 26 contains Longer’s accounting of his work for J.G. and shows that Longer mailed Wilkinson a refund-of-retainer check payable to J.G on September 8, 2014. No time for drafting, supervising, or reviewing the drafting, preparation and execution of the trust agreement and power of attorney appears anywhere on Longer’s description of his efforts on J.G.’s behalf, nor did he include in his accounting any of the work Wilkinson invoiced to J.G. on August 20, 2014. We conclude the Commission conclusively established that Wilkinson practiced law while a judgment of the Board of Disciplinary Appeals prohibited her from practicing law in Texas. In her appeal, Wilkinson argues that the trial court erred by refusing to grant leave to file Wilkinson’s supplemental motion for summary judgment and her motion to submit additional summary judgment evidence. 4 Wilkinson filed her 4 The trial court granted Wilkinson’s motion for leave to supplement her answer with her affirmative defenses. 34 supplemental motion for summary judgment on April 11, 2017, less than seven days before the submission date. The trial court stated that leave was denied because the motion was not timely filed, and Wilkinson provided no legitimate reason for leave of court. See Tex. R. Civ. P. 166a(c) (“Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response.”). Wilkinson filed her motion to submit additional summary judgment evidence on April 20, 2017, after the trial court held a hearing on the motions for summary judgment. The trial court denied the motion because Wilkinson failed to provide a legitimate reason for granting leave for late filing. “We review a trial court’s ruling on a motion for leave to file a late summary- judgment response for an abuse of discretion.” Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002). [A] motion for leave to file a late summary-judgment response should be granted when a litigant establishes good cause for failing to timely respond by showing that (1) the failure to respond was not intentional or the result of conscious indifference, but the result of accident or mistake, and (2) allowing the late response will occasion no undue delay or otherwise injure the party seeking summary judgment. Id. at 688. Here, Wilkinson presented an affirmative defense for the first time in an amended pleading filed on April 11, 2017, but she failed to offer any explanation why she filed her amended pleading and supplemental motion less than seven days 35 before the date scheduled for the summary judgment hearing. Wilkinson presents no substantive argument and authorities to support her argument that the trial court abused its discretion. We conclude the trial court acted within its discretion when it denied leave to supplement the motion for summary judgment and summary judgment evidence. Wilkinson argues in her appellate brief that she conclusively established her entitlement to summary judgment on the Commission’s professional misconduct allegations. Wilkinson claims her failure to account to J.G. was the only claim of misconduct alleged by the Commission. Wilkinson argues Frazier’s demand that she turn over J.G.’s assets to him personally, together with her response informing Frazier that she had no obligation to comply with his demand, establish that she was entitled to summary judgment on the Commission’s allegations of professional misconduct because Frazier lacked authority to demand information about the trust. The Commission alleged that Wilkinson’s actions in drafting the trust agreement and power of attorney violated Rule 8.04(a)(7) and her actions that resulted in a $450,000 reduction in value of the liquid assets of the trust violated Rule 8.04(a)(2) and (3). The summary judgment record shows that the trust agreement required Wilkinson to keep accurate and complete records of trust transactions and provided that the beneficiary or the beneficiary’s representative 36 could inspect the records at any reasonable time. Wilkinson’s refusal to provide information to Frazier does not establish that she neither committed a crime nor engaged in dishonest conduct in her handling of the trust’s assets. We conclude that Wilkinson has not shown that the trial court abused its discretion by denying her motion for summary judgment. We overrule issue three and affirm the trial court’s judgment. AFFIRMED. _________________________ CHARLES KREGER Justice Submitted on March 6, 2019 Opinion Delivered July 25, 2019 Before McKeithen, C.J., Kreger and Johnson, JJ. 37	{ "pile_set_name": "FreeLaw" }
7 B.R. 135 (1980) In re Julio CASTILLO and Mayra Elaina Castillo, Debtors. Bankruptcy No. 80 B 20328, 80 Adv. 2108. United States Bankruptcy Court, S.D. New York. November 20, 1980. 136 Sidney Turner, White Plains, Trustee. Finley, Kumble, Wagner, Heine & Underberg, New York City, for College Point Sav. Bank. DECISION ON MOTION OF COLLEGE POINT SAVINGS BANK FOR AN ORDER DISMISSING COMPLAINT FILED BY THE TRUSTEE IN BANKRUPTCY HOWARD SCHWARTZBERG, Bankruptcy Judge. The defendant, College Point Savings Bank, has moved under Rule 12(b)(6) of the Federal Rules of Civil Procedure, made applicable in adversary proceedings under Bankruptcy Rule 712(b), for an order dismissing all three causes of action in the complaint filed by the trustee in bankruptcy on the ground that they fail to state a claim upon which relief can be granted. The three causes of action refer to: (1) a preferential transfer (2) a fraudulent transfer and (3) equitable subordination. The trustee's complaint alleges that the debtors in the above-captioned case were the owners of real property and a single family residence located in East Patchogue, New York. The complaint further alleges that the defendant, College Point Savings Bank, held a first mortgage on the debtors' property, and that . . . "[I]t took possession of said property of the debtor on January 26, 1980 voluntarily and without benefit of judicial proceeding. Defendant, however, did not file and perfect is interest in said property . . . by recording of its deed until April 11, 1980." The debtors filed their voluntary petition under Chapter 7 of the Bankruptcy Reform Act of 1978 on July 25, 1980. The trustee in bankruptcy, who was appointed by the United States Trustee pursuant to Code § 15701, alleges that the defendant's acquisition of a fee interest in the property in question constitutes "a preferential transfer and as such is voidable by Plaintiff" (First Cause of Action); "a fraudulent conveyance which may be set aside as being null and void" (Second Cause of Action); and "should as a matter of equity be subordinated in all its claims against the debtor [sic] and the estate of the debtor [sic] to all secured creditors and be accorded equal treatment with respect to its claim as an unsecured general creditor of the estate." (Third Cause of Action) PREFERENTIAL TRANSFER Under Federal Rule of Civil Procedure 12(b)(6) a complaint must be dismissed if it fails to state a claim upon which relief can be granted. Very little is required in a complaint as long as it sets forth the basis upon which relief is sought. Dioguardi v. Durning, 139 F.2d 744 (2 Cir. 1944); Mathews v. Kilroe, 170 F.Supp. 416 (S.D.N.Y. 1959); In re Turk, 1 B.R. 771 (Bkrtcy.1980). A complaint should not be dismissed "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957). All of the well-pleaded material facts alleged in the complaint must be taken as admitted for purposes of this motion. In re Turk, supra. In other words, the debtors' conveyance of the real estate to the defendant by deed in lieu of foreclosure on January 26, 1980, which was recorded by the defendant 137 on April 11, 1980, are deemed admitted facts in the context of the voluntary petition under Chapter 7 of the Bankruptcy Code that was filed by the debtors on July 25, 1980. It is abundantly clear that the facts as pleaded by the trustee in bankruptcy do not give rise to any claim for a preference under Bankruptcy Code § 547. Since the transfer was perfected on April 11, 1980, it obviously was not made within 90 days before the filing of the petition on July 25, 1980. Thus, the trustee may not rely on the presumption of insolvency with respect to transfers during the 90 day period, as set forth in Code § 547(b)(4). Nor may the trustee seek to extend the reach of Code § 547 for an additional 275 days as permitted under Code § 547(b)(4)(B), unless it is further alleged that the defendant was an insider, as required under subsection (i) and had reasonable cause to believe that the debtor was insolvent at the time of the transfer, as set forth in subsection (ii). The trustee did not plead that the defendant was an "insider" who had "reasonable cause to believe" the debtors were insolvent during the additional 275 day period. Indeed, the trustee could not allege these substantive prerequisites because the defendant could under no stretch of the imagination be regarded as an insider with respect to the individual debtors in this case. Code § 101(25)(A) defines the term "insider" in the context of an individual debtor as follows: "(i) relative of the debtor or of a general partner of the debtor; (ii) partnership in which the debtor is a general partner; (iii) general partner of the debtor; or (iv) corporation of which the debtor is a director, officer or person in control." Since the defendant, College Point Savings Bank, is neither a relative nor a partner of the debtors, nor are the debtors directors, officers or persons in control of the defendant, it manifestly follows that the defendant is not an "insider" within the meaning of Code § 101(25)(A) and as referred to in Code § 547(b)(4)(B)(i). Notwithstanding the foregoing pleading deficiencies there is a more fundamental reason why the first cause of action cannot be sustained. The defendant is a secured creditor who took a deed in lieu of foreclosure and therefore does not have any deficiency claim in this estate. The defendant's sole recourse is directed to the secured collateral. The trustee does not question the validity of the defendant's status as a secured creditor. Accordingly, unless a creditor's security can be invalidated by a trustee in bankruptcy, the secured creditor cannot be regarded as having received any preference since such creditor does not receive any more than such creditor would receive in liquidation under Chapter 7 of the Code. One of the elements of a preferential transfer under Code § 547(b)(5) is that the transfer enables the creditor to receive more than other creditors in his class. Here the secured creditor, College Point Savings Bank, would not receive a distribution under Chapter 7 because it realized upon its first mortgage to the detriment of no other secured creditors in its class. Hence, the trustee's cause of action for a preferential transfer cannot pass muster under Code § 547. FRAUDULENT CONVEYANCE If the trustee in bankruptcy is to draw strength from Code § 548 to sustain his second cause of action pitched to a fraudulent conveyance alleged as a conclusion of law, he must particularize the essential elements of fraud upon which he relies. Code § 548(a)(1) permits an avoidance of transfers of a debtor's property made within one year before the date of the filing of the petition if made "with actual intent to hinder, delay or defraud." Absent actual intent, a transfer of the debtor's property may be avoided by the trustee in bankruptcy if made under conditions where constructive intent to defraud will be found because the transfer was for less than a reasonably equivalent consideration and the debtor was or thereby became insolvent, or was engaged *138 in a business with unreasonably small capital, or intended to incur debts beyond his ability to repay as delineated under Code § 548(a)(2). The trustee's second cause of action fails to set forth any of the essential elements to support a claim for a fraudulent conveyance. Rule 9(b) of the FRCP, made applicable to adversary proceedings by Bankruptcy Rule 709, provides in part as follows: "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." The second cause of action in the complaint is totally devoid of any of the salient prerequisites upon which a claim for a fraudulent conveyance may be grounded. Thus, as with the first cause of action, this too must fall. EQUITABLE SUBORDINATION Section 510(c) of the Bankruptcy Code, 11 U.S.C. § 510(c) states in part: "[A]fter notice and a hearing, the court may (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest." It is clear that this section was intended to codify the body of case law developed during the administration of cases brought under the now repealed Bankruptcy Act of 1898, H.R.Rep.No.595, 95th Cong., 1st Sess. 359 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. See, Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939) and Taylor v. Standard Gas and Electric Co., 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669 (1938). The legislative history with respect to the application of the principles of equitable subordination reveals: "To date, under existing law, a claim is generally subordinated only if [the] holder of such claim is guilty of inequitable conduct . . . [t]he fact that such a claim may be secured is of no consequence to the issue of subordination. However, it is inconceivable that the status of a secured claim could ever be grounds for justifying equitable subordination." [Emphasis added] 124 Cong.Rec. H 11,095 (daily ed. Sept. 28, 1978); S 17,412 (daily ed. Oct. 6, 1978). In the case In re Mobile Steel Company, 563 F.2d 629, 699-700 (5th Cir. 1977) Judge Clark stated: "[T]hree conditions must be satisfied before exercise of the power of equitable subordination is appropriate. (i) The claimant must have engaged in some type of inequitable conduct. (ii) The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant. (iii) Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Act." [citations omitted] Also see, In re W.T. Grant Co., 4 B.R. 53, 74-75 (Bkrtcy.1980). Regarding the allocation of the burden of proof, an objection based on equitable grounds must contain some substantial factual basis to support its claim of impropriety and cannot be merely formal, In re Mobile Steel Co., 563 F.2d at 701. In this case, the trustee has failed to state any facts which would raise an inference that the defendant has engaged in some type of inequitable conduct. In light of this fact, the third cause of action of the trustee's complaint must also be dismissed. Accordingly, the trustee's complaint, predicated upon the above-mentioned three causes of action is hereby dismissed. IT IS SO ORDERED.	{ "pile_set_name": "FreeLaw" }
10-1743-cv Ruszkowski v. Kaleida Health System UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 23rd day of May, two thousand eleven. PRESENT: JON O. NEWMAN, GUIDO CALABRESI, PETER W. HALL, Circuit Judges. __________________________________________ Mark H. Ruszkowski, Plaintiff-Appellant, v. 10-1743-cv Kaleida Health System, Defendant-Appellee. __________________________________________ FOR APPELLANT: Mark H. Ruszkowski, pro se, Buffalo, NY. FOR APPELLEES: Amy L. Hemenway, Harter Secrest & Emery LLP, Buffalo, NY. Appeal from a judgment of the United States District Court for the Western District of New York (Skretny, J.). UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, that the judgment of the district court be AFFIRMED. Appellant Mark H. Ruszkowski, proceeding pro se, appeals the district court’s decision granting Appellee’s motion for summary judgment in favor of the defendant and dismissing Appellant’s complaint brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., (“Title VII”), and the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq. We assume the parties’ familiarity with the underlying facts and the procedural history of the case. We review de novo orders granting summary judgment, viewing the facts in the light most favorable to the non-moving party. See Havey v. Homebound Mortg., Inc., 547 F.3d 158, 163 (2d Cir. 2008). Summary judgment is appropriate “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). For summary judgment purposes, a “genuine issue” exists where the evidence is such that a reasonable jury could decide in the non-moving party’s favor. Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir. 2000). Appellant’s discrimination claims are governed by the three-step burden shifting analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).1 Under this familiar framework, the plaintiff bears the initial burden of proving a prima facie case by a preponderance of the evidence by establishing that: (1) he is a member of a protected class; (2) he was qualified for the position for which he applied; (3) he was denied the position; and (4) the denial occurred under 1 Although McDonnell Douglas concerned the burden and allocation of proof under Title VII, its framework is also applied to claims under the ADEA. See Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010). 2 circumstances giving rise to an inference of discrimination.2 See McDonnell Douglas Corp., 411 U.S. at 802; Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). Once a plaintiff alleges a prima facie case of discrimination, the burden of production shifts to the employer to demonstrate a legitimate, non-discriminatory reason for its decision not to hire the plaintiff. Vivenzio, 611 F.3d at 106. The burden then shifts back to the plaintiff to present evidence that the employer’s proffered reason is a pretext for an impermissible motivation. Id. A plaintiff cannot establish a prima facie case based on “purely conclusory allegations of discrimination, absent any concrete particulars.” Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Here, Appellant cannot make out a prima facie case of discrimination under Title VII or the ADEA. With respect to the position of phlebotomy supervisor, Appellant cannot show that he was qualified for the position, as he admittedly had no prior supervisory experience. With respect to the positions of medical laboratory technician and phlebotomy technician, even if Appellant’s limited experience 14 years prior to his application for employment with Appellee qualified him for the jobs, there is no evidence that Appellee’s failure to hire Appellant occurred under circumstances giving rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802.3 2 The Court notes that, pursuant to the Supreme Court's decision in Gross v. FBL Fin. Servs, Inc., 129 S. Ct. 2343, 2350-51 (2009), a claimant bringing suit under the ADEA must demonstrate that age was not just a motivating factor behind the adverse action, but rather the “but-for” cause of it. See id. Title VII, on the other hand, does authorize a “mixed motive” discrimination claim. See id. at 2350 n.3 (“Congress amended Title VII to allow for employer liability when discrimination was a motivating factor for any employment practice, even though other factors also motivated the practice, but did not similarly amend the ADEA. We must give effect to Congress’ choice.”) (citations and internal quotation marks omitted)). 3 We also note that Appellee has consistently maintained—and provided documents supporting its contention—that it never received Appellant’s application and that, on October 6, 3 Additionally, Appellant testified that he could not recall whether he had provided his national origin on his application, and that he did not believe that he had indicated his race or color. Appellant’s conclusory statements regarding general societal attitudes toward, and harassment of, people of Polish and/or German descent and his above-average DNA and test results are insufficient to establish a prima facie case that Appellee did not hire him based on his race, color, gender, or national origin. Finally, absent any evidence that Appellant was eligible to apply for the positions at issue, he has failed to establish a prima facie case that his age was the “but for” cause of Appellee’s failure to hire him. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 2005, neither of those positions would have been available to external applicants. 4	{ "pile_set_name": "FreeLaw" }
214 B.R. 405 (1997) In re James P. O'NEAL, Debtor. Bankruptcy No. 97-00068-BGC-13. United States Bankruptcy Court, N.D. Alabama, Southern Division. August 20, 1997. 406 Daniel Sparks, Birmingham, AL, for Debtor. Wayne Wheeler, Birmingham, AL, for Movant. Order Vacating Confirmation Order as to Elizabeth O'Neal Benjamin Cohen, Bankruptcy Judge. Few rights are as fundamental as those guaranteed by the Fifth Amendment to the United States Constitution. Of those, no person shall be deprived of property without due process of law. U.S. Const. amend. V. To hold that Elizabeth O'Neal is bound by the order confirming her former husband's Chapter 13 plan of reorganization would deny her that right. I. Findings of Fact The debtor filed a Chapter 13 bankruptcy petition on January 3, 1997. That petition lacked proper schedules and as a consequence, a Notice of Deficient Filing was sent to the debtor along with notice of a hearing for the debtor to show cause why the petition should not be dismissed. That hearing was scheduled for January 22, 1997. Along with his incomplete petition, the debtor filed a list of those to whom notice of the bankruptcy filing should be sent. That list contained three names: the debtor, the debtor's attorney and a mortgage company. On January 14, 1997, the Court mailed notice of the bankruptcy filing, along with notices of the dates, locations and times of the first meeting of creditors and the hearing of confirmation of the debtor's proposed plan of reorganization to those three entities.[1] On January 22, 1997, the debtor amended his petition to include other names, one of which was Elizabeth O'Neal, his former wife, however, none of those added were sent notice of the bankruptcy filing or notice of the upcoming proceedings. The first meeting of creditors and confirmation hearing were held, as scheduled, on February 12, 1997. Ms. O'Neal did not attend the proceedings. A confirmation order was entered on February 24, 1997. That order allowed the debtor to make payments ranging from $35,000.00 to $65,000.00 once a year on February 1. Additional payments of $500.00 per month over the life of the 60-month plan were added to that order in an Order Amending Confirmation Order entered on March 13, 1997 pursuant to a Motion to Amend or Modify Confirmation Order filed on March 3, 1997. Ms. O'Neal received a copy of the confirmation order and the order amending the confirmation order. II. Contentions The debtor contends that Ms. O'Neal is bound by the confirmation order because she did not seek reconsideration of the order and did not appeal the order. Ms. O'Neal disagrees. In her Amended Motion for Relief from Stay and/or to Dismiss the Chapter 13 Petition, Ms. O'Neal contends that the debtor owes her approximately $70,000.00 in unpaid, prepetition child support and alimony.[2] At the hearing on this matter and in her supporting documents, Ms. O'Neal argues that if her claims for child support and alimony are upheld, the $500.00 monthly payments would be inadequate and that to allow payments on a yearly basis would not provide her family with consistent financial assistance and would not provide her with a timely and adequate remedy if a payment was not made.[3] In opposition, the debtor argues that he has the right to include all prepetition obligations in his Chapter 13 case and has the right to pay them according to his confirmed plan.[4] 407 III. Issue The issue is whether Ms. O'Neal is bound by the terms of the proposed plan and the order confirming that plan.[5] For the reasons stated below, this Court finds that she is not. IV. Conclusions of Law The law regarding the consequences of the failure to give a creditor notice of a bankruptcy confirmation hearing is unequivocal. The basis is constitutional. Notice and an opportunity to be heard are necessary to insure that due process is provided, Foremost Fin. Serv. Corp. v. White (In re White), 908 F.2d 691, 694 (11th Cir. 1990), and emphasis on that notice and opportunity to be heard underlines a due process concern. Spring Valley Farms, Inc. v. Crow (In re Spring Valley Farms), 863 F.2d 832, 835 (11th Cir.1989) (citing City of New York v. New York, New Haven & Hartford R.R. Co., 344 U.S. 293, 297, 73 S.Ct. 299, 301, 97 L.Ed. 333 (1953)). The notice to be given is "[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality. . . ." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), and is "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Id. In the context of this case, "any proceeding which is to be afforded finality" includes a hearing on the confirmation of bankruptcy plans. Piedmont Trust Bank v. Linkous (In re Linkous), 990 F.2d 160 (4th Cir.1993); Green Tree Acceptance, Inc. v. Calvert (In re Calvert), 907 F.2d 1069 (11th Cir.1990); Reliable Elec. Co. v. Olson Constr. Co., 726 F.2d 620 (10th Cir.1984). Consequently, hearings on confirmation of bankruptcy plans require reasonable notice to insure that due process is provided. Id.[6] Ms. O'Neal did not receive notice of the confirmation hearing to be held in this case or notice that her right to payment of prepetition alimony and child support would be affected; consequently, she did not have any opportunity to present an objection to the debtor's proposal of the method of how those payments would be made. Her right to request reconsideration of the confirmation order and her right to appeal that order cannot serve as substitutes for her constitutional right to due process. That right exists independent of all others, and is one that would be violated if Ms. O'Neal were to be bound by the confirmation order entered in this case; consequently, Ms. O'Neal cannot be bound by the order. It is therefore ORDERED, ADJUDGED AND DECREED, that: 1. The confirmation order entered on February 24, 1 997 is vacated as to Elizabeth O'Neal; 2. A confirmation hearing as to Ms. O'Neal shall be rescheduled and notice of that hearing shall be given to Ms. O'Neal; 3. The debtor and Ms. O'Neal shall have all rights and remedies with respect to the debtor's proposed plan of reorganization and hearing on confirmation as they would have had in the first instance; 4. The bar date for filing claims as to Ms. O'Neal, is extended to 30 days from the date of the entry of this Order; 5. The debtor may respond to Ms. O'Neal's Amended Motion for Relief from Stay and/or to Dismiss the Chapter 13 Petition if he desires but shall do so within 30 days from the date of the entry of this order; *408 6. A status conference to determine a trial date for the motion and other matters will be scheduled by a separate notice after 30 days from the date of the entry of this order. NOTES [1] All dates, other than hearing dates, refer to docket entry dates. [2] On May 27, 1997, James O'Neal, the Debtor; Daniel Sparks, the attorney for the Debtor; Elizabeth O'Neal, the movant; and Wayne Wheeler, the attorney for the movant, appeared at a hearing on Ms. O'Neal's motion. At that hearing the parties agreed that the motion should be granted if the debtor fails to meet any of his post-petition obligations and an order memorializing that agreement was signed by the Court on June 4, 1997. [3] The debtor listed a claim for Ms. O'Neal in his amended petition as an unsecured, nonpriority debt of $1.00. [4] No arrangements have been made to pay the alimony and child support debts as priority debts as required by 11 U.S.C. § 507(a)(7). [5] The parties agree that a decision on this issue is necessary before any others may be addressed. [6] "The constitutional component of notice is based upon a recognition that creditors have a right to adequate notice and the opportunity to participate in a meaningful way in the course of bankruptcy proceedings." United States v. Hairopoulos (In re Hairopoulos), 118 F.3d 1240, 1244-45 (8th Cir.1997) (footnote omitted and emphasis added) (citing City of New York v. New York, New Haven & Hartford R.R. Co., 344 U.S. 293, 297, 73 S.Ct. 299, 301, 97 L.Ed. 333 (1953)).	{ "pile_set_name": "FreeLaw" }
Opinion filed August 14, 2008 Opinion filed August 14, 2008 In The Eleventh Court of Appeals ____________ No. 11-08-00013-CV __________ CAROL JOHNENE MORRIS, Appellant V. JERRY BUNDICK, CHIEF APPRAISER ET AL, Appellees On Appeal from the 238th District Court Midland County, Texas Trial Court Cause No. CV46225 M E M O R A N D U M O P I N I O N This appeal is one of four pro se appeals[1] filed in this court by Carol Johnene Morris from Cause No. CV46225 out of the 238th District Court of Midland County. With respect to the present appeal, Morris filed APetitioner=s Notice of Appeal from Denial of Summary Judgment.@ After receiving the notice of appeal, the clerk of this court wrote the parties advising them that it appeared that the order Morris was challenging was not a final, appealable order and asking Morris to respond showing grounds for continuing the appeal. Morris promptly responded by outlining the history of the proceedings between the parties; she refers to various documents she has filed in both the trial court and this court and complains of the refusal of all involved to provide her with a free record. However, Morris has not established how this court has jurisdiction to entertain her appeal from the trial court=s denial of her motion for summary judgment. It is well settled that an order denying a motion for summary judgment is not appealable unless a statute explicitly provides appellate jurisdiction. Astoria Indus. of Iowa, Inc. v. SNF, Inc., 223 S.W.3d 616, 627 (Tex. App.CFort Worth 2007, pet. denied). Consequently, this court lacks jurisdiction to entertain this appeal. The appeal is dismissed for want of jurisdiction. PER CURIAM August 14, 2008 Panel consists of: Wright, C.J., McCall, J., and Strange, J. [1]The other appeals are Cause No. 11-07-00357-CV, an attempted appeal from the denial of a motion for default judgment, which was dismissed on January 10, 2008; Cause No. 11-08-00124-CV, an appeal from an order sustaining a contest to Morris=s claim of indigence (on this same day, we have affirmed the trial court=s order finding that Morris is not entitled to proceed in forma pauperis on appeal); and Cause No. 11-08-00077-CV, an appeal from an order granting summary judgment and an order granting a plea to the jurisdiction (on this same day, we have dismissed that appeal).	{ "pile_set_name": "FreeLaw" }
14 So.3d 198 (2007) EARL MANASSA v. STATE. No. CR-06-0404. Court of Criminal Appeals of Alabama. July 13, 2007. Decision of the Alabama Court of Criminal Appeals without opinion Rehearing denied.	{ "pile_set_name": "FreeLaw" }
378 F.3d 1336 ADMIRAL FINANCIAL CORPORATION, Plaintiff-Appellant,v.UNITED STATES, Defendant-Appellee. No. 03-5168. United States Court of Appeals, Federal Circuit. August 5, 2004. Appeal from the United States Court of Federal Claims, Lawrence M. Baskir, J. Thomas Meeks, Zuckerman, Spaeder, LLP, of Miami, FL, argued for plaintiff-appellant. Of counsel on the brief was Alan G. Greer, Richard Greer Weil Brumbaugh, Mirabito & Christensen, P.A., of Miami, FL, Of counsel was Lynn F. Kaufmann, Zuckerman, Spaeder, LLP, of Washington, DC. Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were Stuart E. Schiffer, Deputy Assistant Attorney General; David M. Cohen, Director; Kenneth M. Dintzer, Senior Trial Counsel; and Arlene Pianko Groner and Daniel D. McClain, Trial Attorneys. Before MAYER, Chief Judge, RADER, and BRYSON, Circuit Judges. BRYSON, Circuit Judge. 1 This is a Winstar-related breach of contract case. See United States v. Winstar Corp., 518 U.S. 839, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996). The Court of Federal Claims held that prior to any breach by the government, appellant Admiral Financial Corporation anticipatorily breached the contract. The Court of Federal Claims further held that, even if Admiral did not anticipatorily breach the contract, Admiral could not recover because it was not harmed by the government's breach. For the reasons set forth below, we affirm. 2 * Two prior Court of Federal Claims decisions in this case set forth the facts in detail. See Admiral Fin. Corp. v. United States, 54 Fed.Cl. 247 (2002); Admiral Fin. Corp. v. United States, 57 Fed.Cl. 418 (2003). We include here only those facts necessary for our decision. 3 In February 1987, William Lee Popham contacted the Federal Home Loan Bank Board ("Bank Board") to discuss acquiring a failing savings and loan institution, or "thrift." In exchange for acquiring ownership, Mr. Popham offered to contribute assets to the thrift, including real estate, equity in a tax sale certificate business, marketable securities, and cash. The Bank Board suggested Haven Federal Savings & Loan as a candidate for acquisition. In April 1987, Mr. Popham formed Admiral Financial Corp. for the purpose of acquiring Haven. In August 1987, Admiral and Haven entered into an acquisition agreement under which Admiral agreed to contribute $6.4 million in real estate and cash in order to bring Haven into compliance with the Bank Board's minimum capital requirements. The agreement was conditioned on the Bank Board's giving Admiral certain forbearances in connection with the regulatory oversight of Haven. 4 In September 1987, Admiral applied for Bank Board approval of its merger with Haven. After several iterations, the Bank Board deemed the application complete in February of 1988. The Bank Board issued a resolution in April 1988 formally approving the merger. The resolution incorporated a business plan under which Admiral agreed to liquidate the contributed real estate according to a schedule. The resolution also contemplated that the Bank Board would treat Haven's negative net worth as "goodwill," an asset, rather than as a liability. Haven initially recorded nearly $9 million of goodwill based on its negative net worth. In May 1988, additional terms were incorporated by letter into the resolution, including the Bank Board's agreement to allow the goodwill to be amortized over a period of 25 years using the straight-line method of depreciation. 5 In June 1988, the Bank Board and Admiral executed a Regulatory Capital Maintenance/Dividend Agreement ("RCMA"). The RCMA bound Admiral to maintain a certain level of capital in Haven, and it obligated Admiral to make up any capital shortfall. The agreement provided that if Haven's capital fell below the level specified in the RCMA, Admiral would have 90 days to infuse enough capital into Haven to make up the shortfall. If Admiral failed to make up the shortfall, it would be in default. 6 Things did not go well for Haven after its acquisition by Admiral. In March 1989, Haven sold a portion of the contributed real estate at substantially below the appraised value that had been accepted by the Bank Board. In addition, the equity interest in a business that Admiral had contributed to Haven and had valued at $4.1 million turned out to be valueless. By the end of March 1989, Haven was out of regulatory capital compliance by approximately $580,000. Pursuant to the RCMA, Admiral was obligated within 90 days to infuse enough capital into Haven to make up the shortfall. Admiral did not do so. Instead, Haven's financial condition further deteriorated, resulting in a shortfall of approximately $2.3 million by June 1989. On July 17, 1989, the Bank Board provided Admiral with an official notice of default. 7 According to the RCMA, Admiral was entitled to 90 days from the date of the default notice to cure the default. On August 2, 1989, the Bank Board removed Mr. Popham from his role as Haven's executive vice president and chief financial officer, but allowed him to remain a member of the Haven board of directors at no compensation. On August 9, 1989, nearly a month into the 90- day cure period, Congress enacted the Financial Institutions Reform, Recovery, and Enforcement Act, Pub.L. No. 101-73, 103 Stat. 183 (1989) ("FIRREA"), which limited Admiral's ability to count Haven's goodwill as an asset and to amortize it over a lengthy time period. FIRREA, however, did not take effect until December 7, 1989, and as of September 30, 1989, Haven was more than $4 million out of compliance under the pre-FIRREA accounting methods. 8 In March 1990, the Office of Thrift Supervision ("OTS"), the Bank Board's successor under FIRREA, placed Haven in receivership. At that time, Haven was more than $22 million out of regulatory capital compliance under FIRREA. It was approximately $12 million out of compliance under pre-FIRREA accounting methods. 9 In 1993, Admiral filed suit against the government, alleging, inter alia, that the enactment of FIRREA resulted in a breach by the government of its contract with Admiral. The Court of Federal Claims agreed, ruling on summary judgment that Admiral and the Bank Board had an enforceable contract that the government had breached when it enacted FIRREA. Admiral Fin. Corp. v. United States, 54 Fed.Cl. 247 (2002) ("Admiral I"). After a trial, however, the Court of Federal Claims held that Admiral had anticipatorily breached the contract before the enactment of FIRREA, and hence the government was not liable for damages. Admiral Fin. Corp. v. United States, 57 Fed.Cl. 418 (2003) ("Admiral III"). In particular, the trial court concluded that "Mr. Popham's repeated disavowals of any intention to infuse capital constituted the effective rejection of any intention to honor the RCMA before the notice and cure time expired," and that Admiral "did not have the capacity, irrespective of FIRREA, to revive its investment in Haven." Id. at 433. According to the trial court, Admiral thus repudiated the contract prior to the enactment of FIRREA. Id. The government accepted that repudiation, the trial court concluded, when the Bank Board removed Mr. Popham from Haven and took "other measures [that] effectively stripped Admiral of control over the management of the assets it invested in the thrift." Id. 10 The court held that even if Admiral did not anticipatorily breach the contract, Admiral could not recover damages for the government's breach because FIRREA did not cause it any injury. 57 Fed.Cl. at 434-35. The court found that "the plethora of evidence [showed] that the thrift was in such dire straits that it was failing under pre-FIRREA capital requirements. The failed capitalization plan, overvalued real estate holdings, and lack of a financial commitment by the initial investors contributed to the thrift's decline and led ultimately — and independent of the supervisory forbearance — to its seizure." Id. at 435. II 11 The government argues that by the terms of its contract Admiral assumed the risk of the regulatory changes brought about by FIRREA and that the enactment of FIRREA therefore did not breach the government's contractual obligations. The government did not prevail on that argument in the trial court, but it advances the argument here as an alternative ground for affirmance. 12 In a section entitled "Miscellaneous Provisions," the RCMA included clause VI(D), which provided as follows: 13 All references to regulations of the Board or the FSLIC used in this Agreement shall include any successor regulation thereto, it being expressly understood that subsequent amendments to such regulations may be made and that such amendments may increase or decrease the Acquirors' obligation under this Agreement. 14 On its face, clause VI(D) contemplated that the government might alter the regulations governing the supervision of thrifts such as Haven; by agreeing to the clause, Admiral acknowledged that its obligations might change if the regulatory regime changed. 15 In Guaranty Financial Services, Inc. v. Ryan, 928 F.2d 994, 999 (11th Cir.1991), the Eleventh Circuit found that an identical clause in the RCMA at issue in that case shifted to the acquirer the risk of a regulatory change of the kind effected by FIRREA and the regulations promulgated pursuant to FIRREA. The court explained that the clause "unmistakably warn[ed] Guaranty that its obligations under the contract may be increased by subsequent regulation." Id. The court held that "the agencies, at the same time they made that promise [of regulatory forbearances], also unambiguously warned Guaranty that the rules might later change to Guaranty's detriment," and that "[b]y signing the contract, Guaranty took that chance, in effect wagering the chance that the rules would be changed against the potential return if they were not." Id. The court's analysis in Guaranty, if applied in this case, would lead to the conclusion that Admiral assumed the risk of a regulatory change such as the one brought about by FIRREA, and that the enactment of FIRREA and the promulgation of regulations pursuant to that statute did not constitute a breach of the government's contractual obligations. 16 Admiral asserts that Guaranty is not binding on this court. While that is true, we accord great weight to the decisions of our sister circuits when the same or similar issues come before us, and we "do not create conflicts among the circuits without strong cause." Wash. Energy Co. v. United States, 94 F.3d 1557, 1561 (Fed.Cir.1996). 17 Although recognizing that Guaranty is contrary to its position in this case, Admiral contends that this court's decision in Castle v. United States, 301 F.3d 1328 (Fed.Cir.2002), "disposed of any precedential force that Guaranty Financial may ever have had in this Circuit concerning such a contract clause." According to Admiral, Castle construed language similar to the language in clause VI(D) in Admiral's contract as not shifting the risk of regulatory change to the acquirer. 18 We do not agree with Admiral's reading of our decision in Castle. The court in Castle addressed a takings claim made by a party that acquired a thrift with a promise of regulatory forbearances similar to those at issue in this case. 301 F.3d at 1341-42. The acquirer alleged that the enactment of FIRREA constituted a taking of its contract with the government. Id. at 1341. The court in Castle disagreed and ruled that "[t]he breach-of-contract based takings claim fails because even assuming it was breached, the alleged contract did not create a reasonable expectation that the government would cease regulating the thrift industry, or any particular thrift therein." Id. at 1342. To support the conclusion that regulatory changes were common in the banking industry, the court referred to a clause in the contract similar to clause VI(D) in this case. Id. The court then held that the government was not liable for a taking of the acquirer's contract because the enactment of FIRREA had not deprived the plaintiffs of any remedy they previously had, including a cause of action for damages. Id. 19 Although the Castle court ruled that the plaintiff "retained the full range of remedies associated with any contractual property right they possessed," 301 F.3d at 1342, the court did not address what rights that "full range of remedies" included. In particular, the court did not address whether the contract shifted the risk of regulatory change onto the acquirer. Castle did no more than state that, since FIRREA did not result in a taking of the acquirer's contract, the acquirer could still pursue relief pursuant to that contract. Thus, the passage in Castle cited by Admiral does not address whether the purported risk-shifting clause shifted the risk of regulatory change to Admiral. To the contrary, the Castle court "expressly decline[d]" to reach the issue of the government's liability under the contract. Id. at 1339. Castle therefore does not compel a result different from that reached in Guaranty with respect to the risk-shifting issue. 20 The trial court in this case agreed with Admiral and ruled that Admiral did not assume the risk of the regulatory changes brought about by FIRREA. See Admiral I, 54 Fed.Cl. at 256-57. The court reasoned that interpreting the RCMA to shift the risk of such regulatory changes to Admiral would mean that Admiral had "bargained away any ability to enforce [the government's] promises," which would "result in no promise at all," thus rendering the contract illusory. Id. at 256. For that reason, the court interpreted the provision as anticipating potential changes in the level of capital that thrifts must maintain, "or perhaps some other aspect of regulatory compliance," but declined to interpret that provision "as exposing Admiral to the risk of sweeping changes in the bargained for method by which capital is accounted for by the [Bank Board]." Id. at 257 (emphasis in original). 21 We disagree with the trial court's analysis on this point. Clause VI(D) does not contain any qualifications of the sort to which the trial court referred. The clause states that the government might make changes to the regulations that could increase Admiral's obligation under the contract. It does not limit those changes to increasing or decreasing the level of capital that thrifts must maintain, as opposed to changing the accounting methods the Bank Board requires. And as for the trial court's concern that the government's interpretation of the clause would render the contract illusory, the government's reservation of the right to change the extent of its performance as to some of its promises does not render the contract illusory as long as the government has otherwise given consideration, as is plainly the case here. Restatement (Second) of Contracts § 80(2) (1979) ("The fact that part of what is bargained for would not have been consideration if that part alone had been bargained for does not prevent the whole from being consideration."). 22 The trial court relied on Sterling Savings v. United States, 53 Fed.Cl. 599 (2002), and Southern California Federal Savings & Loan Ass'n v. United States, 52 Fed.Cl. 531 (2002), as support for the proposition that the purported risk-shifting clause should not be interpreted to shift the risk of regulatory change from the government to the private party. Admiral I, 54 Fed.Cl. at 257. The contract at issue in Sterling included language similar to the language of clause VI(D) in Admiral's contract. The Sterling court read Guaranty as not holding that the purported risk-shifting clause mandated that the risk of regulatory change was shifted to the plaintiffs. Instead, the court in Sterling ruled that the risk-shifting clause meant that the acquirer could be required to comply with regulations regarding maintenance of capital levels, payment of dividends, and reporting of deviations from the business plan, but that the clause did not alter the government's obligation to allow the plaintiff to treat supervisory goodwill as an asset and amortize it over the period set forth in the contract. 53 Fed.Cl. at 614. 23 We do not believe Guaranty can be distinguished in that manner. The court in Guaranty found that the language in question altered the government's obligations with respect to the regulatory capital and amortization issues and shifted to Guaranty the risk of FIRREA's regulatory change with respect to those issues. The Guaranty court "interpret[ed] the contract to mean that Guaranty had the right to treat its goodwill as regulatory capital and amortize it over a twenty-five year period for so long as the statutes and regulations governing the area remained as they were when the agreement was signed." Guaranty, 928 F.2d at 1001. 24 In the other case on which the trial court relied, Southern California Federal Savings & Loan Ass'n v. United States, the language of the purported risk-shifting clause was significantly different from the language of the clause at issue here. The clause at issue in Southern California merely stated that the acquirer was obligated to maintain capital in compliance with existing or future regulations. 52 Fed.Cl. at 545. The court in Southern California held that, while the clause at issue in that case bound the acquirer to follow the regulations, it did not preclude a finding of breach by the government if the regulations changed. Id. at 545-56. Thus, the provision stated the obvious — that the acquirer was bound by the law — without providing for any shift of risk in the event of a change in the law. 25 Language similar to that in the Southern California contract was included in the contract at issue in California Federal Bank v. United States, 39 Fed.Cl. 753, 778 (1997). The court in California Federal Bank, like the court in the Southern California case, held that the contract language before it was sufficiently similar to the contract language at issue in United States v. Winstar Corp., 518 U.S. 839, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996), to be governed by the Supreme Court's conclusion that such language does not shift the risk of regulatory change to the acquirer. 39 Fed.Cl. at 779. The language of clause VI(D), on the other hand, is far more explicit with respect to the issue of regulatory change and makes clear that Admiral's obligations may increase or decrease under successor regulations. 26 The plurality opinion in Winstar addressed contract language similar to the language of the contracts in Southern California and California Federal Bank as follows: 27 The Government also cites a provision requiring Statesman to "comply in all material respects with all applicable statutes, regulations, orders of, and restrictions imposed by the United States or ... by any agency of [the United States]," but this simply meant that Statesman was required to observe FIRREA's new capital requirements once they were promulgated. The clause was hardly necessary to oblige Statesman to obey the law, and nothing in it barred Statesman from asserting that passage of that law required the Government to take action itself or be in breach of its contract. 28 .... 29 We read this promise as the law of contracts has always treated promises to provide something beyond the promisor's absolute control, that is, as a promise to insure the promisee against loss arising from the promised condition's nonoccurrence. 30 518 U.S. at 868-69, 116 S.Ct. 2432. Importantly, the opinion continued: 31 To be sure, each side could have eliminated any serious contest about the correctness of their interpretive positions by using clearer language. See, e.g., Guaranty Financial Services, Inc. v. Ryan, 928 F.2d 994, 999-1000 (C.A.11 1991) (finding, based on very different contract language, that the Government had expressly reserved the right to change the capital requirements without any responsibility to the acquiring thrift). The failure to be even more explicit is perhaps more surprising here, given the size and complexity of these transactions. But few contract cases would be in court if contract language had articulated the parties' postbreach positions as clearly as might have been done, and the failure to specify remedies in the contract is no reason to find that the parties intended no remedy at all. 32 Winstar, 518 U.S. at 869 n. 15, 116 S.Ct. 2432. As noted above, the "clearer language" that the opinion referred to as being used in the Guaranty case is identical to the risk-shifting language in clause VI(D) of the Admiral contract. 33 Thus, Winstar stands for the proposition that the government is still obligated to honor its contracts even if the governing regulations change. See 518 U.S. at 869-70, 116 S.Ct. 2432 ("The drafters of the Restatement attested to this when they explained that, `with the trend toward greater governmental regulation ... parties are increasingly aware of such risks, and a party may undertake a duty that is not discharged by such supervening governmental actions....' Restatement (Second) of Contracts § 264, Comment a. `Such an agreement,' according to the Restatement, `is usually interpreted as one to pay damages if performance is prevented rather than one to render a performance in violation of law.'"). However, the plurality opinion in Winstar also recognized that the government could address the risk-shifting issue in bargaining and could even "reserve the right to change the capital requirements without any responsibility to the acquiring thrift." 518 U.S. at 869 n. 15, 116 S.Ct. 2432. Moreover, the example used by the plurality opinion for language that would have the effect of shifting the risk of a regulatory change to the private contractor was the contract language used both in Guaranty and in the contract with Admiral. Thus, following the lead of the Eleventh Circuit in Guaranty and the Supreme Court plurality in Winstar, we hold that Admiral assumed the risk of a regulatory change such as that brought about by FIRREA. For that reason, Admiral cannot recover damages based on the enactment of FIRREA and the promulgation of regulations pursuant to that statute that altered Admiral's obligations under the contract. III 34 Although the trial court did not agree with the government that the contract shifted the risk of regulatory change to Admiral, the court nonetheless rejected Admiral's claim for damages. The trial court based its ruling in part on its conclusion that even if the government breached a contract with Admiral, the enactment of FIRREA did not cause Admiral harm. Admiral III, 57 Fed.Cl. at 434-35. We uphold the trial court's disposition of the no-injury issue. Accordingly, on that ground as well, we affirm the trial court's ruling denying Admiral's claim for damages. 35 The trial court's no-injury finding was based on a detailed analysis of the financial status of Admiral and Haven and a careful assessment of the likely impact of the enactment of FIRREA on their fortunes. In particular, the court found that Haven was running operational deficits long before FIRREA was proposed, and that Haven was likely to continue running deficits in the future regardless of whether FIRREA was enacted. 57 Fed.Cl. at 434. The court also found that the real estate that Admiral contributed to Haven was selling at far below its appraised value at the time it was contributed, and that the goodwill for the contributed business was going to be written off, since the business did not actually exist. Id. 36 The court concluded that Haven "was in such dire straits that it was failing under pre-FIRREA capital requirements," and that 37 [h]ad all its goodwill been counted toward its regulatory capital, Haven would still have been insolvent: Haven had negative core capital as of December 31, 1989. This means that even if Admiral had been able to replace all of Haven's goodwill with cash on September 30, 1989, Haven would still have been at least $4 million formally below its minimum capital requirement, and perhaps more than $10 million, counting expected real estate losses, and a write-off of the TSC business. 38 57 Fed.Cl. at 435. 39 Admiral argues that the enactment of FIRREA injured it by making it impossible for Admiral to find a merger partner or acquirer. Addressing that argument, the trial court acknowledged that FIRREA "did not help matters" for Admiral, but concluded that even without FIRREA, a potential acquirer would have had to compensate for a $12 million capital shortfall. 57 Fed.Cl. at 435. Admiral points to testimony to the effect that it was talking to potential merger partners at the time FIRREA was enacted. Admiral also points to a letter from Haven to the Bank Board referring to negotiations with potential acquirers who "seem[ed] quite interested in pursuing an assisted transaction." However, the letter also suggested that those negotiations would be in jeopardy if Haven were forced to liquidate real estate pursuant to the contract, since the bids Haven was receiving for the real estate were low. Thus, Admiral's evidence does not suggest that, absent FIRREA, Admiral would have been able to secure a merger partner or acquirer without either violating the liquidation schedule of the contract or obtaining additional concessions from the Bank Board. In any case, Admiral has not shown clear error in the trial court's finding that Admiral would not have found an acquirer or merger partner regardless of FIRREA. 40 Admiral further argues that because it sought restitution rather than damages, it is irrelevant whether the enactment of FIRREA was the cause of Admiral's loss. Admiral's position is that once the government breached the contract by enacting FIRREA, Admiral was entitled to elect restitution as a remedy and to recover its initial investment regardless of what would have happened in the absence of breach. 41 Although restitution ordinarily serves as a remedy for unjust enrichment, it has been recognized as an alternative measure of contract damages when a plaintiff's expectation damages are difficult to ascertain. See Restatement of Restitution and Unjust Enrichment § 38 cmt. a (Tentative Draft No. 3 2004) ("`Restitution damages' ... are closely analogous in function to `reliance damages,' in that both offer what is ordinarily a second-best alternative to a party injured by breach who cannot prove damages measured by expectation."). Thus, "[w]hen proof of expectancy damages fails, the law provides a fall-back position for the injured party — he can sue for restitution." Glendale Fed. Bank, FSB v. United States, 239 F.3d 1374, 1380 (Fed.Cir.2001); accord Hansen Bancorp, Inc. v. United States, 367 F.3d 1297, 1309 (Fed.Cir.2004). In this case, as explained above, the trial court had ample evidence to conclude that Admiral's expectancy damages attributable to the government's breach were zero. It was not necessary for the trial court to use restitution as an alternative measure of damages, since expectancy was not in doubt. 42 Courts have also recognized the availability of restitution when a party injured by a contract breach is allowed to treat the contract as rescinded and to return to the status quo ante instead of relying on the terms of the contract to obtain damages or specific performance. See Restatement of Restitution and Unjust Enrichment § 37 and cmt. a (Tentative Draft No. 3 2004). However, an injured party is entitled to rescission only if the defendant repudiated the contract or committed a total breach. See Mobil Oil Exploration & Producing Southeast, Inc. v. United States, 530 U.S. 604, 608, 120 S.Ct. 2423, 147 L.Ed.2d 528 (2000); Hansen Bancorp, 367 F.3d at 1309 & n. 10. 43 A "total breach" is a breach that "so substantially impairs the value of the contract to the injured party at the time of the breach that it is just in the circumstances to allow him to recover damages based on all his remaining rights to performance." Mobil Oil, 530 U.S. at 608, 120 S.Ct. 2423, quoting Restatement (Second) of Contracts § 243 (1979); accord Hansen Bancorp, 367 F.3d at 1309, 1311-12 ("For our purposes, the critical part of this formulation is the statement that the breach `substantially impairs the value of the contract to the injured party at the time of the breach.'"). In the event of such a breach, the non-breaching party is entitled to restitution whether the contract "would, or would not, ultimately have proved financially beneficial" to the non-breaching party. Mobil Oil, 530 U.S. at 608, 120 S.Ct. 2423. 44 In this case, as noted above, the trial court found that at the time of the breach Admiral was in such dire straits that it would not have been able to recover, even absent a breach. Thus, the court found that even under the pre-FIRREA requirements Admiral would not have been able to infuse enough capital in the thrift to avoid receivership. Given Haven's condition in 1989 and 1990, the trial court found that the enactment of FIRREA had no practical effect on Admiral's ability to find the necessary additional funding for the thrift. Therefore, the government's action did not "substantially impair[ ] the value of the contract to the injured party at the time of the breach" so as to make rescission an appropriate remedy. Mobil Oil, 530 U.S. at 608, 120 S.Ct. 2423. As the trial court stated, "[t]he fact that FIRREA was passed in the middle of Admiral's cure period is sheer happenstance." Admiral III, 57 Fed.Cl. at 432. 45 Moreover, even if the remedy of restitution would otherwise be appropriate, this court has noted that restitution should not be awarded if it would result in a windfall to the nonbreaching party. See Hansen Bancorp, 367 F.3d at 1315. In this case, the trial court found that Haven's problems began long before FIRREA was proposed, enacted, or implemented, and Haven's financial situation continued to deteriorate both before and after FIRREA's enactment. Congress enacted FIRREA after Admiral was already in default, and only weeks before the end of Admiral's cure period. The trial court concluded that the government's breach did not significantly affect Admiral's prospects of profiting from the contract or its opportunity to find a merger partner or acquirer. Allowing Admiral to rescind the contract and obtain full restitution would afford it a windfall, contrary to the equitable principles on which the remedy of restitution is based. See Canfield v. Reynolds, 631 F.2d 169, 178 (2d Cir.1980) (declining to order rescission because it would give plaintiff a windfall in a setting in which there was "no reason to relieve [plaintiff] of his investment's downside risks"). For that reason as well, we hold that the trial court did not err in denying Admiral's request for an award of restitution. IV 46 Admiral asserts that the trial court erred in concluding that Admiral anticipatorily breached the contract. Because we decide that Admiral may not recover on the contract both because it assumed the risk of regulatory change and because the enactment of FIRREA did not harm Admiral, we need not reach the issue of anticipatory breach. In light of our rulings on those two issues, we also find it unnecessary to address the government's argument that no enforceable contract was formed between the government and Admiral. 47 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
584 P.2d 47 (1978) James DANIELS, Appellant, v. STATE of Alaska, Appellee. No. 3568. Supreme Court of Alaska. September 22, 1978. 48 Robert Coats, Asst. Public Defender, Fairbanks, Brian Shortell, Public Defender, Anchorage, for appellant. Rhonda F. Butterfield, Asst. Dist. Atty., Fairbanks, Harry L. Davis, Dist. Atty., and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, BURKE and MATTHEWS, Justices. OPINION CONNOR, Justice. Appellant James Daniels appeals his sentence[1] of four years, for possession of heroin.[2] Two years of the sentence are to be served concurrent with, and two years are to be served consecutive to, a prior term. Daniels is a 48 year old laborer who has been addicted to heroin for over 20 years. This is his third narcotics violation. He has no other criminal record. In December of 1975, when urine tests revealed drug use, Daniels' probation from a 1972 narcotics violation was revoked and he was sentenced to a seven year term of imprisonment. He did not appeal. A few weeks later, while Daniels was in custody at the Fairbanks Correctional Center, a correctional officer saw Daniels holding a spoon containing a brown powdery substance. A search revealed two "slips" of heroin and some narcotics paraphernalia. Judgment was entered against Daniels upon his plea of guilty to possession of a narcotic drug in violation of AS 17.10.010. He was sentenced to twenty years imprisonment, the mandatory minimum term for a third narcotics offense under AS 17.10.200(a). However, the sentencing court ordered that "upon successful completion of a two-year program at Family House"[3], Daniels' twenty year term would be suspended and he would be placed on probation for that period. The court warned Daniels that he faced a substantial sentence if he did not complete the Family House program: "As I understand ... the people from Family House .. . have stated ... that a person needs to have a considerable incentive to complete the program. And one of those is a rather heavy sentence ... [s]o, I'm providing that incentive from the court." 49 Daniels replied that he understood the consequences of failure to comply with the condition imposed upon the suspension of his sentence.[4] The Division of Corrections classified Daniels to Family House. After six months, Daniels requested that he be returned to jail because he found the program to be nontherapeutic. The court, upon a petition by the state, issued an order revoking Daniels' probation for failure to abide by the condition that he spend two years at Family House. Daniels was remanded to custody to serve the twenty year term previously pronounced. A notice of sentence appeal was then filed. Shortly thereafter, we issued an opinion in Huff v. State, 568 P.2d 1014 (Alaska 1977), which discussed the criteria the sentencing court should employ in sentencing drug addicts. Upon a defense motion, we remanded Daniels' appeal for reconsideration in light of Huff v. State, supra. A hearing followed in the superior court and Daniels' sentence was modified to four years incarceration, two concurrent and two consecutive to the prior seven year term on the original probation revocation. Daniels now appeals this modification of his sentence. Daniels first contends that the sentencing court erred in not ordering Daniels to complete treatment at Future House, another drug treatment center. We will not automatically reverse a sentence because a drug addict is not placed in a drug rehabilitation program. Johnson v. State, 580 P.2d 700, 703 (Alaska 1978); Parks v. State, 571 P.2d 1003, 1005 (Alaska 1977); Fox v. State, 569 P.2d 1335, 1337-38 (Alaska 1977). Daniels voluntarily relinquished the opportunity to participate in Family House despite the sentencing court's admonition that failure to complete the program would result in a lengthy prison term.[5]See Huff v. State, supra, at 1018. While we do not depreciate the importance of rehabilitation and drug therapy for addicts, we cannot say that the court erred in not ordering Daniels to undergo treatment at Future House. Daniels next alleges error in the imposition of a term consecutive with his prior seven year sentence. Daniels claims that he agreed not to appeal the seven year term in exchange for the state's non-opposition to his placement at Family House for the subsequent offense. Therefore, he argues, "the sentence imposed upon him should not have increased the seven year sentence imposed upon him" in the earlier revocation. Daniels' contention is devoid of merit. The sentences imposed, seven years for the revocation of his probation originally imposed in 1972 and four years for the current offense, stem from two wholly distinct offenses. Daniels does not, nor could he, allege that the state failed to keep its agreement. The state did not oppose Family House placement at the sentencing hearing on the instant offense. Therefore, we cannot accept Daniels' contention that the sentencing court, in imposing sentence on a different offense, should have been restricted to a term concurrent with Daniels' other seven year term. It was entirely proper for the sentencing court to impose a consecutive term in order to provide an additional sanction for the subsequent offense. See State v. Wortham, 537 P.2d 1117, 1121 (Alaska 1975). In light of the sentencing considerations set forth in State v. Chaney, 477 P.2d 441 (Alaska 1970) and Huff v. State, supra, we hold that the four year sentence imposed on appellant Daniels was not "clearly mistaken." AFFIRMED. NOTES [1] AS 12.55.120(a). [2] AS 17.10.010. [3] Family House is a highly structured program designed to treat drug abusers. [4] This sentence was to be concurrent with Daniels' prior seven year term on the probation revocation. [5] We note also that Daniels has unsuccessfully participated in four other drug treatment programs.	{ "pile_set_name": "FreeLaw" }
480 F.2d 926 U. S.v.Powell 72-1192 UNITED STATES COURT OF APPEALS Sixth Circuit 6/20/73 S.D.Ohio AFFIRMED	{ "pile_set_name": "FreeLaw" }
538 F.2d 343 U. S.v.Perno No. 75-2611 United States Court of Appeals, Ninth Circuit 5/28/76 1 C.D.Cal. AFFIRMED	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION JAN 03 2013 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT ELBERT LEE VAUGHT, IV, No. 12-15810 Plaintiff - Appellant, D.C. No. 2:10-cv-01108-MCE- DAD v. B. MIRANDA; et al., MEMORANDUM * Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., Chief Judge, Presiding Submitted December 19, 2012 ** Before: GOODWIN, WALLACE, and FISHER, Circuit Judges. California state prisoner Elbert Lee Vaught, IV, appeals pro se from the district court’s summary judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate indifference to his serious medical needs. We have jurisdiction under * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 28 U.S.C. § 1291. We review de novo. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). We affirm. The district court properly granted summary judgment because Vaught failed to raise a genuine dispute of material fact as to whether the delay he experienced in receiving physical therapy for his back injury led to further injury. See Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002) (prisoner alleging delay of medical treatment evinces deliberate indifference must show delay led to further injury). Moreover, Vaught failed to raise a genuine dispute of material fact as to whether defendants were involved in or had any control over the filling and distribution of prescription medication in the prison and thus were responsible for his failure to receive his prescribed pain medicine. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (plaintiff must show personal involvement in alleged violations). AFFIRMED. 2 12-15810	{ "pile_set_name": "FreeLaw" }
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-0908V UNPUBLISHED CARLA PAVAO, Chief Special Master Corcoran Petitioner, Filed: March 12, 2020 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision Based on Proffer; HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) Howard Scott Gold, Gold Law Firm, LLC, Wellesley Hills, MA, for petitioner. Mollie Danielle Gorney, U.S. Department of Justice, Washington, DC, for respondent. DECISION AWARDING DAMAGES1 On June 25, 2018, Carla Pavao filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleges that she suffered a left shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on November 17, 2016. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On January 13, 2020, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On March 11, 2020, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $92,000.00, all of which is for pain and suffering. Proffer at 1. In the Proffer, Respondent 1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). represented that Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $92,000.00 (all of which is for pain and suffering) in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under § 15(a). The clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) CARLA PAVAO, ) ) Petitioner, ) ) No. 18-908V v. ) Chief Special Master Cocoran ) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, ) ) Respondent. ) ) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION I. Items of Compensation On January 13, 2020, respondent filed a Rule 4(c) report conceding petitioner’s entitlement to compensation, under the terms of the Vaccine Act, for her shoulder injury related to vaccine administration (“SIRVA”) Table injury, following a flu vaccine administered on November 17, 2016. On the same date, Chief Special Master Corcoran issued a Ruling on Entitlement, finding that petitioner was entitled to compensation for her SIRVA. Based upon the evidence of record, respondent proffers that petitioner should be awarded $92,000.00, all of which is for pain and suffering. This amount represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. II. Form of the Award The parties recommend that compensation provided to petitioner should be made through a lump sum payment of $92,000.00, in the form of a check payable to petitioner. Petitioner agrees. Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respectfully submitted, JOSEPH H. HUNT Assistant Attorney General C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division HEATHER L. PEARLMAN Assistant Director Torts Branch, Civil Division /s/ Mollie D. Gorney MOLLIE D. GORNEY Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington D.C. 20044-0146 (202) 616- 4029 [email protected] Dated: March 11, 2020	{ "pile_set_name": "FreeLaw" }
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT August 3, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 20-2009 (D.C. No. 2:18-CR-01254-RB-1) ALONSO GRADO, a/k/a Lonsie, (D. N.M.) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT * _________________________________ Before TYMKOVICH, Chief Judge, BACHARACH and CARSON, Circuit Judges. _________________________________ Alonso Grado pleaded guilty to conspiracy to possess with intent to distribute 50 grams or more of methamphetamine, distribution of methamphetamine, and use of a communication facility to further the commission of a drug trafficking crime. He was sentenced to serve 180 months in prison. Although his plea agreement contained a waiver of his appellate rights, he filed a notice of appeal. The government has moved to enforce the appeal waiver in the plea agreement pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). * 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. Under Hahn, we consider “(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.” Id. at 1325. The government asserts that all of the Hahn conditions have been satisfied because: (1) Mr. Grado’s appeal is within the scope of the appeal waiver; (2) he knowingly and voluntarily waived his appellate rights; and (3) enforcing the waiver would not result in a miscarriage of justice. In response to the government’s motion, Mr. Grado concedes his appeal waiver is enforceable under the standard set forth in Hahn. Based on this concession and our independent review of the record, we grant the government’s motion to enforce the appeal waiver and dismiss the appeal. This dismissal does not affect Mr. Grado’s right to pursue post-conviction relief on the grounds permitted in his plea agreement. Entered for the Court Per Curiam 2	{ "pile_set_name": "FreeLaw" }
(2008) Alexander BOLTENKO, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. No. 1:07-CV-1055. United States District Court, W.D. Michigan, Southern Division. February 12, 2008. ORDER OF REMAND RICHARD ALAN ENSLEN, Senior District Judge. This matter is before the Court on the Motion to Remand of Defendants United States Department of Homeland Security, United States Citizenship and Immigration Services ("USCIS"), and Federal Bureau of Investigation ("FBI").[1] Plaintiffs Alexander Boltenko and Tatiana Boltenko have responded in opposition. Based on the quality briefing, the Court discerns no reason for oral argument. See W.D. Mich. LCivR 7.3(d). The Court assumes, without deciding, USCIS has failed "to make a determination... before the end of the 120-day period after the date on which the examination [of Plaintiffs] is conducted."[2]See 8 U.S.C. § 1447(b). Accordingly, the Court "has jurisdiction over the matter and may either determine the matter or remand the matter ... to the [USCIS] to determine the matter." Id. There is an overwhelming trend among courts, locally and nationally, to remand § 1447(b) naturalization matters to the USCIS. See, e.g., Alkabi v. USCIS, No. 07-13540, 2007 WL 4465251, at 3 (E.D.Mich. Dec. 18, 2007) ("In almost every case ... the court ... declined to decide the application in the first instance, choosing instead to remand the matter to CIS for prompt resolution"); Diaz v. Gonzalez, No. 07-22360-CIV, 2007 WL 4463492, at 3 (S.D.Fla. Dec. 17, 2007) (noting "the majority of courts ... have remanded similar cases back to the USCIS"); Elaasar v. Mueller, 522 F.Supp.2d 932, 936 (N.D.Ohio 2007) (concluding "a majority of courts have ... declined to determine the merits of the application, instead remanding the case to USCIS as a more appropriate remedy"). The appeal of remanding such matters was explained in Ghazal v. Gonzales: In immigration matters, the executive branch is accorded great deference, as evidenced by the statutory and regulatory schemes established for processing citizenship applications. Neither the CIS nor the district court is sufficiently informed to decide an application until the FBI completes the required criminal background check to determine whether an applicant presents any national security or public safety risk, nor are they equipped to conduct such investigations themselves. No. 06CV2732-LAB (NLS), 2007 WL 1971944, at 3 (S.D. Cal. June 14, 2007). Remanding the matter with a specific deadline within which the USCIS or FBI must act, as urged by Plaintiffs, is impracticable and short-sited. See Yang v. Chertoff, No. 07CV240 WQH (NLS), 2007 WL 1830908, at 3 (S.D.Cal. June 25, 2007) (recognizing "`only the FBI and the CIS are in a position to know what resources are available to conduct' a background check and whether `an expedited background check is feasible or efficient in a particular case'") (quoting Ghazal, 2007 WL 1971944, at 3); Farooq v. Hansen, No. 1:07 CV 0946, 2007 WL 2177890, at 4 n. 6 (N.D.Ohio July 27, 2007) ("The Court will not impose a specific deadline on the FBI because it has no basis for determining how much time is necessary to complete the criminal background check.").[3] Although Plaintiffs' delayed applications are unfortunate, "post-911 delays of this nature are inevitable in light of heightened security concerns." See Mohammed v. Gonzales, No. CV 07-111-MHW, 2007 WL 4224046, at 4 (D.Idaho Nov. 27, 2007). Nevertheless, the Court expects a determination on Plaintiffs' applications at least one year from the date of this Order. If no determination has been made by such time, the Court will entertain a motion for reconsideration. The Court must also determine whether Plaintiffs' request for costs and attorney fees is appropriate under 28 U.S.C. § 2412(d) (1)(A). The Court finds such an award inappropriate because Plaintiffs are not a "prevailing party" and final judgment has yet to be entered. Cf. Alhamedi v. Mukasey, No. 07 Civ. 2541 (JGK), 2008 WL 84543, at 1 (S.D.N.Y. Jan. 7, 2008). Moreover, Plaintiffs are hard-pressed to argue Defendants' position is not "substantially justified" due to the unsettled issues resounding in this case and lack of guidance from the Sixth Circuit. See id. ("The fact that a case raises a question of first impression or unsettled issues of law is properly considered as one factor in determining whether the Government's position is substantially justified."). THEREFORE, IT IS HEREBY ORDERED that Defendants' Motion to Remand (Dkt. No. 4) is GRANTED and this matter is REMANDED to the USCIS for disposition. IT IS FURTHER ORDERED that Plaintiffs' Motion for Costs and Attorney Fees (Dkt. No. 6) is DENIED. NOTES [1] Defendants originally filed a Motion to Dismiss, or in the Alternative, Motion to Remand. (See Defs.' Mot. 1.) Defendants no longer seek dismissal. (See Defs.' Reply 1.) [2] A question exists regarding whether the "examination" referenced in 8 U.S.C. § 1447(b) has yet to occur. The majority of courts have held "examination" refers to the initial interview of an immigrant, which in this case took place in December 2004 (Ms. Boltenko) and January 2005 (Mr. Boltenko). See, e.g., Walji v. Gonzales, 500 F.3d 432, 438-39 (5th Cir. 2007); Khelifa v. Chertoff, 433 F.Supp.2d 836, 840-41 (E.D.Mich.2006). A sizable number of courts, however, have held that the "examination" is not "a single event," but rather "a process" that is not complete until FBI background checks are complete. See, e.g., Damra v. Chertoff. No. 1:05CV0929, 2006 WL 1786246, at 2 (N.D.Ohio June 23, 2006); Danilov v. Aguirre, 370 F.Supp.2d 441, 443-44 (E.D.Va.2005). Since the resolution of Defendants' Motion to Remand does not require the Court to rule on this issue, it assumes Plaintiffs' initial examination is the "examination" referenced in § 1447(b). This issue deserves resolution by the Sixth Circuit Court of Appeals. [3] It is also debatable whether the Court even has jurisdiction to compel the FBI to act. Compare Sinha v. Upchurch, No. 1:07 cv 2274, 2007 WL 4322225, at 4 (N.D.Ohio Dec. 7, 2007) (finding "the majority of courts considering the issue have concluded that jurisdiction over the FBI does not lie"), with Aman v. Gonzales, Civil Action No. 07-cv-00223-EWN, 2007 WL 2694820, at *5 (D.Colo. Sept. 10, 2007) (concluding the court can order the FBI to complete a background check indirectly).	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals For the Eighth Circuit ___________________________ No. 18-3531 ___________________________ United States of America, lllllllllllllllllllllPlaintiff - Appellee, v. Sajoh Yates, lllllllllllllllllllllDefendant - Appellant. ____________ Appeal from United States District Court for the Western District of Missouri - Springfield ____________ Submitted: June 5, 2019 Filed: June 13, 2019 [Unpublished] ____________ Before COLLOTON, BOWMAN, and SHEPHERD, Circuit Judges. ____________ PER CURIAM. Sajoh Yates appeals the district court’s1 order committing him under 18 U.S.C. § 4245, which provides for hospitalization and treatment of an imprisoned person suffering from a mental disease or defect, until he no longer needs treatment or his prison sentence expires, whichever occurs first. Upon careful review of the record-- including the reports of two mental health professionals who opined that Yates met the criteria for commitment--we conclude the district court’s section 4245 finding was supported by a preponderance of the evidence, and was not clearly erroneous. See 18 U.S.C. § 4245(d); United States v. Bean, 373 F.3d 877, 879 (8th Cir. 2004) (standard of review). We also conclude that Yates’s pro se arguments offer no basis for relief. The judgment of the district court is affirmed, and counsel’s motion to withdraw is granted. ______________________________ 1 The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri, adopting the report and recommendations of the Honorable David P. Rush, United States Magistrate Judge for the Western District of Missouri. -2-	{ "pile_set_name": "FreeLaw" }
21 Cal.App.4th 232 (1993) 26 Cal. Rptr.2d 660 THE PEOPLE, Plaintiff and Respondent, v. MYNOR ARNOLD RODRIGUEZ, Defendant and Appellant. Docket No. G012327. Court of Appeals of California, Fourth District, Division Three. November 29, 1993. 236 COUNSEL Jill M. Bojarski, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett B. Beaumont and Maxine P. Cutler, Deputy Attorneys General, for Plaintiff and Respondent. OPINION WALLIN, Acting P.J. Mynor Arnold Rodriguez, a minor tried as an adult, appeals from his conviction of second degree murder. He contends the identification of him as a suspect resulted from a photograph obtained during an illegal "gang sweep" field interrogation and thus his motion to suppress the photograph and subsequent identifications should have been granted. He also contends the court erroneously imposed the aggravated term for gun use, claiming his use of a gun was no worse than ordinary. We affirm the conviction, but remand for resentencing. On October 21, 1990, Roberto "Eddie" Gonzalez, the murder victim, was walking to a convenience store in the City of Orange with his friends, 237 Esteban De Paz, Juan Martinez and Edmundo Sanchez. They had just crossed Tustin Avenue when three Hispanic youths riding bicycles overtook them. One, later identified as Rodriguez, got off his chrome bicycle and challenged Eddie to reveal any gang affiliation. Included in Rodriguez's comments was the phrase, "Puro South Side." When Eddie did not respond, Rodriguez punched him in the face. Eddie backed away, and Rodriguez pulled a small pistol from his pants, pointed it at Eddie's chest and pulled the trigger. When the gun failed to fire, Eddie reached towards Rodriguez as though he was trying to take the gun away from him. Rodriguez pulled back the top of the gun and shot again, striking Eddie in the chest and killing him. Eddie's three friends were interviewed by the police and each gave a description of the shooter, whom they did not know. Later that day, the three were shown a "gang book" consisting of photographs of known members and associates of local gangs. Sanchez identified a picture of Rodriguez, taken three days before, as that of the shooter; De Paz selected the photograph of another youth, and Martinez did not identify anyone from the book. After interviewing Rodriguez's father and uncle, police then went to the home of Angela Jackson, Rodriguez's girlfriend, and interviewed her. She told them Rodriguez had come by her house with a friend earlier that day and asked her to keep a chrome bicycle for him. He told her he had been present during a shooting and he was afraid the police might think he did it. He also changed his clothes and gave the ones he had been wearing to his friend. Rodriguez was arrested later that night. On October 24, the police showed Eddie's three friends "photo lineups," consisting of three folders of six photographs each, one of which included Rodriguez's booking photograph. All three identified Rodriguez as the shooter. De Paz and Martinez also identified Rodriguez as the shooter at trial.[1] At trial, Rodriguez made a motion to suppress the "gang book" photograph and the subsequent identifications. The testimony at the hearing revealed that Don Hearn and John Whiteley, police detectives with the City of Orange, were assigned to the gang unit, which maintained a photographic file of known gang members and associates. The South Side F-Troop gang was one of the known gangs in the City of Orange. On October 18, three days before Eddie Martinez was shot, Hearn and Whiteley saw Rodriguez and four companions standing together in front of an apartment complex on East Adams in Orange. Hearn knew the neighborhood was the turf of the South Side F-Troop gang and that the apartment 238 complex was a common gathering place for gang members. South Side graffiti was written on the neighboring fences and walls, and Rodriguez and his companions were dressed in a manner consistent with gang membership. Rodriguez wore a jacket with the words "Dreamer" on the front and "F-Troop" on the back. Hearn testified the group appeared to be doing nothing more than talking and socializing. He and his partner, both in uniform, approached the group intending to get the youths' identification, take their pictures and find out what gang they claimed. As he approached them, he told them to "stay there." He and Whiteley patted the youths down and ordered them to sit on the curb and the sidewalk. The officers then interviewed them one at a time, asking each about his name, address, date of birth, and so forth, and took a photograph of each one. The entire process took 15 to 20 minutes. The trial court denied the motion to suppress, stating "[W]here the police are able to enunciate nexus, which is really the suspicion of either gang activity, membership or affiliation, ... detention is allowed for [field identification] stops for intelligence-gathering purposes and it's permissible." The trial court added, "[E]ven if the court felt that there was a taint, which I do not, ... it's clear to this court that all three witnesses have an independent recollection ... concerning the identification three days after the homicide." I (1) We agree with the trial court's conclusion that Rodriguez was detained by the officers rather than involved in a consensual encounter, "which result[s] in no restraint of an individual's liberty whatsoever...." (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 [195 Cal. Rptr. 671, 670 P.2d 325].) A detention, on the other hand, occurs when, "`... in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" (Michigan v. Chesternut (1988) 486 U.S. 567, 573 [100 L.Ed.2d 565, 575, 108 S.Ct. 1975].) A show of official authority is sufficient to engender that belief in a reasonable person. (United States v. Mendenhall (1980) 446 U.S. 544, 554 [64 L.Ed.2d 497, 509, 100 S.Ct. 1870] (lead opn. of Stewart, J.).) Here, the officers approached Rodriguez and his companions and ordered them to "stay there" while they were patted down for weapons. They were then told to sit down while the officers interviewed them one at a time. No reasonable person under these circumstances would believe he was free to leave. (2a) We cannot agree, however, with the trial court's conclusion that the detention of Rodriguez was permissible. (3a) "[I]n order to justify an 239 investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity." (In re Tony C. (1978) 21 Cal.3d 888, 893 [148 Cal. Rptr. 366, 582 P.2d 957]. See also Terry v. Ohio (1968) 392 U.S. 1, 21 [20 L.Ed.2d 889, 905-906, 88 S.Ct. 1868]; In re James D. (1987) 43 Cal.3d 903, 911 [239 Cal. Rptr. 663, 741 P.2d 161].) The guarantees of the Fourth Amendment do not allow stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity. (Brown v. Texas (1979) 443 U.S. 47, 51-52 [61 L.Ed.2d 357, 362-363, 99 S.Ct. 2637]. See also People v. Gonzalez (1992) 7 Cal. App.4th 381, 386 [8 Cal. Rptr.2d 640]; People v. Gallant (1990) 225 Cal. App.3d 200, 208 [275 Cal. Rptr. 50].) (4) Mere membership in a street gang is not a crime. (People v. Green (1991) 227 Cal. App.3d 692, 699-700 [278 Cal. Rptr. 140].)[2] (2b) Here, Detective Hearn testified Rodriguez and his companions were doing nothing suspicious when he approached them. Rather, he agreed that it was his department's policy to "stop individuals who [officers] believe may be involved in a gang and take the field identification information, in addition to a photograph, and then place that into police files for potential later use regardless of whether or not that individual is at that time involved in criminal activity...." While this policy may serve the laudable purpose of preventing crime, it is prohibited by the Fourth Amendment. (Brown v. Texas, supra, 443 U.S. at p. 52 [61 L.Ed.2d at p. 363].) (3b) The constitutionality of such a detention "involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." (Brown v. Texas, supra, 443 U.S. at pp. 50-51 [61 240 L.Ed.2d at p. 362].) (2c) Public concern and outrage over the crime and senseless violence caused by street gangs is understandably strong. And the effectiveness of the "gang book" identification procedure is verified by its success in this case. But the police policy before us constitutes too significant an intrusion on individual liberties to be justified by the public interest. "A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field." (Id. at p. 51 [61 L.Ed.2d at p. 362]. Cf. Michigan Dept. of State Police v. Sitz (1990) 496 U.S. 444 [110 L.Ed.2d 412, 110 S.Ct. 2481] [slight intrusion on motorists stopped briefly at sobriety checkpoints does not violate Fourth Amendment].) II (5a), (6a) Rodriguez argues the illegal detention requires suppression of the gang book photograph, the booking photograph, and all the identifications based on them as "`fruit of the poisonous tree.'" (Wong Sun v. United States (1963) 371 U.S. 471, 488 [9 L.Ed.2d 441, 455, 83 S.Ct. 407].) (7) But not all evidence is fruit of the poisonous tree "simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is `whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" (Ibid.) (5b), (6b) The prosecution argues any taint from the illegal detention was purged by Rodriguez's intervening criminal activity. In People v. Coe (1991) 228 Cal. App.3d 526 [279 Cal. Rptr. 362], the defendants in a burglary prosecution were identified by abandoned tools at the crime scene. The defendants moved to suppress the tools because they had been illegally seized by the police in a burglary prosecution several years before and had been marked and photographed by the police before being released to the defendants. The court held the suppression motion was properly denied because the defendants' commission of new crimes and abandonment of the tools were intervening independent acts attenuating any taint from the prior illegal search. (Id. at p. 535.) It pointed out "... there is no suggestion that the police illegally obtained the [earlier] warrant in order to mark the tools for future investigation." (Id. at p. 532, italics in original.) In People v. McInnis (1972) 6 Cal.3d 821 [100 Cal. Rptr. 618, 494 P.2d 690], the defendant was identified by means of a booking photograph taken as a result of an illegal arrest for an unrelated crime. The court held the 241 denial of defendant's motion to suppress the photograph was proper, observing that taking a booking photograph was "standard police procedure [citation], bearing no relationship to the purpose or validity of the arrest or detention." (Id. at p. 825.) It found the connection between the illegal arrest and the present crime was "`pure happenstance.'" (Ibid.) (5c) The situation here, however, is somewhat different than that in the preceding cases, at least with respect to the gang book photograph. That photograph was obtained deliberately for use in future criminal investigations, and the connection between it and the identification of Rodriguez was not happenstance. This is a clear example of "`exploitation of [the] illegality'" under Wong Sun v. United States, supra, 371 U.S. 471, 488 [9 L.Ed.2d 441, 455], and requires the suppression of the gang photograph. (6c) Both the identifications from the booking photographs by Sanchez, De Paz and Martinez and the in-court identifications by De Paz and Martinez, however, are admissible because they were based on the witnesses' independent recollections of the crime. (United States v. Crews (1980) 445 U.S. 463 [63 L.Ed.2d 537, 100 S.Ct. 1244]; People v. Teresinski (1982) 30 Cal.3d 822 [180 Cal. Rptr. 617, 640 P.2d 753].) Rodriguez's picture in the photo lineup was different from the one in the gang book and all three recognized it independently from the gang book photo. "It is clear from United States v. Crews that if the witness, relying upon his memory of the crime, is able to identify the defendant based upon his physical appearance, the testimony of the witness rests upon an adequate independent basis; the fact that the witness learned the defendant's name as a result of illegal police action is irrelevant." (People v. Teresinski, supra, 30 Cal.3d at p. 834.) III (8) Rodriguez next claims the trial court erroneously imposed the aggravated term of five years for gun use. Penal Code section 12022.5, subdivision (a) provides for a sentence enhancement of three, four or five years for personal use of a firearm in the commission of a felony. The court must impose a four-year enhancement in the absence of aggravating or mitigating factors and must state its reasons for the choice of enhancement on the record at the time of sentencing. The trial court here imposed a five-year term, stating, "This is an aggravated allegation. This is a [section] 12022.5.... [T]he gun misfired and you had to re-rack." "The essence of `aggravation' relates to the effect of a particular fact in making the offense distinctively worse than the ordinary." (People v. Moreno (1982) 128 Cal. App.3d 103, 110 [179 Cal. Rptr. 879].) We fail to see how Rodriguez's act of "reracking" his pistol to correct a misfire makes his use of a firearm worse than the ordinary. It clearly demonstrates that the *242 shooting was intentional and not accidental, thus justifying the verdict of second degree murder. But the act was nothing more than preparatory to carrying out the intent to shoot, not an aggravating factor. On remand, the trial court should carefully review the record for specific aggravating factors, if they exist. (See People v. Price (1984) 151 Cal. App.3d 803, 813-815 [199 Cal. Rptr. 99].) IV (9) The remainder of Rodriguez's contentions can be disposed of summarily. He argues the testimony of Angela Jackson, his girlfriend, and all physical evidence retrieved from her house should be suppressed as fruits of the illegal detention. We need not address this contention, however, because Rodriguez did not move to suppress this evidence in the trial court and the issue has been waived. (People v. Miranda (1987) 44 Cal.3d 57, 80-81 [241 Cal. Rptr. 594, 744 P.2d 1127]; People v. Gonzales (1991) 233 Cal. App.3d 1428, 1432 [285 Cal. Rptr. 218].) However, Rodriguez's assertion that the abstract of judgment does not accurately reflect the presentence credits awarded by the trial court is correct and is conceded by the Attorney General. The record reflects Rodriguez was awarded 753 days, but the abstract says 723 days. Accordingly, the abstract must be corrected.[3] The judgment is affirmed and the matter is remanded to the trial court for resentencing and correction of the abstract of judgment. Sonenshine, J., and Crosby, J., concurred. A petition for a rehearing was denied December 21, 1993, and appellant's petitions for review by the Supreme Court were denied March 3, 1994. NOTES [1] At the time of trial, Sanchez had joined a gang and admitted he would "be a rat" if he pointed out the shooter in the courtroom. [2] Penal Code section 186.22, subdivision (a) punishes as a separate crime "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang...." Although the officers here arguably had reason to suspect Rodriguez and his companions were street gang members, the statute carefully avoids punishing mere membership. "By using the phrase `actively participates,' the California Legislature evidently sought to prevent prosecution of persons who were no more than nominal or inactive members of a criminal street gang.... To be convicted of being an active participant in a street gang, a defendant must have a relationship with a criminal street gang which is (1) more than nominal, passive, inactive or purely technical, and (2) the person must devote all, or a substantial part of his time and efforts to the criminal street gang." (People v. Green, supra, 227 Cal. App.3d at p. 700.) The officers here do not claim, nor does the prosecution assert, that they had reason to suspect more than mere membership in the South Side F-Troop gang. [3] We granted Rodriguez's request, made after oral argument, to file a supplemental brief challenging CALJIC No. 2.90, the standard reasonable doubt instruction, in light of the United States Supreme Court's grant of certiorari in People v. Sandoval (1992) 4 Cal.4th 155 [14 Cal. Rptr.2d 342, 841 P.2d 862], certiorari granted September 28, 1993, ___ U.S. ___ [125 L.Ed.2d 789, 114 S.Ct. 40] (Dock. No. 92-9049) and Nebraska v. Victor (1993) 242 Neb. 306 [494 N.W.2d 565], certiorari granted September 28, 1993, ___ U.S. ___ [125 L.Ed.2d 788, 114 S.Ct. 39] (Dock. No. 92-8894). The California Supreme Court has consistently upheld the instruction's language, derived from Penal Code section 1096 (People v. Jennings (1991) 53 Cal.3d 334, 385 [279 Cal. Rptr. 780, 807 P.2d 1009], cert. den. ___ U.S. ___ [116 L.Ed.2d 462, 112 S.Ct. 443]; People v. Smith (1992) 9 Cal. App.4th 196, 202 [11 Cal. Rptr.2d 645]), and we are bound by those decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal. Rptr. 321, 369 P.2d 937]; People v. Smith, supra, 9 Cal. App.4th at p. 202.) Accordingly, we summarily reject Rodriguez's constitutional challenge to CALJIC No. 2.90. It will be preserved if he wishes to pursue the issue further.	{ "pile_set_name": "FreeLaw" }
158 F.Supp. 796 (1958) The NEBRASKA-IOWA BRIDGE CORPORATION, Plaintiff, v. UNITED STATES of America, Defendant. Civ. A. No. 0444. United States District Court D. Nebraska. January 21, 1958. Clayton Byam of Webb, Kelley, Green & Byam, Omaha, Neb., for plaintiff. Robert H. Berkshire, Asst. U. S. Atty., Omaha, Neb., for defendant. ROBINSON, Chief Judge. This is an action by a corporate taxpayer for the recovery of federal income and excess profits taxes alleged to have been erroneously or illegally assessed and collected. The complaint was filed in this district pursuant to Section 1346(a) (1), Title 28 U.S.C. The present matter is a motion to dismiss on the ground of improper venue. The Government relies upon Section 1402(a) of the Judicial Code, which provides that any civil action against the United States under subsection (a) of Section 1346 may be prosecuted only in the judicial district where the plaintiff resides. The pleadings reveal that the plaintiff is a corporation organized under the laws of the State of Delaware. Citing the familiar line of cases commencing with Shaw v. Quincy Mining Co., 145 U.S. 444, 12 S.Ct. 935, 36 L.Ed. 768, to the effect that, for venue purposes, a corporation is a resident only of the state wherein it was incorporated, the government contends that the plaintiff has chosen the wrong forum for a hearing and, if it is to be heard at all, the suit must originate in the district court of Delaware. The plaintiff counters, however, with the proposition that Section 1391 (c) of the Code, adopted after these cases arose, has altered the venue rule generally with respect to corporations. This section reads: "A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes." 797 There is no doubt that Section 1391(c) has altered the ruling in Shaw v. Quincy Mining Co. et sequentes to the extent that in an action against a corporation, any district in which it is incorporated or licensed to do business or doing business will be regarded as its residence for venue purposes. But it remains to be determined authoritatively whether this subsection has sufficiently broadened the concept of residence for venue purposes to permit a foreign corporation to bring an action in a district in which it is licensed to do or is doing businessthat is to say, in a district other than that in which it is incorporated. Thus far district courts alone have recorded their judgment on this question, and a review of the cases reveals a distinct conflict. The District Courts of Ohio and Texas and one judge of the Eastern District of Pennsylvania have followed the holding of the District Court for the Southern District of New York, which considered that the clause "and such judicial district shall be regarded as the residence of such corporation for venue purposes" applies whether the corporation is a plaintiff or a defendant. Freiday v. Cowdin, D.C.N.Y.1949, 83 F.Supp. 516; Southern Paperboard Corp. v. U. S., D.C.N.Y.1955, 127 F.Supp. 649; Hadden v. Barrow, Wade, Guthrie & Co., D.C.Ohio 1952, 105 F.Supp. 530; Standard Ins. Co. v. Isbell, D.C.Tex.1956, 143 F.Supp. 910; and Eastern Motor Exp. v. Espenshade, D.C.Pa.1956, 138 F.Supp. 426. But the District Courts for the Southern District of Iowa, Middle District of Georgia, and the Middle District of Tennessee, and one judge of the Eastern District of Pennsylvania have refused to follow the New York holding, ruling instead that a corporate plaintiff is not regarded as a resident for venue purposes of every district in which it is licensed to do business or is doing business. Chicago & N. W. Ry. Co. v. Davenport, D.C.Iowa 1950, 94 F.Supp. 83; United Merchants & Manufacturers, Inc, v. U. S., D.C.Ga.1954, 123 F.Supp. 435; Albright & Friel, Inc., of Del. v. U. S., D.C.Pa.1956, 142 F.Supp. 607; and United Transit Co. v. U. S., D.C.Tenn.1957, 158 F.Supp. 856. The observation is inescapable that both parties have presented substantial and persuasive arguments, whose respective merits are exceedingly close or evenly balanced at many points. We have concluded, however, from a careful reading of all the cases, that this court should follow the Chicago & N. W. Ry. Co. line of cases, which denies that venue is proper in this district. We take it that the principal logic of the contrary position lies in a failure to account for the presence of the clause "and such judicial district shall be regarded as the residence of such corporation for venue purposes" (emphasis supplied) in any more adequate a manner. When read as a whole, however, the subsection can readily be understood to restrict itself to the venue of a corporation being sued, anomalous a situation as that is. But in an effort to surmount this difficult situation, it is questionable whether the plaintiff can properly ignore the italicized words. Simply as a matter of syntax, the words "and such corporation" must refer to the first part of the subsection, that is, to "the corporation (which) is being sued". Cf., Albright & Friel, Inc. of Del. v. U. S., supra, 142 F.Supp. at page 608. This clause, then, is not autonomous, although it is hardly wise for this reason to say that it is redundant. We simply say that the subsection cannot be dissected in order to achieve the plaintiff's purposes, and, when taken as a whole, the proposed construction cannot be borne out. The intendment of the statute may possibly have been merely to avoid the seemingly incongruous situation of residence by a corporate defendant for jurisdictional, but not for venue, purposes. Suttle v. Reich Bros. Construction Co., 333 U.S. 163, 68 S.Ct. 587, 92 L.Ed. 614. We are mindful of the genuine inconvenience our ruling will cause the plaintiff. The practicalities of the situation strongly suggest that the case should be 798 held for trial in this district. The plaintiff's principal-indeed, only-place of business is in Nebraska. The management of the corporation, including all of those who would be called upon to testify, reside here. The accountant who audits the books and prepares the returns has his office here. The taxes which are the subject of this suit were paid here. The claims for refund were processed through the office of the District Director in Omaha. By all logic the place where the plaintiff is required by law to file its returns and pay its taxes should also be the place where it ought to commence its suit for a refund of those taxes, should it be established that they were erroneously or illegally paid. It is only sensible that residence for taxation and venue purposes should coincide; or, more specifically, be in the District in which the plaintiff has its principal place of business. Nevertheless, this is not the rule, and at the present the government has a defense of improper venue, irrespective of the consideration that by so asserting it, the government will effect nothing but an inconvenience to the plaintiff, with no apparent advantage to itself. Even the element of deterrence is precluded by the dimensions of the case. Thus, lightly as the defense of venue can be waived, Neirbo Co. v. Bethlehem Shipbuilding Corporation, 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R. 1437, once it has been timely asserted, no defense commands a greater respect, Suttle v. Reich Bros. Construction Co. supra. Therefore, the government's motion will be sustained. We feel obliged, nevertheless, by reason of the mitigating circumstances reviewed above, to lighten the plaintiff's burden to the extent we can. If the plaintiff should prefer a transfer rather than a dismissal, we will order, in the interests of justice, a change of venue pursuant to Section 1404(a) to the United States District Court for the District of Delaware. In such a case, counsel for the plaintiff should prepare and submit a suitable order within 10 days. Otherwise, counsel should promptly advise the United States Attorney or his assistant, who, within 10 days thereafter, should submit an order of dismissal. Motion to dismiss sustained with direction.	{ "pile_set_name": "FreeLaw" }
750 S.W.2d 817 (1988) Antonio HOLGUIN, Individually and d/b/a Holguin Enterprises, Appellant, v. TWIN CITIES SERVICES, INC., Appellee. No. 08-87-00269-CV. Court of Appeals of Texas, El Paso. March 23, 1988. 818 Jerry Severson, El Paso, for appellant. Jeffrey B. Thompson, Thompson, Anderson & Wyrick, P.C., El Paso, for appellee. Before OSBORN, C.J., and SCHULTE and FULLER, JJ. OPINION SCHULTE, Justice. This is a summary judgment case concerning delivery of freight pursuant to a contract. The trial court found the contract was illusory and not enforceable. We reverse and remand for trial. The contract was entered into on December 28, 1983. Almost eight months later, Appellee presented the following addendum to the contractor for signature: Contractor expressly agrees not to operate within 75 miles as the crow flies from El Paso International Airport for any Cartage Company or Air Freight Forwarder. Contractor also agrees not to contract to or work for any company in competition with Twin Cities or Burlington Northern for a period of twelve months in either air freight or pick up and delivery. When the contractor declined to alter a contract already in operation for over seven months, Appellee refused to provide Appellant with any further freight deliveries and unilaterally terminated the agreement. The original contract, which Appellee says was not binding on it, is some nine legal pages in length and extends for a term of three years beginning December 28, 1983. Appellee's name is part of the printed form and "Holguin Enterprises" is handwritten into the blank. Under its provisions, "[t]he areas to be covered will be dictated by dispatch, either by phone or by radio to best facilitate the use of Contractor's vehicles." Under the agreement, among other things, the contractor was required to paint his vehicles white and place Burlington Northern decals thereon. Uniforms furnished by Appellee were to be worn by the contractor's driver or drivers and the contractor was required to have vehicles and drivers available Monday through Saturday with one available and on call Sundays and holidays. Since there was no set amount of freight to be provided nor specificity regarding frequency or area other than that "dictated by dispatch," Appellee insists that the contract was illusory. Appellant responds the agreement was a mutually binding obligation. It appears to us that the controlling question is one of construction, that is, does the contract imply an obligation on Appellee's part to present freight to Appellant for cartage, or does the contract, as Appellee contends, amount to no more than an obligation on Appellee's part to pay Appellant at the specified rates for such freight as should in fact be presented to Appellant and actually be transported. In an early Texas case, the court considered mutuality of obligation. And although in that case there existed a definitive "all" that is lacking here, the principle remains the same. The court said in part, "[t]he contract at least imported obligation on appellant's part not to give to another during its continuance the right that must have been contemplated by both parties thereto at the time of its execution." Chicago R.I. & G. Ry. Co. v. Martin, 163 S.W. 819 313 (Tex.Civ.App.-Fort Worth 1913, writ ref'd). In a later instance where a utility company had contracted to deliver natural gas but the utility assumed no obligation regarding the quantity or quality, the Supreme Court reversed the civil appeals court's holding that the contract was unenforceable for lack of mutuality of obligation. Justice Steakley, writing for the Court and citing from Texas Farm Bureau Cotton Ass'n v. Stovall, 113 Tex. 273, 253 S.W. 1101 (1923), wrote: "Reduced to its last analysis, the rule is simply that a contract must be based upon a valid consideration, and that a contract in which there is no consideration moving from one party, or no obligation upon him, lacks mutuality, is unilateral, and unenforceable. * * * It is quite elementary that the promise of one party is a valid consideration for the promise of the other party." Texas Gas Utilities Company v. Barrett, 460 S.W.2d 409 (Tex.1970). That Court went on to say that it is presumed that when parties make an agreement they intend it to be effectual, not nugatory; and the contract will be construed in favor of mutuality; and that the modern decisional tendency is against lending the aid of courts to defeat contracts on technical grounds of want of mutuality. As in Texas Gas Utilities Company, it appears to us that the agreement in question here is a binding and enforceable contract embodying "an exchange of obligations of value to each contracting party, reciprocally or mutually induced." Texas Gas Utilities Company, 460 S.W.2d at 413. To illustrate that exchange of values, let us further examine the contract. Not only was Holguin Enterprises required by the company to paint its truck or trucks white, affix the identifying decals, have drivers dress in the company uniform, and be on call seven days a week for three years, but also the enterprise was to provide transfer promptly, maintain uniforms, promote the company's business, collect all money on direct shipments, extend credit of the company when authorized or incur liability therefor if not so authorized, carry and pay for a portion of cargo insurance, insure the company's radios installed in its vehicles, guard trade secrets, agree not to compete within twenty-five miles for twenty-four months after the contract terminated, pay all expenses in carrying out its obligations to the company, to generally indemnify the company, carry $300,000.00 liability insurance, and pay all taxes and penalties incurred. Also, the company's form contract not only provided that it constituted the full agreement between the company and the Holguin Enterprise but, in fact, stipulated and acknowledged that the contract was deemed to be to the "mutual advantage" of the company (Appellee). Appellant agreed, as well, not to undertake any other freight cartage services other than for Appellee during the term of the contract, absent Appellee's written consent to the contrary. The case which seems most clearly in point and sets forth the rule is Hamilton v. Herrin Transportation Company, 343 S.W.2d 300 (Tex.Civ.App.-Waco 1960, writ ref'd n.r.e.). Hamilton agreed to pick up and deliver freight in Waco. The court stated, "[w]here one person obligates himself to perform services for another as here, an obligation on the part of the other party to supply the subject matter of the contract will be implied." Id. at 303. To conclude, we respond to our initial question. We have determined that the contract before us implies an obligation on Appellee's part to provide the subject matter. There is ample valid consideration as contemplated by Texas Gas Utilities Company; there is clearly an obligation on Appellee's part under Chicago, R.I. & G. Ry. Co. not to bargain to another the right it had already bargained to Appellant. And, the Chicago standard should offer some guidance to the trial court in arriving at a proper charge on damages. We can identify with the trial court's concern in that regard. Accordingly, Appellant's sole point is sustained and we will reverse and remand. In view of our reversal and remand, we sustain Appellee's cross-point and reverse *820 the entire judgment including so much thereof as denies Appellee's counterclaim and third-party petition and remand the entire case for trial on the merits.	{ "pile_set_name": "FreeLaw" }
[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT AUGUST 11, 2005 No. 05-10372 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 03-01699-CV-T-26-EAJ BRIAN A. JERONIMUS, Plaintiff-Appellant, versus POLK COUNTY OPPORTUNITY COUNCIL, INC., LOTTIE S. TUCKER, Defendants-Appellees. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (August 11, 2005) Before CARNES, HULL and MARCUS, Circuit Judges. PER CURIAM: Brian A. Jeronimus, a white male, appeals the district court's order granting summary judgment in favor of defendants Polk County Opportunity Council (“PCOC”) and Lottie Tucker (“Tucker”) on his claims of race and sex discrimination and retaliation in violation of Title VII, the Florida Civil Rights Act (“FCRA”), and 42 U.S.C. § 1981. After review, we affirm. I. BACKGROUND PCOC is a non-profit agency that provides social and economic services to assist low-income families, children, seniors, and persons with disabilities. On February 7, 2000, PCOC hired Jeronimus as its Director of Finance. In this position, Jeronimus was responsible for overseeing all of PCOC's financial matters, including PCOC’s administration of the federal Head Start and Community Service Block Grant (“CSBG”) programs. Lottie Tucker, PCOC’s Executive Director, interviewed and recommended Jeronimus for employment because of his experience in non-profit agency financial management, specifically Head Start funding.1 A. Jeronimus’s Performance Deficiencies 1. Memos Addressing Performance Concerns On April 5, 2000, shortly after Jeronimus began his employment, Tucker 1 Head Start is an early childhood education program for three and four year-old children, after which, the children are prepared to begin kindergarten. 2 expressed concerns about the way in which he interacted with another PCOC employee. In a memo to his personnel file, Tucker recounted her efforts to resolve a conflict between Jeronimus and Elaine Dustin, a woman who was then Jeronimus’s accounting supervisor. In her August, 2000 evaluation of Jeronimus, Tucker indicated that Jeronimus met or exceeded expectations in all categories, but noted that he should work on his communication skills. On March 21, 2001, Tucker sent Jeronimus a memo expressing her concerns over several financial matters. Specifically, Tucker noted a transfer of agency funds between unrelated accounts, the failure to report to her the existence of a cash flow problem, the failure to complete correctly a line of credit application, and the delegation of research work to PCOC’s outside accounting firm. Tucker ended the letter emphasizing that “[t]hese are serious concerns, which need to be handled expeditiously.” In a May 16, 2001 memo to Jeronimus, Tucker expressed her concerns over his management of staff members. Specifically, she addressed an instance of intimidation by Jeronimus toward his staff members after they complained about him and the delegation of tasks that he should be handling. Tucker also noted that Jeronimus failed to complete properly a PCOC report. In her December, 2001 performance evaluation of Jeronimus, though, Tucker again indicated that 3 Jeronimus met or exceeded expectations in all categories; however, she also noted “[n]ot enough staff supervision. . . . [d]oes not get reports completed in a timely manner . . . [a]ttend required meetings on time [or] . . . [k]eep his staff informed.” On December 7, 2001, Tucker sent Jeronimus a memo, outlining five concerns which needed to be discussed. Specifically, Tucker noted: (1) that financial reports were consistently prepared late; (2) that Jeronimus was consistently late for meetings; (3) that monthly departmental meetings were not being held despite Tucker’s request; (4) that Jeronimus’s staff felt that important decisions were being improperly delegated from him to them; and (5) that Jeronimus reportedly had been borrowing money from staff members. 2. Written Warnings On January 2, 2002, Tucker sent Jeronimus a warning letter. In that letter, Tucker noted that Jeronimus turned in a report to a PCOC auditor with incorrect figures, blamed the error on a subordinate, and left the auditor alone in the building without informing the auditor that he was leaving for the day. In addition, Tucker noted a specific instance in which Jeronimus was not following the Head Start administrative accounting guidelines properly. Tucker concluded by adding that “incorrect figures and bad audits could cost this agency grant funds and I do not plan to let that happen. If this should occur again, you leave me no alternative but 4 to place you on suspension without compensation.” On May 13, 2002, Tucker sent a Jeronimus written warning expressing her concerns about his general preparedness. Tucker noted that Jeronimus had failed to come prepared to a meeting with a PCOC auditor. In addition, Tucker indicated that he had been untimely in submitting reports to the PCOC Finance Committee, Policy Council, and Board of Directors. Tucker concluded by adding, “I will not allow you to put this agency at risk by your lack of preparation. This is your second warning. If you do not have a satisfactory explanation, you will be placed on three (3) day suspension.” 3. Financial Mismanagement To ameliorate a cash flow problems in the CSBG program, Jeronimus improperly let the CSBG account borrow from the Head Start account.2 In addition, he floated checks from the Head Start account while there were insufficient funds to make payment. On July 24, 2002, Tucker received notice from the bank that a PCOC check in the amount of $16,489.00 had been returned for insufficient funds. The following day, Tucker sent a written warning to Jeronimus indicating that deliberately issuing bad checks is not acceptable and 2 The CSBG program uses a different budget than the Head Start program. CSBG funds are provided by the federal government but dispersed through the Florida Department of Community Affairs (“FDCA”). 5 noting that Jeronimus had “neglected to inform [Tucker] that [he was] mailing out checks with insufficient funds.” In addition, Tucker noted that Jeronimus was not keeping in touch with staff and ordered him to have weekly staff meetings. Tucker concluded by adding that “this is the second warning that I have had to issue to you. The next step is a five-day suspension without pay.” The following day, July 26, Jeronimus sent an email to Tucker and Donna Etzel, PCOC’s human resources director, complaining that he was being “unjustly singled out for circumstances beyond [his] control,” that Tucker “was conducting a campaign of harassment,” and adding that “[t]his is a truly hostile environment. . .” After sending it, Jeronimus reconsidered because the email contained harsh language. He then went downstairs to Etzel’s office, and asked that she delete it, which she did. Tucker promptly launched an investigation into the practices within the finance department. Tucker discovered that in the months of May through July 2002, Jeronimus had, without notifying Tucker, issued 47 checks – totaling more than $50,000 – with insufficient funds, creating overdrafts in PCOC’s account.3 On July 31, 2002, Jeronimus met with Tucker and informed her that, in addition to floating checks, he had been using Head Start funds to address PCOC’s cash flow 3 Reviewing the August, 2002 bank statement, Tucker discovered that Jeronimus had issued an additional 24 checks without sufficient funds. 6 problems. Tucker then sent Jeronimus a letter informing him that Head Start funds may not be used to fund other programs,4 that PCOC’s auditor would be on site to see whether there were problems with how Head Start had been administered, and that he would be suspended without pay during the pendency of the investigation. The auditors produced a written report on August 6, 2002. In it, they found that for the period of May through July 2002, there were three instances in which Head Start funds had been improperly used for purposes not related to Head Start. Over that same period, the auditors found 72 instances (in an amount of $88,953.85 plus $1,334.00 in overdraft fees) of checks being drawn without sufficient funds to cover them. B. Jeronimus’s Termination By letter dated August 13, 2002, Tucker informed Jeronimus that the auditors had reviewed the agency records, and that he was being terminated based on the information they had discovered. After his termination, Jeronimus wrote an email, which he sent to the white members of the PCOC Board, complaining of his termination. His email explained how he was not responsible for the underlying cash flow crisis which precipitated his termination. Following Jeronimus’s termination, the vacant Director of Finance position was advertised in a local 4 Borrowing from Head Start funds to meet other financial obligations is forbidden by regulation. 7 newspaper and filled by Craig Fetherman, a white male. C. Allegations of Differential Treatment As discussed later, Jeronimus contends that Tucker supervised and treated Gail Wiggs (“Wiggs”), the PCOC Head Start Director, and Lela Wooten (“Wooten”), a Senior Program Resource Coordinator, more favorably because they are black and female.5 Thus, we review the facts regarding Wiggs and Wooten. As Head Start Director, Wiggs was responsible for having additional children enrolled in the Head Start program. Head Start sent a letter to PCOC indicating that funding was available to expand enrollment by an additional 68 children. Wiggs was responsible for getting additional children enrolled and Jeronimus was responsible for implementing the financial aspects of the expansion. Although Jeronimus completed his duties with respect to the expansion, Wiggs did not. Jeronimus reported Wiggs’s failure to the PCOC Board of Directors every month for eight months. In addition, Tucker visited some of the sites and had 5 Jeronimus also suggests that there was an environment of racial discriminatory animus at PCOC. Jeronimus notes two statements by Tucker (his superior), and two statements by Wooten (a colleague). During a meeting with an insurance carrier, Tucker asked the rhetorical question, “why is it that the good guys wear white and the bad guys wear black?” A second incident coincided with a training that Jeronimus was giving, in which Tucker told Jeronimus that he “better be training the black people in this room too or it’s not – it’s going to look like you’re only taking care of the nonblacks.” After two presentations given by white males who worked for outside vendors, Jeronimus heard Wooten say “white boy” with a smirk on her face, which Jeronimus took to mean “What does he know? He’s a white boy.” After the second presentation, Jeronimus mentioned the “white boy” comment in passing to Etzel because he thought it was “odd.” 8 concerns that some of the children might not be prepared for kindergarten. For these reasons, in the fall of 2002, Tucker urged Wiggs to step down as Head Start Director. Wiggs stepped down and took the position of Assistant Head Start Director. Gail Wooten (“Wooten”) was responsible for, among other things, preparing grant applications to secure funding for the CSBG program. On February 23, 2001, Hilda Frazier, FDCA Planning Manager, wrote to PCOC and stated that FDCA could pay 100% of the contract allocation and incorporate any carryover from the previous fiscal year into the next contract. The funding, however, would not be released until appropriate modification documentation was submitted by PCOC and approved by the FDCA. The following year, on March 27, 2002, PCOC received a letter from FDCA indicating that the modification documentation had not been received and that the documentation must be submitted “as soon as possible to avoid delays in processing [PCOC’s] request for payment.” The modification documentation was submitted on May 6, 2002, and the FDCA funds did not become available until the end of June, 2002. According to Jeronimus, the delays in receiving FDCA funds caused a cash shortage in the CSBG program. Jeronimus also notes that by failing to satisfy several conditions of a Teen Outreach grant award, Wooten caused PCOC to incur a ten percent monthly 9 holdback penalty, resulting in a total loss of $5,000 to PCOC. D. Proceedings Before the District Court On August 12, 2003, Jeronimus filed the instant complaint alleging race and sex discrimination and retaliation by PCOC and Tucker in violation of Title VII, the FCRA, and 42 U.S.C. § 1981. The defendants moved for summary judgment, which the district court granted on January 11, 2005.6 The district court concluded that Jeronimus did not establish a prima facie case of race or sex discrimination because he failed to show that any similarly- situated employees outside his protected class were treated more favorably than he was. Even if Jeronimus had established a prima facie case, the district court concluded that his claim nonetheless failed because the undisputed facts demonstrated that he had been terminated for legitimate, nondiscriminatory, nonpretextual reasons. The district court also concluded that Jeronimus’s retaliation claim failed because he had not engaged in protected activity, and that in any event, he did not show a causal connection between the ostensibly protected activity and his termination. Jeronimus timely appeals. 6 This Court reviews a district court’s grant of summary judgment de novo, applying the same standards as the district court. Harris v. H & W Contracting Co., 102 F.3d 516, 518 (11th Cir. 1996). “Summary judgment is appropriate if the record shows no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. When deciding whether summary judgment is appropriate, all evidence and reasonable factual inferences drawn therefrom are reviewed in a light most favorable to the non-moving party.” Witter v. Delta Air Lines, Inc., 138 F.3d 1366, 1369 (11th Cir. 1998) (quotation marks and citation omitted). 10 II. DISCUSSION A. The Discrimination Claims Title VII provides that: It shall be an unlawful employment practice for an employer. . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. . . . 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of race or sex discrimination by circumstantial evidence,7 a plaintiff must show that: (1) he is a member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) he was replaced by a person outside the protected class, or was treated less favorably than a similarly situated person outside the protected class. Maynard v. Bd. of Regents of the Univs. of Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003). A similarly situated person is one that has engaged in similar misconduct. Anderson v. WBMG-42, 253 F.3d 561, 564 (11th Cir. 2001). If the plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory business reason for the employment action at issue. Silvera v. Orange County Sch. Bd., 244 F.3d 7 Jeronimus concedes that he is not making a claim of discrimination or retaliation on the basis of direct evidence. 11 1253, 1258 (11th Cir. 2001). If the defendant offers a legitimate, nondiscriminatory reason for the adverse employment action, the burden shifts back to the plaintiff to demonstrate why the proffered reason is a pretext for race or sex discrimination. Id. To prove that a legitimate, nondiscriminatory reason for the adverse employment action is a pretext for race or sex discrimination, a plaintiff must show either “that a discriminatory reason more likely motivated the employer or. . . that the employer's proffered explanation is unworthy of credence.” Tex. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095 (1981); see also Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996). Courts “are not in the business of adjudging whether employment decisions are prudent or fair. Instead, our sole concern is whether unlawful discriminatory animus motivates a challenged employment decision.” Damon v. Fleming Supermarkets, 196 F.3d 1354, 1361 (11th Cir. 1999). We first agree with the district court that Wiggs and Wooten were not similarly situated to Jeronimus because their performance issues were not as serious as Jeronimus’s performance issues. Wiggs and Wooten, like Jeronimus, reported to Tucker. Wiggs’s conduct involved (1) a delay in expanding the Head Start program to enroll an additional sixty-eight children and (2) operation of some sites in a manner that, in the eyes of Tucker, may have been insufficient to prepare 12 the children-beneficiaries for kindergarten. Wooten’s conduct involved (1) a delay in submitting modification documentation to the FDCA in a manner that would enable the CSBG program to have sufficient funds timely and (2) incurring a cost of $5,000 to PCOC in the Teen Outreach Grant. Jeronimus’s conduct was substantially different and more serious than the conduct of either Wiggs or Wooten. From early in his employment, Tucker expressed concerns that Jeronimus was unable or unwilling to get along with coworkers, that his management was too hands-off, that his reports were consistently not being prepared in a timely manner, and that he was not competently managing PCOC’s finances. These concerns were memorialized in numerous letters and memoranda from Tucker to Jeronimus and in strong and unequivocal language. Ultimately, what led to his termination was the discovery that Jeronimus was violating agency regulations by inappropriately using Head Start funds for other underfunded programs and diminishing PCOC’s standing with creditors by floating checks without sufficient funds. Because Jeronimus’s conduct was substantially different and more serious than the conduct of Wiggs or Wooten, they cannot be said to have engaged in similar conduct.8 Accordingly, the 8 Jeronimus also compares the treatment he received to that of Charlotta Saab, a black female, former assistant director at PCOC whom Tucker terminated. Jeronimus contends that he was treated differently because Saab was terminated only after face-to-face counseling and because she was permitted to appeal to the PCOC Board of Directors while he was permitted to 13 district court did not err in concluding that Jeronimus failed to establish a prima facie case of race or sex discrimination and in entering summary judgment in favor of the defendants on his discrimination claims.9 Jeronimus also contends that his treatment compared to that of black female employees, combined with the comments that Tucker and Wooten made, show that the reasons for his termination were pretextual.10 Because Jeronimus has failed to establish a prima facie case of discrimination, there is no need to reach the issue of prextext. However, the district court did address pretext, and it is clear that given Jeronimus’s admission that the performance-related issues Tucker addressed in her correspondence to him were legitimate concerns, he cannot show that there reasons for his termination were pretextual in any event. B. The Retaliation Claims appeal to a personnel committee. We find no merit in this contention. Both employees were terminated, and neither were reinstated through the appeal procedure. 9 Because the FCRA is patterned after Title VII, the district court also properly entered summary judgment on Jeronimus’s FCRA claims. See Harper v. Blockbuster Entertain. Corp., 139 F.3d 1385, 1387 (11th Cir. 1998). Additionally, because Title VII and § 1981 “have the same requirements of proof and use the same analytical framework,” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998), the district court properly entered summary judgment on Jeronimus’s race discrimination claim under § 1981. Although the district court did not specifically mention § 1981, because the § 1981 claim is reviewed under the same framework as Title VII, any error which might exist in the failure to reference § 1981 is harmless. 10 Although Wooten was not a decisionmaker in the decision to terminate Jeronimus, her remarks, “may provide circumstantial evidence to support an inference of discrimination.” Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1291-92 (11th Cir. 1998). 14 Title VII provides that: It shall be an unlawful employment practice for an employer to discriminate against any of his employees. . . because [the employee] has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title. 42 U.S.C. § 2000e-3(a). In order to establish a prima facie case of retaliation, a plaintiff must show that: “(1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) there was a causal link between the protected activity and the adverse employment action.” Bass v. Bd. of County Comm’rs, 256 F.3d 1095, 1117 (11th Cir. 2001) (citation omitted). The only actions which could conceivably qualify as protected activity were Jeronimus’s casual mention to Etzel of Wooten’s “white boy” comment and the email that he sent to Etzel complaining that he was being unjustly singled out. All indications, including Jeronimus’s contemporaneous reaction, are that the “white boy” comments were isolated, ephemeral, and ambiguous. And in the email, while Jeronimus complained of being “singled out,” being subjected to “a campaign of harassment,” and working in a “hostile environment,” he never suggested that this treatment was in any way related to his race or sex. Even assuming that Etzel had the opportunity to read the entire email before she deleted it, this email did not amount to protected conduct. And even if the email did qualify as protected conduct, we agree with the 15 district court that Jeronimus made no showing of a causal connection between the email (or the comment in passing to Etzel) and his termination. III. CONCLUSION For all of the above reasons, this Court affirms the district court’s entry of summary judgment in favor of the defendants on all of Jeronimus’s claims. AFFIRMED. 16	{ "pile_set_name": "FreeLaw" }
755 N.W.2d 655 (2008) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond Harold VLIET, Defendant-Appellant. Docket No. 135500. COA No. 278197. Supreme Court of Michigan. September 22, 2008. On order of the Court, the motion for reconsideration of this Court's June 23, 2008 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously.	{ "pile_set_name": "FreeLaw" }
99 P.3d 895 (2004) 152 Wash.2d 1006-1012 IN RE MARRIAGE OF SMITH No. 75027-1 Supreme Court of Washington, Department II September 9, 2004. Disposition of petition for review denied.	{ "pile_set_name": "FreeLaw" }
753 F.2d 1079 Englewood Community Apartmentsv.Cinman 83-1685 United States Court of Appeals,Seventh Circuit. 1/31/85 1 N.D.Ill. APPEAL DISMISSED AND REMANDED	{ "pile_set_name": "FreeLaw" }
349 F.Supp. 1104 (1972) Bernard W. CROCKETT v. CITIZENS AND SOUTHERN FINANCIAL CORPORATION and Federal Deposit Insurance Corporation. Civ. A. No. 16667. United States District Court, N. D. Georgia, Atlanta Division. September 28, 1972. *1105 Bernard W. Crockett, pro se. Alston, Miller & Gaines, Atlanta, Ga., for C & S Financial Corp. Hansell, Post, Brandon & Dorsey, Atlanta, Ga., for FDIC, and Myers N. Fisher, counsel, FDIC, Washington, D. C., also for FDIC. ORDER EDENFIELD, District Judge. Plaintiff alleges in his pro se action that defendant Citizens and Southern Financial Corporation (hereinafter "Citizens & Southern") wrongfully converted his automobile when it refused to accept a tendered installment payment and retained possession of the car. Plaintiff alleges that defendant Federal Deposit Insurance Corporation (hereinafter "FDIC") is liable for actual and punitive damages occasioned by the "hold" placed on plaintiff's checking account by the Citizens and Southern National Bank, which action was tantamount to allowing defendant Citizens & Southern to embezzle plaintiff's funds. The case is before the court on defendants' respective motions to dismiss and plaintiff's motion to add defendants. Plaintiff's action against the FDIC must be dismissed for failure to state a claim upon which relief can be granted. Under 12 U.S.C.A. § 1821 (f) no claim for payment of insured deposits may be made unless the bank in question has been closed for insolvency. Jones v. Citizens & Southern National Bank of South Carolina, 262 F.Supp. 506 (D.C.S.C.1967). Defendant FDIC has submitted the affidavit of Mr. Gordon B. Trulock, Assistant to the President of the Citizens and Southern National Bank, which attests that the bank is not insolvent but is a going concern, fully capable and ready to meet the demands of its depositors. The court takes judicial notice that the bank's doors are open and finds that it is solvent. If plaintiff's complaint is construed as alleging an action in tort for which the FDIC is alleged to be liable, the complaint must still be dismissed as the Federal Tort Claims Act specifically disallows any action in tort against a federal agency. See Freeling v. F.D.I.C., 221 F.Supp. 955 (W.D.Okla.1962), aff'd. 326 F.2d 971 (10th Cir. 1963). The proper action for redress of the tortious conduct of federal employees acting in their official capacity is a suit against the United States pursuant to 28 U.S. C.A. § 1346(b). It should be noted, however, that under 28 U.S.C.A. § 2674 the United States is not liable for punitive damages. Plaintiff's action against Citizens & Southern must be dismissed for want of jurisdiction. Diversity of citizenship does not exist between plaintiff and defendant and the complaint states no cause of action that arises under the Constitution, laws, or treaties of the United States. In view of our disposition of plaintiff's claim against the FDIC, eliminating an asserted federal question, there can be no finding of pendent jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). While it appears that plaintiff has a cause of action cognizable in state court, it may not be brought here. Therefore, the motions to dismiss of defendants FDIC and Citizens & Southern are granted, and in light of this action taken, plaintiff's motion to add defendants is denied.	{ "pile_set_name": "FreeLaw" }
590 F.Supp. 165 (1984) Alixandra C. BAKER, Plaintiff, v. LANSDELL PROTECTIVE AGENCY, INC. and British Airways, Defendants. LANSDELL PROTECTIVE AGENCY, INC., Third-Party Plaintiff, v. MIDLAND INSURANCE COMPANY, Third-Party Defendant. No. 83 Civ. 7577 (WCC). United States District Court, S.D. New York. June 26, 1984. 166 Chadbourne, Parke, Whiteside & Wolff, New York City, for plaintiff; James C. LaForge, Linda J. Chase, New York City, of counsel. 167 Abberley, Kooiman, Marcellino & Clay, New York City, for defendant Lansdell, Protective Agency Inc.; Richard Hagouel Langsam, New York City, of counsel. OPINION AND ORDER CONNER, District Judge. Plaintiff Alixandra C. Baker ("Baker") commenced the instant action seeking to recover the value of certain jewelry she claims was removed from her hand luggage while she passed through a security checkpoint, manned by employees of defendant Lansdell Protective Agency, Inc. ("Lansdell") prior to boarding a British Airways flight from Kennedy Airport in New York to London, England. Baker alleges that approximately $200,000 worth of jewelry disappeared from her bag between the time she handed the bag to a security agent for passage through an X-ray scanner and the time the bag was returned to her on the other side of the screening area. She did not discover the alleged loss, however, until after her arrival in London. The case is currently before the Court on Lansdell's[1] motion for partial summary judgment (1) limiting its liability to $400 based upon the limitation imposed by the Warsaw Convention or, alternatively, by the terms of the passenger ticket, and (2) dismissing those causes of action which purport to hold Lansdell liable for the alleged conversion of the jewelry by its employees. For the reasons stated below, the motion is granted in part. I. Warsaw Convention The Warsaw Convention ("Convention"),[2] like all international treaties validly executed by this country, represents the law of the land, see Reed v. Wiser, 555 F.2d 1079, 1093 (2d Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 399, 54 L.Ed.2d 279 (1977); O'Rourke v. Eastern Air Lines, Inc., 553 F.Supp. 226, 228 (E.D.N.Y.1982), "`equal in stature and force to the domestic laws of the United States.'" In re Air Craft Disaster at Warsaw, Poland, 705 F.2d 85, 87 (2d Cir.1983), quoting Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 801 (2d Cir.1971). As such, it preempts all local law to the contrary. O'Rourke, 553 F.Supp. at 228; Husserl v. Swiss Air Transport Co., 351 F.Supp. 702, 706 (S.D. N.Y.1972), aff'd per curiam, 485 F.2d 1240 (2d Cir.1973). By its terms, the Convention applies "to all international transportation of persons, baggage or goods performed by aircraft for hire." Convention, art. 1, § 1. Essentially, it creates a presumption of liability on the part of an air carrier in certain situations for injury, death, or property damage, without proof of fault but subject to a concomitant limitation of liability. Day v. Trans World Airlines, Inc., 393 F.Supp. 217, 221 (S.D.N.Y.), aff'd, 528 F.2d 31 (2d Cir.1975). It thus operates to redistribute the costs connected with air transportation. Id. at 220. Under the Convention, a carrier is charged with liability up to the sum of 125,000 francs for personal injuries suffered by a passenger "if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking." Convention, ch. III, art. 17 (emphasis added). The Convention also places a ceiling of 5,000 francs, or approximately $400, on a carrier's liability for "objects of which the passenger takes charge himself" without expressly defining the scope of the carrier's responsibility for the loss of or damage to such objects. See id. at art. 22, § 3. However, because it is envisioned that these objects will ordinarily be within the passenger's possession or control, it is both logical and consistent with the Convention's overall framework to interpret the scope of the Convention's applicability to these items as being coextensive with its coverage of injuries to the person. Indeed, because there is no indication 168 that the scope of a carrier's responsibility for a passenger's personal effects is intended to be otherwise than the extent of its responsibility for the passenger's person, the Convention must be read as applying only to the loss of or damage to these personal items which occurs on board the aircraft or in the course of any of the operations of embarking or disembarking. Moreover, the Convention also imposes liability upon a carrier for the loss of or damage to checked baggage or goods, subject to a limitation of 250 francs per kilogram, if the loss or damage occurs while the bag is in the custody of the carrier. See id. at art. 18, §§ 1-2, and art. 22, § 2. A carrier is, however, disabled from availing itself of the 250-franc-per-kilogram liability limitation if it fails to provide the passenger with a baggage check conforming to the requirements of the Convention. See id. at art. 4, § 4. In addition, a carrier is not permitted to take advantage of any of the liability limitations contained in the Convention if the passenger can demonstrate that the damage was caused by the carrier's willful misconduct or by the willful misconduct of any agent of the carrier acting within the scope of his employment. See id. at art. 22, § 1 and art. 25, §§ 1 and 2. As an initial matter, Baker and Lansdell disagree concerning how properly to characterize the bag from which the jewelry was allegedly stolen for purposes of the Convention. Lansdell argues that the bag and its contents are properly considered property over which the passenger took charge, and thus that Lansdell's liability must be limited to $400 absent a showing of willful misconduct. Conversely, Baker contends that her carry-on bag is appropriately classified as checked baggage for the period of time it was in the hands of Lansdell employees for purposes of a pre-boarding security check. She further asserts that because she was not given a baggage check when she turned her bag over to the security guard, the Convention's limitations on liability cannot be relied upon even if the Court rules that the Convention is otherwise applicable to occurrences at the security checkpoint. Quite frankly, I am unpersuaded by plaintiff's argument, which in essence would require a carrier to provide a baggage check for each item it subjects to a brief, pre-boarding X-ray examination in order to retain its liability protection under the Convention. This limited exercise of momentary, and arguably inexclusive, dominion over property of which a passenger has otherwise taken charge does not bring the property within the ambit of Article 4 of the Convention.[3] Rather, the essential condition that triggers a carrier's obligation to issue a baggage check is that the carrier "accept" the bag for purposes of transportation. Thus, so long as the carrier has taken control over the carriage of the bag, the provisions of Article 4 will apply regardless of whether the baggage is accepted in the normal course prior to boarding or is instead taken from the passenger by the carrier or its agent after the passenger has already boarded the aircraft. See Hexter v. Air France, 563 F.Supp. 932, 935 (S.D.N.Y.1982); Schedlmayer v. Trans Int'l Airlines, 99 Misc.2d 478, 416 N.Y.S.2d 461, 466 (Civ.Ct.1979). However, where, as here, the passenger only briefly relinquishes physical possession of her hand-carried property for a necessary security check conducted in her presence, but retains responsibility for the transportation of that property, Article 4 does not apply. Accordingly, I conclude that plaintiff's failure to receive a baggage check at the security counter for the handbag from which she claims her jewelry was removed does not strip Lansdell of the liability limitations of the Convention to the extent that those limitations are otherwise applicable. 169 The central issue on this motion is really whether the Convention applies to incidents occurring while a passenger is in a pre-boarding security area. To resolve this question, the Court must determine whether Baker was "in the course of any of the operations of embarking" at the time the jewelry was allegedly removed from her bag. If so, then her recovery will be limited to $400, absent a showing that the loss was caused by the willful misconduct of Lansdell or one of its employees acting within the scope of his employment.[4] In Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir.1975), cert. denied, 429 U.S. 890, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976), reh'g denied, 429 U.S. 1124, 97 S.Ct. 1162, 51 L.Ed.2d 574 (1977), the Second Circuit was required to analyze for the first time whether a passenger can be considered in the course of any of the operations of embarking while still inside the terminal building. In rejecting a mechanistic, location-based approach advocated by the airline, under which Article 17 of the Convention would not apply until the passenger stepped through the terminal gate, the court embraced the reasoning of Judge Brieant of this Court and adopted a three-part test for determining when one is in the course of any of the operations of embarking. The factors considered under this test include: (1) the nature of the activity the passenger was engaged in; (2) under whose control or at whose direction the passenger was doing it; and (3) the location of the activity. Id. at 33; see Evangelinos v. Trans World Airlines, Inc., 550 F.2d 152, 155 (3d Cir.1977) (en banc) (adopting standard based upon same three factors); see also Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1262 (9th Cir.), cert. denied, 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977) (location but one of several factors to be considered). Although Day, Evangelinos, and Maugnie each arose in the context of an attempt by a plaintiff to invoke the Convention in order to impose liability on a carrier, rather than, as in the instant case, where a defendant seeks to take advantage of the Convention for purposes of limiting its liability, the difference is not significant. The Second Circuit in Day, and the Third and Ninth Circuits in Evangelinos and Maugnie, respectively, adopted multi-factored approaches to the question of the scope of the operations of embarking, based upon their analyses of the language of the Convention and its "legislative" history. See Evangelinos, 550 F.2d at 157-58; Maugnie, 549 F.2d at 1260-62; Day, 528 F.2d at 33-38. The Second Circuit in particular determined that subjective consideration of the three factors best effectuates the intent of the Convention's draftsmen to create a system of international air law flexible enough to keep pace with evolutionary changes in the nature of civil air travel. See id. at 38. Accordingly, if it is determined after due consideration of the relevant factors that an incident occurred during one of the operations of embarking, then all applicable conditions of the Convention must be given effect, including both the terms that create automatic liability and the concomitant terms that limit the liability created. Applying the three-part test endorsed in Day, I conclude that Baker was engaged in one of the operations of embarking at the time her jewelry was allegedly stolen. By federal statute, "all passengers and all property intended to be carried in the aircraft cabin" must be screened for weapons prior to boarding. 49 U.S.C. § 1356(a) (West 1976); see 14 C.F.R. §§ 108.1 to 108.25 (Jan. 1983). Although the security checkpoint at which Baker and her carry-on baggage were screened for weapons was not located immediately at the flight gate, it was located in an area to which only passengers, and not the general public, were permitted access. As Baker herself testified at her deposition: "You had to walk up a relatively 170 steep ramp. At the bottom of that ramp was a security agent who checked boarding passes. We then proceeded up the ramp to the security check." Baker Dep. Tr. at 74. Moreover, throughout the course of the security check Baker was under the direction of defendants' employees. Baker testified that upon reaching the security checkpoint she was instructed by a security person to "put your bags down here [on the table] and walk on through." Id. at 76. After she placed her bags down they were "shoved" through the X-ray machine by the security guard, id. at 79, and she followed his instructions and walked through the magnetometer. Id. at 90. The whole procedure, from the time Baker and her husband arrived at the security checkpoint until the time they emerged on the opposite side of the magnetometer, took less than one minute. See id. at 78. Under these circumstances, where Baker was engaging in an activity which is a legally mandated prerequisite to boarding an airplane, where she was undergoing the required security check at the express direction of defendants' employees and in a part of the terminal restricted to passengers with tickets, it is appropriate to characterize Baker as being in the course of one of the operations of embarking. Thus, in view of my prior determination concerning the scope of the Convention's coverage of property of which the passenger takes personal charge, the $400 liability limitation applies to the loss alleged by Baker in her complaint. The one remaining issue is whether Lansdell may be permitted to take advantage of the Convention's limitations on liability, which by their terms apply only to air carriers. In Reed v. Wiser, the Second Circuit ruled that a carrier's employees were protected by the Convention to the same extent as the carrier itself. See 555 F.2d at 1093. The court reasoned that a contrary holding, which would allow a suit for unlimited damages against a carrier's employees, would undermine the purposes of the Convention because in most instances carriers are bound to provide their employees with indemnity protection. See id. at 1089-90. Such a result would obviously upset the intended balancing of the incidence of air transportation costs which the Convention was designed to provide. Similarly, in Julius Young Jewelry Mfg. Co., Inc. v. Delta Air Lines, 67 A.D.2d 148, 414 N.Y.S.2d 528 (1979), the Appellate Division, First Department adopted the reasoning of Reed in holding that "the liability limitations of the Convention apply to an air carrier's agent performing functions the carrier could or would ... otherwise perform itself." 414 N.Y.S.2d at 530. The court in Julius Young affirmed the entry of partial summary judgment limiting the liability of Allied, "an independent contractor engaged by defendant Delta and other airlines to perform inter-line baggage transfer services," to the limit imposed by the Convention. Id. at 529. Here, Lansdell asserts that it is an agent of British Airways and thus, like the agent in Julius Young, it is entitled to avail itself of the liability protection afforded by the Convention. In connection with this contention, it must be noted that 49 U.S.C. § 1356 requires that security checks, such as the one during which the alleged loss purportedly occurred in the instant case, be performed by employees or agents of the air carrier. Therefore, unless British Airways and Lansdell are violating the law, Lansdell is entitled to invoke the liability limitations of the Convention. Moreover, consistent with ordinary expectations and the statutory requirement, Frank C. McRoberts, III, Vice-President of Lansdell, stated in an affidavit submitted in support of the instant motion that Lansdell had an agreement with British Airways to provide the security services at issue here. See McRoberts Aff. at ¶ 4. In the face of this evidence, Baker does not deny the existence of a contractual relationship between Lansdell and British Airways. Rather she argues only that she needs additional discovery in order to ascertain the true nature of that relationship. However, it is hard to imagine what plaintiff could possibly demonstrate if she were to undertake further discovery. The uncontroverted fact that Lansdell had an agreement with British Airways to perform a service, falling within the scope of the 171 Convention, that British Airways would otherwise be required by law to perform itself is dispositive of the issue. The precise nature of the parties' arrangement is not material under Reed and Julius Young to Lansdell's right to avail itself of the liability protections of the Convention. Under these circumstances, to withhold decision to allow further discovery into the technical aspects of the Lansdell/British Airways relationship is simply unjustified. Accordingly, for the reasons stated above, Lansdell's motion for partial summary judgment limiting its liability to $400 is granted subject to plaintiff's opportunity to demonstrate at trial that her loss occurred as a result of Lansdell's willful misconduct or of the willful misconduct of one of Lansdell's employees acting within the scope of his employment. Because I conclude that the Convention applies, I need not reach those aspects of Lansdell's motion that concern Baker's state law claims. So long as Baker can demonstrate that the alleged loss occurred during the security check, she will establish the liability of Lansdell subject to the limitation discussed above. State law theories of liability are therefore irrelevant or, to the extent they impose greater liability on Lansdell, preempted by the Convention. SO ORDERED. NOTES [1] Plaintiff and British Airways stipulated to the discontinuance of plaintiff's claim against British Airways. [2] 49 Stat. 3000 (codified at note to 49 U.S.C.A. § 1502). [3] It should be noted that if carried to its logical extreme, plaintiff's argument would require the issuance of a baggage check every time a carrier's agent takes physical control of a passenger's property, including, presumably, those routine situations in which a flight attendant takes temporary possession of a passenger's carry-on luggage while assisting the passenger into his seat. Such a result would obviously be unworkable. [4] For the reasons stated infra, I have concluded that Lansdell is entitled to rely upon those protections of the Convention afforded to a carrier.	{ "pile_set_name": "FreeLaw" }
738 F.2d 434 E.E.O.C.v.West Bros. Dept. 82-3285 United States Court of Appeals,Fifth Circuit. 6/29/84 1 W.D.La. VACATED	{ "pile_set_name": "FreeLaw" }
81 F.3d 150 77 A.F.T.R.2d 96-1707 NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Henry Meseke IMMANUEL, Plaintiff-Appellant,v.SECRETARY OF the TREASURY OF the UNITED STATES; Treasury ofthe United States, Defendants-Appellees,v.INTERNAL REVENUE SERVICE, Party in Interest. No. 95-1953. United States Court of Appeals, Fourth Circuit. Argued: March 5, 1996Decided: April 5, 1996 Appeal from the United States District Court for the District of Maryland, at Baltimore. John R. Hargrove, Senior District Judge. (CA-94-884-HAR) ARGUED: Jonathan Steven Resnick, Baltimore, Maryland, for Appellant. Murray S. Horwitz, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Loretta C. Argrett, Assistant Attorney General, Gary R. Allen, Jonathan S. Cohen, Lynne Ann Battaglia, United States Attorney, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. D.Md. AFFIRMED. Before ERVIN and NIEMEYER, Circuit Judges, and BUTZNER, Senior Circuit Judge. OPINION PER CURIAM: 1 Henry Immanuel filed this action to compel the Department of the Treasury to disclose records pursuant to the Freedom of Information Act (FOIA). On September 22, 1993, Immanuel filed a FOIA request with the Department of the Treasury for: 2 a listing of those funds currently held by the United States Treasury, in escrow or otherwise, which are the subject property of individuals who are legatees, who have not claimed tax refunds due, who have overpaid the U.S. Treasury, who have not claimed monies owed for any reason whatsoever including but not limited to those funds which will escheat to the U.S. Treasury if they remain unclaimed. 3 Because the Treasury Department was unable to identify any list responsive to Immanuel's request other than a list of unclaimed federal income tax refunds maintained by the Internal Revenue Service (IRS), it referred Immanuel's request to the IRS. The IRS informed Immanuel that it does prepare a "Federal Undelivered Refund List" for each of its district offices, but that the lists are maintained at the district offices. The IRS further advised Immanuel that if he wished to obtain a copy of the Federal Undelivered Refund List for his area, he would have to contact his IRS district office. 4 Treating the IRS' response as a denial of his FOIA request, Immanuel appealed to the Department of the Treasury and, after the statutory period for the Department to respond had expired, filed this action in the district court. Although Immanuel never requested any documents from his IRS district office, the defendants provided Immanuel with the Federal Undelivered Refund List for Maryland and Washington, D. C., in response to his lawsuit. The defendants then filed a motion to dismiss Immanuel's complaint (1) for lack of subject matter jurisdiction because Immanuel had not directed his request to the appropriate agency and, therefore, had failed to exhaust his administrative remedies and (2) as moot because Immanuel had been provided the information he requested. Immanuel responded that he had exhausted his administrative remedies and that the Federal Undelivered Refund List did not satisfy his FOIA request. Without specifying any other documents that he wanted, Immanuel also requested the opportunity to conduct discovery to determine if the defendants were holding any assets or funds other than tax refunds. 5 In considering the defendants' motion to dismiss, the district court observed that the Department of the Treasury had "reasonably construed" Immanuel's request as one for a list of undelivered tax refunds and that Immanuel had been given that list. The court further noted that "[u]nder FOIA, the Department of Treasury only has to make records available when a request 'reasonably describes such records,' " and that a court can only compel an agency to produce records that have been "wrongfully" withheld. See 5 U.S.C. § 552(a)(3), (a)(4)(B). The court refused to permit Immanuel "to conduct a fishing expedition into all the possible funds held by the Department of Treasury which may fall within the terms of his broad FOIA request," especially at the government's expense. 6 Nevertheless, the district court provided Immanuel an opportunity to clarify his position by describing the records he sought more precisely and by demonstrating that his FOIA request had complied with the applicable agency regulations. It directed Immanuel to "show cause" within 14 days "why his complaint should not be dismissed in its entirety." When Immanuel failed to respond to the district court's show cause order, the court dismissed the action. 7 On appeal, Immanuel still has not described, even generally, the documents he seeks. At oral argument, his counsel maintained that Immanuel was not interested in the list of unclaimed tax refunds, but admitted that it was "impossible to articulate" what documents Immanuel wanted. 8 We agree with the district court that Immanuel's request was not sufficiently specific to comply with FOIA, see Mason v. Callaway, 554 F.2d 129, 131 (4th Cir.) (per curiam), cert. denied, 434 U.S. 877 (1977), and that to the extent his request could be interpreted, the responses of the Department of the Treasury and the IRS were reasonable. Moreover, Immanuel cannot be heard to complain that the district court's dismissal order was improper when he did not respond to its show cause order and failed to describe the information he sought in even the most general terms. AFFIRMED	{ "pile_set_name": "FreeLaw" }
Slip Op. 99 -94 UNITED STATES COURT OF INTERNATIONAL TRADE : AMERICAN SILICON TECHNOLOGIES, : ELKEM METALS COMPANY, GLOBE : METALLURGICAL, INC., and : SKW METALS & ALLOYS, INC., : : Plaintiffs, : : v. : Before: MUSGRAVE, JUDGE : UNITED STATES, : Court No. 94-09-00555 : Defendant, : : and : : ELETROSILEX BELO HORIZONTE, : : Defendant-Intervenor. : : ORDER Upon review of the United States Department of Commerce’s Silicon Metal From Brazil, Final Results of Redetermination Pursuant to Court Remand Court No. 94-09-00555, filed on November 14, 1997, and Silicon Metal From Brazil, Final Results of Redetermination Pursuant to Court Remand, American Silicon Technologies v. United States, Court No. 94-09-00555, Slip Op. 98-22 (March 5, 1998) filed on January 29, 1999, (collectively “remand results”), and the submissions of the parties in proceedings to date, it is hereby Court No. 94-09-00555 Page 2 ORDERED that both sets of the remand results are sustained as to the determination of the eight issues remanded to Commerce in American Silicon Technologies v. United States, ___ CIT ___, Slip Op. 97-58 (May 15, 1997); and it is further ORDERED that the stay of the three issues remaining in this action is lifted; and it is further ORDERED that, in view of the complexity of what has transpired in this case and other related cases before this Court, the parties shall, submit briefs addressing the three remaining issues, which are (1) calculation of dumping margins based upon sales during the review period in absence of shipment into the U.S., (2) treatment of ICMS and IPI taxes for Companhia Brasilaira Carbureto de Calcio (“CBCC”) and Minasligas, and (3) use of information from Solvay do Brasil’s consolidated financial statements in calculating CBCC’s monthly interest expenses. In particular, the parties’ briefs shall discuss this Court’s holdings in American Silicon Technologies, Court No. 97-02-00267, ___ CIT ___, Slip Op. 99-34 (April 9, 1999), as they relate to the final determination of the these three issues. Plaintiff’s brief shall be filed within 60 days of the date of this order. Defendant and defendant-intervenors shall have 60 days from the date of service of plaintiff’s brief to file response briefs, and plaintiff shall have 25 days from the date of service of the response briefs to file a reply brief. ____________________________________ R. KENTON MUSGRAVE, JUDGE Dated: September 9, 1999 New York, New York	{ "pile_set_name": "FreeLaw" }
NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued July 9, 2008 Decided July 31, 2008 Before RICHARD A. POSNER, Circuit Judge DIANE S. SYKES, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 07‐4089 Appeal from the United States UNITED STATES OF AMERICA, District Court for the Plantiff‐Appellee, Western District of Wisconsin. v. No. 07 CR 114 MARK BERGMANN, Barbara B. Crabb, Defendant‐Appellant. Chief Judge. O R D E R Mark Bergmann pleaded guilty to distributing child pornography. See 18 U.S.C. § 2252(a)(1). The district court sentenced Bergmann to 480 months’ imprisonment, the statutory maximum and default top of the guidelines range. Bergmann argues that the district court abused its discretion in denying a continuance of the sentencing hearing, which Bergmann sought to allow a retained psychologist to evaluate him. Bergmann hoped the results of the examination would favorably influence the sentencing court. He also maintains that the district court erred in failing to address what he considers nonfrivolous sentencing factors. Both contentions are without merit. No. 07‐4089 Page 2 I. Background After receiving a tip from an informant that Mark Bergmann was distributing child pornography, police executed a search warrant at Bergmann’s home and interviewed him. Bergmann admitted that he sent the image the informant had brought to the attention of the police and also admitted that he had claimed it was an image of his daughter (it was not). He also disclosed that he had sexually assaulted his eldest daughter two or three times when she was three or four years old and that he was convicted of sexually assaulting his four‐year‐old niece in the early 1990s. The FBI examined Bergmann’s computer equipment, including hard drive, thumb drives, and CDs that were seized in the search of his home. The examiners found 1,371 pictures and 71 videos containing child pornography. Many of the pornographic images and videos were of especially young children, including infants and toddlers. Others were of children between ages 5 and 8, many having violent and sadistic sexual acts performed on them. A grand jury in the Western District of Wisconsin returned a three‐count indictment against Bergmann. Counts 1 and 2 charged Bergmann with distributing child pornography, and count 3 charged that he possessed child pornography. Bergmann struck a plea agreement with the government, and in September 2007 he pleaded guilty to count 2 in return for dismissal of counts 1 and 3. Sentencing was scheduled for December 18, 2007, about 12 weeks after the plea was taken. The probation officer calculated Bergmann’s guidelines range as 360 months to life. This included a base offense level of 22, see U.S.S.G. § 2G2.2(a)(2), plus 23 additional points because the material involved prepubescent children, portrayed sadistic conduct, involved a computer, included more than 600 images, and was distributed in return for a thing of value, and because Bergmann had engaged in a pattern of activity involving sexual abuse of a minor. See U.S.S.G. § 2G2.2(b)(2), (b)(3)(B), (b)(4), (b)(5), (b)(6), (b)(7)(D). After subtracting three points for acceptance of responsibility, see U.S.S.G. § 3E1.1(a), the guidelines produced a total offense level of 42, which when indexed with Bergmann’s criminal history category of I, yielded a sentencing range of 360 months to life. The statutory maximum punishment under 18 U.S.C. § 2252(a)(1), however, is 480 months for defendants who, like Bergmann, have previously been convicted of an offense relating to sexual assault of a minor. See 18 U.S.C. § 2252(b)(1). So 480 months became the top of the guidelines range. See U.S.S.G. § 5G1.1(c); United States v. Krueger, 415 F.3d 766, 774 (7th Cir. 2005). No. 07‐4089 Page 3 On December 12, 2007, less than a week before sentencing was to take place, Bergmann moved to continue sentencing and requested a date at least 30 days after the original sentencing date of December 18, 2007. Bergmann advised the court that although a retained psychologist had been provided with the materials needed to examine him a month earlier, she had been unable to schedule an examination. Bergmann said the psychologist would be able to conduct the examination the following week and would be able to complete her report “shortly after Christmas.” The government objected to rescheduling Bergmann’s sentencing because his adult daughter, who he had molested as a child, wanted to attend. The daughter, who was serving in the U.S. Army and stationed in Germany, had received special permission to travel to the hearing and was already en route. Moreover, the government saw the daughter as an “indirect” victim because Bergmann had told the informant that the photo he sent was of his daughter and because Bergmann’s sexual assault of this daughter was an important sentencing factor. The government also argued that any new psychological evidence could not be given much weight because Bergmann refused to disclose his prior psychological evaluations and treatment history. Bergmann explained that the psychologist was hired in late October, but that her schedule did not allow her to interview him in time for the December 18 sentencing. Bergmann urged that the examination would reveal whether he was at risk of recidivism. Bergmann did not, however, make an offer of proof about what the psychologist’s findings would be. Indeed, the examination was never performed, and as counsel conceded at oral argument, “to this day” it is not known what the psychologist’s findings might have been. At the conclusion of the hearing, the district court orally reinstated the original December 18, 2007 sentencing date. Bergmann moved for reconsideration, arguing that expert testimony was necessary to determine if he was likely to recidivate. The court denied the motion, noting that it had originally agreed to the continuance under the mistaken belief that the government did not oppose it. The court noted the daughter’s interest in attending the hearing and the difficulty inherent in her attendance, and also observed that a psychological evaluation would not be particularly helpful in this case: [T]he questions that defendant wants the psychologist to evaluate have been answered: by defendant’s own actions and his criminal history. Defendant has two prior convictions for sexual assault of a child and he admitted to a third assault of a two‐year‐old child for which he was never charged. He was put on probation for both assault convictions and had an opportunity to engage in sex offender treatment, yet despite that treatment, he still remains in thrall to violent and sadistic child pornography. No. 07‐4089 Page 4 The district court concluded that given this history, “no prediction by a psychologist would hold much sway, no matter how experienced, qualified or perceptive the psychologist might be. It is not necessary to predict how [the] defendant acts when given the opportunity for probation. His history shows that he commits additional crimes.” At sentencing, Bergmann argued for a sentence below the guidelines range because “we have the civil commitment procedure and Mr. Bergmann would certainly be susceptible to that if federal authorities determine that Mr. Bergmann would be a danger to society,” and because a sentence within the guidelines range would create unwarranted disparity. The court sentenced Bergmann to 480 months’ imprisonment. The court explained that it believed the maximum sentence was warranted because Bergmann possessed thousands of images of child pornography and distributed those images on the Internet; his prior offenses demonstrated that he could not be monitored effectively; his presence in the community endangered children; and his prior treatment was ineffective. The court did not comment on either of Bergmann’s arguments. II. Analysis Bergmann first submits that the district court violated due process when it denied a continuance to allow him to be evaluated by a psychologist. Second, he maintains that the district court did not adequately consider the sentencing factors in 18 U.S.C. § 3553(a). Bergmann’s first contention is without merit. This court reviews a denial of a motion to continue sentencing for abuse of discretion. United States v. Rinaldi, 461 F.3d 922, 928 (7th Cir. 2006); Zambrella v. United States, 327 F.3d 634, 638 (7th Cir. 2003); United States v. Robbins, 197 F.3d 829, 847 (7th Cir. 1999). To demonstrate an abuse of discretion in this context, Bergmann “must show that he was actually prejudiced by the court’s refusal to grant the continuance.” Rinaldi, 461 F.3d at 928‐29; see also Robbins, 197 F.3d at 847; United States v. Depoister, 116 F.3d 292, 295 (7th Cir. 1997). Bergmann cannot make this showing. Because the psychological examination was never performed, there is no evidence on this record to suggest that a continuance would have inured to Bergmann’s benefit. Indeed, it is possible that the results of such an examination would have had exactly the opposite effect. Because Bergmann has failed to offer any proof of prejudice, we find no abuse of discretion in the district court’s refusal to grant the continuance. Bergmann also contends that his right to due process was violated because as a result of the denial of the continuance, his sentence was not based upon accurate information. Criminal defendants have a due‐process right to be sentenced on the basis of accurate information. United States v. Tucker, 404 U.S. 443, 447 (1972); United States v. Artley, No. 07‐4089 Page 5 489 F.3d 813, 821 (7th Cir. 2007). But Bergmann directs this court to no factual inaccuracies that were before the sentencing court. Indeed, aside from a few issues that were resolved prior to sentencing, Bergmann did not contest the facts contained in the presentence report. The district court was therefore entitled to rely entirely on those uncontested facts. See United States v. Soto‐Piedra, 525 F.3d 527, 530 (7th Cir. 2008). Bergmann’s real complaint is that the sentencing court lacked relevant testimony about his likelihood of recidivism. But relief is only warranted where the information before the sentencing court was inaccurate, not where it is arguably incomplete. See United States v. Jones, 454 F.3d 642, 652 (7th Cir. 2006); see also United States ex rel. Welch v. Lane, 738 F.2d 863, 865 (7th Cir. 1984) (noting that under Tucker the information must be both “false” and “relied on” in passing sentence). Bergmann directs this court to no authority suggesting that defendants have a due‐process right to be sentenced on the basis of complete information—and with good reason. The information before a sentencing court is necessarily a summation. To hold that due‐process requires a sentencing court to consider everything would both require the impossible and contradict Supreme Court precedent. See Tucker, 404 U.S. at 446 (noting the sentencing judge has “largely unlimited” discretion in determining the kind of information to consider and the source from which it may come). Because Bergmann does not suggest that his sentence was the product of any misinformation, his argument that he was denied due process must fail. Also without merit is Bergmann’s contention that the district court did not adequately consider the statutory sentencing factors. Specifically, he maintains that the court did not adequately consider whether the sentence imposed created an unwarranted disparity and that it was greater than necessary to comply with the statutory goals. Whether the district court followed the correct procedures for imposing sentence under the advisory guidelines regime is a question of law this court reviews de novo. United States v. Tyra, 454 F.3d 686, 687 (7th Cir. 2006). The record must confirm that the district court gave meaningful consideration to the statutory factors. See United States v. Dale, 498 F.3d 604, 611‐12 (7th Cir. 2007); United States v. Olivas‐Ramirez, 487 F.3d 512, 517 (7th Cir. 2007). But where the sentence falls within the guidelines range, this court generally will infer that the district court did so. See United States v. Dean, 414 F.3d 725, 730 (7th Cir. 2005). Although a sentencing court should not completely ignore a relevant consideration or unduly discount a factor that would warrant a sentence outside of the guidelines range, see United States v. Blue, 453 F.3d 948, 954 (7th Cir. 2006), neither error occurred here. Bergmann cites United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), and Rita v. United States, 127 S. Ct. 2456 (2007), for the proposition that the sentencing court “must address all non‐frivolous arguments made by the defendant in the context of § 3553(a).” No. 07‐4089 Page 6 Bergmann reads Cunningham too broadly. This court has explained that the need for a district judge “to explain in detail his consideration of the § 3553(a) factors when choosing to stick with the Guidelines sentence is proportional to the arguments made by the defendants.” United States v. Spano, 447 F.3d 517, 519 (7th Cir. 2006). That is, “[w]hen the judge is not presented with much, he need not explain much.” Id.; see also Dean, 414 F.3d at 729. As for Rita, the Supreme Court expressly noted that where a guidelines sentence is imposed, unless a party contests the appropriateness of any sentence within the guidelines range—and no party here did—“the judge normally need say no more.” Rita, 127 S. Ct. at 2468. Bergmann’s two arguments for a sentence at the low end of the guidelines range were not significant. First, Bergmann contends that his 480‐month sentence was much longer than those given to other defendants similar to himself and thus created an unwarranted disparity under § 3553(a)(6). Bergmann suggested that between 2005 and 2007 twenty‐three sentences for distributing child pornography were upheld on appeal. Twenty of those sentences were of 240 months or less, and of the three sentences greater than 240 months that were upheld, those defendants were producing child pornography in addition to distributing it and failed to accept responsibility as well. As the government correctly observes, however, Bergmann’s sentence was driven largely by his conviction for sexually assaulting a minor, which increased his statutory maximum to 480 months; otherwise the statutory maximum is 240 months. See 18 U.S.C. § 2252(b)(1). Bergmann did not reveal to the sentencing court how many—if any—of the cases he cited involved defendants who were exposed to the higher statutory maximum. Additionally, Bergmann’s analysis is not in the record. He neither provided a list of the cases he relied upon, nor did he discuss whether he considered adjustments other than acceptance of responsibility. The purported disparity, therefore, was unsubstantiated, and so the district court was not required to comment upon it. Bergmann also submits that the district court erred in failing to respond to his argument that 480 months was greater than necessary under § 3553(a) because civil‐ commitment procedures were available to protect the public, should it be necessary, at the conclusion of his prison sentence. Bergmann does not identify what civil‐commitment procedures he believes would be available, but 18 U.S.C. § 4246 authorizes district courts to commit prisoners whose sentences are about to expire if the court finds by clear and convincing evidence that the prisoner “is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person.” 18 U.S.C. § 4246(d). There are a number of problems with this line of argument. First, as a general matter, civil commitment is not punitive, see Kansas v. Hendricks, 521 U.S. 346, 361 (1997), so No. 07‐4089 Page 7 it seems odd to characterize it as a kind of “sentence” that the court could consider under § 3553(a)(3). Second, there is no evidence in the record that Bergmann has any mental disease or defect. Bergmann has refused to turn over medical‐treatment records, and the psychological examination he hoped to complete prior to sentencing was never performed. Assuming Bergmann had such a disease, to suggest that he will be “presently” suffering from it at the conclusion of his sentence is rank speculation. Even if these conditions were satisfied, in order to qualify for civil commitment, Bergmann’s release would have to “create a substantial risk of bodily injury to another.” This, too, is entirely speculative. In any event, the fact that civil commitment might be possible in the future is not a consideration that compels a sentence below the guidelines range. Both of Bergmann’s arguments for a sentence below the guidelines range lacked the necessary factual predicates to make them relevant considerations. The district court, therefore, was entitled to disregard them. And because the sentence imposed was within the guidelines range, we will infer that the § 3553(a) factors were given meaningful consideration. The sentence is presumed reasonable, see Rita, 127 S. Ct. at 2468; United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and Bergmann has not rebutted that presumption. AFFIRMED.	{ "pile_set_name": "FreeLaw" }
THE STATE OF SOUTH CAROLINA In The Supreme Court In the Matter of Robert Andrew Hedesh, Respondent. Appellate Case No. 2015-001430 Opinion No. 27559 Submitted July 28, 2015 – Filed August 12, 2015 DEFINITE SUSPENSION Lesley M. Coggiola, Disciplinary Counsel, and Ericka M. Williams, Assistant Disciplinary Counsel, both of Columbia, for Office of Disciplinary Counsel. Robert Andrew Hedesh, Pro Se. PER CURIAM: In this attorney disciplinary matter, respondent and the Office of Disciplinary Counsel (ODC) have entered into an Agreement for Discipline by Consent (Agreement) pursuant to Rule 21 of the Rules for Lawyer Disciplinary Enforcement (RLDE) contained in Rule 413 of the South Carolina Appellate Court Rules (SCACR). In the Agreement, respondent admits misconduct and consents to the imposition of any sanction set forth in Rule 7(b), RLDE, Rule 413, SCACR. We accept the Agreement and suspend respondent from the practice of law in this state for ninety days. The facts, as set forth in the Agreement, are as follows. Facts The allegations set forth in the Agreement relate to respondent's actions as a closing attorney. As further background information, respondent served as a closing attorney for Belle Terre Title Company, which was located in a separate suite in the same building as respondent's law office. Respondent's trust account checks were housed in a locked cabinet in Belle Terre's suite. In October 2008, there was a theft at Belle Terre's office and forty blank checks were stolen from the checkbook for respondent's trust account. The theft was not discovered initially because there was no forced entry to the office and the stolen checks were removed from the back of the checkbook. Near the end of November 2008, respondent was attempting to conduct a manual reconciliation of his trust account when he discovered inconsistencies in the check numbers. An investigation led to the arrest of the title agent's brother and two accomplices. The persons responsible for the theft negotiated several of the stolen checks before being apprehended. Respondent sought criminal charges against the perpetrators and filed a civil lawsuit against them. Respondent also filed lawsuits against the banks that cashed the stolen checks. Respondent deposited his own funds to cover some of the losses in his trust account. Respondent cooperated at all times with law enforcement. Matter I In three closings, respondent failed to ensure the closing documents were recorded in a timely manner. In a fourth closing, the closing documents were not recorded at all. The lender recorded the documents without respondent's assistance, and as a result, had to pay $7,000 in deed stamps for the transaction because respondent did not have the money. The transaction closed in September 2008, but the lender was not able to record the documents until March 2009. During this period, respondent delegated the task of recording the closing documents to the title agent with Belle Terre. Respondent represents he supervised the process; however, he was not aware the documents were not recorded until it was brought to his attention by the lender. Respondent further represents he did not immediately have the funds for the deed stamps due to the theft of his trust account checks but he fully intended to cover the losses in this matter. However, the lender chose to immediately file the documents to protect its interests. Respondent represents he had exhausted most of his personal funds and his home equity line, and his only access at the time was to start taking cash from his credit cards. Matter II On December 29, 2008, the computer system at the bank where respondent's trust account was established indicated a check in the amount of $186,656.02 written on respondent's trust account could not be paid due to insufficient funds. The following day, respondent deposited a personal check for $10,000 into the account so the trust account check could be negotiated. Respondent informed the bank about the theft of trust account checks, and he signed affidavits of forgery for each of the checks written by the perpetrators, totaling approximately $88,590. Matter III ODC received notice of a check written on insufficient funds from respondent's trust account in the amount of $150.97. The check was written on August 11, 2008, but not presented for payment until June 23, 2009. At the time the check was presented, respondent's trust account was not in use and had a zero balance. Respondent ceased use of the account in 2008 following the theft of checks. Respondent represents he made contact with the payee of the check and resolved the matter. Matter IV In January 2011, RBC Bank brought suit against respondent in federal court alleging negligence and breach of fiduciary duty. The suit arose from respondent's role as closing attorney in seventeen transactions occurring between January 17, 2008 and August 19, 2008. In each case, RBC loaned funds that were used to purchase residential properties. The transactions were part of an elaborate mortgage fraud scheme where participants in the scheme recruited "straw buyers" to apply for a loan to purchase property. A fraudulent loan application was prepared, supported by fake documentation regarding the straw buyers' income or assets. Participants in the scheme then induced appraisers to produce inflated appraisals. At closing, loan proceeds were paid to participants in the scheme or companies controlled by them. Thereafter, the loans went into default. A few payments were made on some of the loans, but no payments were made on the remaining loans. It is not alleged respondent participated in the loan scheme or even knew of the scheme; however, at the time of the real estate transactions, all of the books and records for respondent's real estate trust account were under the control and custody of a title agent for Chicago Title Insurance Company. Respondent permitted the title agent to write checks drawn on respondent's trust account for the purpose of disbursing loan proceeds, and allowed the agent to reconcile and audit the trust account. Respondent also permitted the title agent to prepare title abstracts on each property, prepare HUD-1 statements for each transaction and collect borrower contributions and payoff information. Respondent failed to properly supervise the title agent in these transactions. The title agent was a key participant in the mortgage fraud scheme. Matter V Respondent received $5,000 as an earnest money deposit from a potential purchaser of real estate. The Contract of Sale for the property was signed by the seller and purchaser on June 7, 2010, but the sale was not consummated. The seller of the property requested that the earnest money be transferred to him because the buyer had breached the terms of the sales contract. Respondent informed the seller that respondent would need a release signed by the buyer, or a court order, before respondent could release the money to the seller. The seller filed a lawsuit against the buyer for breach of contract and requested the court issue an order for the release of the $5,000 deposit to the seller. The seller was unable to locate the buyer to serve the complaint so the lawsuit did not progress. Respondent represents the $5,000 deposit is still being held in his trust account. Law Respondent admits that by his conduct he has violated the following Rules of Professional Conduct, Rule 407, SCACR: Rule 1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); Rule 1.15(a)(a lawyer shall hold property of clients or third persons that is in the lawyer's possession in connection with a representation separate from the lawyer's own property, such funds shall be kept in a separate account, and complete records of such funds shall be kept by the lawyer); Rule 5.3 (a lawyer who has supervisory authority over a nonlawyer shall make reasonable efforts to ensure the person's conduct is compatible with the professional obligations of the lawyer and the lawyer shall be responsible for conduct of the person that would be a violation of the RPC if engaged in by a lawyer); and Rule 8.4(a) (it is professional misconduct for a lawyer to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another). Respondent also admits he has violated Rule 7(a)(1)(it shall be a ground for discipline for a lawyer to violate the Rules of Professional Conduct or any other rules of this jurisdiction regarding professional conduct of lawyers) of the Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR. Finally, respondent admits he violated Rule 417, SCACR (financial recordkeeping requirements). Respondent states he has ceased doing any buyer related real estate work. He states he has participated in less than five transactions in the last three years and those involved preparing deeds related to work with other clients such as homeowners' associations. In addition to consenting to the imposition of any sanction in Rule 7(b), RLDE, respondent also agrees to pay the costs incurred in the investigation and prosecution of this matter by ODC and the Commission on Lawyer Conduct and to complete the Legal Ethics and Practice Program Ethics School and Trust Account School within nine months of the imposition of any sanction. Conclusion We accept the Agreement for Discipline by Consent and suspend respondent from the practice of law in this state for ninety days. He shall also pay the costs incurred in the investigation and prosecution of this matter by ODC and the Commission on Lawyer Conduct and complete the Legal Ethics and Practice Program Ethics School and Trust Account School within nine months of the date of this opinion, as agreed. Within fifteen days of the date of this opinion, respondent shall file an affidavit with the Clerk of Court showing that he has complied with Rule 30 of Rule 413, SCACR. DEFINITE SUSPENSION. TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.	{ "pile_set_name": "FreeLaw" }
THE THIRTEENTH COURT OF APPEALS 13-15-00381-CR The State Of Texas v. Tina Gail Marek On appeal from the 24th District Court of Victoria County, Texas Trial Cause No. 15-02-28509-A JUDGMENT THE THIRTEENTH COURT OF APPEALS, having considered this cause on appeal, concludes the appeal should be dismissed. The Court orders the appeal DISMISSED AS MOOT in accordance with its opinion. We further order this decision certified below for observance. September 2, 2016.	{ "pile_set_name": "FreeLaw" }
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0016p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________ X - NADIM SHAKOURI HANNA, - Petitioner, - - No. 12-4272 v. , > - Respondent. - ERIC H. HOLDER, JR., N On Petition for Review of a Final Order of the Board of Immigration Appeals. No. A 46 737 768. Argued: October 9, 2013 Decided and Filed: January 17, 2014 Before: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges. _________________ COUNSEL ARGUED: Faten Tina Shuker, LAW OFFICES OF FATEN TINA SHUKER, Farmington Hills, Michigan, for Petitioner. James E. Grimes, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Faten Tina Shuker, LAW OFFICES OF FATEN TINA SHUKER, Farmington Hills, Michigan, Russell Reid Abrutyn, MARSHAL E. HYMAN & ASSOC., PC, Troy, Michigan, for Petitioner. James E. Grimes, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. _________________ OPINION _________________ JULIA SMITH GIBBONS, Circuit Judge. Petitioner-appellant Nadim Shakouri Hanna petitions for review of an order of the Board of Immigration Appeals (“BIA”). Hanna was convicted of felonious assault under Mich. Comp. Laws § 750.82 and conceded removability through his first counsel. Upon threat of removal from the 1 No. 12-4272 Hanna v. Holder Page 2 United States, Hanna applied for asylum and withholding of removal under the Immigration and Nationality Act (“INA”) and under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) ordered Hanna removed and denied his applications for withholding of removal, and the BIA adopted and affirmed the IJ’s decision. The BIA then reopened Hanna’s asylum application based on changed conditions for Chaldean Christians in Iraq. On remand, Hanna, represented by new counsel, contested his removability and pursued claims for asylum and withholding of removal. The IJ granted Hanna’s application for withholding of removal but held Hanna ineligible for asylum because he firmly resettled in Canada before entering the United States. The IJ also held that Hanna was bound to his first attorney’s concession of removability. The BIA affirmed. On appeal to this Court, Hanna maintains that he is not removable and that the firm resettlement bar does not foreclose his asylum application. For the reasons set forth below, we grant Hanna’s petition for review, reverse the BIA’s holding that Hanna’s admission is binding, and relieve Hanna of his attorney’s concession of removability. Because the BIA’s determination that Hanna is removable is predicated on this concession, we reverse the finding that Hanna is removable. We remand to the BIA to determine, consistent with this opinion, whether Hanna’s specific offense under Mich. Comp. Laws § 750.82 is a crime involving moral turpitude. Separately, we affirm the BIA’s determination that Hanna is ineligible for asylum. I. Hanna, born on April 10, 1979, is a native and citizen of Iraq. Hanna and his family are Chaldean Christians. Hanna left Iraq in February 1990 with his father, mother, four sisters, and one brother. The family initially traveled to Greece, where they remained until December 1991. From there, they traveled onward to Canada and entered with “landed immigrant” status. As landed immigrants, Hanna and his family were considered permanent residents of Canada with permission to live and work. In 1993, Hanna’s parents obtained permanent resident status in the United States through a petition filed by Hanna’s sister, who previously had entered and obtained citizenship. No. 12-4272 Hanna v. Holder Page 3 In May 1993, Hanna entered the United States as a nonimmigrant visitor. Hanna’s parents petitioned for permanent resident status for their remaining children, including Hanna. While Hanna’s petition was pending, he resided in Ontario, Canada, attending Catholic middle school there. Hanna also resided with his parents in the United States for significant amounts of time, sometimes the majority of the year, as a nonimmigrant visitor. By traveling to and from Canada and overstaying the visitor’s visas he received upon entering the United States, Hanna attended high school in the United States, worked at the family business, and obtained a Michigan driver’s license. During this time, Hanna retained his landed immigrant status in Canada. Hanna was admitted as a lawful permanent resident to the United States on November 17, 1998. Subsequently, Hanna’s Canadian permanent resident status expired. See Immigration and Refugee Protection Act of Canada, S.C. 2001, c. 27, §§ 28, 41(b) (Can.). On November 28, 1996, Hanna, then seventeen years old, was cruising in a parking lot in Southfield, Michigan, while waiting for friends who were attending a nearby party. The attendant valet, Johny Asmer, told Hanna to stop cruising. Ensuing words were exchanged, which escalated into shouting. While exiting the parking lot in his car, Hanna, holding an opened, three-inch, folding knife, threatened to cut Asmer. Hanna was arrested as a result of this incident, but the charges were twice dropped after Asmer failed to appear in court. In 1999, however, the State of Michigan reinstated the charges from the parking lot altercation. Hanna was charged with felonious assault, in violation of Mich. Comp. Laws § 750.82, and driving with a suspended license. On March 31, 2000, the Sixth Judicial Circuit Court for Oakland County, Michigan, a Michigan trial court, found that Hanna committed these offenses after his seventeenth but before his twenty-first birthday. The Michigan court assigned Hanna to Youthful Trainee Status and sentenced him to thirty days in the county jail and two years of probation. As result of the court order, the government commenced removal proceedings against Hanna by filing of a Notice to Appear (“NTA”), dated January 8, 2002. The government alleged in the NTA that Hanna was convicted on March 31, 2000, for the offense of felonious assault, committed on or about November 28, 1996, and, for that offense, a sentence of one year or longer may be imposed. The government No. 12-4272 Hanna v. Holder Page 4 subsequently filed a Form I-261, specifically charging Hanna with an admission date of May 1993 as a nonimmigrant visitor. The government charged Hanna as subject to removal, having been convicted of a crime involving moral turpitude (“CIMT”) within five years after admission and for which a sentence of one year or longer may be imposed. See 8 U.S.C. § 1227(a)(2)(A)(i). Removal proceedings were conducted on April 18, 2003, July 25, 2003, and November 9, 2005, at the Immigration Court in Detroit. Hanna was initially represented by his attorney, Nasir Daman. On April 18, 2003, the Michigan court order was admitted into evidence as a record of Hanna’s conviction for felonious assault. Then, on July 25, 2003, Hanna, through his counsel, admitted the charges in the NTA, including the factual allegation that Hanna was convicted of the offense of felonious assault. Hanna, through his counsel, also conceded his removability under 8 U.S.C. § 1227(a)(2)(A)(i). The IJ designated Iraq as the country of removal. Further, at the July 25 hearing, Hanna filed I-589 applications for asylum and for withholding of removal under the INA and protection under the CAT. Hanna’s withholding application was supported by his claim that being a Chaldean Christian placed him at risk of harm in Iraq. At the November 9 hearing, Hanna conceded ineligibility for asylum resulting from his failure to file an asylum application within one year of entering the United States. See 8 U.S.C. § 1158(a)(2)(B). Hanna and his father then testified in support of his application for withholding of removal, averring that Hanna would be subject to grave danger if removed to Iraq. The IJ denied Hanna’s applications for relief and ordered Hanna removed to Iraq, with an alternative to Canada, on the charge contained in the NTA. Hanna appealed the IJ’s denial of asylum and withholding of removal. On May 30, 2007, the BIA adopted and affirmed the IJ’s decision and declined to remand. Hanna subsequently moved to reopen removal proceedings on April 28, 2008, contending entitlement to reopening under the Refugee Crisis in Iraq Act of 2007, Pub. L. No. 110–181, tit. XII, submit. C, § 1247, 122 Stat. 3 (2008) (codified at 8 U.S.C. § 1157), because conditions in Iraq had deteriorated for Chaldean Christians. The BIA granted No. 12-4272 Hanna v. Holder Page 5 this motion on October 30, 2008, finding Hanna produced previously unavailable evidence of significantly worsening conditions in Iraq for its minority Christian populations. The BIA reopened to allow Hanna to apply for asylum based on his status as a Chaldean Christian and remanded to the IJ. Hanna reapplied for asylum on May 3, 2010. After this point, Hanna was represented by Faten Tina Shuker. Continued removal proceedings were conducted on January 8, 2009, May 3, 2010, and October 26, 2010. On remand, Hanna presented several hundred pages of documentary evidence, and Hanna and his father testified in support of his applications. The hearings focused on three issues: whether Hanna’s conviction was for a particularly serious crime sufficient to preclude relief; whether Hanna merited asylum as a matter of discretion; and whether Hanna firmly resettled in Canada before immigrating to the United States. Hanna also raised the issue of his removability. The IJ entered her decision on October 26, 2010. The IJ found Hanna and his father credible with respect to a well-founded fear of Hanna’s future persecution as a Chaldean Christian and held that Hanna’s offense of conviction was not a particularly serious crime. The IJ accordingly granted Hanna’s application for withholding of removal under 8 U.S.C. § 1231(b)(3) and held Hanna’s claim for protection under the CAT moot. With respect to asylum, the IJ noted that an alien who “firmly resettled” in another country before arriving in the United States is not eligible for asylum. See 8 U.S.C. § 1158(b)(2)(A)(vi); 8 C.F.R. § 1208.13(c)(2)(ii). The IJ held that the government proffered sufficient evidence showing Hanna “firmly resettled” in Canada, that Hanna failed to provide evidence sufficient to rebut this contention, and that Hanna is statutorily ineligible for asylum under 8 U.S.C. § 1158(b)(2)(A)(vi). As to removability, the IJ noted that Hanna, through counsel, previously admitted all the factual allegations contained within the NTA and conceded the charge of removability. The IJ therefore held that Hanna’s removability was established by the requisite clear and convincing evidence. No. 12-4272 Hanna v. Holder Page 6 Hanna again appealed to the BIA, arguing that the IJ improperly placed the burden on him to show that he had not firmly resettled and that the firm resettlement bar did not apply because he entered the United States as an immigrant, not as a refugee in flight from persecution. In the alternative, Hanna argued that the IJ erred in finding him removable since the Michigan statute of felonious assault encompasses CIMT and non- CIMT offenses and his specific offense is not a CIMT. Hanna subsequently filed a separate motion to remand and terminate, arguing that his conviction had been vacated and that his case had been set for a new trial. Hanna later withdrew this motion after the Michigan Court of Appeals reinstated his conviction. See People v. Hanna, No. 304798, 2012 WL 833294 (Mich. Ct. App. Mar. 13, 2012). The BIA dismissed Hanna’s appeal on September 27, 2012. The BIA adopted and affirmed the IJ’s determination that the government presented prima facie evidence that Hanna had an offer of firm resettlement before entering the United States. The BIA held that, once the government met its initial burden, the burden shifted to Hanna to establish an exception under 8 C.F.R. § 1208.15(a) or (b) and that Hanna had not successfully rebutted the government’s firm resettlement showing. Further, the BIA rejected Hanna’s claim that he is not subject to the firm resettlement bar because his application for asylum is based on changed country conditions occurring after his admission to the United States. The BIA found that Hanna’s circumstance fits the plain language of 8 U.S.C. § 1158(b)(2)(A)(vi) and noted the absence of any language indicating that firm resettlement must be a consequence of fleeing persecution. The BIA also noted that an alien is considered to be firmly resettled if, prior to arrival in the United States, he or she entered another country with, or while in that country received, an offer of permanent resident status. See 8 C.F.R. § 1208.15. The BIA further found that there is no temporal limitation or other indication that the resettlement must be preceded by flight from persecution. As to Hanna’s removability, the BIA held Hanna’s July 2003 concession of removability through counsel was binding. The BIA considered the issue of Hanna’s removability resolved. Hanna filed a timely petition for review. No. 12-4272 Hanna v. Holder Page 7 II. This Court has “jurisdiction to review questions of law and constitutional claims” arising from “‘removal orders of petitioners deemed removable for having committed a [crime involving moral turpitude].’” Yeremin v. Holder, 707 F.3d 616, 621 (6th Cir. 2013) (alteration in original) (quoting Ruiz-Lopez v. Holder, 682 F.3d 513, 516 (6th Cir. 2012)). “We review the BIA’s conclusions of law de novo.” Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004) (citing Ali v. Ashcroft, 366 F.3d 407, 409 (6th Cir. 2004)). The determination of whether a conviction under a particular statute qualifies as a crime involving moral turpitude is a question of law and thus is also subject to judicial review. Yeremin, 707 F.3d at 621. “The BIA’s construction of ambiguous statutory provisions—such as the term ‘crime involving moral turpitude’—is generally entitled to Chevron deference.” Ruiz-Lopez, 682 F.3d at 516 (citing Kellermann v. Holder, 592 F.3d 700, 702–03 (6th Cir. 2010)). “No deference is given, however, to the BIA’s interpretation of a state criminal statute; that issue is reviewed de novo.” Id. (quoting Serrato–Soto v. Holder, 570 F.3d 686, 688 (6th Cir. 2009)). This court also has jurisdiction to review the final decision of the BIA “affirming the IJ’s denial of asylum.” Singh v. Ashcroft, 398 F.3d 396, 400 (6th Cir. 2005). “In considering a petition for review of a decision of the Board of Immigration Appeals, we review the Board’s legal determinations de novo and its factual findings under the substantial evidence standard.” Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir. 2005) (internal citations omitted). “In reviewing the factual determinations of the Board regarding an alien’s eligibility for asylum and withholding of deportation, this court must apply the substantial evidence standard of review.” Klawitter v. INS, 970 F.2d 149, 151 (6th Cir. 1992); see also Maharaj v. Gonzales, 450 F.3d 961, 967 (9th Cir. 2006) (en banc) (“A finding of ‘firm resettlement’ is a factual determination that we review under the deferential substantial evidence standard.”). The substantial evidence standard requires this court to uphold the Board’s findings as long as they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); see also Klawitter, 970 F.2d at 151–52. No. 12-4272 Hanna v. Holder Page 8 “‘To reverse under the substantial evidence standard, the evidence must be so compelling that no reasonable factfinder could fail to find the facts were as the alien alleged.’” Mostafa, 395 F.3d at 624 (quoting Rhodagholian v. Ashcroft, 335 F.3d 1003, 1006 (9th Cir. 2003)). Where the BIA “did not summarily affirm or adopt the IJ’s reasoning and provided an explanation for its decision,” this Court “review[s] the BIA’s decision as the final agency determination.” Ilic-Lee v. Mukasey, 507 F.3d 1044, 1047 (6th Cir. 2007). “Where the Board adopts the IJ’s decision and supplements that decision with its own comments, as in this case, we review both the BIA’s and the IJ’s opinions.” Hachem v. Holder, 656 F.3d 430, 434 (6th Cir. 2011). Hanna argues that he is not removable because his adjudication under Michigan’s Holmes Youthful Trainee Act (“YTA”), Mich. Comp. Laws §§ 762.11–16, is neither a “conviction” under the INA, nor a crime involving moral turpitude (“CIMT”). Hanna acknowledges that in Uritsky v. Gonzales, 399 F.3d 728, 735 (6th Cir. 2005), this court determined that YTA adjudications are “convictions” under the INA, 8 U.S.C. § 1101(a)(48)(A). Hanna contends, however, that this Court should reexamine Uritsky in light of three subsequent Supreme Court decisions: Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012); Judulang v. Holder, 132 S. Ct. 476 (2011); and Padilla v. Kentucky, 559 U.S. 356, 366–71 (2010). Hanna also contends that YTA adjudications are analogous to determinations of juvenile delinquency under the Federal Juvenile Delinquency Act (“FJDA”), 18 U.S.C. §§ 5031–42, and, like FJDA delinquency determinations, should not be considered “convictions” under the INA. Alternatively, Hanna contends that his offense is not a CIMT, that the government has the burden to prove otherwise, and that the government cannot meet this burden. Hanna argues that Michigan’s felonious assault statute, Mich. Comp. Laws § 750.82, is divisible, encompassing both CIMT and non-CIMT offenses. Relying on Singh v. Holder, 321 F. App’x 473, 478–80 (6th Cir. 2009), Hanna argues that his particular offense is not a CIMT and, hence, does not trigger removability under 8 U.S.C. § 1227(a)(2)(A)(i). We find that Hanna presented this claim to the BIA, and thus No. 12-4272 Hanna v. Holder Page 9 we may review it here. See 8 U.S.C. § 1252(d)(1); Gor v. Holder, 607 F.3d 180, 185 (6th Cir. 2010). The government responds that Hanna’s removability is established by his concessions, through his first counsel, of the factual allegations contained in the NTA and of removability at the July 25, 2003 hearing. According to the government, by conceding removability, Hanna conceded that he is removable for having been convicted of a CIMT. The government contends that this concession is a binding judicial admission sufficient to establish Hanna’s removability and that the concession forecloses Hanna’s challenges to removability. Separate from the issue of his removability, Hanna argues that he is eligible for asylum. The government responds that Hanna is ineligible for asylum under the firm resettlement bar, 8 U.S.C. § 1158(b)(2)(A)(vi). Hanna rejoins that he qualifies for an exception to the firm resettlement bar under 8 C.F.R. § 1208.15. The government denies that Hanna falls within any such exception. A. In a removal proceeding, “petitioners are bound by the concessions of their attorneys to the IJ unless they can show ineffective assistance of counsel or some other egregious circumstances.” Gill v. Gonzales, 127 F. App’x 860, 862–63 (6th Cir. 2005); see also Magallanes-Damian v. INS, 783 F.2d 931, 934 (9th Cir. 1986) (“Petitioners are generally bound by the conduct of their attorneys, including admissions made by them, absent egregious circumstances.”); In re Velasquez, 19 I. & N. Dec. 377, 382 (BIA 1986) (“Absent egregious circumstances, a distinct and formal admission made before, during, or even after a proceeding by an attorney acting in his professional capacity binds his client as a judicial admission.”). This court has yet to clarify those egregious circumstances sufficient to relieve an alien of his counsel’s prejudicial admissions. The BIA, however, clarified the meaning of “egregious circumstances” in Velasquez. See 19 I. & N. Dec. at 383. Building on Velasquez, other federal courts of appeals have developed a framework to determine egregious circumstances. See, e.g., Santiago- No. 12-4272 Hanna v. Holder Page 10 Rodriguez v. Holder, 657 F.3d 820, 831–36 (9th Cir. 2011); Hoodho v. Holder, 558 F.3d 184, 192 (2d Cir. 2009). As a threshold matter, to establish egregious circumstances, an alien must argue “that the factual admissions or concessions of [removability] were untrue or incorrect.” Velasquez, 19 I. & N. Dec. at 383; see, e.g., Mai v. Gonzales, 473 F.3d 162, 167 (5th Cir. 2006) (reversing BIA’s denial of a motion to reopen, where alien’s prior attorney had admitted NTA’s factual allegations that alien “strongly denied”); cf. Roman v. Mukasey, 553 F.3d 184, 187 (2d Cir. 2009) (rejecting that the government must submit evidence of an alien’s prior conviction because the alien “does not allege that the admissions were inaccurate”); Torres-Chavez v. Holder, 567 F.3d 1096, 1102 (9th Cir. 2009) (refusing to permit alien to withdraw attorney’s tactical decision to admit alienage because attorney “simply conceded that [client] was an alien, a fact that [client] has never suggested is untrue”). Further, an alien’s argument that his attorney’s concessions were incorrect must be supported by record evidence. See, e.g., Hulse v. Holder, 480 F. App’x 23, 26 (2d Cir. 2012) (denying petition for review of BIA decision denying withholding of removal because admission of procuring benefit by entering into fraudulent marriage was “not contradicted by the record evidence”); Hoodho, 558 F.3d at 192 (denying petition for review of BIA decision because “[w]here, as here, an IJ accepts a concession of removability from retained counsel and that concession is not contradicted by the record evidence, the circumstances are not ‘egregious’ in any respect”). Where an alien has argued that his or her counsel’s admission is incorrect and that argument is supported by the record, two types of egregious circumstances justify relieving the alien of his or her counsel’s prejudicial admissions. The first circumstance concerns admissions that “were the result of unreasonable professional judgment.” Velasquez, 19 I. & N. Dec. at 383; see also Santiago-Rodriguez, 657 F.3d at 834–36 (holding that BIA erred in not permitting alien to withdraw attorney’s admission where such admission was made without any factual basis and constituted deficient performance); In re Morales-Bribiesca, No. A047 770 293, 2010 WL 4500889, at 2 No. 12-4272 Hanna v. Holder Page 11 (BIA Oct. 18, 2010) (“[T]he respondent’s prior attorney admitted that she conceded the respondent’s removability [for alien smuggling] without first speaking to the respondent or discussing the factual allegations with the respondent . . . [and] given the egregiousness of the representation, we do not deem the attorney’s admission binding on the respondent.” (citing Velasquez, 19 I. & N. Dec. at 382)); In re Shafiee, No. A24 107 368, 2007 WL 1168488, at 1 (BIA Mar. 2, 2007) (granting motion to reopen and holding that attorney’s concession of removability based on alien’s “insistence on expediting a case is no excuse for failing to research and advise a client that there is no sound basis for the charges”). The second circumstance in which an alien should be relieved of an admission of counsel is if binding the alien to that admission would “produce[ ] an unjust result.” Velasquez, 19 I. & N. Dec. at 383. An inadvertent admission would fall into this category. See, e.g., Ali v. Reno, 829 F. Supp. 1415, 1425 (S.D.N.Y. 1993) (holding, in habeas corpus proceeding reviewing the rescission of permanent resident status, that alien could not withdraw the prior concessions of counsel because “there has been no showing that counsel’s concessions regarding rescission and excludability were inadvertent, unfair or extraordinary”), aff’d, 22 F.3d 442 (2d Cir. 1994); cf. Cortez- Pineda v. Holder, 610 F.3d 1118, 1122 n.2 (9th Cir. 2010) (refusing to bind the government to a mistaken factual assertion regarding the alien’s entry date). So too would a circumstance “where the propriety of an admission or concession has been undercut by an intervening change in law.” In re Chavez-Mendoza, No. A90 542 948, 2005 WL 649052, at, 1 n.3 (BIA Feb. 2, 2005); see, e.g., Santiago-Rodriguez, 657 F.3d at 833 (“Binding [petitioner] to the admission that he smuggled his brother . . . even after [an intervening change in the law] would ‘produce[ ] an unjust result,’ if [petitioner] can make a prima facie showing that his actions would not constitute smuggling under the clarified, correct interpretation of the smuggling statute.” (quoting Velasquez, 19 I. & N. Dec. at 383)); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir. 2003) (permitting alien to challenge removability despite concession because intervening change in law meant alien was not removable). No. 12-4272 Hanna v. Holder Page 12 Applying this framework, we relieve Hanna of his attorney’s July 25, 2003, concession of removability. Hanna satisfies the threshold requirements for challenging the binding effect of the prior admission: Hanna has contended and maintains the concession of removability is incorrect because his crime did not involve moral turpitude, and there is record evidence to support his position. Neither the charging documents nor the record of conviction suggest that Hanna necessarily pled to facts establishing that his offense is a CIMT. Cf. Wala v. Mukasey, 511 F.3d 102, 108 (2d Cir. 2007) (vacating BIA’s removal order because petitioner was not required to plead facts establishing intent to commit a CIMT nor did his plea colloquy establish otherwise). Other evidence in the record that an immigration court may consider suggests that Hanna’s specific offense was not a CIMT. See Kellermann, 592 F.3d at 704 (noting that if “the court finds that the statute of conviction criminalizes both conduct that does and does not qualify as a CIMT, then the court should apply a more modified approach” (citing In re Silva-Trevino, 24 I. & N. Dec. 687, 690 (A.G. 2008) (directing IJs to consider any additional evidence deemed necessary to resolve accurately whether an offense is a CIMT if the record of conviction is inconclusive))). For instance, on remanded proceedings to determine whether to grant Hanna withholding of removal from Iraq, the IJ made findings suggesting Hanna’s offense “fall[s] within the apprehension-portion of the statute [that] would plainly stretch the concept of a CIMT.” See Singh, 321 F. App’x at 480. After reviewing the record for the severity of the offense, the IJ found that Hanna credibly testified that he was never in close proximity of the individual and had no intention of attacking him. Further, the IJ held that Hanna’s offense was not particularly serious and noted that it could not find Hanna was or is a danger to the community. Turning to the egregious circumstances under which an alien may be relieved of a prior admission through counsel, the propriety of Hanna’s concession has been undercut by an intervening change in law “produc[ing] an unjust result” if Hanna is bound to the admission. See Velasquez, 19 I. & N. Dec. at 383. In Singh, the court found that the Michigan statute under which Hanna was convicted, Mich. Comp. Laws § 750.82, is likely divisible. 321 F. App’x at 479–80. Under this statute, No. 12-4272 Hanna v. Holder Page 13 a person who assaults another person with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or to inflict great bodily harm less than murder is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or both. Mich. Comp. Laws § 750.82(1). In Singh, the court analyzed this statute in detail: The elements of this crime, as interpreted by Michigan courts, are: (1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or place the victim in reasonable fear or apprehension of an immediate battery. People v. Lawton, 196 Mich. App. 341, 492 N.W.2d 810, 815 (1992). . . . The statute requires one of two unlawful intents: either an intent to injure (i.e., an attempted battery) or an intent to place the victim in apprehension of an immediate battery. In People v. Reeves, 458 Mich. 236, 580 N.W.2d 433, 436–37 (1998), the Michigan Supreme Court explained that these two types of assault have different mental elements, noting that, at early common law, only the attempted-battery variety of assault was criminalized. Singh, 321 F. App’x at 478. The Singh court reasoned that “[b]ecause the Michigan statute essentially encompasses two distinct offenses—assault with intent to harm, and assault with intent merely to cause apprehension of harm[,] we must determine whether both constitute CIMTs.” Id. at 479. As the BIA had neither addressed whether Mich. Comp. Laws § 750.82 is divisible nor considered the circumstances under which assault crimes are CIMTs, the Singh court analyzed the Michigan statute for divisibility: The apprehension variety of assault is less morally turpitudinous than the attempted-battery variety, as it requires no intention to physically harm another person. This is apparent from a simple example: Under the Michigan statute, holding a baseball bat as if to strike someone with it (with the intention of placing that person in fear of being struck by the bat), and actually swinging the bat in a failed attempt to strike the person both satisfy the statute, but the latter is clearly more inherently base, vile, or depraved, and contrary to the accepted rules of morality than the former. We can imagine a range of factual circumstances that would fall within the apprehension-portion of the statute but would plainly stretch the concept of a CIMT. Id. at 479–80 (internal citations and quotation marks omitted). Because the Singh court found Mich. Comp. Laws § 750.82 likely divisible and because the BIA had not No. 12-4272 Hanna v. Holder Page 14 considered the distinction between offenses of assault with the intention to physically harm another and offenses of assault with the intention to cause apprehension of harm, the Singh court remanded the case for the BIA to determine whether “Singh’s assault conviction under the particular Michigan statute is not a CIMT.” Id. at 480. On remand, the BIA treated Mich. Comp. Laws § 750.82 as divisible and remanded to the IJ “to make relevant findings of fact and enter a legal determination on the issue of whether the respondent’s convictions for assault in violation of [the statute] . . . qualify as crimes involving moral turpitude in the first instance that is consistent with the Sixth Circuit’s decision described above.” In re Singh, No. A092 407 108 (BIA Oct. 19, 2009) (unpub.) (citing Silva-Trevino, 24 I. & N. Dec. 687). There has been “an intervening change in law” since Hanna’s attorney’s 2003 concession of removability. Chavez-Mendoza, 2005 WL 649052, at 1 n.3. We now recognize Mich. Comp. Laws § 750.82 as divisible, and, as such, the statute encompasses non-CIMT offenses. Binding Hanna to his 2003 admission—where there has been an intervening change in the law as to the divisibility of his statute of conviction, where Hanna argues that is offense is not a CIMT, and where his argument is supported by record evidence that an immigration court may consider—would “produce[] an unjust result.” Velasquez, 19 I. & N. Dec. at 383; see also Santiago- Rodriguez, 657 F.3d at 833; Huerta-Guevara, 321 F.3d at 886. Accordingly, we relieve Hanna of his attorney’s July 25, 2003, concession that he is removable, and we reverse the BIA’s holding that this concession is binding. Because the BIA’s determination that Hanna is removable is predicated upon this concession of removability, we reverse that determination. B. Since Hanna is not bound by his attorney’s 2003 concession of removability, we now address Hanna’s arguments that he is not removable. First, Hanna argues that he is not removable because his YTA adjudication is not a “conviction” under 8 U.S.C. § 1101(a)(48)(A). This contention is unavailing. The INA defines “conviction” as follows: No. 12-4272 Hanna v. Holder Page 15 The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. 8 U.S.C. § 1101(a)(48)(A). Hanna’s disposition under the YTA satisfies both conditions. We have already determined that YTA adjudications are convictions under the INA. See Uritsky v. Gonzales, 399 F.3d 728, 735 (6th Cir. 2005) (holding “the Board’s conclusion that youthful trainee designations in Michigan represent convictions for immigration purposes represents the kind of ‘permissible construction’ of the INA sanctioned by Chevron”). Contrary to Hanna’s contentions, neither Padilla, 559 U.S. at 366–71, Lafler, 132 S. Ct. at 1385, nor Judulang, 132 S. Ct. at 485 provides grounds to reexamine the holding of Uritsky. In Padilla, the Supreme Court held that an attorney’s failure to advise a defendant-client regarding the immigration consequences of a guilty plea constitutes deficient performance where the consequences of the defendant’s guilty plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect. 559 U.S. at 368–69. In Lafler, the Court held that the petitioner was prejudiced by his counsel’s deficient performance in advising petitioner to reject a plea offer and proceed to trial. 132 S. Ct. at 1391. The Lafler court held the “Sixth Amendment requires effective assistance of counsel at critical stages of a criminal proceeding,” including plea negotiations, id. at 1385, and “[i]f a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it,” id. at 1387. Neither Padilla nor Lafler bears on whether YTA adjudications are “convictions” under the INA. Nor has Hanna made a claim for ineffective assistance of counsel and, therefore, neither decision informs our determination. No. 12-4272 Hanna v. Holder Page 16 In Judulang, the Supreme Court held that the BIA’s “comparable-grounds” test to determine eligibility for discretionary relief under 8 U.S.C. § 1182(c) (repealed 1996) is “arbitrary and capricious” under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). 132 S. Ct. at 483–84. The Court’s holding in Judulang does not bear upon the permissible interpretations of “conviction” under 8 U.S.C. § 1101(a)(48)(A). Hanna principally relies on Judulang as an example of the Court’s setting aside a BIA decision as “arbitrary and capricious” under the APA. The crux of Hanna’s contention is that the BIA’s method of determining whether state youthful offender dispositions are “convictions” under 8 U.S.C. § 1101(a)(48)(A) is arbitrary and capricious. Hanna suggests the distinction drawn by the BIA in In re Uritsky, No. A78 652 707, 2003 WL 23216944, at *2 (BIA Oct. 6, 2003), between, on the one hand, findings of juvenile delinquency—including adjudications of youthful offender status pursuant to N.Y. Crim. Pro. Law § 720 and determinations of juvenile delinquency under the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031–5042 (1994 & Supp. II 1996) (“FJDA”)—which are not “convictions,” and, on the other hand, proceedings akin to expungement or deferred adjudications—including Michigan’s YTA adjudications—which are “convictions,” is arbitrary and capricious. Our opinion in Uritsky forecloses Hanna’s suggestion based on Judulang. In Uritsky, applying principles of Chevron deference, see Chevron, U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984), we upheld the BIA’s conclusion that Michigan YTA adjudications are convictions, thus implicitly deciding that the BIA conclusion was neither arbitrary nor capricious. See Uritsky, 399 F.3d at 735. Uritsky binds us here. C. Focusing on his November 1996 assault, Hanna argues that because he merely intended to place the victim in apprehension of an immediate battery, his conviction under Mich. Comp. Laws § 750.82 was not for a CIMT and, therefore, he is not removable. There may well be merit to Hanna’s argument. Mich. Comp. Laws § 750.82 is a divisible statute, encompassing offenses that are and are not CIMTs. Although it is No. 12-4272 Hanna v. Holder Page 17 not dispositive, Hanna’s record of conviction does not suggest facts qualifying his offense as a CIMT. Cf. Wala, 511 F.3d at 109 (holding BIA erred in finding petitioner removable because petitioner, convicted under a divisible statute, did not necessarily plead to facts qualifying his particular offense as a CIMT). In our review of the record, we find nothing suggesting that Hanna’s November 1996 assault necessarily involved the intent to injure as opposed to the intent to place the victim in apprehension of an immediate battery. Our conclusion is supported by Singh, which declined to hold that a much more egregious conviction under Mich. Comp. Laws § 750.82 was a CIMT. In Singh, the petitioner, Gurminder Singh, was convicted under the Michigan statute for an assault based on the following events: Singh and an acquaintance were arguing while driving in a pickup truck after an evening of consuming alcohol; they came to blows, and the acquaintance fell from the moving vehicle; Singh and his cousin, who was also in the truck, continued driving and left the acquaintance—the vehicle’s owner—on the road. Singh was charged with kidnapping, car- jacking, and attempted murder but pleaded guilty to felonious assault with a dangerous weapon. Singh, 321 F. App’x at 475–476. After finding Mich. Comp. Laws § 750.82 likely divisible, the court remanded to the BIA to determine whether Singh’s assault conviction is a CIMT. Hanna and Singh were convicted under the same statute. Based on these facts, Hanna’s offense appears not only significantly less egregious than Singh’s offense but also may well “fall within the apprehension-portion of the statute [that] would plainly stretch the concept of a CIMT.” Singh, 321 F. App’x at 480. We recognize, however, that given the previous exclusive focus on Hanna’s attorney’s 2003 concession of removability, the immigration courts have yet to consider the substantive merits of Hanna’s claim that he is not removable because his offense is not a CIMT. Although the IJ held—when making its determination to grant Hanna withholding of removal to Iraq—that Hanna’s offense was not particularly serious and that Hanna was not a threat to the community, the immigration courts have yet to consider directly whether Hanna’s underlying offense is a CIMT. The immigration courts should have the opportunity to review the record and to determine this precise No. 12-4272 Hanna v. Holder Page 18 issue. See Kellermann, 592 F.3d at 704 (providing a framework to determine whether an offense under a divisible statute is a CIMT); Singh, 321 F. App’x at 480 (remanding for BIA to determine whether felonious assault conviction under Mich. Comp. Laws § 750.82 is a CIMT); see also Garcia-Meza v. Mukasey, 516 F.3d 535, 537–38 (7th Cir. 2008) (remanding for reconsideration where BIA mistakenly read a bodily-injury requirement into a state assault statute). Therefore, we remand to the BIA so that it may consider whether Hanna’s Michigan offense is a CIMT. III. We now turn to the separate issue of Hanna’s eligibility for asylum. “Any alien”—any person not a citizen or national of the United States—“who is physically present in the United States or who arrives in the United States . . . irrespective of such alien’s status, may apply for asylum . . . .” 8 U.S.C. § 1158(a)(1). An alien is ineligible for asylum, however, if “the alien was firmly resettled in another country prior to arriving in the United States.” 8 U.S.C. § 1158(b)(2)(A)(vi); see also Rosenberg v. Woo, 402 U.S. 49, 56 (1971) (holding that the presence of firm resettlement constituted a factor for consideration in asylum petitions). Immigration regulations further provide that “[a]n alien is considered to be firmly resettled if, prior to arrival in the United States, he or she entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement.” 8 C.F.R. § 1208.15 (2000); see also Ali v. Reno, 237 F.3d 591, 595 (6th Cir. 2001) (affirming BIA’s ruling that asylum applicant had firmly resettled in Denmark because applicant received a Danish passport and residence permit). An alien is not considered to be firmly resettled, however, if he or she establishes: (a) That his or her entry into that country was a necessary consequence of his or her flight from persecution, that he or she remained in that country only as long as was necessary to arrange onward travel, and that he or she did not establish significant ties in that country; or (b) That the conditions of his or her residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled. In making his or her determination, the asylum officer or immigration judge shall consider the No. 12-4272 Hanna v. Holder Page 19 conditions under which other residents of the country live; the type of housing, whether permanent or temporary, made available to the refugee; the types and extent of employment available to the refugee; and the extent to which the refugee received permission to hold property and to enjoy other rights and privileges, such as travel documentation that includes a right of entry or reentry, education, public relief, or naturalization, ordinarily available to others resident in the country. 8 C.F.R. § 1208.15(a)–(b). In determining firm resettlement, the BIA applies “a four-step analysis, which follows the language of the regulations at 8 C.F.R. § 1208.15 and focuses exclusively on the existence of an offer.” In re A-G-G-, 25 I. & N. Dec. 486, 503 (BIA 2011). “In the first step of the analysis, the DHS bears the burden of presenting prima facie evidence of an offer of firm resettlement.” Id. at 501. “In the second step of . . . [this] framework, the alien can rebut the DHS’s prima facie evidence of an offer of firm resettlement by showing by a preponderance of the evidence that such an offer has not, in fact, been made or that he or she would not qualify for it.” Id. “In the third step, the Immigration Judge will consider the totality of the evidence presented by the parties to determine whether an alien has rebutted the DHS’s evidence of an offer of firm resettlement.” Id. “In the final step, if the Immigration Judge finds the alien firmly resettled, the burden then shifts to the alien pursuant to 8 C.F.R. §§ 1208.15(a) and (b) to establish that an exception to firm resettlement applies by a preponderance of the evidence.” Id. We have not expressly adopted this four-step framework to determine firm resettlement. See Thiam v. Holder, 677 F.3d 299, 303 (6th Cir. 2012). In Thiam, we found that since “the BIA did not follow its own framework for firm-resettlement determinations” it “remand[ed] the case to the BIA to let it determine how to consider the record in light of its framework.” Id. at 303. We also paranthetically noted that “[i]n giving the BIA the first crack, of course, we are not taking a position on the extent to which the A-G-G- framework is consistent with the law.” Id. We have held, however, that we “must defer to the agency’s interpretation of its own regulations unless the text is unambiguous or the agency’s interpretation is ‘plainly erroneous or inconsistent with No. 12-4272 Hanna v. Holder Page 20 the regulation.’” Intermodel Techs, Inc. v. Peters, 549 F.3d 1029, 1031 (6th Cir. 2008) (quoting Ky. Waterways Alliance v. Johnson, 540 F. 3d 466, 474–75 (6th Cir. 2008)); see also Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1337 (2013) (“When an agency interprets its own regulation, the Court, as a general rule, defers to it unless that interpretation is ‘plainly erroneous or inconsistent with the regulation.’”) (quoting Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 880 (2011))). Turning to the arguments, Hanna first contends that, within the context of the BIA’s framework, the government did not offer prima facie evidence that Hanna was firmly resettled in Canada. The government counters that both Hanna and his father testified that Hanna was granted landed immigrant status in Canada, and that such testimony constitutes prima facie evidence of firm resettlement. Applying the burden- shifting framework, the testimony is prima facie evidence of firm resettlement. “Prima facie evidence of an offer of firm resettlement may already be a part of the record of proceedings as testimony or other documentary evidence.” A-G-G-, 25 I. & N. Dec. at 502 n.17; see also Firmansjah v. Gonzales, 424 F.3d 598, 602 (7th Cir. 2005) (applying the burden-shifting framework and finding that government satisfied initial burden by pointing to applicant’s “statements on her asylum application and her testimony at the hearing”). Therefore, applying its own framework, the BIA did not abuse its discretion in adopting and affirming the IJ’s determination that the Department of Homeland Security presented prima facie evidence that the respondent had an offer of firm resettlement before entering the United States. Second, substantial evidence supports the BIA’s conclusion that Hanna firmly resettled in Canada and is therefore ineligible for asylum. We have treated the receipt of permanent residency status in a third country as strongly indicative of firm resettlement. See Ibrahim v. Holder, 344 F. App’x 149, 152–53 (6th Cir. 2009) (finding firm resettlement because “[m]ost importantly, [petitioner] received a green card which would have permitted him to remain in [the third country] so long as he remained married”); Jomaa v. Ashcroft, 112 F. App’x 427, 429 (6th Cir. 2004) (finding firm resettlement because “factors [including petitioner’s asylum application] noted by the No. 12-4272 Hanna v. Holder Page 21 IJ indicate[d] that [petitioner] had an implicit offer of some type of permanent residence”); Ali, 237 F.3d at 595 (finding firm resettlement because petitioner was granted asylum in third country upon her arrival, and received a passport and a residency permit); cf. Garadah v. Ashcroft, 86 F. App’x 76, 81 (6th Cir. 2004) (rejecting the IJ’s finding of firm resettlement because the length of petitioner’s stay in third country and temporary residency permits cannot be construed as an offer of permanent resident status). Both Hanna and his father testified to receiving landed immigrant status upon arriving in Canada in December 1991 through Hanna’s sister, who is a Canadian citizen.1 Hanna and his family remained in Canada for a year and ten months before the family came to the United States on visitor’s visas in 1993. Hanna stresses that he was a minor when he obtained landed immigrant status in Canada and when he accompanied his family in entering the United States. The BIA found, however, that Hanna maintained his Canadian lawful permanent resident status after becoming an adult and that Hanna frequently traveled between countries until he became eligible for lawful permanent resident status in the United States in November 1998. Because Hanna received lawful permanent residency status in Canada before receiving such status in the United States, substantial evidence supports the IJ’s and BIA’s findings that Hanna firmly resettled in Canada. See Xiaomei Xu v. Gonzales, 238 F. App’x 312, 313 (9th Cir. 2007) (“Substantial evidence supports the IJ and BIA’s findings that [petitioner] is firmly resettled in Canada . . . because [petitioner] admitted that she received ‘landed immigrant’ status in Canada approximately eight years before her most recent entry into the United States.”). Hanna contends, however, that he qualifies for the exception to the firm resettlement bar under 8 C.F.R. § 1208.15(a), which clarifies that an alien is not firmly resettled in another country if “his or her entry into that country was a necessary consequence of his or her flight from persecution, that he or she remained in that country only as long as was necessary to arrange onward travel, and that he or she did not 1 “Landed immigrant” status, although no longer employed in Canadian immigration law, refers to Canadian lawful permanent resident status. See Bajwa and Minister of Public Safety and Emergency Preparedness, [2011] F.C. 192, para 8 (Can. Que.). No. 12-4272 Hanna v. Holder Page 22 establish significant ties in that country.” 8 C.F.R. § 1208.15(a). Hanna argues that he remained in Canada only as long as necessary to join his parents in the United States and that he remained in the United States in violation of law for the majority of the time from 1993 to 1998. Indeed, the decision that Hanna would accompany his family to the United States in 1993 was made by Hanna’s father. The BIA, adopting the IJ’s explanation, found that Hanna did not qualify for the exception. The IJ found sufficient evidence to refute the notion that the family only intended to remain in Canada only as long as necessary to make further travel arrangements. See 8 C.F.R. § 1208.15(a). This evidence included findings that Hanna’s family started a business in Canada; that Hanna and his father traveled to the United States for a wedding in 1991 and were allowed to return to Canada; that Hanna attended middle school and church in Canada; and that Hanna has a sister who is a Canadian citizen living in Canada. Therefore, substantial evidence supports the finding that Hanna’s stay in Canada from 1991 through 1993, as well as his intermittent travels to Canada through 1998, exceeded that which is “necessary to arrange onward travel.” See 8 C.F.R. § 1208.15(a); see also Ali, 237 F.3d at 595–96 (finding asylum applicant did not qualify for an exception since she “did not remain as long as necessary to arrange onward travel” and “clearly established significant ties in Denmark” (internal quotations omitted)). The BIA did not abuse its discretion in affirming the IJ’s finding that Hanna does not qualify for an exception to the firm resettlement bar under 8 C.F.R. § 1208.15(a). In the alternative, Hanna argues that because his claim for asylum occurred well after he obtained permanent resident status in Canada and in the United States, the firm resettlement bar does not apply. Hanna obtained landed immigrant status in Canada in November 1998, lawful permanent resident status in the United States in July 2003, and then applied for asylum based on his fear of persecution as a Chaldean Christian in May 2010. Hanna observes that since he did not seek asylum based on his fear of persecution as a Chaldean Christian until nearly a decade after he acquired lawful permanent resident status in the United States, the relevant time period for the firm resettlement analysis has been reset. Hanna contends that when the fear of persecution does not arise until after an asylum applicant is resettled in the United States, the intervening acquisition of lawful No. 12-4272 Hanna v. Holder Page 23 status in a third country does not trigger the firm resettlement bar. The BIA rejected this argument, concluding that the denial of asylum is required for anyone who has firmly resettled before arriving in the United States, regardless of when the fear of persecution arose. The government additionally responds that the firm resettlement bar applies to Hanna because his circumstances fit within the plain language of both 8 U.S.C. § 1158(b)(2)(A)(vi) and 8 C.F.R. § 1208.15. The government contends that the statute and regulation concern an asylum applicant’s contacts with a third country “prior to” entering the United States, not the reason the alien entered that third country. See 8 U.S.C. § 1158(b)(2)(A)(vi). Hanna’s argument fares no better now than it did before the BIA. Determinations of firm resettlement depend on an alien’s contacts with a third country prior to entering the United States. The statute is unambiguous on this point and contains no suggestion that events occurring after an alien enters the United States have any bearing on whether the alien had previously firmly resettled in a third country. See 8 U.S.C. § 1158(b)(2)(A)(vi) (providing ineligibility for asylum if “the alien was firmly resettled in another country prior to arriving in the United States”). This interpretation is buoyed by Sixth Circuit case law. See Ali, 237 F.3d at 596. In Ali, petitioner was granted refugee status by Denmark, and upon arrival in that country she received a Danish passport and a residence permit. Id. at 595. Subsequently, petitioner allowed her Danish passport to expire. Id. at 593. Danish authorities confiscated the passport and informed her that she no longer had refugee status. Id. As a result, petitioner argued that the BIA erred in finding that she had firmly resettled in Denmark. The Ali court rejected petitioner’s argument, noting that “‘[t]he pertinent regulations specifically focus on resettlement status prior to the alien’s entry into this country.’” Id. at 596 (alterations in original) (quoting Abdalla v. INS, 43 F.3d 1397, 1400 (10th Cir. 1994)); see also Tchitchui v. Holder, 657 F.3d 132, 136–37 (2d Cir. 2011) (rejecting petitioner’s argument that the IJ and BIA erred in determining petitioner did not qualify for § 208.15(a) exception by considering his ties to third country extant prior to persecution giving rise to petitioner’s asylum application). Applying the plain text of the statute and the principle noted by the Ali court, the fact that Hanna’s claim for asylum arose after No. 12-4272 Hanna v. Holder Page 24 acquiring lawful permanent residence in the United States does not affect whether Hanna was firmly resettled in Canada before entering the United States. Nor do we believe that Hanna’s contention that his Canadian permanent resident has lapsed after entering the United States alters the conclusion that he was firmly resettled in Canada before entering the United States. See Immigration and Refugee Protection Act of Canada, S.C. 2001, c. 27, §§ 28, 41(b) (Can.). Since substantial evidence supports Hanna’s firm resettlement in Canada prior to entering the United States, he is ineligible for asylum. See 8 U.S.C. § 1158 (b)(2)(A)(vi); see also Sall v. Gonzales, 437 F.3d 229, 233 (2d Cir. 2006) (“The United States offers asylum to refugees not to provide them with a broader choice of safe homelands, but rather, to protect those arrivals with nowhere else to turn.”). IV. For the foregoing reasons, we grant Hanna’s petition for review, reverse the BIA’s holding that Hanna’s admission is binding, and relieve Hanna of his attorney’s 2003 concession of removability. Because the BIA’s determination that Hanna is removable is predicated upon this concession of removability, we reverse that determination. We remand to the BIA to decide, consistent with the reasoning provided above, whether Hanna’s specific offense under Mich. Comp. Laws § 750.82 is a CIMT and whether he is removable without giving his attorney’s 2003 concession binding effect. Separately, we affirm the BIA’s conclusion that Hanna is ineligible for asylum.	{ "pile_set_name": "FreeLaw" }
Case: 17-70014 Document: 00514519507 Page: 1 Date Filed: 06/19/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 17-70014 Fifth Circuit FILED June 19, 2018 RAMIRO RUBI IBARRA, Lyle W. Cayce Clerk Petitioner - Appellant v. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee Appeal from the United States District Court for the Western District of Texas USDC No. 6:02-CV-52 Before JONES, HAYNES, and GRAVES, Circuit Judges. PER CURIAM:* Ramiro Rubi Ibarra was convicted of capital murder and sentenced to death. He is seeking a certificate of appealability (“COA”) under 28 U.S.C. § 2254 from the district court’s denial of relief on his Martinez/Trevino claims. For the reasons given below, we grant a COA on his ineffective assistance of counsel claim and deny his petition for a COA on his Atkins claim. * 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: 17-70014 Document: 00514519507 Page: 2 Date Filed: 06/19/2018 No. 17-70014 I. Background The facts about the crime need not be recited again. This court summarized the procedural history as follows: Petitioner's sentence and conviction were affirmed on direct appeal. See Ibarra v. State of Texas, 11 S.W.3d 189 (Tex.Crim.App.1999), reh'g denied (Dec. 8, 1999), cert. denied, Rubi Ibarra v. Texas, 531 U.S. 828, 121 S.Ct. 79, 148 L.Ed.2d 41 (2000). His first state habeas corpus petition was denied. Ex parte Ibarra, No. WR–48832–01 (Tex.Crim.App. Apr. 4, 2001). Petitioner then submitted his federal habeas petition, which was stayed while he exhausted additional state court claims pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which banned the execution of the mentally retarded. His petition was stayed further while he pursued state court claims following President Bush's announcement that the United States would have state courts give effect to an International Court of Justice opinion declaring that Mexican nationals were entitled to review and reconsideration of their convictions due to states' failure to comply with the Vienna Convention on Consular Relations (“VCCR”). See The Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.) (“Avena”), 2004 I.C.J. 12 (Judgment of Mar. 31). See also Medellin v. Texas, 552 U.S. 491, 128 S. Ct. 1346, 170 L.Ed.2d 190 (2008). The Texas Court of Criminal Appeals remanded Petitioner's Atkins claim to the trial court for an evidentiary hearing. The trial court determined that Petitioner was not mentally retarded, and this holding was adopted on appeal by the Court of Criminal Appeals (“CCA”). In the same order, the CCA dismissed his separate petition for relief under Avena as a subsequent writ under Article 11.071, Section 5 of the Texas Code of Criminal Procedure. Ex parte Ibarra, Nos. WR–48832–02 and WR–48832–03, 2007 WL 2790587, (Tex.Crim.App. Sept. 26, 2007). Petitioner's application for certiorari on his Avena claim was denied. Ibarra v. Texas, 553 U.S. 1055, 128 S.Ct. 2475, 171 L.Ed.2d 770 (2008). A fourth state habeas petition, raising a claim under Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), was also dismissed by the CCA as a subsequent writ. Ex parte Ibarra, No. WR–48832–04, 2008 WL 4417283 (Tex.Crim.App. Oct. 1, 2008). 2 Case: 17-70014 Document: 00514519507 Page: 3 Date Filed: 06/19/2018 No. 17-70014 Ibarra v. Thaler, 691 F.3d 677, 680 (5th Cir. 2012) vacated in part sub nom. Ibarra v. Stephens, 723 F.3d 599 (5th Cir. 2013). After Ibarra had finally exhausted his claims in the Texas courts, he argued eleven grounds for relief in the federal district court, all of which were rejected, and then sought a COA from this court on only three claims: Atkins, VCCR, and Wiggins. Most pertinent to the instant motion, Ibarra contended that “his trial counsel was ineffective in his investigation, development, and presentation of mitigation evidence, as well as the development of rebuttal evidence for the state's aggravating factors at sentencing” in violation of the Sixth Amendment and Wiggins, 539 U.S. at 522-23, 123 S. Ct. at 2536. As noted above, the TCCA dismissed this petition as a subsequent writ. The district court rejected this claim for two independent reasons: (1) procedural default under then- governing precedent, and (2) alternatively, meritlessness, because Ibarra could not demonstrate prejudice. Ibarra, 691 F.3d at 683. This court held that reasonable jurists “could not disagree with the district court’s conclusion that Petitioner’s Wiggins claim was procedurally defaulted” and denied a COA. Id. at 685. As to the Atkins claim, this court denied a COA on alternative grounds of procedural bar, non-exhaustion and meritlessness. The evidence Ibarra offered in state court included an unsworn, inadmissible expert witness statement concerning Ibarra’s IQ; an investigative report about his alleged adaptive deficits; and the opinion of Dr. Mark, who after two examinations of Ibarra had found no evidence of mental handicap. The TCCA had rejected this claim on the merits. Ibarra consequently offered material new evidence in federal court, rendering his claim unexhausted and procedurally barred. Finally, reviewing the state court record, this court found it not debatable that 3 Case: 17-70014 Document: 00514519507 Page: 4 Date Filed: 06/19/2018 No. 17-70014 the state courts’ rejection of the Atkins claim on the merits did not violate 28 U.S.C. § 2254(d)(1). Ibarra, 691 F.3d at 681-83. 1 The Supreme Court then decided Trevino v. Thaler, 569 U.S. 413, 133 S. Ct. 1911 (2013). On a motion for rehearing, this court granted rehearing in part and vacated our initial decision “only to the extent inconsistent with Trevino and grant[ed] a COA only to that extent; in all other respects, the majority and dissenting opinions [of the prior opinion] remain[ed] in effect.” Ibarra, 723 F.3d at 600. Judge Graves concurred in part and dissented in part. Back in the district court, Ibarra moved to stay and remand so that he could pursue his ineffective assistance of counsel (“IATC”) claim in state court. The district court denied this motion. The case was reassigned to Judge Pitman when Judge Smith retired. Ruling on a motion for rehearing of that order, Judge Pitman affirmed the denial and sua sponte held that a COA should not issue because Ibarra’s IATC claim was not “substantial.” II. Standard of Review and Controlling Law This court must first issue a COA, 28 U.S.C. § 2253(c)(1), a jurisdictional prerequisite to reviewing the district court’s denial of habeas relief. Miller-El v. Cockrell, 537 U.S. 322, 323, 123 S. Ct. 1029, 1032 (2003). A COA may only be granted when the petitioner “has made a substantial showing of the denial of a constitutional right.” Id. at 336, 123 S. Ct. at 1039 (internal quotation marks omitted). This standard means that the “petitioner must show that reasonable jurists could debate whether (or for that matter, agree that) the petition should have been resolved in a different manner or that the issues 1 This court also denied COA on the VCCR claim, a holding that has not been challenged. 4 Case: 17-70014 Document: 00514519507 Page: 5 Date Filed: 06/19/2018 No. 17-70014 presented were adequate to deserve encouragement to proceed further.” Id. (internal quotation marks omitted). Martinez v. Ryan held that “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” 566 U.S. 1, 17, 132 S. Ct. 1309, 1320 (2013). This principle was extended to Texas in Trevino. 569 U.S. at 429, 133 S. Ct. at 1921. Such a “substantial claim” constitutes “cause” for the procedural default, but, in line with traditional precedent, the petitioner must also prove that he suffered “prejudice” from counsel’s errors. Martinez, 566 U.S. at 10, 132 S.Ct. at 1316 (citing Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546 (1991)). A “substantial” claim is one that has “some merit.” Martinez, 566 U.S. at 14, 132 S. Ct. at 1318. An insubstantial claim is one which “does not have any merit” or “is wholly without factual support.” Id. at 15-16, 132 S. Ct. at 1319. The standard for evaluating an ineffective assistance of counsel claim is given in Strickland, which states the petitioner must show “that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S. Ct. 2064. The State succeeds in establishing procedural default if the IATC claim is insubstantial, or the initial habeas attorney was not constitutionally ineffective, or Ibarra has not proved sufficient prejudice to overcome his procedural default. Martinez, 566 U.S. at 15-16, 18, 132 S. Ct. at 1319, 1321. III. Analysis Ibarra’s motion for COA asserts that reasonable jurists could debate the district court’s conclusions that his IATC claim lacked merit, his initial state 5 Case: 17-70014 Document: 00514519507 Page: 6 Date Filed: 06/19/2018 No. 17-70014 habeas counsel was constitutionally deficient for not raising that claim, and his Atkins claim may also be re-reviewed by this court. A. Ibarra argues trial counsel were ineffective for failing to investigate and present additional mitigating evidence about Ibarra’s background. He argues that a “thorough background investigation” would have uncovered: (1) Ibarra’s extreme childhood impoverishment to the point of malnourishment and living conditions far more dire than “humble;” (2) extreme physical and emotional abuse perpetrated against Ibarra as a child by his father; (3) Ibarra’s witnessing extreme physical and emotional abuse perpetrated against loved ones by his father as a child; (4) Ibarra’s attempts to care for and protect his siblings from their poverty and from their father’s abuse; (5) Ibarra’s significantly subaverage intellectual functioning; (6) Ibarra’s developmental intellectual disability; and (7) Ibarra’s development of severe post-traumatic stress disorder as a result of his experiencing and witnessing the extreme violence perpetrated by his father throughout his childhood and experiencing the near deaths and deaths of family members due to their extreme poverty. 2 Ibarra argues that trial counsels’ failure to present this evidence prejudiced him at the sentencing stage. In Buck v. Davis, the Supreme Court cautioned this court that a COA determination “is not coextensive with a merits analysis.” 127 S. Ct. 759, 773 (2017). At this stage, we only consider whether Ibarra’s claim is debatable. See id. at 774. We find that it is. Because Ibarra’s original IATC claim is debatable, we also find that it is debatable whether his initial habeas counsel 2Ibarra contends that the district court was obliged to hold an evidentiary hearing on his Martinez claim, but circuit precedent does not support such a requirement. Segundo v. Davis, 831 F.3d 345, 351 (5th Cir. 2016). 6 Case: 17-70014 Document: 00514519507 Page: 7 Date Filed: 06/19/2018 No. 17-70014 was ineffective for not pursuing this claim. Therefore, we grant a COA on this issue. B. Ibarra argues that he is entitled to a COA on his Atkins claim consistent with our COA on rehearing. Reasonable jurists could not debate the district court’s rejection of this argument. This court denied a COA on the Atkins claim, see Ibarra, 691 F.3d at 682-83, and made clear that the order granting COA in light of Trevino did not affect this portion of our ruling. See, e.g., Ayestas v. Stephens, 817 F.3d 888, 889 (5th Cir. 2016) (remand order after Trevino did not leave open any matter other than the defaulted IATC claim). 3 Nothing in that order suggests that the Atkins claim was within the scope of remand. Ibarra alternatively contends that Martinez and Trevino should be extended to cover Atkins claims. He states that Davila v. Davis, 137 S. Ct. 2058 (2017) supports his assertion. He also argues that he should be able to pursue this claim because Moore v. Texas, 137 S. Ct. 1039 (2017), is retroactive and provides an exception to the Section 28 U.S.C. 2254(d)(1) relitigation bar and law of the case. We need not consider the debatability of these issues because reasonable jurists could not debate that Ibarra’s underlying Atkins claim, as presented to the state courts, has no merit. Even if Moore applied to this case, it would not benefit Ibarra because, although explicitly given a fair opportunity to present an Atkins claim, his counsel, who continue to represent The dissenting opinion appears to argue that the Martinez/Trevino holdings may be 3 extended to Ibarra's second state postconviction proceeding, which explicitly considered his Atkins claim on the merits. Thus, are we to infer that Ibarra's counsel must have been ineffective in that proceeding, and they, the same attorneys, can relitigate de novo their Atkins claim in federal court? This would be a significant extension of Martinez/Trevino. Together, those cases hold only that a claim of ineffective assistance of state trial counsel is not procedurally defaulted (or the default can be overcome) if the state habeas counsel was ineffective for failing to raise trial counsel's ineffectiveness in the state habeas court. 7 Case: 17-70014 Document: 00514519507 Page: 8 Date Filed: 06/19/2018 No. 17-70014 him to this day, failed to offer admissible evidence of intellectual disability in the state court. Ibarra argues that this court should consider evidence that he did not present in state court. Under Cullen v. Pinholster, 563 U.S. 170, 181- 82, 131 S. Ct. 1388, 1398 (2011), this is impermissible. 4 As this court previously held, Ibarra presented “essentially no supporting evidence” of intellectual disability in state court. Ibarra, 691 F.3d at 681-82. Accordingly, a COA on this claim must be denied. We GRANT a COA on Ibarra’s post-Trevino defaulted IATC claim. Counsel will proceed to file briefs as instructed by the clerk’s office. However, in light of the substantial briefing we have already received concerning the COA, counsel are authorized to supplement the COA briefing as appropriate and may cross reference their COA briefs. We also hold that reasonable jurists could not debate the district court’s refusal on remand to consider Ibarra’s Atkins claim. We therefore DENY his application for a COA on his Atkins claim. 4 To allow such relitigation with counsel’s newly proffered evidence would effect a complete end run around the state court system and would violate AEDPA specifically. 28 U.S.C. § 2254(e)(2). Although the dissenting opinion quotes this provision, Ibarra never attempted to show that this provision's stringent test for de novo review in federal court has been met. To begin, the Atkins issue was well known (not "previously unavailable") to these counsel when they represented Ibarra in the state court system. The factual predicate for his Atkins claim could have been timely prepared for the state habeas hearing on the merits. And counsel have never attempted to demonstrate that the facts underlying Ibarra's alleged mental disability can be established by clear and convincing evidence, as that provision requires. Holding that reasonable jurists could debate a potential extension of Martinez/Trevino under these circumstances is plainly at odds with AEDPA as well as Cullen v. Pinholster, supra. 8 Case: 17-70014 Document: 00514519507 Page: 9 Date Filed: 06/19/2018 No. 17-70014 JAMES E. GRAVES, JR., Circuit Judge, dissenting in part: I concur with the majority in granting a certificate of appealability (COA) on Ramiro Rubi Ibarra’s ineffective assistance of counsel claims. However, because I would also grant a COA on Ibarra’s claim under Atkins v. Virginia, 536 U.S. 304, 321 (2002), I respectfully dissent in part. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a COA should issue when a petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To meet this standard, Ibarra must show that “jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller– El v. Cockrell, 537 U.S. 322, 327 (2003). Further, “any doubt as to whether a COA should issue in a death-penalty case must be resolved in favor of the petitioner.” Pippin v. Dretke, 434 F.3d 782 (2005). Ibarra was originally sentenced prior to Atkins. He later had an Atkins hearing. This court previously considered Ibarra’s claims based on what was presented by counsel who was arguably ineffective, noting that "[a]t the state court evidentiary hearing regarding his Atkins claim, he presented essentially no supporting evidence." Ibarra v. Thaler, 691 F.3d 677, 681 (5th Cir. 2012). Although Ibarra's counsel attempted to introduce an expert affidavit in state court, it was found to be inadmissible because it was not notarized. Id. at 682. Counsel then attempted to introduce a notarized affidavit in federal court, but the district court found that it was procedurally barred under 28 U.S.C. § 2254(b) for failure to exhaust in state court. This court later acknowledged that the disallowed evidence was "essential to his claim of mental retardation." Id. The majority then agreed that the district court "properly disregarded this newly proffered evidence" as procedurally barred. The majority also purported to find, in the alternative, that the district court properly found that Ibarra's 9 Case: 17-70014 Document: 00514519507 Page: 10 Date Filed: 06/19/2018 No. 17-70014 claim had no merit based on the state court record, despite acknowledging that "[c]ritically, the record before the state court hearing Ibarra's claim of mental retardation did not include the expert affidavit that could have served as some evidence of his sufficiently low IQ." Id. The record also did not include mitigation evidence that would have provided additional insight into both Ibarra’s intellectual disability and his adaptive skills deficits. If trial counsel was ineffective in failing to present evidence of intellectual disability or adaptive skills deficits for purposes of mitigation at sentencing, then that necessarily affected the outcome of Ibarra's Atkins claim. 1 Ibarra has evidence that his full scale IQ is 65, well within the intellectually disabled range, that he suffered intellectual deficits throughout his childhood, and of his adaptive skills deficits. Ibarra has an expert affidavit from Dr. Carol Romey concluding that he is intellectually disabled. Ibarra asserts that Dr. Stephen Mark was not even hired until after voir dire in his trial had already begun. Further, Mark was not provided relevant social history information, failed to do necessary intellectual functioning testing of Ibarra, and did not speak Spanish, Ibarra’s only language. Ibarra argued in his application for a COA that his trial counsel was ineffective for failing to investigate and present mitigation evidence relevant to his Atkins claim and that the state court process was blatantly unfair for various reasons, including the denial of adequate funding. To the extent that any failure to perform necessary investigation or to present adequate evidence in state court was the result of ineffective assistance of counsel, Ibarra is entitled to present his Atkins claim. 1 This is not an argument about Ibarra’s second state post-conviction proceeding. But even if that were the case, the majority explicitly ignores the relevant authority that would allow Ibarra to overcome any procedural default, as well as the application of the fundamental miscarriage of justice provision. 10 Case: 17-70014 Document: 00514519507 Page: 11 Date Filed: 06/19/2018 No. 17-70014 As the majority acknowledges, under Buck v. Davis, 137 S.Ct. 759 (2017), Ibarra is not required to prove his claims on the merits. “At the COA stage, the only question is whether the applicant has shown that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Id. at 773. The majority faults Ibarra’s counsel “who continue to represent him to this day” for failing to offer admissible evidence of intellectual disability in state court. However, Ibarra’s current counsel did not represent him at trial, on appeal, or in his “initial-review collateral proceedings.” Martinez, 566 U.S. at 9. Moreover, the arguable ineffectiveness of Ibarra’s previous counsel is the reason he benefits from the equitable ruling in Martinez. The majority cites Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011), for the proposition that evidence of intellectual disability may not be considered unless it was presented in state court. While that typically may be the rule, Pinholster is distinguishable because the court concluded that the defendant was unable to demonstrate either prong of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 686-92 (1984). Pinholster, 563 U.S. at 194-201. Significantly, the court also acknowledged that “state prisoners may sometimes submit new evidence in federal court,” although AEDPA discourages it. Id. at 186. AEDPA includes a provision for the introduction of new evidence in federal court. 28 U.S.C. § 2254(e)(2) states: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that- - (A) the claim relies on-- 11 Case: 17-70014 Document: 00514519507 Page: 12 Date Filed: 06/19/2018 No. 17-70014 (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). Additionally, binding precedent allows a petitioner to overcome procedural defaults and introduce new evidence in certain instances. See Morris v. Dretke, 379 F.3d 199, 205 (5th Cir. 2004) (Exhaustion may be excused.); see also Martinez v. Johnson, 255 F.3d 229, 239 (5th Cir. 2001) (Petitioner may overcome a procedural default and “obtain federal habeas corpus review of his barred claims on the merits, if he can demonstrate cause for the defaults and actual prejudice.”); and Barrientes v. Johnson, 221 F.3d 741, 758 (5th Cir. 2000) (Petitioner can overcome procedural default if “failure to consider the claims will result in a fundamental miscarriage of justice”). These cases rely on Coleman v. Thompson, 501 U.S. 722, 750 (1991), where the United States Supreme Court said: We now make it explicit: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Id. at 750. 12 Case: 17-70014 Document: 00514519507 Page: 13 Date Filed: 06/19/2018 No. 17-70014 Under this relevant authority, Ibarra is arguably able to overcome the procedural default for failure to exhaust and obtain federal habeas review of his barred claims. Ibarra can arguably demonstrate cause for the defaults and actual prejudice. More importantly, failure to consider the claim would result in a fundamental miscarriage of justice if an intellectually disabled man were to be unconstitutionally executed. However, on remand after the United States Supreme Court’s decision in Trevino v. Thaler, 569 U.S. 413 (2013) 2, the district court did not discuss Ibarra's Atkins claim, finding that it was not within the scope of this court's remand order. That finding was the result of the majority’s inclusion of language on remand limiting Ibarra’s claims of ineffective assistance of counsel with regard to issues on which the majority had previously denied his COA. Ibarra v. Stephens, 723 F.3d 599, 600 (5th Cir. 2013). I dissented to the inclusion of any such language on the basis that Ibarra was not foreclosed from raising his ineffective assistance of counsel claims on those issues. Id. (Graves, J., dissenting in part) (“Simply put, the trial court is free to determine whether or not evidence related to these issues is relevant to any claim of ineffective assistance of counsel, and is likewise free to determine if any ineffective assistance affects the merits of these issues or any procedural default.”). I continue to conclude that Ibarra is not foreclosed from presenting his Atkins claim to the extent that it is encompassed within Trevino/Martinez. For the reasons stated herein, jurists of reason could find debatable the disposition of Ibarra’s Atkins claim. Because I would grant a COA on Ibarra’s Atkins claim to the extent that it is encompassed within Trevino/Martinez, I respectfully dissent in part. 2In Trevino, the Supreme Court vacated this court’s judgment that Martinez v. Ryan, 566 U.S. 1 (2012), did not apply to Texas. In Ibarra’s case, the majority likewise concluded that Martinez did not apply to Texas, thus, necessitating remand. 13	{ "pile_set_name": "FreeLaw" }
982 So.2d 689 (2008) HARVEY v. STATE. No. 1D07-4327. District Court of Appeal of Florida, First District. May 19, 2008. Decision without published opinion. Affirmed.	{ "pile_set_name": "FreeLaw" }
245 S.W.2d 484 (1952) STEWART et ux. v. BASEY. No. A-3346. Supreme Court of Texas. January 16, 1952. 485 E. M. DeGuerin, Austin, for petitioners. Smith & Furr, Austin, for respondents. HICKMAN, Chief Justice. The controlling question in this case is whether the language quoted below stipulating the damages recoverable for the breach of a lease contract is a provision for liquidated damages or for a penalty. The trial court construed it as a provision for a penalty and, finding that the lessor suffered no damages by lessee's breach except $38.50 caused by the destruction of a partition door in one of the leased buildings, rendered judgment for that amount only. The Court of Civil Appeals upheld the trial court in its refusal to award liquidated damages, but reversed that portion of the judgment awarding only $38.50 as damages and remanded the case to the trial court for the sole purpose of determining the amount of actual damages sustained by the lessor. Tex.Civ.App., 241 S.W.2d 353. By a contract in writing petitioners, E. C. Stewart and wife, leased to respondent, James Marvin Basey, three store buildings on South Congress Avenue in the city of Austin. The lease stated that it was for a term of five years, beginning on January 1, 1949, and ending at midnight on December 31, 1954. The dates cover a period of six years, but for the purposes of this opinion it is immaterial whether the term was five years or six years. The lease provided for a monthly rental of $325.00, payable each month in advance. Respondent went into possession under the lease and paid the monthly rentals through November, 1949 during which month he vacated the buildings. On the following December 5th the keys were returned to petitioners upon their request, since which time they have executed leases to other tenants. The provision of the contract which we are called upon to construe reads as follows: "The failure to pay any monthly installment of rental when such installment is due shall terminate this lease at the opinion of Lessors. The failure of Lessee to make said payment or payments or the breach of this contract otherwise by him shall render him liable to Lessors, as agreed liquidate damages, the sum of One Hundred Fifty (150) Dollars per month for each and every month of the unexpired term of this lease which shall become due and payable when the option to terminate this lease is exercised or at the time of the breach of this contract otherwise by Lessee if any, and the payment thereof be secured by lien on the property of Lessee in said Store Buildings at said time." Another provision of the contract is: "That the violation of any term of this lease by either party hereto shall terminate the same at the option of the other." It will be observed that liability for the payment of $150.00 per month as liquidated damages is not limited to the breach of any one particular covenant of the contract. The covenant to pay the rent when due is but one of the covenants the breach of which would give rise to a claim by the lessors for $150.00 per month for each and every month of the unexpired term of the lease. Volumes have been written on the question of when a stipulated damage provision of a contract should be enforced as liquidated damages and when enforcement 486 should be denied because it is a penalty provision. One lien of cases, of which Eakin v. Scott, 70 Tex. 442, 7 S.W. 777, is typical, states that the intention of the parties governs and another line states that their intention is immaterial, but when the results are examined there appears but little disparity between them. All agree that to be enforceable as liquidated damages the damages must be uncertain and the stipulation must be reasonable. There is a statement in the opinion in Eakin v. Scott, supra, which, standing alone, would lead to the conclusion that the damages in that case were certain in amount. But when the entire opinion is read, it becomes obvious that the damages were very uncertain in the contemplation of the parties when the contract was executed; and that is the true test of uncertainty. The true theory is well expressed in Williston on Contracts, Revised Edition, Sec. 779, p. 2192 in this language: "But as has been seen, the chief, almost the only, means of determining whether the parties in good faith endeavored to assess the damages is afforded by the amount of damages stipulated for, and the nature of the breach upon which the stipulation was agreed to become operative. This is but saying in other words that the reasonableness or unreasonableness of the stipulation is decisive." The cases which hold that the intention of the parties controls impute to the parties an intention to provide for a penalty when it would be unreasonable and unjust to do otherwise, even though their language clearly expresses the contrary intention. They indulge in a presumption in order to arrive at the justice of the case. The case which disregard the intention of the parties treat the question as one of the legality of the stipulation. The reasoning in Langever v. R. G. Smith & Co., Tex. Com.App., 278 S.W. 178, 179, is typical of that employed in cases which announce that the intention of the parties controls. The statement in the opinion that "the real intention of the parties when ascertained will control" is followed by the statement that such intention "is not necessarily ascertained by the words employed". Regardless of which line of cases is followed, the courts will not be bound by the language of the parities. The right of competent parties to make their own bargains is not unlimited. The universal rule for measuring damages for the breach of a contract is just compensation for the loss or damage actually sustained. By the operation of that rule a party generally should be awarded neither less nor more than his actual damages. A party has not right to have a court enforce a stipulation which violates the principle underlying that rule. In those cases in which courts enforce stipulations of the parties as a measure of damages for the breach of covenants, the principle of just compensation is not abandoned and another principle substituted therefor. What courts really do in those cases is to permit the parties to estimate in advance the amount of damages, provided they adhere to the principle of just compensation. Restatement of Contracts, Sec. 339, accurately expresses the rule as follows: "(1) An agreement, made in advance of breach fixing the damages therefor, is not enforceable as a contract and does not affect the damages recoverable for the breach, unless "(a) the amount so fixed is a reasonable forecast of just compensation for the harm that is caused by the breach, and "(b) the harm that is caused by the breach is one that is incapable or very difficult of accurate estimation." This comment on subsection (1) follows: "b. Contracts are frequently made in which performance of very different degrees of importance and value are promised and one large sum of money is made payable as damages for any breach whatever. Since such a contract promises the same reparation for the breach of a trivial or comparatively unimportant stipulation as for the breach of the most important one or of the whole contract, it is obvious that the parties have not adhered to the rule of just compensation. In this matter neither the intention of the parties nor their expression of intention is the governing consideration. The payment promised may be a penalty, though described expressly as liquidated damages, and vice versa." 487 The rule as declared in that comment is in effect the same as that declared in Williston on Contracts, Revised Edition, Vol. 3, Sec. 783, p. 2204; McCormick on damages, Sec. 151; 15 Am.Jur., Damages, Sec. 253; and 25 C.J.S., Damages, § 111. Early in the history of this court in Durst v. Swift, 11 Tex. 273, 282, the rule was stated in this language: " * * where the agreement contains several matters of different degrees of importance, and yet the sum named is payable for the breach of any, even the lease * * * the sum stipulated to be paid has been treated as a penalty." That rule was followed in Palestine Ice, Fuel & Gin Co. v. Walter Connally & Co., Tex.Civ.App., 148 S.W. 1109, error refused, and in Sanders Nursery Co. v. J. C. Engelman, Inc., Tex.Civ.App., 109 S.W.2d 1131, error dismissed. When that rule is applied to the provisions in the contract before us it seems clear that the stipulation should be construed as a provision for a penalty and not for liquidated damages. Obviously, the stipulation was not carefully drawn. It provides that for the failure of lessee to pay any installment of rent when due or for his breach of any other obligation of the contract, the lessors could, at their option, terminate the lease. Should they elect to terminate it, the lessee would be obligated to pay them at that time a sum of money arrived at by multiplying $150.00 by the number of months of the unexpired term of the lease. Should they not elect to terminate the lease they could, nevertheless, demand that amount in a lump sum on the date of the breach. The lease contains several covenants other than the covenant to pay rent when due. One is a covenant of indemnity in this language: "Lessee further covenants and agrees to keep Lessors free and harmless from any and every claim, demand, or cause of action arising in or on the leased premises during the term of this lease." Another is a covenant that lessee will prudently use the premises and avoid injuries thereto, except usual wear and tear, and another that lessee will "make such repairs as are not caused by Lessors or their agents and the usual depletion of said property." It is not necessary for us to decide whether petitioners would have been entitled to liquidated damages had the lease contract contained no covenant except the covenant to pay rent, and we therefore pass that question by without discussion. It is clear that petitioners should not be awarded a large sum for liquidated damages for the breach of the other covenants just mentioned. Take, for instance, the covenant for indemnity. Whatever amount respondent might have been called upon to pay petitioners as an indemnity would have been a definite amount measured by the liability theretofore adjudged against petitioners. An obligation to pay an indemnity is nothing more than an obligation to pay a sum of money theretofore ascertained, and a provision that failure to pay a definite sum of money upon default of performance of a covenant in a contract entitles the obligee to recover liquidated damages in excess of the interest rate will not be enforced. Langever v. R. G. Smith & Co., Tex.Com. App., 278 S.W. 178. With respect to the other covenants above mentioned, it was found by the trial court that respondent breached them, and damages of $38.50 were assessed against hi therefor. A stipulation to pay several thousand dollars for the breach of a covenant which might well result in damages of $38.50 or even less would be so unreasonable that no court would lend its power to enforce it. Our conclusion is that, since the contract provided the same reparation for the breach of each and every covenant, and since it would be unreasonable and a violation of the principle of just compensation to enforce it as to some of them, the provision for stipulated damages should be treated as a penalty. We approve the action of the Court of Civil Appeals on rehearing in remanding the case for the purpose of determining the actual damages instead of rendering it. The judgment of the Court of Civil Appeals is affirmed.	{ "pile_set_name": "FreeLaw" }
77 Wis.2d 344 (1977) 252 N.W.2d 921 SCHELL, Plaintiff-Respondent, v. KNICKELBEIN, and another, Defendants-Respondents, Third-Party Plaintiffs: SECURITY SAVINGS & LOAN ASSOCIATION, Third-Party Defendant-Appellant. No. 75-396. Supreme Court of Wisconsin. Submitted on briefs March 30, 1977. Decided May 3, 1977. 345 For the appellant the cause was submitted on the briefs of Schoendorf and Schoendorf of Milwaukee. For the plaintiff-respondent the cause was submitted on the brief of James R. Gass, Russell M. Ware and Kasdorf, Dall, Lewis & Swietlik, all of Milwaukee. 346 CONNOR T. HANSEN, J. In August, 1974, Mrs. Elizabeth Schell commenced an action against Mark and Barbara Knickelbein because of the death of her husband who, she alleged, died as a result of injuries he received on June 17, 1974, when he was attacked by the Knickelbeins' dog. In the complaint, Elizabeth Schell alleged that the Knickelbeins had been negligent in their care and treatment of the dog. Elizabeth Schell later served an amended complaint which again alleged that the Knickelbeins had been negligent in their care and treatment of the dog. The Knickelbeins answered and denied that they were negligent. The Knickelbeins also served a third party complaint on Security Savings & Loan Association. The Knickelbeins alleged that in their mortgage payments to Security they included monthly payments to cover a homeowners policy of insurance; that in December, 1971, Security failed to use the funds to procure the homeowners policy of insurance; and that they would be damaged in the event they were found liable to Elizabeth Schell. The Knickelbeins requested contribution from Security in the event either or both of them were found liable to Elizabeth Schell. Subsequently, Elizabeth Schell served a second amended complaint. She incorporated all of the paragraphs and allegations of her first amended complaint for her cause of action against the Knickelbeins. She also alleged causes of action directly against Security. She alleged that Security was liable to the Knickelbeins for Security's failure to maintain the insurance, and that she was a third party beneficiary of the mortgage contract between the Knickelbeins and Security. Security demurred to the second amended complaint on the grounds that it attempted to improperly unite several causes of action and that none of the alleged causes of action set forth facts sufficient to constitute a cause of action as to Security. 347 Following a hearing, the circuit court entered the order overruling Security's demurrer. Security argues that none of the three alleged causes of action in the second amended complaint sets forth sufficient facts to constitute a cause of action against it. Security also argues that the second amended complaint improperly unites in one action a cause of action against the Knickelbeins for negligence and alleged causes of action against Security for breach of contract. Security contends the joinder is improper because not all the parties are affected by both causes of action. Schell argues that what are denominated as separate causes of action are really three alternative theories for one cause of action against Security. Schell argues that the second amended complaint is sufficient to state a cause of action against Security and that the joinder of parties and causes of action is proper because each defendant has an interest in the controversy adverse to herself. THE THIRD PARTY BENEFICIARY THEORY. In the first cause of action against Security, Schell alleges: That the mortgage contract between Security and the Knickelbeins required the Knickelbeins to pay Security "a sum of money adequate to provide insurance" on the property at 1316 Nagawicka, Delafield, Wisconsin; That in December, 1968, a policy of homeowners insurance was obtained for the premises and that the insurer on the policy agreed to pay damages for the type of negligence Schell alleged against the Knickelbeins; That the Knickelbeins paid Security sufficient money to keep the policy in force, but that in December, 1971, Security failed to make the required premium payment; and as a result, the insurance coverage was terminated; 348 ". . . that the contract requirement of insurance and the monthly payment of sums to continue that insurance was for the benefit of all parties in the class occupied by the plaintiff, to-wit persons suffering loss or damage due to the occupation or use of or destruction of the premises covered by said insurance;" ". . . that the third-party defendant's [Security's] failure to make the premium payment as required was a breach of this contract and that if the defendants-third-party plaintiffs [the Knickelbeins] are not able to satisfy a judgment entered against them in this matter the plaintiff will be damaged in the amount which would have been paid by the insurer in excess of the defendants third-party plaintiffs' payment." In short, Schell alleged that because Security breached its agreement to procure insurance, it is liable to the Knickelbeins for any damages they have to pay Schell up to the amount the insurer would have had to pay. According to Schell, she can maintain an action directly against Security on the theory that she is a third party beneficiary of the contract between Security and the Knickelbeins, which required Security to maintain the insurance with money supplied by the Knickelbeins. Security contends that Schell cannot maintain a direct action against it on a third party beneficiary theory because the second amended complaint does not allege enough of the mortgage contract to show that Security and the Knickelbeins entered the agreement directly or primarily for Schell's benefit. [1] To maintain an action as a third party beneficiary, a plaintiff must show that the parties to the contract intentionally entered their agreement `directly and primarily for his benefit."`" Ampex Corp. v. Sound Institute, Inc., 44 Wis.2d 674, 683, 172 N.W.2d 170 (1969). Saying the same thing in a different way, the 349 Court said in Winnebago. Homes, Inc. v. Sheldon, 29 Wis.2d 692, 699, 139 N.W.2d 606 (1966): "In order to entitle a stranger to a contract to recover thereon, the contract must indicate an intention to secure some benefit to such third party." [2] A third party cannot maintain an action as a third party beneficiary if under the contract his was only an "indirect benefit, merely incidental to the contract between the parties." Ampex, supra, at 683. [3] The third party's complaint must allege facts to show that the agreement was entered primarily and directly for his benefit. Ampex, supra, at 684. In an action for breach of contract, the complaint must set forth the substance of the agreement or have attached a copy of the agreement. Galena Towing, Inc. v. North Milwaukee St. Bank, 68 Wis.2d 34, 35, 227 N.W.2d 672 (1975). In the instant case, the only contract provisions alleged in the second amended complaint are the Knickelbeins' agreement to pay Security money adequate to provide insurance and Security's responsibility to pay the insurance company the premium. The second amended complaint does not allege enough of the contract to show what kind of insurance the parties contemplated. The mortgage contract may have only called for fire and extended coverage insurance that would protect Security's interest in the real estate and the mortgage. The complaint does not allege enough of the contract to show whether Security and the Knickelbeins contemplated securing liability insurance that would protect third parties against the Knickelbeins' negligence. [4] Thus, the complaint does not allege enough of the contract to show that Security and the Knickelbeins entered 350 the agreement for the benefit of Schell or others of her class. Having failed to show that, Schell has failed to allege facts sufficient to maintain an action as a third party beneficiary. Arguing that as a third party beneficiary she can maintain a direct action against a party who breached a contract to secure insurance, Schell cites three cases from other jurisdictions, Gothberg v. Nemerovski, 58 Ill. App.2d 372, 208 N.E.2d 12 (1965); Eschle v. Eastern Freight Ways, 128 N.J. Super. 299, 319 A.2d 786 (1974); and Sturcke v. Clark, 261 So.2d 717 (La. App. 1971). However, these cases are distinguishable. In each case the defendant agreed to procure automobile liability insurance which would have paid damages to the plaintiffs, the injured third parties. The Illinois and New Jersey courts reasoned that in entering the agreements to procure the liability insurance, the car owners contemplated, among other things, possible injury to third parties and the insurance coverage was for the direct benefit of the injured third parties. Gothberg, supra, at 386; and Eschle, supra, at 305. The rationale of these cases cannot be applied to the instant case because, as noted above, the complaint does not allege enough of the contract to show that Security and the Knickelbeins contemplated securing liability insurance that would benefit injured third parties. THE FIDUCIARY THEORY. Schell pleaded her second cause of action against Security in the alternative. She alleged that Security was in a fiduciary relationship with the Knickelbeins; or, in the alternative, that by failing to forward the insurance premium, Security elected to become the Knickelbeins' insurer. As to the first alternative, she alleged: 351 That Security accepted the Knickelbeins' funds as a fiduciary and retained the funds in an escrow account maintained by Security and required by the mortgage; That Security breached its duty as a fiduciary by failing to tender the premiums to maintain the existing insurance policy, by failing to obtain comparable insurance when the original policy was terminated, and by failing to inform the Knickelbeins of Security's failure to pay the premiums or obtain comparable insurance; That Security is required to indemnify the Knickelbeins to the same extent as the original insurer would have been if its policy had remained in force. Schell argues that she can maintain an action as a third party beneficiary of Security's and the Knickelbeins' escrow agreement involving the purchase of liability insurance, a subject in which the community as a whole is interested. [5] The complaint is insufficient again because it does not allege enough of the contract for the court to determine, first, whether a fiduciary relationship existed, or, second, whether liability insurance was contemplated by the parties. In agreeing to maintain the insurance, Security could have been acting in one of at least two capacities, in a fiduciary relationship or an agency relationship. Richman v. Security Savings & Loan Asso., 57 Wis.2d 358, 362-363, 204 N.W.2d 511 (1973). The contract is not sufficiently set forth in the complaint for the Court to determine what relationship was created by the agreement. Also, as noted earlier, the complaint does not set forth enough of the contract to show that the parties contemplated the maintenance of liability insurance. 352 THE INSURER THEORY. In her alternative second cause of action, Schell alleged: That Security's acceptance of money intended for insurance premiums and its failure to expend the money for that purpose was an election on its part to provide insurance to the property comparable to the insurance coverage under the terminated policy; That Security is, therefore, required to indemnify the Knickelbeins to the same extent as the original insurer would have been if the policy had remained in force. Thus, on this theory, Schell contends that Security is liable to the Knickelbeins as their insurer. There are at least two errors in this theory. [6] First, as argued by Security, this Court has already held: "The liability of one who breaches a contract to procure insurance is to pay damages, and is not that of an insurer." Bentley v. Fayas, 260 Wis. 177, 185, 50 N.W.2d 404 (1951). Therefore, Security is not liable as an insurer. [7] Second, even if Security were liable to the Knickelbeins as an insurer, Schell would have to qualify as a third party beneficiary to recover from Security directly. The direct liability statute, sec. 204.30 (4), Stats., 1973, applies to commercial insurers licensed by the state to conduct business in Wisconsin. Cords v. State, 62 Wis.2d 42, 55, 214 N.W.2d 405 (1974) . Security is not alleged to be such a commercial insurer. Again, Schell's complaint has not set forth enough of the contract to allege a third party beneficiary action. [8] For the reasons given, the second amended complaint does not set forth facts sufficient to constitute an action *353 by Mrs. Schell against Security, and the demurrer should be sustained. However, the plaintiffs should be given twenty days from the date of the remittitur of the record in which to file another amended complaint. Because the appeal is disposed of on other grounds, the Court does not reach the issue of the alleged improper joinder of causes of action. By the Court. Order reversed and cause remanded for further proceedings consistent with this opinion.	{ "pile_set_name": "FreeLaw" }
66 F.3d 915 Erin C. SMITH, Plaintiff-Appellee,v.OFFICE OF CIVILIAN HEALTH AND MEDICAL PROGRAM OF theUNIFORMED SERVICES, a subdivision of the Department ofDefense of the United States of America and William Perry,in his official capacity as the Secretary of Defense of theUnited States of America, Defendants-Appellants. No. 94-3744. United States Court of Appeals,Seventh Circuit. Dec. 15, 1995. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division, No. 94 C 1396; Sara Evans Barker, Chief Judge. Before ESCHBACH, FLAUM and MANION, Circuit Judges. ORDER 1 The court has considered the petition for rehearing and answer filed in this case. It is ordered that the petition for rehearing is GRANTED, and this court's opinion and judgment of September 26, 1995 is VACATED. The case will be reheard at the convenience of the Court.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-4701 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DENNY ELLIS, a/k/a C. Duain Ellis, a/k/a Duain C. Ellis, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Anderson. Henry M. Herlong, Jr., District Judge. (CR-04-450) Submitted: September 14, 2005 Decided: October 31, 2005 Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Benjamin T. Stepp, Assistant Federal Public Defender, Greenville, South Carolina, for Appellant. Kevin Frank McDonald, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Denny Ellis appeals his sentence of twenty-four months in prison and three years of supervised release after pleading guilty without a plea agreement to one count of falsely representing a number to be his social security number in violation of 42 U.S.C. § 408(a)(7)(B) (2000). Ellis’s attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating there are no meritorious grounds for appeal but raising the issue of whether the district court committed plain error in determining the loss amount under the sentencing guidelines when it failed to apply a credit against the loss for the amount of collateral pledged or otherwise provided by Ellis. Ellis filed pro se supplemental briefing further addressing this issue and raising the issue of whether his sentence constituted plain error under United States v. Booker, 125 S. Ct. 738 (2005).1 We affirm Ellis’s conviction but vacate his sentence and remand for resentencing. Because Ellis raised no objection at sentencing, we review only for plain error. United States v. Olano, 507 U.S. 725, 731-32 (1993); United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). “We review de novo the district court’s legal interpretation of the term ‘loss’ under the Sentencing Guidelines, but ‘to the extent that the determination of the amount of loss is a factual matter, we review only for clear error.’” United 1 The Government elected not to file a brief. - 2 - States v. Castner, 50 F.3d 1267, 1274 (4th Cir. 1995) (citations omitted). To the extent the district court’s determination of Ellis’s sentence under the former mandatory guidelines system was based on facts not established by his plea of guilty or admitted by him, we will find plain error if the district court could not have imposed the sentence it did without exceeding the relevant Sixth Amendment limitation. See Hughes, 401 F.3d at 550-51. Under United States Sentencing Guidelines Manual (“USSG”) § 2B1.1 app. n.3(A) (2003), “loss is the greater of actual loss or intended loss.” Where there is a common scheme or course of conduct, the cumulative loss should be used in determining the offense level, regardless of the number of counts of conviction. USSG § 2B1.1 app. n.17. We have held “that the amount recovered or reasonably anticipated to be recovered from collateral that secures a loan should be considered in calculating the amount of actual loss.” United States v. Rothberg, 954 F.2d 217, 219 (4th Cir. 1992); see also USSG § 2B1.1 app. n.3(E)(ii). In this case, Ellis acknowledged at his change of plea hearing that the loss amounts from dismissed counts could be considered for guideline and restitution purposes, and he cooperated with the Government in determining the loss amounts involved.2 Based on those figures, the actual loss under the 2 We agree with Ellis that the record does not reflect any agreement to forego a credit under USSG § 2B1.1 app. n.3(E)(ii). - 3 - guidelines was $64,182.07. However, the district court determined his sentence based on a loss amount of $134,450.35, without the required reduction for recovery of collateral. Ellis’s counsel suggests that “[b]ecause it is not clear that Ellis intended to repay the banks and keep them from suffering any loss, the district court did not commit error in failing to reduce the guideline loss amount by the value of the recovered collateral.” However, while the district court could have determined that Ellis’s intended loss exceeded the actual loss, no such finding appears anywhere in the record. Moreover, to the extent the district court made such a finding, it would be based on facts not established by Ellis’s plea of guilty or admitted by him. In accordance with Anders, we have reviewed the entire record in this case and find no basis upon which Ellis’s conviction can be attacked. We conclude, however, that the district court plainly erred in sentencing Ellis based on a loss exceeding the actual loss amount of $64,182.07. Accordingly, we affirm Ellis’s conviction, but vacate his sentence and remand for resentencing.3 3 Although the Sentencing Guidelines are no longer mandatory, Booker makes clear that a sentencing court must still “consult [the] Guidelines and take them into account when sentencing.” 125 S. Ct. at 767. On remand, the district court should first determine the appropriate sentencing range under the Guidelines, making all factual findings appropriate for that determination. See Hughes, 401 F.3d at 546. The court should consider this sentencing range along with the other factors described in 18 U.S.C. § 3553(a) (2000), and then impose a sentence. Id. If that sentence falls outside the Guidelines range, the court should explain its reasons for the departure as required by 18 U.S.C. - 4 - 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 IN PART, VACATED IN PART, AND REMANDED § 3553(c)(2) (2000). Id. The sentence must be “within the statutorily prescribed range . . . and reasonable.” Id. at 546-47. - 5 -	{ "pile_set_name": "FreeLaw" }
394 F.2d 335 UNITED STATES of America, Plaintiff-Appellant.v.Anthony R. DAY, Defendant-Appellant. No. 18085. United States Court of Appeals Sixth Circuit. May 14, 1968. Robert J. Shockey, Court appointed, Chattanooga, Tenn., for appellant. John H. Reddy, U.S. Atty., Chattanooga, Tenn., for appellee; Robert A. Scott, Asst. U.S. Atty., Chattanooga, Tenn., on brief. Before O'SULLIVAN and McCREE, Circuit Judges, and McALLISTER, Senior Circuit Judge. McCREE, Circuit Judge. 1 This is an appeal from a conviction, following a jury trial, under an indictment for forcibly breaking into a United States post office with the intent to commit larceny, in violation of 18 U.S.C. 2115.1 The sole question presented is whether the evidence introduced at the trial is sufficient to sustain the conviction. 2 The government's evidence was the following: 3 Superintendent Higdon of the Red Bank, Tennessee post office testified that he arrived at the post office at approximately 3 p.m. on Sunday, February 26, 1967, and noticed that the blinds on the front window, which are usually open, were closed. He also saw a Volkswagen automobile in the parking lot. Appellant and his co-defendant Brock (who did not appeal his conviction) were observed leaving the post office, and appellant was seen to be wearing a goatee. Appellant entered the Volkswagen, and Brock pushed the car in order to start it. 4 Higdon testified further that upon entering the post office, the outer doors of which were always unlocked, he observed that a dutch door leading to an inner work area had been forced open. An inspection revealed that nothing was missing from the post office. Higdon telephoned Postal Inspector White, and together they drove off in search of the defendants, apprehended them and placed them under arrest. At the time of the arrest, appellant was observed to have shaved off his goatee. No postal property was found in the possession of either defendant. 5 Inspector White then testified that following the arrest, he returned to the post office and took palm prints from the broken door, and forwarded them to Cincinnati so that they could be compared with defendants' prints. 6 Richard Shipp, a fingerprint expert, testified that in his opinion, the prints taken from the door were those of defendant Brock. 7 The Government's final witness, postal driver Battles, testified that he arrived at the post office between 2:00 and 2:20 p.m. on the day in question, and observed that the dutch door was not broken at that time. 8 No. evidence was presented on behalf of defendants. 9 In determining the sufficiency of the evidence supporting a conviction, the reviewing court must take the view of the evidence most favorable to the government, accept all reasonable inferences which can be drawn therefrom, and affirm if substantial evidence was presented from which a jury could convict. United States v. Compton, 355 F.2d 872, 874 (6th Cir. 1966), cert. denied, 384 U.S. 951, 86 S.Ct. 1571, 16 L.Ed.2d 548 (1966). In this case we find the evidence to have been insufficient. 10 Appellant contends that there was evidence neither of entry nor of intent to commit larceny, both of which are elements of the offense charged. Although the jury might have determined from the fact that the door was broken and that it bore Brock's prints that appellant's co-defendant had entered the inner room of the post office, there was no evidence that appellant had made such entry. Moreover, the evidence does not support a finding that appellant had the requisite intent to commit larceny. The inner office was found not to have been disturbed, nor was any postal property found in the possession of either defendant. On the basis of the government's evidence, appellant could have entered the post office with the intent to commit vandalism or with no criminal intent at all as easily as with the intent to commit larceny, as charged. 11 The judgment is reversed and the case is remanded for entry of a judgment of acquittal. 12 O'SULLIVAN, Circuit Judge, concurs in the foregoing opinion. 13 McALLISTER, Senior Circuit Judge. 14 I concur with the views of Judge McCree reversing the judgment and, in effect, discharging appellant Day. 15 However, in a criminal case where a defendant has been convicted of a serious crime, it seems to me that in reversing the judgment entered upon a jury verdict and discharging the defendant, it is frequently becoming to review, with special particularity, the evidence of innocence in comparison with the absence of evidence of guilt. It is for this reason that, in concurring with Judge McCree, I feel it proper to make a somewhat more comprehensive statement of the evidence in the case and the bearing of such evidence upon my conclusions, as follows: 16 Superintendent Higdon of the small post office in Red Bank, Tennessee, drove to the post office on a Sunday afternoon about three o'clock. He parked his car a few feet from a rather badly damaged Volkswagen, in the parking area, near the front steps at the entrance to the post office. Mr. Higdon said, first, that the front blinds of the window of the post office were closed; on another occasion, he said one of the blinds on the window was closed. He stated that the shades-- or blinds, as he afterward described them, were provided to keep out the sun. Ordinarily, he said, the blinds were kept open. On the day in question, he stated, one of them was closed. At the top of the steps, at the entrance to the post office, was a glass door through which anyone could see inside, and which was always left unlocked; and anyone could go into the post office at any time. 17 Mr. Higdon parked his car four feet from the Volkswagen, and sat there 'a minute or two.' He said he did not immediately get out of his car because he was a little suspicious, because of seeing the unfamiliar car parked there, and because the blinds, or one of the blinds, on the front window were closed, since they were customarily open. After a minute or two, he saw two young men coming out of the post office. 18 They paid no attention to him. They were not seeking to avoid him. There was nothing suspicious about their conduct. Mr. Higdon, as mentioned, was parked only four feet from the Volkswagen which, as heretofore mentioned, had been damaged by being battered in, both in the front and in the rear. One of the young men got into the driver's seat of the damaged car. This young man, who was appellant Day, was only about five or six feet from where Mr. Higdon was sitting, and he could see him so clearly that he afterward identified him without question. As soon as the driver was in his seat, the other young man, Delo Brock, immediately started to push the Volkswagen to get it started; and it was obvious that they knew the damaged car had to be pushed to get the motor operating. When the engine caught, Brock, who had been pushing the car, walked by Mr. Higdon, who was only three feet away from him as he went by. All during the time these young men were there-- when they first came out of the post office; when one of them got into the driver's seat of the Volkswagen; and when the other started pushing it to get it started, and passing within three feet of Mr. Higdon-- they betrayed no sense of furtiveness, nor did they arouse any suspicion on the part of Mr. Higdon as to their conduct. They never paid any attention to Mr. Higdon as he sat there in his car so close to them, watching them. They never even glanced at him. There was no haste or hurry on their part in leaving the post office, or any attempt to avoid observation, or attempt to flee the place. Mr. Higdon stated that he saw nothing about them that would indicate to him that either of them was evasive, or that they had done anything of an unlawful nature, or that they were trying to make an escape, or flight from the scene, or avoid the observation of anyone. They showed no wariness, nor was there anything watchful or secretive about their conduct. 19 After the two young men had driven away, Mr. Higdon entered the post office for the purpose of assembling a storage cabinet that had previously been delivered. 20 The arrangement of the post office is as follows: One enters through the glass door. The main floor is divided into what is called a lobby, into which anyone may enter at any time, and where customers may purchase stamps from vending machines. Many persons also have postal boxes in the lobby to which they may gain access at any time of day or night. The lobby is separated from the working area, where the carriers work and, behind the counter part, where the clerks work. Admittance to the working area is through a Dutch door, the top half of which opens, and the bottom half of which opens. Each half of the door has its own lock; and both parts of the door are kept locked when none of the postal officials, clerks, or carriers are present. 21 When Mr. Higdon went toward the door, he found that the top part 'was standing open, slightly ajar.' The door is a veneer door; 'it's not a solid door, and the layers had been split where the lock went down into the other part of the door.' As soon as Mr. Higdon saw the condition of the door, he immediately called Postal Inspector White. This was a few minutes after the young men had left. 22 Postal Inspector White testified that he had received his call from Mr. Higdon-- 'a telephone report that there had been an attempt to burglarize the Red Bank Post Office.' Mr. White further testified: 23 'Based on the description of the automobile and at least one of the occupants or people who allegedly drove off in the vehicle, I immediately got in my mind of a suspect and knew that he fit this description and that he had available to him a red Volkswagen automobile in the condition as described so I went, took Mr. Higdon in my automobile with me, went to a residence over in the Tyner area where I thought the vehicle might be located and upon arriving at that residence, the vehicle was not observed, not seen. So, then we started back and we were headed toward Suck Creek Road where I thought that this automobile might be located, and, so, we were proceeding toward Chickamauga Dam from the Tyner area and Highway 153 and just prior to getting to the intersection of Highway 58 and 153, well, just prior to that we had seen several cars of the same make and color but did not fit the actual physical description of the car. But just before getting to the intersection of Highway 58 while traveling on 153, well it was observed over in the left lane of the highway, the left two lanes over there, a vehicle which, to me, met the description of the one that we were looking for. So, I pointed it out to Mr. Higdon, I told him not to answer me right then, but to look at it closely and tell me whether or not that looked like the vehicle in question. 24 'He told me that it did, so then I wheeled across the median of th fourlane highway and pulled up to the rear of the automobile and Mr. Higdon advised me that was positively the automobile that he had seen at the post office. So, then, I pulled up to the rear and along the side of the red Volkswagen and he looked at the people from a rear-type slanted view. I told him then not to answer, that I wanted him to look over the people real good before he ever answered me. Then I pulled up to the side of the people in the Volkswagen and they both turned their heads to look toward us; Mr. Higdon looked at them and stated that was the two men, those were the two men who he had just recently seen at the Red Bank Post Office. 25 'So, then, I motioned to them, to the driver, whom I recognized as being Mr. Day, to pull over to the side, which he did. And I walked back to him, I immediately advised both of them of their rights as to attorneys, they need not make any statement, and so on, and I told them that I wanted to question them concerning the Red Bank Post Office. 26 'They both declined to furnish any information about it, so I told them that they had been identified as having been there, that we had had an attempt to enter the office and that they were under arrest for the attempted post office burglary. I told them to get out of the car and at that time I did pat them both down to see that they did not have weapons on them, had them to get into may vehicle and then we returned to the Red Bank station * * *.' 27 When the two young men were arrested for breaking into the post office with intent to commit larceny, it was solely because of the evidence of the cracked upper half of the door that Mr. Higdon saw immediately when he went into the lobby. At that time no one knew whether this upper half of the door was cracked before the young men entered the open and public area of the lobby. Thus the report of Mr. Higdon to the Postal Inspector that the post office had been broken into in an attempt to commit larceny, together with his description of the men to be sought for the offense, and their subsequent arrest for the crime, was based on no evidence except that of Mr. Higdon, who had seen them coming out of the public lobby in a nonchalant, unsuspicious way. 28 Mr. White found no weapons being carried by the men, nor any weapons or burglary tools in the car in which they were riding nor did he find anything that might have been taken from the post office. 29 It was later found that there was a latent palm print on the surface of the upper half of the Dutch door in the post office; and the palm print was afterward identified as that of Delo D. Brock, Jr., who was a joint defendant with appellant, and who was with appellant in the post office and later in the Volkswagen. 30 Afterward, Mr. Higdon, the superintendent, made an examination of the post office. He found nothing missing, nothing in disarray, and the interior of the work area, entirely normal. He made a check of the postal money orders, change and currency kept in the post office, rolls of stamps, and everything of value in the work area. He found no items missing; and there was nothing he came upon that would indicate that anyone had pilfered, or attempted to pilfer, or examine, any of the contents of the post office, or had entered the work area. 31 Mr. Higdon stated that when appellant Day had come out of the post office about three o'clock in the afternoon, he was wearing a goatee; that about an hour later when Day and his co-defendant were driving along a country road, and were stopped by Inspector White and Mr. Higdon, appellant Day had shaved off his goatee. Mr. Higdon had no difficulty identifying both young men, and, apparently, the damaged Volkswagen could be identified anywhere. Here were two young men, casually driving at a reasonable rate of speed in the countryside, in the vicinity of the post office, in a car that could be readily identified as being identical to the battered Volkswagen that had been driven away from the post office a short time before. Whether or not appellant Day had a goatee when Mr. Higdon first saw him at the post office, need not occupy our attention. It is a confusing item of testimony that does not jell with the rest of the evidence in the case. Inspector White knew at once where to look for the two men when Mr. Higdon described them to him; and Mr. Higdon identified them both at once without regard to the goatee he had mentioned. Inspector White knew appellant Day as soon as he saw him, and he never mentioned Day as having worn a goatee before. 32 There is no substantial evidence to support the verdict that appellant Day had forcibly broken into the post office to commit larceny. 33 The fact that appellant Day and his co-defendant, Brock, were in the post office was devoid of any suspicious circumstances as the post office was open to the public at all times. Their manner of leaving the post office, their lack of hurry; the fact that they did not even look at Mr. Higdon who was sitting four feet away from the car; the absence of any suspicious conduct on their part; their disregard of observation by Mr. Higdon or anyone else; their absence of haste, furtiveness or evasion; their being in an old badly-damaged car that had to be pushed by one of them to get it started; their casual departure; the fact that there was no evidence that anyone had entered the working premises of the post office; the circumstances that there was no evidence that anything of any value had been pilfered, or examined, and that nothing was in disarray, but that all was normal within the work area-- everything in the evidence was consistent with Day's innocence. That he was with Brock in the public lobby of the post office is not evidence of his guilt of the offense of breaking into the post office with intent to commit larceny. 34 The absence of any consciousness of guilt where one would expect a manifestation of guilty conduct is an indication of absence of guilt, and inferences to this effect could be properly drawn, except where it might reasonably appear that such apparent innocence of conduct was feigned. But an innocent person, unjustly accused, should not be deprived of the inferences that may be drawn from a natural and unfeigned manifestation of innocent conduct. 35 The conviction of appellant Day for breaking into a post office with intent to commit larceny cannot be sustained on the mere evidence that a palm print of Delo Brock was found on the surface of the upper half of the Dutch door which evidently had been hit or struck by Brock, even though such a blow had split the thin veneer coating of the door where the lock was attached. The purpose of striking or pressing this surface of the door might have been an example of vandalism, or the result of an attempt to find a restroom, for instance-- or merely curiosity on the part of Brock; and whatever the purpose of hitting or striking the door on the part of Brock, could not constitute any evidence upon which to convict appellant Day of breaking into the post office to commit larceny in violation of the statute, simply because Day was present when Brock struck the upper half of the door with the flat of his hand; and there was nothing to justify any finding that there was an intent on the part of Day to commit larceny in the post office. 36 In accordance with the foregoing, I agree with Judge McCree that the verdict of the jury should be set aside, the judgment reversed, and appellant Day, discharged. 1 18 U.S.C. 2115: Whoever forcibly breaks into or attempts to break into any post office, or any building used in whole or in part as a post office, with intent to commit in such post office, or building or part thereof, so used, any larceny or other depredation, shall be fined not more than $1,000 or imprisoned not more than five years, or both.	{ "pile_set_name": "FreeLaw" }
497 S.E.2d 803 (1998) 269 Ga. 382 CHRISTOPHER v. The STATE. No. S98A0221. Supreme Court of Georgia. April 13, 1998. Barry Shane Haney, Neel & Smith, Cartersville, for Ronald Ray Christopher. Thomas Joseph Campbell, Dist. Atty., Cartersville, Angelica M. Woo, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State. BENHAM, Chief Justice. This appeal is from Ronald Ray Christopher's conviction for the murder of his stepson, Timothy Ledbetter.[1] Christopher, married to Ledbetter's mother, had an altercation with Ledbetter. When Ledbetter left the family's home after the altercation, Christopher armed himself with a pistol, said (according to the victim's mother) that *804 he was going to kill Ledbetter, and opened the door to look for him. Finding Ledbetter outside the door, Christopher fired twice, the second shot fatally wounding Ledbetter in the head. At the scene, Christopher claimed self-defense and, after receiving warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), commented to police officers that the military had trained him to shoot to kill. The murder weapon was found hidden under a mattress. 1. Christopher contends on appeal that the trial court erred in denying his motion for new trial because the verdict was against the weight of the evidence. On appeal, this court considers not the weight of the evidence, but its sufficiency. Burgeson v. State, 267 Ga. 102(10), 475 S.E.2d 580 (1996). The evidence at trial, summarized above, was sufficient to authorize a rational trier of fact to find Christopher guilty of murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Cole v. State, 254 Ga. 286, 287, 329 S.E.2d 146 (1985). 2. After police officers took Christopher into custody, they placed him in the back of an ambulance for the purpose of testing his hands for gunshot residue. During the testing, prior to which a police officer had given Christopher Miranda warnings, Christopher asked whether Ledbetter was dead and, upon hearing that he was, stated that he had been well taught in Vietnam. When asked what he meant, Christopher said he had been taught to shoot to kill. He objected at trial to testimony regarding his statement, contending that it was the result of illegal custodial interrogation. The trial court found that the statement was volunteered and was not the result of custodial interrogation, and found further that the statement would have been admissible had it been the product of interrogation because Christopher had been advised of his right to remain silent. "In the absence of evidence that the trial court's factual and credibility determinations were clearly erroneous, we uphold those determinations on appeal. [Cit.]" Turner v. State, 267 Ga. 149(6), 476 S.E.2d 252 (1996). Our review of the record persuades us that the trial court's determination that Christopher's statement was voluntary is not clearly erroneous. The police officers involved testified that although there was an odor of alcohol in the ambulance while Christopher was being tested for gunshot residue, he did not appear to be intoxicated and spoke coherently. See Miller v. State, 263 Ga. 723(3), 438 S.E.2d 81 (1994). The remark about being taught well was made without any prompting by the police officers and was plainly a voluntary statement. Hallman v. State, 263 Ga. 72(1), 428 S.E.2d 344 (1993). Christopher's elaboration on his first remark, even if considered the result of interrogation because an officer asked what the first statement meant, must also be considered voluntary in light of the fact that the officer had explained to Christopher his Miranda rights just moments before the conversation occurred, in the same place. Turner v. State, supra. 3. Finally, Christopher contends that the trial court's refusal to give Christopher's requested charge on justification was error because the charge given did not specifically address a shooting. The charge given did, however, fully explain the concept of justification. "It is not necessary to give the exact language of a request to charge when the applicable principles are fairly covered by the charge as given. [Cit.] We conclude that the charge when taken as a whole was adequate, and we consequently find this enumeration to be without merit." Carver v. State, 262 Ga. 723(2), 425 S.E.2d 657 (1993). Judgment affirmed. All the Justices concur. NOTES [1] The crime was committed on September 5, 1996, and Christopher was arrested at the scene. He was indicted on October 24, 1996, for malice murder and felony murder, with aggravated assault as the underlying felony. A trial conducted on March 17-19, 1997, resulted in a conviction of malice murder. Christopher's motion for new trial, filed March 20, was heard on September 16 and was denied on October 1, 1997. Pursuant to a notice of appeal filed September 26, 1997, the record was transmitted to this court where the case was docketed on October 28, 1997. The appeal was submitted for a decision on the briefs.	{ "pile_set_name": "FreeLaw" }
171 F.2d 187 (1948) VAN DYKE et al. v. KUHL. No. 9610. United States Court of Appeals Seventh Circuit. December 3, 1948. Arthur L. Jacobs, Dept. of Justice, Washington, D. C., Timothy T. Cronin, U. S. Atty., of Milwaukee, Wis., Theron L. Caudle, Asst. Atty. Gen., and George A. Stinson, Ellis N. Slack, and James P. Garland, Special Assts. to the Atty. Gen., for appellants. Howard R. Johnson, of Milwaukee, Wis., for appellee. Before MAJOR, Chief Judge and KERNER and MINTON, Circuit Judges. KERNER, Circuit Judge. We are asked to determine whether a judgment in a prior action between the parties for the recovery of federal estate taxes precludes the maintenance of this action. The facts are stipulated. On February 13, 1941 Anne Hamilton McIntosh died testate, and on December 2, 1941 plaintiffs as executors of her last will and testament filed an estate tax return evidencing a federal tax due. Plaintiffs paid the Collector the amount of the tax shown on the return. A deficiency was subsequently assessed, and paid under protest. Plaintiffs instituted a suit against the Collector for the recovery of the deficiency. The case was tried and a judgment was entered in favor of the estate. The amount of the judgment with interest was paid to plaintiffs by the Government. Thereafter plaintiffs filed a timely claim for refund based upon the ground that attorneys' fees and other expenses incurred 188 in the prior litigation should be allowed as a deduction and a further refund of the estate tax made accordingly. Upon denial of the claim on the ground that the judgment in the first suit constituted a bar to a further claim, the present suit was commenced. The case was tried by the court without a jury, and from a judgment in favor of plaintiffs defendant has appealed. There can be no question but what the doctrine of res judicata applies in federal tax controversies. Tait v. Western Maryland R. Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1045. That doctrine rests on two ancient maxims of the law: (1) A person should not be vexed more than once for the same cause; (2) it is in the public interest that there be an early end to litigation, or as was said in Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719: "The general rule of res judicata applies to repetitious suits involving the same cause of action. It rests upon considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit * * are thereafter bound `not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.' * * * The judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever, absent fraud or some other factor invalidating the judgment." To avoid application of the doctrine of res judicata, plaintiffs say they could maintain no suit for the recovery of the tax erroneously collected until they filed a claim for refund with the Commissioner, § 3772 Internal Revenue Code, 26 U.S.C.A. § 3772 (a) (1); that at the time the estate tax return and the first claim for refund were filed, § 812 of the Internal Revenue Code provided in part as follows: "For the purpose of the tax the value of the net estate shall be determined, * * * by deducting from the value of the gross estate * * * (b) * * * Such amounts * * * (2) for administration expenses, * * * as are allowed by the laws of the jurisdiction, * * * under which the estate is being administered * * ." Plaintiffs further submit that § 81.34 of T.R. 105 provided that an executor, in filing the return, may deduct such an amount of attorney's fees as has actually been paid, or in an amount which at the time of such filing it is reasonably expected will be paid, and that § 881.96 of T.R. 105 provided that claims for the refund of estate tax must be filed within three years after the payment of the amount sought to be refunded and that the claim must set forth in detail and under oath each ground upon which refund is claimed, and facts sufficient to appraise the Commissioner of the exact basis of the claim. Plaintiffs then make the point that at the time they filed the first claim for refund they had no way of knowing that the claim would be denied, or that it would be necessary to employ attorneys to sue, or how protracted the litigation, if any, could or would be, and argue that since they could not give facts sufficient to apprise the Commissioner of the exact basis of a claim for attorneys' fees and expenses, they could not therefore raise that question as an issue in the first law suit. In support of the argument they cite Magruder v. Safe Deposit & Trust Co., 4 Cir., 159 F.2d 913. It is true that in the Magruder case the court held that the prior litigation between the executor and the Collector did not bar the maintenance of the second suit based upon a deduction of attorneys' fees. But that case is distinguishable on the facts. In that case the executor introduced evidence that the fees could not have been ascertained with reasonable certainty during the pendency of the prior litigation, and the District Court found as a fact that "when the return * * was filed, the executor could not determine how much it might reasonably be required to disburse in attorneys' fees." 65 F.Supp. 783, 788. On appeal, the court sustained this finding. In our case the record fails to disclose any evidence tending to show that the attorneys' fees could not have been estimated prior to the final determination of the first suit with sufficient certainty so as to have been made 189 an issue in the first case. In such a situation we think what was said in Cleveland v. Higgins, 2 Cir., 148 F.2d 722, is pertinent and applicable here. The Cleveland case was an action to recover a portion of an estate tax on the ground that the estate was entitled to a deduction for attorneys' fees incurred in a prior suit between the same parties. The defense there, as here, was that federal estate taxes present a single cause of action which cannot be litigated piecemeal. The court (148 F.2d at pages 723, 724), in holding that the suit was barred, said: "The estate tax was assessed and paid as a single tax, and a final decision in a suit brought to recover * * for overpayment is res adjudicata not only as to what was included in the refund claim but as to what might have been included. Nor does the fact that the refund claim did not cover all which might have been included therein prevent the judgment from being res adjudicata. * * * It follows that if the appellant is right in saying that the appellees could have included in the first claim for refund what was made the basis of the second refund claim, the decision in the first suit was res adjudicata * * . The cause of action which thus becomes res adjudicata comprehends not only what was actually decided but all matters which might have been decided. Tait v. Western Maryland R. Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405 * *." We think, as did the court in the Cleveland case, that the executors knew that attorneys' fees incurred in prosecuting the claim for refund would have to be paid. Such fees could have easily been estimated at the time the prior case between the parties here involved was ready for a decision and the refund claim could have been amended to include the amount so estimated, and the amount could have been refunded in the judgment rendered in the prior suit. In reaching our conclusion in this case we have not overlooked the fact that § 81.34 of T.R. 105, in effect at the time of the prior litigation between the parties, has since been amended so as to provide that a deduction for attorneys' fees incurred in prosecuting a claim for refund shall be claimed at the time such refund is prosecuted. That fact does not change our conclusion. The judgment of the District Court is reversed and the cause remanded with instruction to dismiss the complaint. Reversed and remanded.	{ "pile_set_name": "FreeLaw" }
59 F.3d 167NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Charles T. SHERWIN, Plaintiff-Appellant,v.UNITED STATES of America; Donald L. Robinson, Defendants-Appellees,andSTATE of North Carolina, Defendant. No. 94-2632. United States Court of Appeals, Fourth Circuit. Submitted: May 31, 1995.Decided: June 23, 1995. Charles T. Sherwin, Appellant Pro Se. Charles Edwin Hamilton, III, Office of The United States Attorney, Raleigh, NC, for Appellees. Before WIDENER, HALL, and HAMILTON, Circuit Judges. PER CURIAM: 1 Appellant appeals from the district court's orders dismissing his civil action on res judicata grounds, imposing a prefiling injunction, and denying his Fed.R.Civ.P. 59(e) motion to alter or amend that judgment. We have reviewed the record and the district court's opinion, and find no reversible error. Accordingly, we affirm on the reasoning of the district court. Sherwin v. United States, No. CA-94-48-3-BR (E.D.N.C. Nov. 11 & 17, 1994). 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	{ "pile_set_name": "FreeLaw" }
180 P.3d 114 (2008) 218 Or. App. 524 STATE of Oregon, Plaintiff-Respondent, v. Patrick Michael OLSTAD, Defendant-Appellant. 031034956; A131925. Court of Appeals of Oregon. Submitted on Record and Briefs December 20, 2007. Decided March 19, 2008. 115 Ingrid Swenson, Executive Director, Peter Gartlan, Chief Defender, and Ernest G. Lannet, Deputy Public Defender, Legal Services Division, Office of Public Defense Services, filed the brief for appellant. Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Anna M. Joyce, Assistant Attorney General, filed the brief for respondent. Before EDMONDS, Presiding Judge, and SERCOMBE, Judge, and RIGGS, Senior Judge. EDMONDS, P.J. Defendant appeals from a conviction for aggravated theft, ORS 164.057, assigning error to the trial court's denial of his motion to dismiss for lack of a speedy trial under Article I, section 10, of the Oregon Constitution. We review for errors of law, State v. Siegel, 206 Or.App. 461, 465, 136 P.3d 1214 (2006), and affirm. Defendant stipulated to the following facts. On May 10, 2003, Officer Wallis saw a car, in which defendant was a passenger, exceeding the speed limit. After stopping the car, Wallis learned that defendant had an outstanding arrest warrant. Wallis took defendant into custody and obtained the driver's permission to search the car. While searching the car, Wallis found a camera bag with an expensive Pentax camera and additional camera equipment inside the bag. The driver told Wallis that defendant owned the bag and its contents. Wallis asked the driver whether the camera and camera equipment were stolen, and the driver responded, "Look, he's my cousin. I can't just give him up like that. Let's just say he's been stealing things like that for years. He doesn't work, and he's never bought a camera like that before." Wallis then searched defendant's possessions and found, in defendant's wallet, pawn shop receipts listing various cameras and camera equipment that defendant had pawned earlier 116 that day. Defendant's name was listed on the pawn shop receipts. Wallis seized the camera and camera equipment and later learned that the items on the receipts had been stolen. Four days after seizing the camera and camera equipment, Wallis received a telephone call from defendant. Defendant asked Wallis to return the camera equipment and receipts. Wallis responded by asking defendant to come to the police department to demonstrate proof of ownership. Defendant said he would come to the department but never appeared there. On October 7, 2003, a grand jury indicted defendant for theft. Seventeen months later, on March 10, 2005, the state served an arrest warrant on defendant. The next day, defendant was arraigned on the indictment and entered a plea of not guilty. Defendant then filed a motion to dismiss for lack of speedy trial under both ORS 135.747 and Article I, section 10, of the Oregon Constitution. On June 3, 2005, the trial court dismissed the first indictment without prejudice pursuant to ORS 135.747, but allowed defendant to reserve his constitutional claims, should the state reindict him. Meanwhile, in May or June 2005, defense counsel instructed an investigator, McDuffie, to locate a witness named Watson. In June 2005, McDuffie identified Watson's father's house as Watson's last known address. Watson's father, who did not have much contact with Watson, informed McDuffie that Watson was in a drug treatment program and that he would attempt to find the name of the program. Later that month, after exchanging phone calls, Watson's father informed McDuffie that Watson was no longer in the drug treatment program. On July 27, 2005, a grand jury reindicted defendant. A warrant was issued for defendant's arrest, and defendant was arrested. The next day, defendant was arraigned on the new indictment, and trial was set for September 12, 2005. However, the trial date was set over numerous times on both the state's and defendant's motions. Meanwhile, in October 2005, defense counsel located Watson's telephone number and provided it to McDuffie, who contacted Watson. In a telephone conversation, Watson informed McDuffie that, after defendant was arrested, she had "some guy" (whose name she couldn't remember) call the police property room to try to retrieve the seized camera and camera equipment. The next month, in mid-November, Watson was served with a subpoena. The trial, however, was again set-over, and McDuffie called Watson to inform her of the set-over. In response, Watson told McDuffie that she was leaving town because a family member had died and that she did not know when she would be returning. Watson then stated that she would call back and hung up. Watson did not call back. McDuffie tried to call Watson's telephone number approximately 10 more times, but she was unable to contact Watson again. On January 13, 2006, defendant filed a motion to dismiss for lack of a speedy trial pursuant to Article I, section 10, of the Oregon Constitution.[1] Eventually, the trial court denied defendant's motion. Subsequently, the trial court, in a stipulated facts trial held on March 7, 2006, found defendant guilty of aggravated theft in the first degree. On appeal, defendant reasserts his argument that Article I, section 10, of the Oregon Constitution requires his case be dismissed because he has been denied a speedy trial. Article I, section 10, of the Oregon Constitution provides: "No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation." To determine whether a defendant has been denied a speedy trial under Article I, section 10, we consider (1) the length of the delay, (2) the reasons for the delay, and (3) the prejudice to the accused because of the delay. State v. Harberts, 331 Or. 72, 84-88, 11 P.3d 641 (2000); State v. Ivory, 278 Or. 499, 117 501-04, 564 P.2d 1039 (1977) (adopting the United States Supreme Court's Sixth Amendment speedy trial analysis in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), for purposes of the speedy trial analysis under Article I, section 10). Generally, we consider all three of the above factors. State v. Siegel, 206 Or.App. at 466, 136 P.3d 1214. However, in some circumstances, a single factor is dispositive. Id. First, if the delay is not "substantially greater than average," the speedy trial provision has not been violated. Id. (citing State v. Mende, 304 Or. 18, 23-24, 741 P.2d 496 (1987)). However, if the delay is so "manifestly excessive" that it shocks the imagination and the conscience, or if the state caused the delay to purposefully impede the defense, then the speedy trial provision has been violated, regardless of the other factors. Id. (citing Harberts, 331 Or. at 86, 11 P.3d 641). In all other situations, we consider each factor. In doing so, however, we do not apply a mechanical balancing test: "[T]hese elements or `factors' of decision are stated in the current formula of `balancing,' but the metaphor should not be taken too literally. We know no scales that provide a common denominator for the `weight' of an extra month's pretrial imprisonment and the `weight' of prosecution neglect, or good faith necessity, or deliberate delay. The point of the formula is that all relevant criteria be examined and none overlooked or ignored. The proper disposition in the individual case is not a question of addition and subtraction but of examining the relevance of each element in giving effect to the constitutional guarantee." Haynes v. Burks, 290 Or. 75, 81, 619 P.2d 632 (1980) (citation omitted). In this case, the grand jury indicted defendant on October 7, 2003, and the trial court dismissed that indictment on June 3, 2005 approximately 20 months after the initial indictment. The defendant was reindicted on July 27, 2005, and a stipulated facts trial was held on March 7, 200629 months after the initial indictment. Defendant concedes "that the 29-month delay does not automatically warrant dismissal because it shocks the conscience or because the state purposely caused that delay to prejudice defendant." The first factor to consider in this case is the length of the delay. As a threshold matter, the parties disagree on when the constitutional speedy trial clock starts running. The state asserts that "[t]he calculation of the length of delay begins from the time of the re-indictment." In contrast, defendant argues that we should consider "the delay between the original indictment and the day of trial." In State v. Vasquez, 336 Or. 598, 610, 88 P.3d 271 (2004), the Supreme Court reasoned that "an official action that is sufficient, standing alone, to commence a prosecution starts the running of the `without delay' clock" under Article I, section 10. In light of that general principle, either argument made by the parties is tenable. However, for the reasons explained below, whether the clock starts running on the grand jury's return of the first indictment or the grand jury's return of the second indictment makes no difference to the analysis. See, e.g., State v. Dykast, 300 Or. 368, 373, 712 P.2d 79 (1985) (holding that, even if the calculation commenced on the date of the first indictment, the defendant's right to a speedy trial was not violated). Thus, we must consider whether the delay is substantial. Mende, 304 Or. at 23-24, 741 P.2d 496. If it is, then that delay becomes a relevant factor in giving effect to Oregon's constitutional guarantee. To determine whether the delay is substantial, we look to the aspirational standards of timely disposition adopted by the Oregon Judicial Conference in 1990. State v. Emery, 318 Or. 460, 471, 869 P.2d 859 (1994); Siegel, 206 Or.App. at 466, 136 P.3d 1214. Those standards provide that "90 percent of all felony cases should be adjudicated or otherwise concluded within 120 days from the date of arraignment, 98 percent within 180 days, and 100 percent within one year, except for exceptional cases in which continuing review should occur." In this case, the delay exceeds the outer limit of one year reserved for "exceptional cases." Therefore, we conclude that the 29-month delay is "substantially greater than average." 118 The second factorthe reasons for the delayis unexplained on the record before us. In State v. Green, 140 Or.App. 308, 315-16, 915 P.2d 460 (1996), we considered an unintentional 33-month delay between the indictment and the service of an arrest warrant: "The unexplained failure to serve the arrest warrant caused much of the delay here (two years, nine months). Although the state bears responsibility for that, defendant does not characterize the delay as intentional. Defendant concedes that the time lag is attributable to `negligence by the state.' Although that weighs against the state, in the absence of intentional misconduct it does not weigh heavily. Accordingly, the analysis turns on whether defendant was prejudiced by the delay." Our decision in Green informs our analysis in this case. Because defendant does not claim that the state acted intentionally to cause prejudice to defendant, the analysis turns on whether defendant was actually prejudiced by the delay. A defendant may establish the third factorprejudicein three ways: "(1) the damage arising from lengthy pretrial incarceration; (2) the anxiety and public suspicion resulting from public accusation of a crime; and (3) the impairment of the defense." State v. Tiner, 340 Or. 551, 557, 135 P.3d 305 (2006), cert. den., ___ U.S. ___, 127 S.Ct. 1125, 166 L.Ed.2d 896 (2007) (citations omitted). Initially, defendant asserts in his brief without further explanation that he "did suffer a substantial period of pretrial incarceration." However, on the record before us, we cannot tell for what length of time, if any, defendant was subject to pretrial incarceration on the aggravated theft charge. Therefore, defendant has not carried his burden of providing a record sufficient to demonstrate that he was prejudiced by lengthy pretrial incarceration on the aggravate theft charge. King City Realty, Inc. v. Sunpace Corp., 291 Or. 573, 582, 633 P.2d 784 (1981); Ferguson v. Nelson, 216 Or.App. 541, 549, 174 P.3d 620 (2007) ("An appellant bears the burden of providing a record sufficient to demonstrate that error occurred."). Finally, defendant asserts that "[t]he delay prejudiced [his] ability to defend himself because, during the delay, a defense witness went missing whose testimony would have strongly rebutted the state's evidence that [defendant] knowingly took property from another with the intent to deprive that person of the property." Defendant explains, "In preparing for trial, defendant correctly surmised that the state would proffer testimony from a police officer that he had received a telephone call from defendant in which (1) defendant requested the return of property that the police had seized from defendant and (2) defendant claimed ownership of that property. That testimony constituted affirmative evidence that defendant had committed aggravated theft in the first degree. During the pretrial delay, defendant subpoenaed a witness who would testify at trial that she had an intermediary, who was not defendant, make that call in an attempt to recover that property. That testimony would have rebutted the state's evidence and could have created reasonable doubt as to whether defendant intended to permanently deprive the property rights of the owner of that property. Consequently, the delay caused defendant a reasonable possibility of prejudice to his defense." We are unpersuaded by defendant's argument. Defendant entered into a stipulation for purposes of his stipulated facts trial that incorporated the trial court's findings on his motion to suppress the evidence seized from the car. Those stipulated facts permitted the trier of fact to infer that the stolen camera and equipment found in the car in which defendant was riding were some of the items stolen from the victim. Some of the other items stolen from the victim had been pawned, and the pawn receipts with defendant's name on them were found in defendant's wallet. Also, the court's ruling on defendant's motion found that the driver of the vehicle in which defendant was riding told the officer that defendant had "been stealing things like that for years. He's never had a job." Moreover, the court found that Wallis determined that the items had been stolen four days after they had been seized, and "it is on that same day, apparently, that someone he believes to be [defendant] calls *119 him and they have a conversation further about the return of those items. He said he had a pleasant conversation with that person on the phone and it matched the pleasantness of the defendant at the scene, and they discussed things that happened at the scene, which further led him to believe that it was [defendant] he was talking to." At most, Watson's testimony could have impeached Wallis's testimony that he believed he was conversing with defendant but it could not refute the other evidence that defendant stipulated to. Indeed, Watson's statement suggested that she had someone contact the police property room rather than Wallis. Consequently, we conclude that defendant failed to demonstrate that the loss of Watson as a witness caused a "reasonable possibility of prejudice to the defendant's ability to prepare a defense." State v. Tiner, 340 Or. at 555, 135 P.3d 305. Defendant does not otherwise argue that he was prejudiced. Affirmed. NOTES [1] On appeal, defendant does not assert that the trial court violated his federal speedy trial right found in the Sixth Amendment to the United States Constitution.	{ "pile_set_name": "FreeLaw" }
916 A.2d 53 (2007) 281 Conn. 910 STATE of Connecticut v. Troy THOMAS. Supreme Court of Connecticut. Decided January 25, 2007. Robert J. McKay, in support of the petition. The defendant's petition for certification for appeal from the Appellate Court, 98 Conn.App. 542, 909 A.2d 969 (2006), is denied. VERTEFEUILLE, J., did not participate in the consideration or decision of this petition.	{ "pile_set_name": "FreeLaw" }
Case: 12-30368 Document: 00512089390 Page: 1 Date Filed: 12/19/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED December 19, 2012 No. 12-30368 Lyle W. Cayce Summary Calendar Clerk WORLDWIDE DETECTIVE AGENCY, INC., Plaintiff–Appellant v. CANNON COCHRAN MANAGEMENT SERVICES, INC., doing business as CCMSI, formerly known as Management Services USA, Inc.; JERRY ARMATIS, Defendants–Appellees Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:10-CV-1563 Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM:* Plaintiff–Appellant Worldwide Detective Agency, Inc. (“Worldwide”) appeals the district court’s decision to grant summary judgment for Defendant–Appellee Cannon Cochran Management Services, Inc. (“CCMSI”) on Worldwide’s breach-of-contract claim against CCMSI. Worldwide also appeals * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 12-30368 Document: 00512089390 Page: 2 Date Filed: 12/19/2012 No. 12-30368 the district court’s decision to deny its second motion for remand. For the following reasons, we AFFIRM the district court’s decisions. I. FACTUAL AND PROCEDURAL BACKGROUND Pursuant to a municipal contract with the City of New Orleans (the “City”), CCMSI serves as a third-party administrator for the City’s workers’ compensation claims. CCMSI in turn engaged Worldwide to provide investigative services in connection with its assessment of these claims. CCMSI and Worldwide signed a Form DBE-1 which established that Worldwide, a qualified disadvantaged business enterprise (DBE), would provide CCMSI with these services, and that CCMSI was “committed to a minimum of 26% DBE utilization on [the] contract” between the City and CCMSI (the “municipal contract”). According to evidence offered by CCMSI, Worldwide was paid at least 26% of the fees earned by CCMSI during the years it was engaged to perform work for CCMSI. Worldwide offers no evidence to dispute these figures. In early March 2009, Jerry Armatis, CCMSI’s vice-president, terminated Worldwide’s services upon discovering that Worldwide did not have a private investigator’s license and was the subject of a cease-and-desist order issued by the Louisiana State Board of Private Investigator Examiners. On May 3, 2010, Worldwide filed suit against CCMSI in state court, alleging, inter alia, that it had not received the entirety of its 26% share of CCMSI’s total interest in the municipal contract and sought damages for the remainder of what it was owed. Worldwide joined Armatis to the suit, alleging fraud related to the termination of the purported contract between CCMSI and Worldwide. CCMSI removed the matter to the Eastern District of Louisiana on May 25, 2010 on the basis of diversity jurisdiction, alleging that Armatis, a Louisiana resident and the only non-diverse party, was improperly joined. The district court denied Worldwide’s subsequent motion to remand, finding that the prescriptive period 2 Case: 12-30368 Document: 00512089390 Page: 3 Date Filed: 12/19/2012 No. 12-30368 for any actions against Armatis had expired, and thus, Worldwide had failed to plead a legally viable claim against Armatis. Because Armatis was the only non- diverse party, the district court found that it had subject-matter jurisdiction under 28 U.S.C. § 1332. Worldwide then requested that the court reconsider its motion on the basis that newly obtained evidence showed Armatis improperly paid Worldwide with City funds, thus giving rise to a viable claim that could reasonably lead to recovery against Armatis. The court denied the second motion for remand on the grounds that Worldwide had still not shown any entitlement to an award for damages. Meanwhile, CCMSI filed a motion for summary judgment regarding Worldwide’s breach-of-contract claim. The district court granted CCMSI’s motion, and Worldwide timely appealed. II. DISCUSSION A. Contract Dispute 1. Standard of Review The court reviews the grant of a motion for summary judgment de novo, applying the same standard as the district court. Threadgill v. Prudential Sec. Grp., Inc., 145 F.3d 286, 292 (5th Cir. 1998). Summary judgment is appropriate “‘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.’” United Fire & Cas. Co. v. Hixson Bros. Inc., 453 F.3d 283, 285 (5th Cir. 2006) (citing Fed. R. Civ. P. 56(c) (later re-worded and re-numbered as present Rule 56(a)). When considering a motion for summary judgment, the court must view all facts and evidence in the light most favorable to the non-moving party. Id. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by (1) citing to particular parts of materials in the record, or (2) showing that the materials cited do not establish the absence of a genuine 3 Case: 12-30368 Document: 00512089390 Page: 4 Date Filed: 12/19/2012 No. 12-30368 dispute. Fed. R. Civ. P. 56(c)(1)(A)!(B). Furthermore, “[a] mere scintilla of evidence is insufficient to present a question for the jury.” Int’l Therapeutics, Inc. v. McGraw-Edison Co., 721 F.2d 488, 491 (5th Cir. 1983) (citing Boeing Co. v. Shipman, 411 F.2d 365, 374–75 (5th Cir. 1969) (en banc), overruled in part on other grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 336–39 (5th Cir. 1997) (en banc)). 2. Analysis Worldwide alleges that it entered into an oral contract with CCMSI which entitled it to a 26% share of the total interest CCMSI had in its municipal contract with the City. Even assuming that such a fee-sharing agreement did exist, the most Worldwide would be entitled to receive is 26% of CCMSI’s total interest in the municipal contract. According to CCMSI’s undisputed figures, Worldwide received more than 26% of the total interest in the municipal contract fee for the years in question. Therefore, without more evidence, it is unclear to what extent Worldwide claims any damages. The district court was correct in determining that Worldwide’s unsupported assertions that it has not received the entirety of their 26% share, without more, do not survive summary judgment. Furthermore, exactly what Worldwide claims to be the total interest of the municipal contract, from which Worldwide claims its 26% share, is ever- changing. For the first time on appeal, and citing only its expert witness’s account, Worldwide argues that, in addition to 26% of any fees paid by the City, it is entitled to 26% of any amount “[the City] reimbursed CCMSI for costs and expenses . . . .”1 Yet, Worldwide offers no evidence showing what 1 Even within its latest brief, Worldwide is not entirely consistent in its assertions of what it is owed. At one point, referring to its expert-witness affidavit, Worldwide claims it “was owed 26% of the amount that the [City] reimbursed CCMSI for its costs and expenses[,]” while later arguing that all they seek is its “26% share of CCMSI’s contract fee, exclusive of the expenses.” 4 Case: 12-30368 Document: 00512089390 Page: 5 Date Filed: 12/19/2012 No. 12-30368 reimbursements, if any, CCMSI received from the City, nor does it offer evidence that Worldwide was not compensated for those amounts. Without more, this latest suggestion of entitlement to reimbursed costs and expenses does not amount to more than a “mere scintilla of evidence,” as is required. For its part, CCMSI denies the existence of an oral fee-sharing agreement altogether. In its effort to prove the existence of the alleged fee-sharing contract that could entitle Worldwide to any additional payment, Worldwide submitted affidavits of both its sole shareholder and an expert witness regarding the existence of the alleged contract. The district court found the affidavits did not satisfy Worldwide’s burden of proof absent corroborating evidence. Though we need not reach the issue given our conclusion that Worldwide was paid all it would be entitled to under any such agreement, in an abundance of caution, we find for CCMSI on this issue as well. Under Louisiana law, contracts in excess of $500 “must be proved by at least one witness and other corroborating circumstances.” La. Civ. Code Ann. art. 1846. The party seeking to enforce performance bears the burden of proving the existence of the contract by a preponderance of the evidence. B.M. Albrecht Elec., Inc. v. Griffin, 413 So.2d 246, 247 (La. Ct. App. 1982). The trier of fact has great latitude in what to accept as corroborating evidence. Id. On appeal, in addition to its affidavits, Worldwide offers the argument that CCMSI’s admission of having paid Worldwide at least 26% of its total interest in the municipal contract is corroborating evidence of a fee-sharing agreement. However, this merely proves that Worldwide was compensated at least 26% of CCMSI’s total interest in the municipal contract, not that a fee-sharing contract existed. Therefore, by failing to offer sufficient corroborating evidence of an oral contract, Worldwide has failed to raise a genuine issue of material fact with regard to the existence of an oral fee-sharing contract with CCMSI. 5 Case: 12-30368 Document: 00512089390 Page: 6 Date Filed: 12/19/2012 No. 12-30368 To the extent that Worldwide urges a breach-of-contract claim against CCMSI for wrongfully terminating its services because it was unlicensed, the claim also does not survive summary judgment. Worldwide argues that by providing services to a municipality, a state exemption statute exempts the company from meeting Louisiana State licensing requirements. Worldwide points to the affidavit of Pat Englade with the Louisiana Board of Private Investigative Examiners (LBPIE), which had ordered Worldwide to cease and desist its investigative operations. The LBPIE affidavit states that the “action is considered closed until the agreement between his employer and CCMSI is produced and the services provided are evaluated pursuant to the exemption statute.” Worldwide, however, has offered no evidence that it meets the requirements of any exemption statute, and thus, this claim does not survive summary judgment. B. Motion to Remand 1. Standard of Review “A determination that a party is improperly joined and the denial of a motion for remand to state court are questions of law reviewed de novo.” Kling Realty Co. v. Chevron USA, Inc., 575 F.3d 510, 513 (5th Cir. 2009). In determining whether a defendant is improperly joined, the Fifth Circuit asks “whether [the plaintiff] has any possibility of recovery against the party whose joinder is questioned.” Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002) (internal citation and quotation marks omitted). 2. Analysis We find that the district court’s decision to deny Worldwide’s second motion for remand was proper. On appeal, Worldwide argues that because the district court had to rely on state law to rule that the prescriptive period had expired as to claims against Armatis, the denial of its motion for remand was 6 Case: 12-30368 Document: 00512089390 Page: 7 Date Filed: 12/19/2012 No. 12-30368 error. This argument is without merit. The standard is whether the plaintiff has a potentially viable claim against the questionably joined defendant, not whether state law must be used to reach that conclusion. 28 U.S.C. § 1332. Furthermore, Worldwide’s initial argument that Armatis is liable because he improperly paid Worldwide from City funds fails because Worldwide concedes in its brief that “Plaintiff’s expenses were properly paid by [the City.]” Accordingly, the judgment of the district court is AFFIRMED. 7	{ "pile_set_name": "FreeLaw" }
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-0363V Filed: September 23, 2019 UNPUBLISHED LAURA JOHNSON, Petitioner’s Motion for a Decision Petitioner, Dismissing Petition; Influenza (Flu) v. Vaccine; Shoulder Injury Related to Vaccine Administration (SIRVA); SECRETARY OF HEALTH AND Vaccine Act Entitlement; Denial HUMAN SERVICES, Without Hearing; Special Processing Unit (SPU) Respondent. Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for petitioner. Julia Marter Collison, U.S. Department of Justice, Washington, DC, for respondent. DECISION 1 Dorsey, Chief Special Master: On March 8, 2018, Laura Johnson (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act” or “Program”).3 Petitioner alleges that she suffered left shoulder injuries caused in fact by the influenza vaccination she received on November 7, 2016. Petition at ¶¶ 2, 16. The information in the record does not show entitlement to an award under the Program. 1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). 3 The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters. On September 23, 2019, petitioner moved for a decision dismissing her petition, acknowledging that insufficient evidence exists to demonstrate entitlement to compensation. (ECF No. 30). Petitioner indicated in her motion that “[a] full review of all relevant medical records and billing statements has demonstrated to the Petitioner that she will not be able to prove that she is entitled to compensation in the Vaccine Program.” Id. at ¶ 3. Petitioner further indicated that she “understands that a decision against her by the Special Master will result in a judgement against her. [Petitioner] has been advised that such a judgment will end all of her rights in the Vaccine Program.” Id. at ¶ 5. To receive compensation under the Program, petitioner must prove either 1) that she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to a covered vaccine, or 2) that she suffered an injury that was actually caused by a covered vaccine. See §§ 13(a)(1)(A) and 11(c)(1). Examination of the record does not disclose any evidence that petitioner suffered a “Table Injury.” Further, the record does not contain a medical expert’s opinion or any other persuasive evidence indicating that petitioner’s alleged injury was vaccine-caused. Under the Vaccine Act, a petitioner may not be awarded compensation based on the petitioner’s claims alone. Rather, the petition must be supported by either the medical records or by a medical opinion. § 13(a)(1). In this case, the record does not contain medical records or a medical opinion sufficient to demonstrate that petitioner was injured by a vaccine. For these reasons, and in accordance with § 12(d)(3)(A), petitioner’s claim for compensation is DENIED and this case is DISMISSED for insufficient proof. The Clerk shall enter judgment accordingly. IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master	{ "pile_set_name": "FreeLaw" }
183 F.3d 1116 (9th Cir. 1999) UNITED STATES OF AMERICA,Plaintiff-Appellee,v.FRANCISCO MEZA-CORRALES, Defendant-Appellant.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.RAMON LAMARK BRIDGES,Defendant-Appellant. No. 98-10341 No. 98-10342 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted May 11, 1999--San Francisco, CaliforniaFiled July 16, 1999 [Copyrighted Material Omitted] Richard B. Jones, Ralls, Valenzuela, Fox & Jones, Tucson, Arizona, for defendant-appellant Francisco Meza-Corrales. Myrna Rodriguez, Law Office of Robert Hooker, Tucson, Arizona, for defendant-appellant Ramon Lamark Bridges. Christina M. Cabanillas, Richard E. Gordon, and Anne E. Mosher, Assistant United States Attorneys, Tucson, Arizona, for the plaintiff-appellee. Appeals from the United States District Court for the District of Arizona John M. Roll, District Judge, Presiding. D.C. No. CR-97-00287-JMR. Before: Herbert Y.C. Choy, Paul R. Michel,1 and Sidney R. Thomas, Circuit Judges. CHOY, Circuit Judge: 1 Francisco Meza-Corrales ("Meza-Corrales") appeals his jury conviction and sentence for conspiracy to possess and possession of cocaine with the intent to distribute, in violation of 21 U.S.C. SS 846 and 841(a)(1), respectively. Ramon Lamark Bridges ("Bridges") appeals his guilty plea conviction and sentence forpossession of a firearm and ammunition after having been convicted of a criminal offense punishable by a term of imprisonment greater than one year, in violation of 18 U.S.C. S 922(g)(1). For the following reasons, we affirm the district court's decision as to Meza-Corrales but reverse as to Bridges. Factual and Procedural Background 2 On March 26, 1997, Drug Enforcement Administration ("DEA") agents began surveillance on a residence in Tucson, Arizona. After the DEA agents saw a man carrying a brown paper bag depart from the residence, they followed and continued to observe the man, who eventually was apprehended by several Tucson Police Department ("TPD") officers. The TPD officers discovered approximately $29,000 contained inside the bag within the man's car. The DEA agents then continued surveillance of the residence, during which time they observed several other vehicles drive to the residence and remain there for only a very short time. 3 At this point, DEA special agent John Gazzara ("Gazzara") contacted detective Brian Cleburn, who spoke with an assistant United States attorney about these matters. Gazzara then conferred with DEA special agent Grant Murray ("Murray") about the possibility of obtaining a search warrant for the residence. Because the several other vehicles that had left the residence had not been followed successfully, Gazzara and Murray felt that it would be sensible to request consent for a search and only if that request were denied, to try to obtain a search warrant. 4 After meeting at a nearby staging area, DEA agents and TPD officers drove to the residence in three undercover vehicles and two marked police cars. While the agents and officers were driving to the residence, they received a radio report from a surveillance agent warning that a vehicle, a green Blazer, had arrived at the residence. As the agents and officers arrived at the residence, they spotted a man, later identified as Bridges, standing by the Blazer, leaning across its interior, and repeatedly sounding its horn. 5 Concerned for the safety of the arriving agents and officers, Gazzara parked his vehicle behind the Blazer to block any avenue of departure. And to stop Bridges from continuing to sound the Blazer's horn, DEA special agent Annette Campe ("Campe") pulled Bridges from the passenger's door of the Blazer, forced him in front of the Blazer, placed his hands onto the Blazer's hood, shifted him to the ground, handcuffed him, and then seated him next to the residence. 6 Another DEA agent then reached into the Blazer in order to turn off the ignition and the radio, the latter of which was blaring. As the agent leaned into the Blazer to do so, he noticed a semi-automatic handgun positioned on the floor mat of the front passenger's seat of the Blazer. The agent then searched the rest of the Blazer and uncovered another handgun under the driver's seat. 7 Campe and Murray then approached the front door of the residence. Through a transparent screen door, both observed Meza-Corrales's girlfriend, Charmaine Bayze Meza ("Bayze Meza"), inside the residence. With his weapon holstered, Murray called out to Bayze Meza in order to draw her to the front door. At first, Bayze Meza did not make any move but instead told the agents that her "husband" Frank was still in the rear interior of the residence, at which point Murray told Bayze Meza to call her "husband" Frank to the front of the residence. During this discussion with Bayze Meza, Murray learned from other agents that several individuals had been seen running from the back door of the residence. Eventually, Bayze Meza did walk to the front door, and without hesitating, Murray reached inside the doorway and pulled her outside. 8 Murray then saw Meza-Corrales appear from the rear interior of the residence. With his weapon still undrawn, Murray yelled at Meza-Corrales in order to drawhim to the front door of the residence. Meza-Corrales finally complied. 9 While Murray was speaking with Bayze Meza, Gazzara and Campe ran to the back of the residence where they spotted a man, later identified as Mark Simmons ("Simmons"), running down the street. He was sweating profusely and had a fresh cut on his hand. After being stopped and questioned, Simmons admitted that he had fled from the residence. During this same time, prior to Murray's own encounter with Meza-Corrales, another agent saw Meza Corrales run from the residence, to the fence behind the residence, and then back into the residence. 10 After both Meza-Corrales and Bayze Meza were outside of the residence, the agents conducted a protective sweep of the residence. The agents did so because neither the residence nor the vehicles parked there had been cleared yet and the agents feared that additional weapons and/or other individuals still might be present there. 11 At this point, Murray informed Meza-Corrales that the agents were conducting an investigation into narcotics sales that the agents believed were occurring at the residence. Murray then walked Meza-Corrales to the driveway of the residence and still had not handcuffed him by the time that Gazzara returned from catching Simmons. However, because the surrounding area had not been fully cleared yet, an unknown number of weapons and individuals were involved, and only a small number of law enforcement personnel were present, Gazzara then instructed Murray to handcuff Meza-Corrales. Gazzara also discussed with Murray whether they should try to obtain a search warrant at this point. 12 Meanwhile, DEA special agent James Garten ("Garten") spoke with Bayze Meza, who was standing outside the house and had not been handcuffed or otherwise restrained. Garten asked Bayze Meza who owned the residence, to which Bayze Meza initially responded that she owned the residence but later claimed that her mother actually owned the residence. Garten then asked Bayze Meza for her consent to search the residence, which Bayze Meza granted. 13 Garten then walked over to where Murray and Meza-Corrales were waiting. Together Garten and Murray asked Meza-Corrales biographical questions and asked for his consent to search the residence. At this point, Meza-Corrales refused to grant his consent. Murray was then told that Bayze Meza in fact owned the residence, which caused Murray to question Meza-Corrales about who actually owned the residence. Meza-Corrales said that Bayze Meza owned the residence but that he lived there as well. 14 During this time, Campe sat with Bayze Meza and explained to her what was happening and why Meza-Corrales was handcuffed. Bayze Meza herself still was not restrained in any manner and was permitted to walk to the bathroom by herself and to make telephone calls while she waited for the agents to decide what their next step would be. However, Bayze Meza started to become agitated when neighbors began to gather around the residence and to stare. 15 Having ascertained both Meza-Corrales's and Bayze Meza's positions on the issue of consent, Garten called an assistant United States attorney to inquire whether Bayze Meza's consent was sufficient to permit the search of the residence. The assistant United States attorney told Garten that the agents legally could rely upon the consent of a single resident. 16 However, to be sure that Bayze Meza still consented to the search, Garten again discussed this issue with Bayze Meza. This time, she said that while she wanted to get the search over with and to let the agents inside the residence, Meza- Corrales would get very angry with her and had struck her in the past and might do so again for defying him. Bayze Meza then requested that she be allowed to speak with Meza- Corrales, who was brought over to her by the agents. 17 At this point, Garten again spoke with Meza-Corrales and asked him whether he would consent to a search of the residence. During this conversation, none of the agents had their weapons drawn or made any kind of threat to arrest Meza-Corrales or Bayze Meza (although both of them testified to the contrary at the motions hearing). Meza-Corrales this time consented to a search of the residence and signed a consent form in the presence of the agents. 18 After Meza-Corrales had signed the consent form, Gazzara told Meza-Corrales that the agents believed that there was cocaine inside the residence and that if Meza-Corrales wanted to avoid any possibility of damage to the residence when the agents searched through it, then Meza-Corrales should show Gazzara where the drugs were located. Meza-Corrales showed the agents where two bags (approximately one-half of a pound) of cocaine were located. Subsequently, via their own search, the agents found a large sum of money in the master bedroom; and wrappings used to package cocaine, a substance commonly used as a dilution agent for cocaine, and a razor blade next to the substance, all located in the kitchen. During this period, Meza-Corrales made no oral statements, and none of the agents read him his Miranda rights because they believed that he had not been arrested yet and that there there fore was no need for such reading yet. 19 Once the agents had secured the two bags of cocaine and had escorted Meza-Corrales into the living room, they informed him that he was under arrest and immediately read him his Miranda rights. Meza-Corrales then invoked his right to speak with an attorney, at which point the agents ceased all questioning. 20 During the same period of time that the residence was being searched, DEA agent Mickelson was asking background questions of Bridges, who did not attempt to conceal his identity and asserted that he simply had been out for a ride with his friend Simmons. Bridges also claimed that he did not know who lived at the residence, did not have any money with him (which turned out to be true), and had a loaded and chambered handgun solely for his own protection against "a lot of bad guys out there." Prior to Bridges's making these statements, the agents had found two handguns inside the Blazer, one on the driver's side and another on the passenger's side (the one that had been loaded and chambered, with nineteen rounds of ammunition in its clip). The agents also had discovered a cellular phone, a pager, and a calling card inside the Blazer--all items that the agents knew to be commonly associated with drug trafficking activities. Upon further investigation, however, the agents were unable to trace the cellular phone, pager, and phone card that were found in the Blazer, to the phone inside the residence. And the agents were unable to connect Bridges's name with Meza-Corrales's phone record or with an item discovered inside the residence that the agents believed to be a drug ledger. 21 At Meza-Corrales's trial, the district court decided, inter alia, to deny his motion to suppress on Fourth and Fifth Amendment grounds all of the evidence that was obtained from the residence. After the jury found Meza-Corrales guilty of conspiring to possess and possession of cocaine with the intent to distribute, under 21 U.S.C. SS 846 and 841(a)(1), the district court imposed a 120-month sentence, the minimum required by 21 U.S.C. S 841(b)(1)(B), in light of Meza-Corrales's prior conviction under Arizona law for solicitation to unlawfully possess cocaine. 22 Before his joint trial with Meza-Corrales, Bridges, along with Simmons, was offered an opportunity to plead guilty to violating S 922(g) and thereby to avoid being prosecuted for the other violations. Simmons pleaded guilty and was sentenced to thirty-six months in prison followed by thirty-six months supervised release. However, Bridges refused to plead guilty and thus was forced to stand trial with Meza-Corrales (who was charged only with the first two counts) for possession of cocaine with the intent to distribute, conspiracy to possess cocaine with the intent to distribute, and use of a firearm in relation to a drug trafficking offense; and was scheduled to stand trial by himself for possession of a firearm and possession of ammunition by a convicted felon. Although Bridges was acquitted of the three counts for which he had stood trial, he eventually pleaded guilty to the two remaining counts for which he had not yet stood trial. His guilty plea followed the district court's denial of his motion to dismiss the superseding indictment that contained the two counts for which he had not yet stood trial. 23 The three bases for the two felon-in-possession counts as to which Bridges pleaded guilty were as follows. First, on August 30, 1988, Bridges had been sentenced by an Arizona court to a term of five-and-a-quarter years in prison for possession for sale of crack cocaine with a value over $250, a felony under Arizona law. Although the Arizona Department of Corrections had issued a certificate of absolute discharge to Bridges, effective September 24, 1993, Bridges had not requested this certificate until August of 1997 and had not made any affirmative application to the Arizona state courts to have his civil rights restored before August of 1997. According to the government's theory in the present case, that conviction, and the consequences under Arizona law of that prior conviction, provided the predicate for a conviction under federal law, 18 U.S.C. S 922(g)(1). 24 Second, on July 9, 1996, Pima County Sheriff's Department deputies had stopped Bridges's car after seeing it exit a park after the posted closing time. Bridges had been accompanied by a young woman under the age of eighteen. After providing the deputies with identification materials, Bridges had been asked whether there were any weapons inside his car, to which Bridges had responded that he kept a handgun (which already had been loaded) on the floor of his car. The deputies then had cited him for carrying a concealed weapon (a misdemeanor under Arizona law), contributing to the delinquency of a minor, and trespassing in a county park. Bridges later had pleaded guilty to the concealed weapon charge, had paid a $250 fine, and had forfeited his handgun. According to the government's theory in the present case, this incident was the first act for which Bridges could be convicted for being a felon in possession. 25 Third, the previously described incident involving Meza-Corrales, according to the government's theory in the present case, was the second act for which Bridges could be convicted for being a felon in possession. 26 As to the two felon-in-possession charges, the district court accepted Bridges's two guilty pleas and then sentenced him to a forty-six month prison term, the low end of the applicable sentencing guideline range. Bridges's sentence was based in part on an enhancement for possession of the firearm in connection with another felony offense, under U.S. Sentencing Guidelines Manual S 2K2.1(b)(5), and in part on a denial of a third one-point reduction for acceptance of responsibility, under U.S. Sentencing Guidelines Manual S 3E1.1(b). Discussion and Analysis I. Meza-Corrales 27 1. Lack of Taint as to, and Voluntariness of, the Consent to the Search 28 a. Standing to Contest Alleged Violations of Bayze Meza's Rights 29 Meza-Corrales does not have standing to contest violations of Bayze Meza's rights. See, e.g., United States v. Robertson, 833 F.2d 777, 779 (9th Cir. 1987). Moreover, her rights have not been violated, for the same reasons (to be discussed below) that Meza-Corrales's own rights have not been violated. 30 b. Legality of Meza-Corrales's Detention 31 The events depicted in the district court's decision demonstrate that the agents' detention of Meza-Corrales did not escalate into a full-blown arrest. The agents here sought merely to confirm (or to dispel) as quickly as possible their initial reasonable suspicions and took only those measures that were reasonable under the totality of the circumstances to effectuate that goal without any risk of harm to themselves or the public. See, e.g., United States v. Sharpe, 470 U.S. 675, 685-86 (1985); Washington v. Lambert, 98 F.3d 1181, 118586 (9th Cir. 1996). When we make such judgments, common sense and ordinary human experience rather than bright-line rules serve as our guide, and we recognize that "we allow intrusive and aggressive police conduct without deeming it an arrest in those circumstances when it is a reasonable response to legitimate safety concerns on the part of the investigating officers." Lambert, 98 F.3d at 1186; accord Sharpe, 470 U.S. at 685-86. 32 Here, as found by the district court, the situation initially confronted by the agents was anything but safe. A relatively small number of officers was present, weapons had been found (and more weapons potentially remained hidden), fleeing persons were on the loose, uncooperative persons were inside the residence, and uncertainty prevailed. Under such conditions, the agents' initial actions, including temporarily detaining Meza-Corrales with the use of handcuffs while questioning him, were reasonable responses, and the encounter did not escalate into a full-blown arrest. See, e.g., Allen v. City of Los Angeles, 66 F.3d 1052, 1056-57 (9th Cir. 1995) (citing several other authorities); Alexander v. County of Los Angeles, 64 F.3d 1315, 1319-21 (9th Cir. 1995) (same). Moreover, even after the situation had been secured to some extent, there still was a legitimate need to detain Meza-Corrales until more agents arrived and to question him further until the agents had either confirmed or dispelled their initial reasonable suspicions about the activities in which he seemed to have been personally involved inside the residence. And given these legitimate needs, it was entirely reasonable that the detention took from fifteen to thirty minutes. See, e.g., Sharpe, 470 U.S. at 685; Alexander, 64 F.3d at 1319-21. The agents only were gathering information about the identities of the various persons who had been detained, Meza-Corrales's criminal history, who resided at the residence, and whether the residents would consent to a search of the residence. 33 As a Terry stop rather than a full-blown arrest, MezaCorrales's detention was permissible so long as it was supported by the agents' reasonable suspicions that criminal activity had occurred or was about to occur. See, e.g., United States v. Sokolow, 490 U.S. 1, 7 (1989). The following six facts highlighted in the district court's decision provide ample evidence that such support existed. (1) A person had received $29,000 in a brown paper bag at the residence earlier that same day. (2) Several cars had been observed to visit the residence for only a very short time. (3) Upon the arrival of the agents at the residence, Bridges immediately had started sounding the horn of the Blazer for the apparent purpose of warning those persons who were inside the residence. (4) A loaded, chambered, and readily accessible handgun had been discovered inside the Blazer. (5) Two persons had been seen attempting to flee from the residence. (6) Bayze Meza and Meza-Corrales had hesitated before complying with the agents' requests that they exit the residence. Meza-Corrales's argument that Bridges's sounding of the horn of the Blazer, the discovery of loaded handguns, and the sighting of fleeing people, all had absolutely no connection with what was going on inside the residence and with the people who lived there, simply because they all physically occurred outside the residence, is patently ridiculous. Clearly, these six facts demonstrate that there was a reasonable basis for the agents to suspect thatMeza-Corrales was involved in criminal activity that had occurred or was about to occur inside the residence. See, e.g., Allen, 66 F.3d at 1056-57; Alexander, 64 F.3d at 1319-21. 34 c. Legality of the Initial Protective Sweep of the Residence 35 The agents clearly had probable cause to conduct their initial protective sweep of the residence (as opposed to the full search that would be conducted later) by the time that they were in a position to do so. Once Meza-Corrales, Bayze Meza, Bridges, and Simmons had been apprehended and briefly questioned, the agents then had a reasonable basis to believe that criminal activity was about to occur or had been occurring inside the residence. The following facts were collectively more than sufficient for the formation of such reasonable basis: (1) the large sum of money within a brown paper bag seized from a man previously seen leaving the residence, (2) the heavy volume of unusual vehicular traffic outside the residence, (3) the posting of a well-situated (and well-armed) lookout outside the residence, (4) the well-timed (albeit ultimately unsuccessful) sounding of a vehicle's horn by the posted lookout, (5) the attempted flight of two persons, and (6) the reluctance of persons to comply with the agents' requests. See, e.g., Sibron v. New York , 392 U.S. 40, 66-67 (1968) (noting that "deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea"); United States v. $129,727.00 U.S. Currency, 129 F.3d 486, 490 (9th Cir. 1997) (noting that carrying a large amount of currency "by itself was strong evidence that the money was furnished or intended to be furnished in return for drugs") (quotation omitted). Quite to the contrary of Meza-Corrales's characterization, these acts were not consistent with normal behavior--with spontaneous (and possibly innocent) flight--but rather were consistent with a deliberate attempt to avoid detection and capture by the police. 36 Once the agents had probable cause to enter the residence, they were entitled to do so if they merely were conducting a protective sweep to ensure that no potentially dangerous persons were hiding inside the residence. See, e.g., United States v. Gardner, 627 F.2d 906, 909-11 (9th Cir. 1980). As described above, and as the district court found, the circumstances were such that the agents were reasonable in fearing that, as Meza-Corrales and Simmons had been doing, other persons might be running around inside the residence, carrying loaded handguns similar to those that were found with Bridges, and thereby posing a potential threat to the safety of the agents. And the circumstances also were such that the agents were reasonable in fearing that without immediate action on their part, other persons also might destroy evidence hidden inside the residence, thereby frustrating legitimate law enforcement efforts, which indeed was the clear intent of Meza-Corrales and Simmons. 37 Moreover, Meza-Corrales's argument that the agents themselves caused all of the conduct that they claim justified their search (and that the agents therefore should not be allowed to justify their search on that basis), is unsound. To accept such an argument would mean, as Meza-Corrales actually does suggest in his briefs, that the agents instead should have driven away from the residence when they realized that Bridges was attempting to warn people inside the residence and thereby was creating a potentially dangerous environment for law enforcement activity. And it simply was not the case here that the agents committed any acts that were unreasonable or that were deliberately intended to manufacture the need for a warrantless search of the residence. See United States v. Von Willie, 59 F.3d 922, 926 (9th Cir. 1995). That the agents were somewhat prepared for a hostile reaction does not indicate that they were seeking to provoke such a reaction, and indeed, the fact that they were not completely prepared to secure the premisesafter their initial search of it, suggests that they in fact did not expect such a reaction and therefore surely did not intend to elicit one. 38 d. Voluntariness of Meza-Corrales's Consent to a Full Search of the Residence 39 The question of the voluntariness of Meza-Corrales's consent to a full search of the residence, is a factual one, which we need review only for clear error. See, e.g. , United States v. Morning, 64 F.3d 531, 532 (9th Cir. 1995). Moreover, that question needed to be answered in the first instance by the district court by means of its own evaluation of the totality of circumstances surrounding the granting of consent. See, e.g., United States v. Alfonso, 759 F.2d 728, 740 (9th Cir. 1985). 40 In the present case, after weighing the appropriate factors, the district court found that the scale tipped in favor of finding that Meza-Corrales's consent was voluntary. After our own review of the record, we hold that the district court's factual finding was not clearly erroneous. See, e.g., United States v. Spires, 3 F.3d 1234, 1237 (9th Cir. 1993); United States v. Childs, 944 F.2d 491, 496 (9th Cir. 1991); United States v. Tolias, 548 F.2d 277, 278-79 (9th Cir. 1977). It is true that the district court found that Meza-Corrales had been detained (pursuant to a Terry stop), had not been informed of his Miranda rights or his right to refuse to consent, and had been informed that the agents "[were] going to get a search warrant" and that the decision to get a search warrant "had already been made." However, the district court also found that, contrary to Meza-Corrales's testimony, the agents had not drawn their guns while questioning Meza-Corrales and Bayze Meza, had not ever pointed their guns at Meza-Corrales and Bayze Meza, and had not ever threatened to arrest Meza-Corrales and Bayze Meza if they would not consent to a search. And, more importantly, the district court also found that Meza-Corrales had signed the written consent form, had been questioned on his home ground, had known from his own experience that a judge would have to approve the search before a search warrant could be issued, and had demonstrated by his prior refusal to consent that he knew that he had such a right--a knowledge that is highly relevant in our analysis of whether a consent is voluntary. See United States v. Mendenhall, 446 U.S. 554, 558-59 (1980). Moreover, we previously have held that even in the unfortunate absence of a search warrant, the existence of probable cause, as in the present case, lessens any need for us to deem that a consent was invalid on the basis of a police officer's statements regarding the obtaining of a search warrant. See, e.g., United States v. Kaplan, 895 F.2d 618, 622 (9th Cir. 1990). 41 2. Admissibility of the Non-Verbal Statements 42 a. Preservation of the Issue 43 Contrary to the government's position on this matter, this issue has not been waived. At a broad level, the issue of Miranda warnings (or the lack of them) and the circumstances surrounding them, were mentioned at least indirectly during the suppression hearing. Moreover, Meza-Corrales's written memorandum in support of his motion to suppress, plainly mentioned and discussed at some length the issue of Miranda warnings. Therefore, since it is unlikely that the district court deemed that the issue had been waived simply because Meza-Corrales decided not to pursue the issue orally and specifically at the suppression hearing, we deem that the issue has been adequately preserved for appeal. See, e.g. , United States v. Khan, 993 F.2d 1368, 1375-76 (9th Cir. 1993). 44 b. Harmlessness of Any Error Committed 45 Even if any error was committed as to the admission of Meza-Corrales's non-verbal statements (which were obtained by the agents prior to their administering of Miranda warnings to Meza-Corrales), such error was harmless. See, e.g., United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1047 (9th Cir. 1990). At trial, the government introduced a large amount of incriminating evidence that had been discovered throughout Meza-Corrales's house. The presence of such an abundance of incriminating evidence makes it more likely than not that, even in the absence of Meza-Corrales's non-verbal statements, the jury still would have found it to be unlikely beyond a reasonable doubt that Meza-Corrales did not notice and thereby did not know that some kind of illegal activity was occurring in his residence. Therefore, it is more likely than not that the jury still would have reached the same conclusion as to Meza-Corrales's knowledge of the cocaine, money, packaging materials, cutting agents, and drug ledgers, all of which were found in easily noticeable places inside the residence. Moreover, it also is more likely than not that, if the need to do so had arisen, the jury, in lieu of relying upon an inference based on the abundance and the ease of notice of the incriminating evidence discovered in the residence, would have inferred that Meza-Corrales knew about the incriminating evidence, on the basis of his attempted flight from the residence. Therefore, any error as to this Miranda issue that may have been committed by the district court (and in the first instance, by the agents) was harmless.2 46 3. Imposition of Ten-Year Statutory Mandatory Minimum Sentence 47 The district court imposed a ten-year mandatory minimum sentence pursuant to 21 U.S.C. S 841(b)(1)(B). That statute provides that "[if] a person commits such a violation [e.g., possession of cocaine with the intent to distribute ] after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years." 21 U.S.C. S 841(b)(1)(B). The term "felony drug offense" itself is defined as "an offense punishable by imprisonment for more than one year under any law of the United States or of a state . . . that prohibits or restricts conduct relating to narcotic drugs." 21 U.S.C. S 802(44). 48 Meza-Corrales was convicted in Arizona state court on June 22, 1995, of "SOLICITATION TO UNLAWFULLY POSSESS A NARCOTIC DRUG: COCAINE, NONDANGEROUS, NONREPETITIVE CLASS SIX FELONY OCCURRING ON AUGUST 14, 1994, IN VIOLATION OF ARS 13-1002; 13-3408(A)(1) AND (B)(1)." A.R.S.S 131002 is Arizona's general purpose solicitation statute (i.e., it bans the solicitation of any criminal offense), while A.R.S. SS 13-3408(A)(1) and (B)(1) are Arizona provisions that specifically prohibit the unlawful possession of cocaine. Thus, it appears that because Meza-Corrales did not actually possess any cocaine, the Arizona state court trial judge must have entered a judgment against Meza-Corrales solely on the basis of A.R.S. S 13-1002 and merely was seeking to clarify which criminal offense supplied the underlying basis for that judgment (i.e., the solicitation count), when he included the citations to A.R.S. SS 13-3408(A)(1) and (B)(1). 49 Given such legal and factual backdrop, Meza-Corrales now argues that his conviction under Arizona's general purpose solicitation statute somehow does not meet the definition of a "felony drug offense" under 21 U.S.C. S 802(44). In support of his argument, Meza-Corrales cites Coronado-Durazo v. Immigration and Naturalization Service, 123 F.3d 1322, 1324-1326 (9th Cir. 1997), which discusses then 8 U.S.C. S 1251(a)(2)(B)(i) (current 8 U.S.C. S 1227(a)(2)(B)(i)), which provided that any alien who has been convicted of "a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance may be deported." 50 However, that case is distinguishable from the present case because the statutory language relevant in that case differs in two significant respects from the statutory language relevant in the present case. First, in reaching the decision that Arizona's general purpose solicitation statute did not satisfy the relevant federal statute, we emphasized that the parenthetical language contained within that federal statute plainly limited "convictions for generic crimes that may result in deportation to conspiracy and attempt. Simply put, solicitation is not on the list." Id. at 1325. Here, however, the statutory language does not contain any list of generic crimes from which solicitation is excluded, and, in fact, as discussed next, the statutory language here does not seem to draw any distinction at all between specific and generic crimes. 51 Second, the statutory language in the present case reads slightly but significantly differently from the statutory language at issue in Coronado-Durazo. In that case, the phrase "relating to a controlled substance" was positioned immeditely after the phrase "any law or regulation of a State, the United States, or a foreign country," such that it was clear that the former phrase directly modified the latter one. Thus, the law at issue (e.g., the Arizona generic solicitation statute) itself needed to have related to a controlled substance (i.e., the statute itself needed to have mentioned controlled substances). However, in the present context, the phrase "relating to narcotic drugs" is positioned immediately after an intervening phrase, "that prohibits or restricts conduct, " such that it is clear that the former phrase modifies the term "conduct" rather than the terms "any law or regulation. " Thus, in the present context, the law at issue itself need not relate to (i.e., make mention of) narcotic drugs but only need mention (for purposes of prohibition and restriction) some conduct that itself relates to (i.e., involves the use, possession, or sale of) narcotic drugs. Thus, only a strained reading of the statutory language here would support Meza-Corrales's argument (e.g., modifying the statutory language to read "any law. . . that prohibits or restricts conduct, which law relates to narcotic drugs" or perhaps "any law . . . that by itself prohibits or restricts conduct relating to narcotic drugs"). And here, Arizona law clearly satisfies the language of the federal statute, plainly read--to wit, A.R.S. S 13-1002 prohibits the solicitation of any criminal offense, which includes, among many other kinds of conduct, conduct involving the unlawful pos session of narcotic drugs, such as cocaine. 52 Therefore, we conclude that the circumstances of Coronado-Durazo are distinguishable from those of the present case and hence that the district court did not err when it imposed a ten-year mandatory minimum sentence pursuant to 21 U.S.C. S 841(b)(1)(B). 53 II. Bridges's Sole Issue--Dismissal of the Felon-in-Possession Counts3 54 The district court held that Bridges violated 18 U.S.C. S 922(g), which states that it is "unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess . . . any firearm or ammunition," and which is further explained by 18 U.S.C. S 921(a)(20), which states in pertinent part that: 55 Any conviction . . . for which the person . . . has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such . . . restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.Thus, in deciding whether Bridges could be tried for a felon-in-possession count, the district court performed a two-step analysis: (1) determining whether Bridges's civil rights had not been restored under Arizona law; but (2) if a restoration was found to have occurred, determining whether Bridges's right to possess a firearm nonetheless somehow still was restricted in an express manner under Arizona law. If the district court determined that either of these two conditions had been met, then the district court rightly could convict Bridges for being a felon-in-possession. And in making these two determinations, the district court looked, as it should have looked, see, e.g., United States v. Collins, 61 F.3d 1379, 1382-83 (9th Cir. 1995), to Arizona law as of September 24, 1993, the date that Bridges's civil rights finally were restored. 56 Under Arizona law, from the time of Bridges's conviction, August 30, 1988, until the time of his absolute discharge, September 24, 1993, the following statutory scheme existed: 57 - A.R.S. S 13-904(A) provided that: 58 A conviction for a felony suspends the following civil rights of the person sentenced: 59 1. The right to vote. 60 2. The right to hold public office of trust or profit. 61 3. The right to serve as a juror. 62 4. During any period of imprisonment any other civil rights the suspension of which is reasonably necessary for the security of the institution in which the person sentenced is confined or for the reasonable protection of the public. 63 - A.R.S. S 13-3101 provided, in pertinent part, that: 6. "Prohibited possessor" means any person: 64 . . . 65 (b) Who has been convicted within or without this state of a felony involving violence or possession and use of a deadly weapon or dangerous instrument and whose civil rights have not been restored. 66 - A.R.S. S 13-912 provided that: 67 A. Upon completion of the term of probation, or upon absolute discharge from imprisonment, and upon the completion of payment of any fine or restitution imposed, any person who has not previously been convicted of any other felony shall automatically be restored any civil rights which were lost or suspended by the conviction. 68 B. This section does not apply to a person's right to possess weapons as defined in S 13-3101 unless he applies to a court pursuant to the procedures of S 13-906. 69 The government argued, and the district court agreed, that at the time of Bridges's absolute discharge, his right to bear firearms was restricted under federal law, regardless of the potential lack of any restriction under Arizona law. The government reached this position by first conceding that Bridges's civil rights had been substantially restored under step (1) of the analysis that was required under 18 U.S.C.S 921(a)(20),4 but then arguing that the expressly limited nature of the restoration of Bridges's civil rights (as opposed to his right to bear a firearm) under Arizona law somehow warranted a conviction under step (2) of the analysis (i.e., met the statutory language in the "unless" clause of 18 U.S.C. S 921(a)(20)).5 70 However, as Bridges argues, and as we agree, this argument makes absolutely no sense. Step (2) of the analysis requires that the state law that restores a past felon's civil rights, nevertheless expressly provide that the past felon still may not possess firearms (or some subset of firearms). Here, it is quite clear that under Arizona law as of September 24, 1993, no such express provision existed. See, e.g., State v. Olvera, 952 P.2d 313, 314 (Ariz. Ct. App. 1998) (noting that "[t]he statutory change [in 1994 ] made [the appellant] a felon whose right to possess a firearm was suspended") (emphasis added). A.R.S. S 13-904 did not suspend the right to possess a firearm at all,6 and A.R.S.S 13-3101 only prohibited possession of a firearm by past felons who had been convicted of felonies involving violence or the possession and use of a deadly weapon or dangerous instrument.7 71 Moreover, although it is true, as the government points out, that A.R.S. S 13-912(B) expressly provided that A.R.S. S 13912(A) did not apply to past felons so far as the automatic restoration of their rights to possess firearms was concerned, that provision had no relevance for step (2) of the analysis. That step requires that the state civil rights restoration law expressly provide that a past felon cannot possess a firearm (or some subset of firearms). However, Arizona law (A.R.S. S 13-912(B)) expressly provided only that the prior subsection dealing with the automatic restoration of civil rights generally, did not apply to a prior felon's right to possess a firearm. Arizona's civil rights restoration law did expressly provide that it would not restore a past felon's right to possess a firearm, but it did not expressly provide that he was prohibited from doing so if he had not lost the right previously (i.e., Arizona's restoration law did not give back anything that was formerly takenaway, but at the same time, it did not take away anything that was not formerly taken away). The legislative history of the 1988 amendment that created A.R.S. S 13-912(B) also supports this reading. The legislative history mentions this provision having some effect only in the context of past felons who had committed crimes involving violence or the possession and use of a deadly weapon or dangerous instrument--the only context that should have been relevant at all for this provision, given the above reading, because only past felons who had committed such crimes would have lost their rights to possess firearms under then-existing A.R.S. S 13-3101 and therefore only such past felons would have needed to avail themselves of this provision. Furthermore, prior to a 1994 amendment (which coincided with the 1994 amendments to A.R.S. SS 13-904 and 13-3101), A.R.S. S 13906 did not yet include a procedural mechanism for a past felon who committed a crime other than a dangerous offense to apply for a restoration of his right to possess a firearm, which omission can make sense only if such past felon's right to possess a firearm was not restricted under then-existing Arizona law. 72 In response, the government cites Caron v. United States, 118 S. Ct. 2007, 2011-12 (1998), where the Supreme Court held that even the most limited restriction under state law of a past felon's right to bear firearms (or any subset of firearms) is sufficient to trigger the application of the "unless" clause of 18 U.S.C. S 921(a)(20) (i.e., to find some state law restriction under step (2) of the analysis), even if the state law restriction is so limited that the past felon's present offense conduct would not be within the ambit of the state law restriction and therefore would not sustain a conviction under state law. However, because, as discussed above, under Arizona law at the time of his absolute discharge, Bridges's right to possess firearms had not been restricted to any extent whatsoever, the holding of Caron, in spite of its expansiveness, does not control the present case.8 73 Therefore, the district court should have dismissed the superseding indictment on the grounds that Bridges's civil rights had been restored to him and his right to possess a firearm had not been expressly restricted to even the slightest degree under then-existing Arizona law.9 Conclusion 74 For the foregoing reasons, we affirm the decision of the district court with respect to all issues involving Meza-Corrales and reverse with respect to the denial of Bridges's motion to dismiss the superseding indictment.10 75 AFFIRMED IN PART; REVERSED IN PART. Notes: 1 The Honorable Paul R. Michel, Circuit Judge, Federal Circuit, sitting by designation. 2 Moreover, once the agents had been granted Meza-Corrales's consent to a full search, they were free to search the entirety of the residence and quite surely would have discovered all of the incriminating evidence, even without Meza-Corrales's statements, which were asked for and provided solely to avoid the trouble and cost (for all of the parties involved) of a full search of the residence. 3 By use of the term "felon, " we mean to indicate any individual convicted for a criminal offense that carries a prison sentence greater than one year. 4 This concession is in accordance with the law of the Ninth Circuit. Here, Bridges clearly had lost and had restored to him, his three core civil rights--the right to vote, the right to hold public office, and the right to serve as a juror. And that restoration clearly constituted a substantial restoration of Bridges's civil rights for purpose of step (1) of the analysis required by 18 U.S.C. S 921(a)(20). See, e.g., United States v. Gomez, 911 F.2d 219, 220-21 (9th Cir. 1990). The fact that Bridges's right to bear firearms arguably had not been restored (since it never had been lost to begin with), simply was not relevant for this step of the analysis. See id.; see also United States v. Andaverde, 64 F.3d 1305, 1309 (9th Cir. 1995). Moreover, to the extent that A.R.S. S 13-912(A) provides for automatic restoration by operation of law of a past first-time felon's civil rights, the fact that Bridges (seemingly a past one-time felon) did not obtain a certificate of absolute discharge until quite recently is of no legal consequence. See, e.g., Gomez, 911 F.2d at 221. 5 The government cites United States v. McGrath, 60 F.3d 1005, 100610 (2d Cir. 1995), which stands for the somewhat counterintuitive proposition that if a past felon has lost none of his civil rights and thus can possess a firearm under state law, he nevertheless can be convicted under federal law because his civil rights technically have not been "restored" to him (since he never lost them in the first place) under step (1) of the analysis required by a very literal reading of 18 U.S.C. S 921(a)(20). However, this citation to McGrath is problematic. First, McGrath has been disagreed with by a number of other circuits, including the one upon which the authors of McGrath initially relied, and including the Ninth Circuit (at least until the decision was vacated on other grounds). See, e.g., United States v. Qualls, 108 F.3d 1019, 1023 (9th Cir. 1997); United States v. Indelicato, 97 F.3d 627, 629-30 (1st Cir. 1996) (noting that despite a literal reading of the statutory language, common sense mandated that a past felon who never had lost his civil rights should not be treated more harshly than a past felon who had lost them). Second, the reasoning of the McGrath decision only can be relevant under step (1) of the analysis required by 18 U.S.C. S 921(a)(20). See McGrath, 60 F.3d at 1006-10 (focusing on the term "restored"). Because the government has conceded that Bridges has met step (1) of the analysis, its citation to the McGrath decision is unhelpful in the present case. 6 This reading of former A.R.S.S 13-904 is bolstered by the fact that in 1994, the Arizona legislature deemed it necessary to amend the statute (into its present form) to prohibit possession of a firearm by any person who had been convicted of any felony. Moreover, it should be noted that although P 4 of former A.R.S. S 13904 could be read to restrict a past felon's right to possess firearms, it appears that the Arizona courts have not read it to do so, see, e.g., Olvera, 952 P.2d at 314; that the Arizona legislature did not read it to do so; that both parties here do not read it to do so; and that the restriction on the right to possess firearms contained in that provision expires by its own terms (without any reliance on a separate restoration provision) once a convict is released from prison. 7 This reading of former A.R.S.S 13-3101 is bolstered by the fact that in 1994, the Arizona legislature deemed it necessary to amend the statute (into its present form) to prohibit possession of a firearm by any person who had been convicted of any felony. 8 In United States v. Qualls , 172 F.3d 1136, 1138 (9th Cir. 1999) (en banc), we recognized "Caron's binding interpretation of the federal felonin-possession statute, and [applied] to [a criminal defendant] the all-or-nothing rule announced in Caron." However, that case required us to apply the Caron rule to a prior conviction under California law, which, unlike Arizona law, imposed some restrictions, as opposed to no restrictions, upon a past felon's right to bear firearms and thus triggered the application of the federal statute. 9 It is worth noting that the holding of our decision today is limited to the peculiar aspects of Arizona law prior to the date in 1994 on which the provisions at issue in the present case were substantially amended. However, it is also worth noting that despite the substantial amendment of the relevant provisions here, the holding of our decision today will continue to be relevant for all past felons who were convicted under Arizona law prior to the date in 1994 and who might be prosecuted in the future for being a felon-in-possession under federal law. 10 Our reversal of Bridges's conviction renders any consideration of his sentence moot.	{ "pile_set_name": "FreeLaw" }
IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT BARBARA BARTLETT, et al., ) ) Appellants, ) ) WD79411 v. ) ) OPINION FILED: ) November 29, 2016 MISSOURI DEPARTMENT OF ) INSURANCE and JOHN M. HUFF, ) ) Respondents. ) Appeal from the Circuit Court of Cole County, Missouri The Honorable Jon E. Beetem, Judge Before Division Two: Lisa White Hardwick, Presiding Judge, and Karen King Mitchell and Anthony Rex Gabbert, Judges This case raises a question as to the procedural requirements for seeking relief in the form of a writ of mandamus under Rule 94.1 Here, purported relators Barbara Bartlett and Shawn Hernandez, former employees of the Department of Insurance, appeal from the circuit court’s grant of summary judgment in favor of the Department on their petition for a writ of mandamus, wherein Bartlett and Hernandez sought “payment . . . in lost wages and lost pension as a result of the 2001 1 All rule references are to the Missouri Supreme Court Rules (2016). decision to no longer abide by [§ 374.1152],” a statute they claimed mandated a certain level of compensation with which the Department refused to comply. Ultimately, the trial court granted the Department’s motion for summary judgment, effectively denying the petition for writ of mandamus, and Relators appealed. Though seeking mandamus relief, Appellants utterly failed and refused to follow the procedural requirements of Rule 94 regarding mandamus, leaving this court without appellate jurisdiction. Accordingly, we dismiss this appeal. Background On November 9, 2012, Appellants Bartlett and Hernandez filed a “Petition for Writ of Mandamus – Class Action” in Jackson County, Missouri. Appellants, insurance examiners employed by the Department, claimed that beginning in 2001, the Department stopped paying them statutorily mandated salary increases. The petition sought class certification “to recover unpaid compensation in the form of lost wages and lost pension owed . . . [by] the Department of Insurance . . . from 2001 to the present” based on the language of § 374.115.3 Upon receiving the petition, the Jackson County Court Administrator’s Office sent Appellants a notice that their pleading could not be filed without further documents and information. The notice specifically inquired, “should this case be handled as a Writ or a regular Jackson County case? If handled as a Writ of Mandamus, please refer to the Missouri Court Rules.” Appellants responded, “Please file the above styled case as a regular Jackson County Case and not as a Writ.” The Jackson County Circuit Court complied with Appellants’ request, appointed a special process server, and served the Department with a “Summons in Civil Case.” Thereafter, the 2 All statutory citations are to the Revised Statutes of Missouri 2000, as updated through the most recent Cumulative Supplement. 3 No class certification hearing was ever held, and no class was ever certified. Thus, we do not address whether a petition for mandamus could ever be certified as a class action. The class action status of this case is not an issue on appeal. 2 Department sought a transfer of venue to Cole County and filed a motion to dismiss. In the Department’s motion to dismiss, the Department argued—among other things—that “Plaintiffs fail[ed] to satisfy the elements for a writ of mandamus and fail[ed] to satisfy the procedural requirements for mandamus under Missouri Supreme Court Rule 94.03.” More specifically, the Department argued that Appellants were improperly seeking mandamus to adjudicate their legal right to compensation, rather than to execute an existing right, and that they failed to follow the procedural requirements of Rule 94.03 insofar as they failed to submit either suggestions in support of their petition or exhibits essential to an understanding of the matters set forth therein. Thereafter, Appellants filed a “First Amended Petition for Writ of Mandamus,” seeking to cure the procedural defects identified by the Department by attaching exhibits and accompanying suggestions in support.4 The Department filed another motion to dismiss, this time directed at the First Amended Petition, again attacking Appellants’ failure to satisfy the procedural requirements of Rule 94. The Department again argued that Appellants were seeking to establish a right, rather than simply to execute an existing one, and that the amended petition still failed to attach the relevant and necessary exhibits, as the exhibits included with the petition failed to establish any facts necessary to demonstrate that Appellants had an existing right to relief. The Jackson County Circuit Court granted the Department’s motion to transfer venue to Cole County. In Cole County Circuit Court, Appellants filed a response to the Department’s motion to dismiss, and the court held a hearing on the motion. Following the hearing, the Cole County Circuit Court entered an order denying the motion to dismiss; found “that the statute at 4 In filing the First Amended Petition, Appellants claimed that the amendment was permitted as a matter of right under Rule 55.33(a), “as no responsive pleading has been served.” But, until a preliminary order is issued under Rule 94.04, no responsive pleading is required. Rule 94.05. While Rule 55.33 provides for amendments in cases where no responsive pleading has been served and where none is permitted, it does not address the situation where a responsive pleading is simply not required. In other words, the interplay between Rule 55.33, which applies to civil proceedings generally, and Rule 94, which applies to petitions for writ of mandamus, is not clear. 3 issue clearly sets forth the right to be enforced, thus making mandamus an appropriate remedy”; limited Appellants’ claims to the five years preceding the petition based upon a statute of limitation; and directed the Department to file an answer. The Department filed a “General Objection and Answer,” wherein it argued that “the Court was wholly without jurisdiction to direct Respondents to answer Petitioners’ First Amended Petition for Writ of Mandamus” because “the denial of a motion to dismiss is not the operative prerequisite to investing the circuit court with the authority to direct Respondents to file an Answer.”5 “Rather,” the Department argued, “in response to the proper showing accompanying a petition for writ of mandamus, the circuit court is empowered to issue but one type of order; a preliminary order in mandamus.” (Citing Rule 94.04.) The Department argued that “[t]he Court’s . . . Order does not determine that a preliminary writ should issue, it merely denies Respondents’ motion to dismiss.” The Department further argued that mandamus was inappropriate because Appellants were seeking to establish a legal right to compensation, rather than to execute an existing right. The parties then engaged in a period of discovery. Then, nearly two years after filing the initial petition in Jackson County, Appellants filed a “Motion for Leave to File Relator’s [sic] Second Amended Writ,” wherein Appellants sought to amend their petition again, this time to add another party. Not surprisingly, the Department objected, again arguing that Appellants had failed to comply with Rule 94 and were not entitled to writ relief. Appellants again tried to cure the procedural defects identified by the Department by filing an amended motion for leave to file their Second Amended Petition, wherein they attached exhibits and accompanying suggestions in 5 “[U]nless a trial court grants a preliminary order in mandamus, Rule 94 does not authorize the trial court to order the respondent to file an answer to the petition in mandamus.” R.M.A. v. Blue Springs R-IV Sch. Dist., 477 S.W.3d 185, 188 n.6 (Mo. App. W.D. 2015). 4 support, as required by Rule 94. Again, the Department objected, and again it argued that Appellants failed to comply with Rule 94. The Department argued: This case is not a civil tort action and was brought over two years ago as a petition for writ of mandamus. A writ of mandamus . . . must show, on the face of the petition, a clear and unequivocal right to relief. The Court’s April 2, 2014 order stated that Relators “bear the burden of proving facts which entitle them to relief under the statute.” Further, Relators concede on the face of their Amended Motion that their prior attempts failed to support their claim for writ and failed to supply the required material under Rule 94.03. As such, the current incarnation of Relators’ claim, brought more than two years after their initial filing, evidences the defects inherent in their claim. The parties continued to engage in discovery, and on March 30, 2015, the parties filed competing motions for summary judgment, followed by suggestions in support and opposition, and replies, as well as various motions to strike.6 Finally, on December 31, 2015—more than three years after the initial petition was filed—the court entered the following “Judgment”: The Court finds that Relators have failed to establish a basis for mandamus in that they cannot establish what they should have been paid, except to the extent that it should be more. Mandamus requires a showing of a clearly established right. Independently, while as this Court has previously found that mandamus is the proper cause of action to compel a payment, the doctrine of sovereign immunity bars the action under the facts established.[7] The Court sustains the Respondents’ Motion for Summary Judgment. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Relators’ request for a Writ of Mandamus is denied and judgment is entered in favor of Respondents. All other claims for relief, not expressly granted herein, are denied. Costs taxed to the Relators. 6 Though Rule 94.01 indicates that, “[i]n all particulars not provided for by the foregoing provisions, proceedings in mandamus shall be governed by and conform to the rules of civil procedure,” we question whether summary judgment is an appropriate vehicle for resolving a petition for writ of mandamus. The two proceedings have vastly different purposes. “The purpose of summary judgment . . . is to identify cases (1) in which there is no genuine dispute as to the facts and (2) the facts as admitted show a legal right to judgment for the movant.” ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993) (emphasis added). “Mandamus[, however,] may not be used to establish a legal right; it may only be used to compel performance of a right that already exists.” Lemay Fire Prot. Dist. v. St. Louis Cty., 340 S.W.3d 292, 295 (Mo. App. E.D. 2011). “The writ’s purpose is to execute, not to adjudicate.” Id. 7 The parties argued below about whether sovereign immunity barred the petition, and they continue that argument on appeal. We do not determine that issue, however, because we lack appellate jurisdiction over this case due to the lack of a final, appealable judgment. 5 Appellants now appeal from the court’s grant of summary judgment in favor of the Department, arguing that sovereign immunity did not apply and that they established a right to mandamus below. We take this opportunity to advise litigants and trial courts on the proper procedures required when seeking mandamus in the hopes of avoiding future procedural quagmires such as the one we are confronted with here. Analysis “There is no remedy that a court can provide that is more drastic, no exercise of raw judicial power that is more awesome, than that available through the extraordinary writ of mandamus.” State ex rel. Kelley v. Mitchell, 595 S.W.2d 261, 266 (Mo. banc 1980). “Writs are extraordinary remedies, and their procedures differ from normal civil actions.” U.S. Dep’t of Veterans Affairs v. Boresi, 396 S.W.3d 356, 359 n.1 (Mo. banc 2013). And where a writ petition fails to comply with the procedural rules, it is properly subject to dismissal. Molasky v. Westfall, 713 S.W.2d 569, 570 (Mo. App. E.D. 1986). “The rules of civil procedure are ‘rules of practice and procedure to promote the orderly administration of justice.’” Sitelines, L.L.C. v. Pentstar Corp., 213 S.W.3d 703, 707 (Mo. App. E.D. 2007) (quoting Mello v. Williams, 73 S.W.3d 681, 685 (Mo. App. E.D. 2002)). “When properly adopted, the rules of court are binding on courts, litigants, and counsel, and it is the court’s duty to enforce them.” Id. Mandamus actions brought in the circuit court are governed by Rule 94.8 “Proceedings in mandamus shall be by a civil action in which the person seeking relief is relator and the person against whom such relief is sought is respondent.” Rule 94.02. 8 In this court and the Missouri Supreme Court, mandamus actions are further governed by Rules 84.22 through 84.26, inclusive. The application of different rules does not change the high standard that is to be employed in evaluating the propriety of a writ of mandamus. 6 Rule 94.03 states: Application for a writ of mandamus shall be made by filing a petition in mandamus in the appropriate court. The petition in mandamus shall contain a statement of the facts, the relief sought, and a statement of the reasons why the writ should issue. The petition in mandamus shall be accompanied by suggestions in support thereof. The rule further directs that “[a] copy of any order, opinion, record or part thereof, document, or other item that may be essential to an understanding of the matters set forth in the petition in mandamus shall be attached as exhibits if not set forth therein.” Id. Here, as the Department repeatedly pointed out over the three-year course of litigation, Appellants failed to properly seek a writ in the first instance. The original petition did not designate any party as either relators or respondents, instead identifying them as plaintiffs and defendants. Though containing facts, the petition failed to set them forth in a statement of facts. The petition failed to identify the precise relief sought, instead seeking only “payment . . . commensurate with the amount that each [class] member is owed in lost wages and lost pension as a result of the 2001 decision to no longer abide by the governing statute.”9 Finally, the petition failed to state the reasons why a writ, rather than some other form of relief, was required. Furthermore, there were no accompanying suggestions in support nor any exhibits attached to the petition. And, completely disregarding the application of Rule 94, Appellants advised the Jackson County Circuit Court to treat the case “as a regular Jackson County Case and not as a Writ.”10 9 As noted above, no class was ever certified; thus, even if the prayer for payment of lost wages and lost pension itself were deemed precise, it is wholly unclear to whom such payments would be owed. “[I]n mandamus he who seeks mandamus must specify just what he wants, nothing more or less.” State ex rel. Hart v. City of St. Louis, 204 S.W.2d 234, 240 (Mo. banc 1947) (internal quotations omitted). “Thus, unless we can grant the relief sought, we can grant no relief.” Id. 10 It is unclear to us why the Jackson County Circuit Court considered treating the petition as anything other than a petition for a writ of mandamus. It was captioned as a petition for a writ of mandamus and it clearly sought 7 The normal circuit court proceedings in mandamus established in Rule 94 are as follows: First, a relator initiates a proceeding by filing a petition for a writ of mandamus in the appropriate circuit court. Next, the circuit court considers the petition and determines if a preliminary order of mandamus should issue. If the circuit court does not grant a preliminary order in mandamus, the petitioning party then must file its writ petition in the next higher court. If the circuit court, however, “is of the opinion that the preliminary order in [mandamus] should be granted, such order shall be issued.” The preliminary order in mandamus directs the respondent to file an answer within a specified amount of time . . . . If the court issues a preliminary order in mandamus, any final decision is reviewable by appeal. Boresi, 396 S.W.3d at 364 (Fischer, J., concurring) (quoting Rule 94.04) (footnotes omitted) (internal citations omitted). Appellants’ direction to treat the case as a normal civil case further compounded the procedural irregularities insofar as the court then issued a summons, rather than examining the petition to determine whether a preliminary order was warranted, as is required by Rule 94.04. As noted, supra, a petition for a writ of mandamus seeks an extraordinary remedy. “The purpose of requiring a preliminary order at the outset of a writ proceeding is to require some judicial evaluation of the claim to determine if the respondent should even be required to answer the allegations.” Boresi, 396 S.W.3d at 365 (Fischer, J., concurring). The issuance or denial of a preliminary order drives the petitioner’s next steps: “when the circuit court denies a petition for writ of mandamus, the petitioner’s proper course of action is not to appeal the denial but to file the writ in a higher court.” Stone v. Mo. Dep’t of Corr., 313 S.W.3d 158, 160 (Mo. App. W.D. 2010). On the other hand, “where a preliminary [order] is granted and the court then determines on the merits whether the writ should be made permanent, or quashed, then appeal is the proper remedy.” Wheat v. Mo. Bd. of Prob. & Parole, 932 S.W.2d 835, 838 (Mo. App. W.D. 1996). “The practice of issuing a summons rather than a preliminary order fails to acknowledge the nature of the mandamus relief. Thus, it fell within the purview of Rule 94 and should have been treated accordingly. It appears, based on the language employed by the court, that the court recognized the deficiencies in the petition. 8 remedy.” Boresi, 396 S.W.3d at 359 n.1. “Additionally, it requires a response from the respondent without regard to the merits of the petition.” Id.11 Allowing a court to issue a summons in lieu of a preliminary order also “leads to confusion as to the proper standard of review.” Id. at 365 (Fischer, J., concurring). And this confusion is exacerbated when the case continues to proceed as a normal civil case, as it did here, subject to amended pleadings and summary judgment motions.12 In Powell v. Department of Corrections, 463 S.W.3d 838 (Mo. App. W.D. 2015), this court addressed a similar procedural irregularity and its effect on appellate jurisdiction. In Powell, like here, “the circuit court did not issue a preliminary order in mandamus as provided in Rule 94.04. Rather, it issued a summons to the [respondent], a procedure not authorized by Rule 94.” Id. at 840. This court analyzed both the majority opinion and Judge Fischer’s concurrence in Boresi and determined that “it is clear that the Supreme Court is directing circuit courts to discontinue the 11 In his concurrence, Judge Fischer stressed the purpose of the preliminary order and its distinctions from a typical summons. U.S. Dep’t of Veterans Affairs v. Boresi, 396 S.W.3d 356, 359 n.1 (Mo. banc 2013) (Fischer, J., concurring). More specifically, he noted that “a preliminary order . . . does more than a summons . . . because the preliminary order often prohibits further action until further order of the court.” Id. While this is true of writs of prohibition, it is not clear that the same is true for writs of mandamus. Compare Rule 94.05 (“The preliminary order [in mandamus] shall order the respondent to file an answer within the time fixed by the order.”) with Rule 97.05 (“The preliminary order [in prohibition] shall order the respondent to file an answer within the time fixed by the order and may order the respondent to refrain from all action in the premises until further order.”). Nevertheless, as the Boresi majority pointed out, it is the truly awesome nature of mandamus relief, itself, that requires a preliminary determination by the court regarding the merits. Plainly, a summons—unlike a preliminary order—requires no determination of the merits of the cause of action; rather, it merely notifies an opposing party that a case has been filed. Thus, they are clearly not functional equivalents. 12 In noting the confusion over the governing standard of review, Judge Fischer, in his concurrence in Boresi pointed out that the standard has been described as either abuse of discretion or the standard for court-tried cases delineated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Boresi, 396 S.W.3d at 359 (Fischer, J., concurring). We further note that several cases have arisen on appeal from the grant of summary judgment entered in response to a petition for a writ of mandamus and that, in those cases, Missouri courts have held that the standard of review is de novo. See, e.g., State ex rel. City of Desloge v. St. Francois Cty., 245 S.W.3d 855, 859 (Mo. App. E.D. 2007) (“The fact that it was a summary judgment in a writ of mandamus action does not affect our standard of review.”). Thus, as the Eastern District has aptly recognized, it appears that “the manner in which the trial court disposed of the writ petition determines the proper standard of review.” Prof’l Fire Fighters of E. Mo. v. City of Univ. City, 457 S.W.3d 23, 27 (Mo. App. E.D. 2014). Yet, in all cases, to be entitled to the extraordinary remedy of mandamus, a petitioner must demonstrate “a clear, unequivocal, specific right to a thing claimed.” Boresi, 396 S.W.3d at 359 (quoting State ex rel. Office of Pub. Counsel v. Pub. Serv. Comm’n of State, 236 S.W.3d 632, 635 (Mo. banc 2007)). Permitting different standards of review, driven by procedurally noncompliant practices, seems both arbitrary and problematic. 9 practice of issuing a summons in lieu of a preliminary order in mandamus or prohibition.” Id. at 842. “[W]e perceive Boresi to be guidance that we generally should decline to exercise our discretion to hear appeals on the merits in writ proceedings where a summons rather than a preliminary order has been issued by the circuit court.” Id. Thus, we held that, when a “circuit court denie[s] [a petitioner’s] writ petition without issuing a preliminary order, [the petitioner’s] proper course [i]s to file his writ in a higher court.” Id. at 843. Accordingly, we dismissed the appeal. Id. Following our decision in Powell, we were faced with a similar issue in State ex rel. Tivol Plaza, Inc. v. Missouri Commission on Human Rights, WD78477, 2016 WL 1435970 (Mo. App. W.D. Apr. 12, 2016).13 In Tivol, after the petition for a writ of mandamus was filed, “the circuit court issued summonses rather than issuing a preliminary order in mandamus. The [respondent] then filed a motion to dismiss alleging that [the] petition failed to state a cause of action. Thereafter, the circuit court dismissed [the] petition,” and an appeal was brought from the dismissal. Id. at 1. On appeal, before reaching the merits, we noted our “duty to determine, sua sponte, whether the circuit court entered a final appealable judgment before substantive review of the issues presented on appeal.” Id. at 2 (quoting Banks v. Slay, 410 S.W.3d 767, 768 (Mo. App. E.D. 2013)). We then discussed the opinions in Boresi and our subsequent interpretation of Boresi in Powell, as well as the Eastern District’s interpretation of Boresi in Banks,14 and 13 The Missouri Supreme Court granted transfer on August 23, 2016. 14 In Banks, the circuit court issued a summons, rather than a preliminary order on the writ petition. Banks v. Slay, 410 S.W.3d 767, 768 (Mo. App. E.D. 2013). After finding the writ petition without merit, the court stated: Rather than perpetuate a procedural process that is not authorized by Rule 94 and is disfavored by the Supreme Court of Missouri, instead of stating that the judgment is affirmed, this court denies the writ without prejudice to seeking an original writ in the Supreme Court of Missouri. In the future, our circuit courts should follow the procedure set out in Rule 94 rather than issue a summons. Id. at 771. 10 concluded that “we refuse to perpetuate a procedural process that is not authorized by Rule 94.” Id. at 2-4. We held that “courts, litigants, and counsel must be bound by the procedures set forth in Rule 94, especially since Boresi put them on notice of the obligation to comply with those procedures almost three years ago.” Id. at *4. Though noting that “we have the discretion to hear appeals on the merits in cases in which the circuit court issues a summons rather than a preliminary order,” we held that it was not “our place to continually excuse [non]compliance with the procedural rules written by the Missouri Supreme Court.” Id. “We f[ou]nd this especially true given that [the appellant’s] recourse in th[e] case [wa]s simple—[it] merely need[ed] to file its writ in a higher court.” Id. Here, unlike in Powell, Banks, or Tivol, the Supreme Court had not yet issued its opinion in Boresi when Appellants’ petition was initially filed in Jackson County Circuit Court. Thus, the Jackson County Circuit Court did not have the benefit of the Court’s warning in Boresi that issuing a summons in lieu of a preliminary order was improper in mandamus actions. Boresi was, however, handed down a mere two months after the case was transferred to Cole County and before Cole County took any action regarding the matter. Thus, Boresi was an available authority for the Cole County Circuit Court to rely on in ruling the parties’ various arguments and motions, including the Department’s challenges to the First Amended Petition’s compliance with Rule 94. Furthermore, while the Supreme Court excused the noncompliance with Rule 94 in Boresi, it did so “because the parties, who already . . . litigated the matter fully, were not at fault and should not be required to initiate a new writ proceeding due to the circuit court’s failure to follow the procedure pr[e]scribed by the rules.” Boresi, 396 S.W.3d at 359 n.1 (emphasis added). Here, on the other hand, if fault is to be assigned for the noncompliance with Rule 94, it would lie squarely with Appellants, as it was Appellants that directed the Jackson County Circuit Court to file the 11 matter “as a regular Jackson County Case and not as a Writ.” Had Appellants instead heeded the court’s advice to “refer to the Missouri Court Rules” if they wished for the case to be handled as a writ, this case might not have dragged on for three years only to reach the conclusion that it was handled improperly and cannot be reviewed on appeal. “[I]t is well to enforce the law, ‘but it is quite another matter to disrupt settled expectations years after’ an alleged violation.” State ex rel. City of Monett v. Lawrence Cty., 407 S.W.3d 635, 641 (Mo. App. S.D. 2013) (quoting Green v. Lebanon R-III Sch. Dist., 13 S.W.3d 278, 287 (Mo. banc 2000) (Wolff, J., concurring)). Because the circuit court denied Appellants’ writ without issuing a preliminary order, Appellants’ recourse is not by appeal—it is to seek the writ in a higher court. Yet, even if we were to exercise our discretion and overlook the procedural infirmities, we would deny the writ because Appellants’ claim is simply not a proper matter for mandamus relief. “The purpose of a writ of mandamus is to order performance of a duty already defined by law.” Banks, 410 S.W.3d at 769. “The issuance of a writ is justified only when some legal authority requires an official to perform a particular act.” Id. “A party seeking a writ of mandamus must allege and prove he or she has a clear, unequivocal right to the thing claimed.” Id. “Mandamus may be used to enforce existing rights but may not be used to establish new rights.” Id. “It can only be used where the duty sought to be performed is definite and arises under conditions imposed by law.” Id. “To determine whether the right to mandamus is clearly established and presently existing, the court examines the statute under which the relator claims the right.” Jones v. Carnahan, 965 S.W.2d 209, 213 (Mo. App. W.D. 1998). “If the statute involves a determination of fact or a combination of facts and law, a discretionary act rather than a ministerial act is involved and this discretion cannot be coerced by the courts.” Id. 12 Here, the statute under which Appellants seek relief is § 374.115, which provides: “Insurance examiners appointed or employed by the director of the department of insurance, financial institutions and professional registration shall be compensated according to the applicable levels established and published by the National Association of Insurance Commissioners.” Appellants claim that, beginning in 2001, the Department ceased complying with the statute by refusing to issue them pay increases, despite the fact that the NAIC recommended the same. “If . . . the amount of a salary is fixed by law, and for that reason no discretion is left as to the amount, then mandamus is an appropriate remedy to enforce the payment of a salary to a public official against the officer or officers whose duty it is to pay such official.” State ex rel. Koehler v. Bulger, 233 S.W. 486, 487 (Mo. banc 1921). “In such cases the salary is a fixed amount, if it exists at all, and the sole question is the legal one as to whether or not there is a liability.” Id. But “[i]t is one of the fundamental principles of mandamus that the right sought to be enforced by the writ must be clear. It is obvious that this cannot be true if the amount which it is sought to compel officials to pay depends upon a fact issue to be determined by them.” Perkins v. Burks, 78 S.W.2d 845, 848 (Mo. 1934). “[W]hen there is a controversy over compensation for services, the amount of which must be settled by determining a question of fact which might be disputed, then the act of auditing the claim and fixing the amount . . . is a discretionary act which is not subject to be decided by mandamus.” Id. “[T]o the extent that legal or factual issues must be adjudicated, mandamus is not an appropriate mechanism.” Carmack v. Saunders, 884 S.W.2d 394, 398 (Mo. App. W.D. 1994). The statute at issue here requires numerous determinations of both fact and law, which were obviously disputed below.15 For example, Appellants contended that “compensation” was 15 For this reason, it would seem that the grant of summary judgment would have been erroneous, even if the procedure were permissible in the mandamus context. 13 equivalent to “salary,” but the Department disagreed, noting that § 374.160.4 suggests that “compensation . . . includ[es] standard benefits afforded to state employees.” There are questions of fact as to whether the National Association of Insurance Commissioners established a level of compensation, what that compensation included, and what the amount of that compensation was. “[W]hile a [person] may rightfully have recourse to mandamus to compel the payment of a salary fixed by law as to amount, the same is not true of a person who has a claim for . . . compensation for services . . . where both the validity and the amount of the claim are subject to be put in issue.” State ex rel. Becker v. Wehmeyer, 113 S.W.2d 1031, 1033 (Mo. App. 1938). Here, the amount of compensation due—if any—was in dispute; therefore, it did not meet the mandamus requirement for a clear, unequivocal, and specific right to the thing claimed. Furthermore, mandamus does not lie “where there is any other adequate remedy.” Kelley, 595 S.W.2d at 266 (quoting State ex rel. Porter v. Hudson, 126 S.W. 733, 740 (Mo. banc 1910)). “[T]he remedial writ ought to be reserved for those cases in which no alternative measure will be effective.” Id. “A declaratory judgment action is a particularly appropriate method for determining a controversy involving the construction of a statute . . . .” City of Creve Coeur v. Creve Coeur Fire Prot. Dist., 355 S.W.2d 857, 859 (Mo. 1962). Indeed, § 527.020 provides that “[a]ny person . . . whose rights . . . are affected by a statute . . . may have determined any question of construction . . . arising under the . . . statute . . . and obtain a declaration of rights . . . thereunder.” We know of no reason why Appellants could not have proceeded under the Declaratory Judgment Act. And because “the writ of mandamus is to be used only as a last resort on the failure of any adequate alternative remedy,” Kelley, 595 S.W.2d at 267, the writ does not lie here. 14 Conclusion Because the trial court denied Appellants’ petition for a writ of mandamus without issuing a preliminary order, review is not available by way of appeal. Accordingly, this appeal is dismissed. Karen King Mitchell, Judge Lisa White Hardwick, Presiding Judge, and Anthony Rex Gabbert, Judge, concur. 15	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION MAR 22 2016 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT WILLIAM LEOPOLDO JUAREZ- No. 14-71226 HERNANDEZ, Agency No. A070-184-483 Petitioner, v. MEMORANDUM* LORETTA E. LYNCH, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 15, 2016** Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges. William Leopoldo Juarez-Hernandez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). discretion the denial of a motion to reopen, and review de novo questions of law and claims of ineffective assistance. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny the petition for review. The BIA did not abuse its discretion in denying Juarez-Hernandez’s motion to reopen for failure to establish prejudice where he has not shown how different conduct by his prior attorney may have affected the outcome of proceedings. See id. at 793 (to prevail on an ineffective assistance of counsel claim, a petitioner must demonstrate that he was prejudiced by counsel’s performance). The BIA did not err in failing to presume prejudice from prior counsel’s alleged failure to file a brief with the BIA, because Juarez-Hernandez was not deprived entirely of appellate proceedings. See Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 n.3 (9th Cir. 2015) (“Petitioner was not deprived of an appellate proceeding. Rather, Petitioner’s new attorney timely filed a notice of appeal, and the BIA decided the appeal.”). PETITION FOR REVIEW DENIED. 2 14-71226	{ "pile_set_name": "FreeLaw" }
400 S.W.2d 267 (1966) Joseph Henry SLAUGHTER and Donald Scott, Appellants, v. STATE of Arkansas, Appellee. No. 5174. Supreme Court of Arkansas. March 14, 1966. 268 Larey & Larey, Texarkana, M. Gabriel Nahas, Jr., Houston, Tex., for appellants. Bruce Bennett, Atty. Gen., by Fletcher Jackson, Asst. Atty. Gen., Little Rock, for appellee. HOLT, Justice. The appellants were charged by information with the crime of false pretense. The jury found them guilty and assessed a three-year penitentiary sentence upon each of them. A third defendant, Jack Cavanaugh, Jr., was also found guilty and the court imposed a three-year suspended sentence upon him in accordance with the jury's recommendation. He does not appeal. The appellants first contend for reversal of the judgment that the court erred in denying them "counsel in violation of the Constitutions and laws of the State of Arkansas and the United States of America." The record is not silent on this issue. Upon arraignment the appellants pleaded not guilty and responded to the court's inquiries that they knew they were charged with false pretense; that they did not have an attorney and desired to employ their own attorney; that they were free on bail and gainfully employed. The court advised them of the trial date and instructed them to be present with their lawyer. When they appeared three weeks later on the day of the trial they advised the court that they did not have a lawyer and were not ready for trial, however, they would proceed without a lawyer. A jury was then selected with the appellants' approval after they had excused the prospective women jurors. When the jury was empaneled, a member of the local bar volunteered his assistance in defending the appellants. The court and appellants accepted his services. Throughout the balance of the trial appellants were represented by this lawyer who does not represent them on this appeal. An accused enjoys the constitutional right to have the assistance of counsel for his defense. Amendment Six, United States Constitution. This amendment is made obligatory upon the states by the due process clause of the Fourteenth Amendment of our Federal Constitution. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. See, also, Article 2, § 10, Arkansas Constitution and Swagger v. State, 227 Ark. 45, 296 S.W.2d 204. However, this is a personal right and the accused may knowingly and intelligently waive counsel either at a pre-trial stage or at the trial. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; State v. Graves, 246 La. 460, 165 So.2d 285 (1964); 23 C.J.S. Criminal Law § 979(3); Spevak v. United States, 158 F.2d 594 (4th Cir. 1946) and United States v. Arlen, 252 F.2d 491 (2nd Cir. 1958). In the case at bar the appellants knew the nature of the charge against them and have remained free upon a professional bail bond pending trial and this appeal. They represented to the court that they were employed and would secure their own counsel for the trial. The appellants consulted with several attorneys preceding the trial. They were represented at the trial, following empanelment of the jury, by admittedly able and experienced counsel whose volunteer services were acceptable to them. Both appellants are in their thirties in age and are no strangers to court procedure since each admits a previous conviction for burglary. In the circumstances there was no denial of counsel to the appellants nor did the court abuse its 269 discretion when it interpreted their conduct as dilatory. Any right to counsel was knowingly and intelligently waived by appellants. No unconstitutional conviction exists in this case. Appellants next contend that the court erred in admitting illegally obtained confessions. This point involves two statements made by the co-defendant, Cavanaugh, who does not appeal from his suspended sentence. The first alleged confession was given orally by him to a deputy sheriff and the second relates to a transcript of an oral interrogation conducted by the prosecuting attorney. The appellants did not raise the admissibility of Cavanaugh's typed statement in their motion for a new trial. We cannot consider an alleged error predicated upon a ruling of the trial court when it is not assigned as erroneous in a motion for a new trial. Decker v. State, 234 Ark. 518, 353 S.W.2d 168, 98 A.L.R.2d 1; Blaylack v. State, 236 Ark. 924, 370 S.W.2d 615. When Cavanaugh was apprehended by the deputy sheriff he voluntarily pointed out the victim's house as being the place where he and the appellants were working. This oral statement was not an admission of wrongdoing. We do not construe this voluntary statement as being prejudicial to appellants. It was admissible. Turney v. State, 239 Ark. 851, 395 S.W.2d 1 and Brown v. State, 239 Ark. 909, 395 S.W.2d 344. Further, the court is not required to submit on its own motion an instruction on the issue of voluntariness of a defendant's statement. Sheppard v. State, 239 Ark. 785, 394 S.W.2d 624. Appellants' final contention is that the verdict is contrary to the evidence. Upon appeal we must view all of the evidence in the light most favorable to a jury verdict and it is our duty to sustain it if there is any substantial evidence to support the verdict. Graves & Parham v. State, 236 Ark. 936, 370 S.W.2d 806; Stockton v. State, 239 Ark. 228, 388 S.W.2d 382. The prosecuting witness is a 75-year-old widow who identified the appellants and Cavanaugh as the trio who came to her house representing to her that they were employees of Bruce-Terminix Company. Since she had a policy with this firm, she permitted them to make a two-hour inspection of her house. She was advised by them that she had beetles in the attic which needed attention. They asked for $300.00 and accepted $250.00 cash insisting they needed the money then to buy chemicals. When they did not return as indicated, she became suspicious and learned that the appellants were not employees of Bruce-Terminix Company. There was evidence by representatives of this firm and the Arkansas State Plant Board that from their inspection of her premises there was no need for any pest control treatment. According to appellants, who admitted experience in pest control activities, they (including Cavanaugh) did not know the prosecuting witness nor had they ever been on her premises. This conflict in the testimony was resolved by the jury's verdict and it must be said there is substantial evidence to uphold it. Affirmed.	{ "pile_set_name": "FreeLaw" }
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FRANCISCO J. ESPINOSA,  No. 06-16421 Plaintiff-Appellant, D.C. No. v. CV-04-00447-RCC UNITED STUDENT AID FUNDS, INC.,  ORDER Defendant-Appellee. AMENDING OPINION AND AMENDED  OPINION Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding Argued and Submitted April 16, 2008 Submission Vacated June 24, 2008 Resubmitted August 29, 2008 San Francisco, California Filed October 2, 2008 Amended December 10, 2008 Before: Alex Kozinski, Chief Judge, A. Wallace Tashima and N. Randy Smith, Circuit Judges. Opinion by Chief Judge Kozinski 16181 16184 ESPINOSA v. UNITED STUDENT AID FUNDS COUNSEL Michael J. Meehan, Munger Chadwick, Tucson, Arizona; James L. Robinson, Jr., Robinson & Rylander, P.C., Tucson, Arizona, for the plaintiff-appellant. Madeleine C. Wanslee, Gust Rosenfeld P.L.C., Phoenix, Ari- zona, for the defendant-appellee. ORDER The opinion filed October 2, 2008 is amended as follows: Page 14031, Line 32 After the sentence ending with “persuasive,” insert: “Rather, we agree with Judge Lundin that “Pardee and Andersen stand soundly for the better-reasoned principle that notice of how the Chapter 13 plan affects creditors’ rights is all that the Constitution, the Bankruptcy Code and the Bankruptcy Rules require to bind creditors to the provisions of a con- firmed plan under § 1327(a).” Keith M. Lundin, Chapter 13 Bankruptcy § 229.1 (3d ed. 2000 & Supp. 2004).” Page 14031, Line 32 Before the sentence beginning with “Seeing no rea- son,” start a new paragraph and insert: “Funds also relies heavily on Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440 (2004). But as Judge Lundin explains, Hood is at best unhelpful and more likely undermines Funds’s argument: Admittedly, sovereign immunity, not the preclusive effect of confirmation, was the ESPINOSA v. UNITED STUDENT AID FUNDS 16185 issue in Hood; but the point remains that the Supreme Court recognized in Hood that an adversary proceeding initiated by com- plaint and summons is not a statutory or constitutional prerequisite to adjudication of the discharge of a student loan. Many of the cases taking issue with Pardee and Andersen declare the contrary view that the discharge of a student loan by any proce- dure other than adversary proceeding vio- lates due process. This premise is not consistent with Hood. Keith M. Lundin, Chapter 13 Bankruptcy § 346.1 (3d ed. 2000 & Supp. 2004).” Page 14034, Line 4 After the sentence ending with “proof of claim,” insert: “Because “due process does not require actual notice,” Jones v. Flowers, 547 U.S. 220, 225 (2006), it follows a fortiori that actual notice satisfies due process. We find the argument that the Constitution requires something more than actual notice strained to the point of the bizarre.” Page 14034, Line 4 Start a new paragraph at the sentence beginning with “The notices” Page 14034, Lines 4-5 Replace “Funds did receive” with “Funds received” Page 14036 n.6, Lines 25-26 16186 ESPINOSA v. UNITED STUDENT AID FUNDS Delete “; County of Ventura Tax Collector v. Brawders (In re Brawders), 325 B.R. 405, 414 (9th Cir. BAP 2005)” Page 14037, Lines 26-27 Replace “If the creditor fails to object” with “If the creditor is notified and fails to object” The petition for rehearing en banc is denied. See Fed R. App. P. 35. No further petitions may be filed and all pending motions are denied. OPINION KOZINSKI, Chief Judge: In our earlier opinion in this case, Espinosa v. United Stu- dent Aid Funds, Inc., 530 F.3d 895 (9th Cir. 2008), we remanded to the bankruptcy court for a determination under Rule 60(a) whether exclusion of petitioner’s student debt from its discharge order was the result of a clerical error. The bank- ruptcy court confirmed that: the inclusion of paragraph 1(c) in the Discharge Order [which exempted student loan obligations from the general discharge] was inserted because of a clerical mistake, because it was the clear intent of the Court, as reflected in the Chapter 13 Plan, as approved by the Court, that all student loan-related obligations were to be discharged if the debtor suc- cessfully performed and completed the Plan. Order of August 20, 2008. We thus finally have presented to us the question that the parties briefed and argued: Whether a debtor may obtain discharge of a student loan by including ESPINOSA v. UNITED STUDENT AID FUNDS 16187 it in a Chapter 13 plan, if the creditor fails to object after notice of the proposed plan. Facts Espinosa filed a Chapter 13 petition and proposed plan that provided for repayment of $13,250 in student loans to United Student Aid Funds, Inc. (Funds). Funds was notified and filed a proof of claim in the amount of $17,832.15.1 The bank- ruptcy court eventually confirmed the plan, and the Chapter 13 Trustee mailed Funds a notice advising it that “[t]he amount of the claim filed differs from the amount listed for payment in the plan. Your claim will be paid as listed in the plan.” The notice also contained the following warning: If an interested party wishes to dispute the above stated treatment of the claim, it is the responsibility of the party to address the dispute. The claim will be treated as indicated above unless the Trustee receives within 30 days from this mailing, a written request for different treatment. The request should set forth the specific grounds for alternative treat- ment and should be filed with the Clerk of the Court, with a copy mailed to the Trustee at [address deleted]. [Emphasis added.] Funds did not object and Espinosa successfully completed the plan. The bankruptcy court then granted him a discharge. Three years later, Funds began intercepting Espinosa’s income tax refunds to satisfy the unpaid portion of the student loan. Espinosa petitioned the bankruptcy court for an order holding Funds in contempt for violating the discharge injunc- tion. See 11 U.S.C. § 524(a)(2). Funds cross-moved for relief from the bankruptcy court’s order confirming the plan, on the 1 The difference between these two amounts appears to be interest. See n.4 infra. 16188 ESPINOSA v. UNITED STUDENT AID FUNDS ground that the order had been entered in violation of Funds’s rights under the Bankruptcy Code and Rules. This is the nub of Funds’s argument: To initiate bankruptcy proceedings, a Chapter 13 debtor must notify creditors by mail of the deadline for filing objections and the date of the confirmation hearing. Fed. R. Bankr. P. 2002(b). Espinosa did this. However, student loans may not be discharged under Chapter 13 unless the debtor can show “undue hardship,” 11 U.S.C. § 523(a)(8), and such a showing can only be made in an adversary proceeding. See Fed. R. Bankr. P. 7001(6). To initiate an adversary, the debtor must file a complaint, id. 7003, which must be served on the student loan creditor along with a summons, id. 7004. Espinosa didn’t do this. Instead Espinosa simply listed the student debt in his Chapter 13 plan, which the bankruptcy court confirmed. Espinosa then made the payments specified in the plan, and the bankruptcy court eventually entered a discharge order. Funds based its motion for relief from this order on Espinosa’s failure to initiate an adversary and his consequent failure to obtain a judicial deter- mination of undue hardship. The bankruptcy court rejected Funds’s argument. It held that Funds had violated the discharge injunction and ordered Funds to cease all collection activity against Espinosa. It also denied Funds’s motion for relief from the confirmed plan, holding that the plan became final when it was confirmed and that Funds should have objected to any procedural defect before confirmation. Funds appealed to the district court, which reversed. According to the district court, Funds was denied due process because it wasn’t served with a complaint and summons. Espinosa appeals. Analysis Funds makes both a statutory and a constitutional argument for setting aside the confirmed bankruptcy plan. These argu- ESPINOSA v. UNITED STUDENT AID FUNDS 16189 ments turn on the fact that Espinosa didn’t obtain a judicial determination of undue hardship. [1] 1. Statutory Argument. Funds argues that the bank- ruptcy court should have set aside Espinosa’s discharge because Espinosa didn’t comply with the additional proce- dures required by the Bankruptcy Code and Rules to dis- charge student debt. Great Lakes Higher Educ. Corp. v. Pardee (In re Pardee), 193 F.3d 1083, 1086 (9th Cir. 1999), which is on all fours with our case, forecloses this argument. As here, the student loan debtor in Pardee didn’t employ these additional procedures, and the creditor there didn’t file any objections to the proposed Chapter 13 plan, which pro- vided that the student loan debt would be discharged. Id. at 1084. The bankruptcy court confirmed the plan, and eventu- ally discharged the student loan debt. Id. The creditor subse- quently argued that the confirmed plan wasn’t final under 11 U.S.C. § 1327(a), because the creditor wasn’t given the bene- fit of the additional procedures applicable to the discharge of student loans. Pardee, 193 F.3d at 1086. We firmly rejected this argument, following the Tenth Circuit’s lead in Andersen v. UNIPAC-NEBHELP (In re Andersen), 179 F.3d 1253 (10th Cir. 1999). In essence, Pardee held that a discharge is a final judgment and cannot be set aside or ignored because a party suddenly claims, years later, that the trial court committed an error. Two circuits have disagreed with Pardee, and accepted Funds’s statutory argument. See Educ. Credit Mgmt. Corp. v. Mersmann (In re Mersmann), 505 F.3d 1033, 1047-49 (10th Cir. 2007) (en banc) (overruling Andersen); Whelton v. Educ. Credit Mgmt. Corp., 432 F.3d 150, 154 (2d Cir. 2005). These opinions divine some sort of conflict between the Bankruptcy Code’s finality provision, 11 U.S.C. § 1327(a), and those pro- visions of the Code and Rules that call for an adversary pro- ceeding before a student loan debt may be discharged. We see no such conflict; both provisions can operate fully, within their proper spheres. 16190 ESPINOSA v. UNITED STUDENT AID FUNDS The provision giving student loan creditors a right to spe- cial procedures comes into play when the case is pending before the bankruptcy court. If a debtor proposes to discharge a student loan debt without invoking the special procedures applicable to such debts, the creditor can object to the plan until the debtor shows undue hardship in an adversary pro- ceeding. But there are many reasons a student loan creditor might not object to such a Chapter 13 plan. The creditor might, for example, believe that the debtor would be able to make a con- vincing showing of undue hardship, and thus see no point in wasting the debtor’s money, and its own, litigating the issue. Or, the creditor may decide that a Chapter 13 plan presents its best chance of collecting most of the debt, rather than spend- ing years trying to squeeze blood out of a turnip. Or, the cred- itor may hope that the debtor will make some payments on the plan but ultimately fail to complete it, in which case the credi- tor will have collected a portion of the debt and still be free to collect the rest later.2 Or, the creditor may overlook the notice or fail to understand its legal implications. [2] Regardless, when the creditor is served with notice of the proposed plan, it has a full and fair opportunity to insist on the special procedures available to student loan creditors by objecting to the plan on the ground that there has been no undue hardship finding. Rights may, of course, be waived or 2 This is not an idle hope; an estimated two-thirds of Chapter 13 plans ultimately fail. Scott F. Norberg & Andrew J. Velky, Debtor Discharge and Creditor Repayment in Chapter 13, 39 Creighton L. Rev. 473, 509 n.74 (2006) (“[D]ata . . . show a continuation of the [Chapter 13 plan] failure rate at about two-thirds.”) (citing Lynn M. LoPucki, Common Sense Consumer Bankruptcy, 71 Am. Bankr. L.J. 461, 474-75 (1997)); National Bankruptcy Review Commission, Bankruptcy: The Next Twenty Years 233 (1997), available at http://govinfo.library.unt.edu/nbrc/report/ 08consum.pdf (“For more than a decade, two-thirds of all Chapter 13 plans have failed before the debtor completes payments, and sometimes before unsecured creditors have received anything at all.”). ESPINOSA v. UNITED STUDENT AID FUNDS 16191 forfeited, if not raised in a timely fashion. This doesn’t mean that these rights are ignored, or that a judgment that is entered after a party fails to assert them conflicts with the statutory scheme or is somehow invalid. [3] The Bankruptcy Code’s finality provision comes into play much later in the process, after the bankruptcy proceed- ings come to an end. A bankruptcy discharge order is a final judgment and, even without the special protection of section 1327(a), a final judgment cannot be ignored or set aside just because it was the result of an error. Errors committed during the course of litigation must be corrected by way of a timely appeal. We have therefore “recognized the finality of confir- mation orders even if the confirmed bankruptcy plan contains illegal provisions.” Pardee, 193 F.3d at 1086 (citing Trulis v. Barton, 107 F.3d 685 (9th Cir. 1995), Lawrence Tractor Co. v. Gregory (In re Gregory), 705 F.2d 1118 (9th Cir. 1983), and numerous other cases from across the country). Were the rule otherwise, no judgment would ever be conclusive, as a party aggrieved by it could endlessly re-litigate errors suppos- edly committed by the trial court. [4] After a judgment (including a discharge) is finalized, and the time for appeal has run, the judgment can only be reconsidered in the limited circumstances provided by Rule 60(b). Mersmann and Whelton pay scant attention to 60(b) or the caselaw thereunder, which strictly cabins the circum- stances under which a judgment can be reopened after it becomes final. See, e.g., Gaydos v. Guidant Corp. (In re Gui- dant Corp. Implantable Defibrillators Products Liability Litig.), 496 F.3d 863, 866 (8th Cir. 2007) (“Rule 60(b) autho- rizes relief in only the most exceptional of cases.”); United States v. Hartwell, 448 F.3d 707, 722 (4th Cir. 2004) (“[W]hen deciding whether an order is ‘void’ under . . . Rule 60(b)(4) for lack of subject matter jurisdiction, courts must look for the rare instance of a clear usurpation of power.”); Kramer v. Gates, 481 F.3d 788, 792 (D.C. Cir. 2007) (“Rule 60(b)(6) should be only sparingly used and may not be 16192 ESPINOSA v. UNITED STUDENT AID FUNDS employed simply to rescue a litigant from strategic choices that later turn out to be improvident.”) (internal quotation marks omitted). Instead, both circuits elide the requirements of 60(b) by treating this as a question of res judicata. Whelton, 432 F.3d at 155; Mersmann, 505 F.3d at 1049-50.3 [5] This analysis is wrong on two counts. First, what we have here is not a question of res judicata—giving the judg- ment in the bankruptcy case preclusive effect in another case. The debtor here—like those in Mersmann and Whelton— sought to reopen the original case in order to enforce the dis- charge injunction, which came into force by operation of law upon entry of the discharge. A discharge injunction does not operate by way of res judicata; it is, rather, an equitable rem- edy precluding the creditor, on pain of contempt, from taking 3 Mersmann also has what it calls a statutory argument, 505 F.3d at 1047-49, but this passage in the opinion proves nothing more than that the order confirming the plan and the subsequent discharge probably were erroneous and might have been successfully appealed. The court doesn’t explain what difference this makes when dealing with a judgment that long ago became final. Even an incorrect judgment is binding, unless and until it is re-opened and modified. This portion of the Mersmann opinion thus carries no independent force because it proves something that is both obvious and beside the point. Whelton appears to have been misled by a stray remark in one of our opinions, Enewally v. Washington Mutual Bank (In re Enewally), 368 F.3d 1165, 1173 (9th Cir. 2004), to the effect that “the confirmed plan has no preclusive effect on issues that must be brought by an adversary proceed- ing.” This statement was correct in the circumstances presented in Ene- wally, where “the bankruptcy court specifically reserved the question at issue [during plan confirmation] because it had been raised via an adver- sary proceeding.” Id. It is true, of course, that a plan can have no preclu- sive effect on matters that have been specifically reserved for resolution by way of an ongoing adversary proceeding. We had no occasion in Ene- wally to consider the situation where there is no adversary and the case is resolved entirely by confirmation of the plan. Anything Enewally has to say as to matters not presented in that case is, in any event, dicta and thus not binding on us. Reading Enewally broadly to speak to that hypothetical situation would also bring it into conflict with Pardee, which addresses precisely this issue. ESPINOSA v. UNITED STUDENT AID FUNDS 16193 any actions to enforce the discharged debt. See 2 Collier Bankruptcy Manual (3d rev. ed.) ¶ 524.02[2][c] (“Civil con- tempt is the normal sanction for violations of the discharge injunction.”) (footnote omitted); id. ¶ 524.02[2] (discharge “provides for a broad injunction against not only legal pro- ceedings, but also any other acts to collect a discharged debt as a personal liability of the debtor”). This includes garnish- ments, attachments, self-help and all other means of collection —not merely the filing of another lawsuit. 11 U.S.C. § 524(a)(2); 2 Collier Bankruptcy Manual (3d rev. ed.) ¶ 524.02[2]. A discharge judgment could also have res judi- cata effect, if the creditor were to try to enforce the debt by bringing a post-discharge lawsuit, but the discharge injunction prevents him from even commencing the second suit where the res judicata issue could be litigated. There was no second lawsuit in our case, nor (insofar as we can tell) in Mersmann and Whelton. Res judicata thus has no application to a case like ours, or those considered by the Second and Tenth Cir- cuits. Even if res judicata were the relevant doctrine, neither Mersmann nor Whelton offer any persuasive reasons why the discharge order here should be denied full preclusive effect. Both cases seem to go off on the theory that the student loan debt couldn’t be discharged by the Chapter 13 plan because the creditor was not served with a complaint and summons, as required for the commencement of an adversary proceed- ing. Whelton, 432 F.3d at 155; Mersmann, 505 F.2d at 1049-50. But the creditor in our case (as in those other cases) did get proper notice of the proposed Chapter 13 plan, and so knew perfectly well that if the plan were approved and satis- fied, the debtor would be granted a discharge of the student debt listed in the plan.4 Had the creditor wanted to insist on 4 In our case, the creditor was served with the “Notice of Commence- ment of Case Under Chapter 13 of the Bankruptcy Code, Meeting of Cred- itors, and Fixing of Dates.” Attached to this notice was a copy of the proposed Chapter 13 plan, which carried the following prominent warn- 16194 ESPINOSA v. UNITED STUDENT AID FUNDS an adversary, it could have objected to the Chapter 13 plan on the ground that there was no judicial finding of undue hard- ship. Had Funds so objected, the bankruptcy court would have been required to disapprove the plan and Espinosa would have been put to the hard choice of commencing an adversary or abandoning Chapter 13. But Funds didn’t object to the plan and didn’t appeal the order confirming the plan, as it well could have. See In re Gregory, 705 F.2d at 1121. Instead, it accepted the payments made by the debtor during the plan’s life and then acted as if the whole thing never happened. See p.14024 supra. ing: “WARNING IF YOU ARE A CREDITOR YOUR RIGHTS MAY BE IMPAIRED BY THIS PLAN.” There follows a detailed description of debtor’s assets and liabilities, a payment schedule and a great deal of other pertinent information. One section of the plan is titled “Education Loan(s)” and lists all of Funds’s loans, for a total of $13,250. The plan specifies that this amount should be paid in full, followed by a paragraph stating as follows: The amounts claimed by the United Student Loan Aid Funds, Inc., et. al. for capitalized interest, penalties, and fees shall not be paid for the reasons that the same are penalties and not provided for in the loan agreement between the Debtor and the lender. The subsequent paragraph provides as follows: “Any amounts or claims for student loans unpaid by this Plan shall be discharged.” Paragraph 6 of the plan is titled “OBJECTIONS” and provides as follows: “Objections, by any creditor, must be filed seven (7) days prior to the hearing on Con- firmation of Plan along with a copy to the Trustee and Debtor’s counsel.” Paragraph 7 is titled “PROOF OF CLAIM” and states as follows: As a creditor you must file your proof of claim in order to get paid the amounts provided for in this plan. If you do not file your proof of claim by the deadline date you will not receive anything even if the Plan provides for payment. The deadline for filing proofs of claim is set forth in the Notice Of Commencement [Of] Case Under Chapter 13 Of The Bankruptcy Code, Meeting of Creditors, And Fixing of Dates which you have received from the Clerk of the United States Bankruptcy Court. As noted, Funds filed a proof of claim, but no objection to the plan. ESPINOSA v. UNITED STUDENT AID FUNDS 16195 It makes a mockery of the English language and common sense to say that Funds wasn’t given notice, or was somehow ambushed or taken advantage of. The only thing the creditor was not told is that it could insist on an adversary proceeding and a judicial determination of undue hardship. But that’s less a matter of notice and more of a tutorial as to what rights the creditor has under the Bankruptcy Code—a long-form Miranda warning for bankers. If that were the standard for adequate notice, every notification under the Bankruptcy Code would have to be accompanied by Collier’s Treatise, lest the creditor overlook some rights it might have under the Code. Mersmann recognizes this problem when it states (without citation) that this kind of notice is somehow different from ordinary notices because it “goes to the heart of the creditor’s notice of the bankruptcy plan itself.” 505 F.3d at 1050. But it’s not clear why letting the creditor know, in plain terms, that its rights will be impaired by the proposed plan—and then leaving it up to the creditor and his lawyers to figure out what objections or remedies are available—doesn’t satisfy the Tenth Circuit’s “heart of the . . . notice” standard. After all, we aren’t talking here about destitute widows and orphans, or people who don’t speak English or can’t afford a lawyer. The creditors in such cases are huge enterprises whose business it is to administer the very kinds of debts here in question. If this kind of notice to sophisticated parties who have ample resources to protect their rights is inadequate for purposes of res judicata, then the concept of notice has no meaning and res judicata is a fairy tale. While we are bound by Pardee, we have taken a close look at the contrary holdings of our sister circuits in order to deter- mine whether we have strayed off course, in which case we would call for rehearing en banc to correct our caselaw. But we don’t find the reasoning of the two other circuits persua- sive. Rather, we agree with Judge Lundin that “Pardee and Andersen stand soundly for the better-reasoned principle that 16196 ESPINOSA v. UNITED STUDENT AID FUNDS notice of how the Chapter 13 plan affects creditors’ rights is all that the Constitution, the Bankruptcy Code and the Bank- ruptcy Rules require to bind creditors to the provisions of a confirmed plan under § 1327(a).” Keith M. Lundin, Chapter 13 Bankruptcy § 229.1 (3d ed. 2000 & Supp. 2004). Funds also relies heavily on Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440 (2004). But as Judge Lundin explains, Hood is at best unhelpful and more likely under- mines Funds’s argument: Admittedly, sovereign immunity, not the preclusive effect of confirmation, was the issue in Hood; but the point remains that the Supreme Court recognized in Hood that an adversary proceeding initiated by com- plaint and summons is not a statutory or constitu- tional prerequisite to adjudication of the discharge of a student loan. Many of the cases taking issue with Pardee and Andersen declare the contrary view that the discharge of a student loan by any procedure other than adversary proceeding violates due pro- cess. This premise is not consistent with Hood. Keith M. Lundin, Chapter 13 Bankruptcy § 346.1 (3d ed. 2000 & Supp. 2004). Seeing no reason to change course, we continue to follow Pardee. 2. Funds also argues that the discharge order is void because Funds was denied due process, as it was never served with a complaint and summons as required by Fed. R. Bankr. P. 7004. Three circuits have held, like the district court below, that a student loan debtor’s failure to commence an adversary proceeding by serving the student loan creditor with a com- plaint and summons, denies the creditor due process. Ruehle v. Educ. Credit Mgmt. Corp. (In re Ruehle), 412 F.3d 679, 682-83 (6th Cir. 2005); In re Hanson, 397 F.3d 482, 486 (7th Cir. 2005); Banks v. Sallie Mae Servicing Corp. (In re Banks), 299 F.3d 296, 302-03 (4th Cir. 2002). Because we did not ESPINOSA v. UNITED STUDENT AID FUNDS 16197 consider this argument in Pardee or any other case, circuit law does not preclude us from addressing it. We begin our analysis with Rule 60(b), the gateway for set- ting aside any final judgment. Because the judgment is more than a year old, the first three subsections of 60(b) cannot be relied on, Fed. R. Civ. P. 60(c)(1), and are inapplicable in any event. Subsection 5, dealing with satisfied judgments, is simi- larly inapplicable. Subsections 4 and 6, however, are possibil- ities: If the opposing party is given no notice at all of the lawsuit, or notice is so inadequate as to violate due process, any judgment entered against that party would be void (sub- section 4), and such constitutionally deficient service would certainly be a just reason for relief from the judgment (subsec- tion 6). See, e.g., Owens-Corning Fiberglass Corp. v. Ctr. Wholesale, Inc. (In re Ctr. Wholesale, Inc.), 759 F.2d 1440, 1448-51 (9th Cir. 1985); Baldwin v. Credit Based Asset Ser- vicing and Securitization, 516 F.3d 734, 737-38 (8th Cir. 2008). [6] The standard for what amounts to constitutionally ade- quate notice, however, is fairly low; it’s “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objection.” Mullane v. Cent. Han- over Bank & Trust Co., 339 U.S. 306, 314 (1950). In re Greg- ory rejected an argument that Chapter 13 notice of a proposed plan is constitutionally defective because it does not apprise each creditor of how its own claim will be disposed of by the plan: When the holder of a large, unsecured claim such as Lawrence receives any notice from the bankruptcy court that its debtor has initiated bankruptcy pro- ceedings, it is under constructive or inquiry notice that its claim may be affected, and it ignores the pro- ceedings to which the notice refers at its peril. “Whatever is notice enough to excite attention and 16198 ESPINOSA v. UNITED STUDENT AID FUNDS put the party on his guard and call for inquiry, is notice of everything to which such inquiry may have led. When a person has sufficient information to lead him to a fact, he shall be deemed to be conversant of it.” D.C. Transit Systems, Inc. v. United States, 531 F.Supp. 808, 812 (D.D.C. 1982). (citations omitted.) The notice included the names of the bankruptcy judge, the trustee, and Gregory’s attorney, and pre- sumably any of them could have helped Lawrence obtain a copy of the plan or informed it as to the plan’s proposal concerning its claim. If Lawrence had made any inquiry following receipt of the notice, it would have discovered that it needed to act to pro- tect its interest. 705 F.2d at 1123 (emphasis added). [7] The reasoning of In re Gregory is controlling here, not only because it is law of the circuit, but because it’s entirely consistent with Mullane and the more than a half century of due process caselaw that follows it. If a party is adequately notified of a pending lawsuit, it is deemed to know the conse- quences of responding or failing to respond, even if gaining actual knowledge requires inquiry into court files, hiring a lawyer or conducting legal research. Indeed, it would be virtu- ally impossible to operate a legal system if due process required more notice than that. [8] As noted, Funds here did receive actual notice of Espinosa’s bankruptcy case; we know this both from docu- ments in the record, which show receipt, and from the fact that Funds presented a proof of claim. Because “due process does not require actual notice,” Jones v. Flowers, 547 U.S. 220, 225 (2006), it follows a fortiori that actual notice satis- fies due process. We find the argument that the Constitution requires something more than actual notice strained to the point of the bizarre. ESPINOSA v. UNITED STUDENT AID FUNDS 16199 The notices Funds received also warned of the conse- quences of failing to object—which is more than due process requires. A creditor receiving such notice would have known that its debt could be adversely affected by the proposed plan, and that it needed to file an objection if it wished to avoid that result.5 Funds raised no such objection, nor did it appeal the order confirming the plan. We cannot say that Funds was taken by surprise or was denied due process. Quite the con- trary: Funds appears to have been a willing participant, per- fectly happy to receive the benefits of the Chapter 13 plan, but unwilling to suffer the consequences of its failure to file an objection. The three circuits that have held that the creditor is denied due process in circumstances such as these appear to have a different understanding of what due process requires. As best we can follow their reasoning, it is that a creditor who is enti- tled to heightened notice by statute is also entitled to such heightened notice as a matter of due process. This footnote from In re Banks, the first circuit case to adopt this novel approach, tries to explain this rationale: “We do not today hold that the Constitution in itself requires a summons and service of process to discharge student loan debt. We merely confirm that where the Bankruptcy Code and Rules require a heightened degree of notice, due process entitles a party to receive such notice before an order binding the party will be afforded preclusive effect.” 299 F.3d at 303 n.4. Accord In re Hanson, 397 F.3d at 486 (“student loan creditors justifiably rely on the explicit notice provisions of the Bankruptcy Code and Rules and have no reason to act until the service of a summons for an adversary proceeding apprises them that their 5 Even after the bankruptcy court confirmed the plan, Funds had an opportunity to dispute it. The notice attached to the proposed plan specifi- cally advised that the “amount of the claim [Funds] filed differs from the amount listed for payment in [Espinosa’s] plan,” and warned Funds that its “claim will be paid as listed in the plan” unless the Chapter 13 Trustee received notice within 30 days from Funds that it “wishes to dispute the above stated treatment of the claim.” Funds did not object. 16200 ESPINOSA v. UNITED STUDENT AID FUNDS property rights may be affected.”); In re Ruehle, 412 F.3d at 683. The Seventh Circuit in Hanson goes so far as to say that “Hanson’s failure to serve [the creditor] with a summons and an adversary proceeding complaint effectively denied [the creditor] the opportunity of presenting an objection prior to the adjudication of its rights.” 397 F.3d at 486 (citing Mul- lane, 339 U.S. at 313-14). We do not find this reasoning persuasive and thus have no occasion to call for rehearing en banc to consider overruling In re Gregory. To begin with, we find it both wrong and dan- gerous to hold that the standard for what amounts to constitu- tionally adequate notice can be changed by legislation. The constitutional standard, as we understand it, requires that a party affected by the litigation obtain sufficient notice so that it is able to take steps to defend its interests. Congress can, of course, give rights to additional notice, but we find it difficult to see how this can affect the floor provided by due process— either to increase or diminish it. [9] Even if Congress could affect the constitutional stan- dard, it didn’t do so here: Congress made it quite clear that a creditor need only get ordinary notice of a Chapter 13 plan to be bound by its terms. That Congress provided heightened notice requirements for an adversary proceeding, which didn’t take place here, is of no consequence. Had there been an adversary proceeding, and had the creditor not been served with a complaint and summons, the creditor may then have been free to ignore the adversary until it was properly served. But here (and in the similar cases from other courts) there was no adversary proceeding; the creditor’s rights were cut off by the Chapter 13 plan, precisely as specified in the notice the creditor did receive. We reject the idea that a creditor who is in the business of administering student loans has a constitu- tional right to ignore a properly served notice that clearly ESPINOSA v. UNITED STUDENT AID FUNDS 16201 specifies that its debt will be discharged on successful com- pletion of the plan.6 In short, we find the due process argument even less per- suasive than the statutory argument, despite the eagerness of some of our sister circuits and other courts to adopt it. What appears to be going on is that courts are re-casting what may be a simple statutory violation as a denial of due process so that they can set aside judgments with which they’re unhappy. This approach is not consistent with the theory of objective judging, which calls for us to apply the law fairly to the facts and let the chips fall where they may. We see no reason to reconsider the approach we adopted in In re Gregory, which we believe is fully consistent with the Supreme Court’s teach- ings in Mullane, and with fairness and justice as well. 6 Our Bankruptcy Appellate Panel’s opinion in In re Repp suffers from the same defect in reasoning. The opinion there bemoans “an unfair Catch- 22” and even a “double Catch-22” that the student loan creditor suppos- edly confronts. Educ. Credit Mgmt. Corp. v. Repp (In re Repp), 307 B.R. 144, 153 (9th Cir. BAP 2004). We don’t see any Catch-22: A creditor who wants to force the debtor to follow the statutory procedure for discharging student debt need only object to the proposed plan on the ground that there has not been a proper undue hardship finding. The debtor must then pro- cure such a finding by bringing an adversary proceeding and serving the creditor with a complaint and summons. As Judge Ryan points out in his well-reasoned dissent, the creditor in Repp (like the one in our case) was not subjected to any kind of unfairness: It should be pointed out that ECMC was a creditor, had filed a claim, and knew or should have known that its rights could be affected by the plan. It cannot stick its head in the sand, ignore the plan terms, and later claim foul play because it is adversely impacted by the plan. Due process does not place substance over form. Here, the substance is that ECMC had actual knowledge of the plan terms and chose to default. It cannot now seek a second bite of the apple by way of a due process argument. Id. at 156. The Repp majority would have done well to adopt the view of its dissenting colleague and follow circuit law as announced by Pardee and In re Gregory. In re Repp and cases following it are overruled. See, e.g., Sallie Mae Servicing Corp. v. Ransom (In re Ransom), 336 B.R. 790, 797-98 (9th Cir. BAP 2005). 16202 ESPINOSA v. UNITED STUDENT AID FUNDS Conclusion It is apparent that a number of courts in our circuit, includ- ing the district court below, are uncomfortable with the prac- tice of some Chapter 13 debtors to seek to discharge their student debts by working them into their Chapter 13 plans. Some bankruptcy judges have announced that they won’t con- firm plans that seek to discharge student loan debts without an adversary proceeding, even when the creditor fails to object to the plan. See, e.g., Patton v. U.S. Dep’t of Educ. (In re Pat- ton), 261 B.R. 44, 48 (Bankr. E.D. Wash. 2001); In re Web- ber, 251 B.R. 554, 557-58 (Bankr. D. Ariz. 2000). In fact, one of these opinions has suggested that inclusion of a “non- dischargeable” debt in a Chapter 13 plan “may be the subject of sanctions.” In re Patton, 261 B.R. at 48. [10] For reasons explained above, we view matters quite differently. Our long-standing circuit law holds that student loan debts can be discharged by way of a Chapter 13 plan if the creditor does not object, after receiving notice of the pro- posed plan, Pardee, 193 F.3d at 1086, and that such notice is not constitutionally inadequate. In re Gregory, 705 F.2d at 1123. We find it highly unlikely that a creditor whose busi- ness it is to administer student loans will be misled by the cus- tomary bankruptcy procedures or somehow be bamboozled into giving up its rights by crafty student debtors. If the credi- tor is notified and fails to object, it is doubtless the result of a careful calculation that this course is the one most likely to yield repayment of at least a portion of the debt. In such cir- cumstances, bankruptcy courts have no business standing in the way. Cases such as In re Webber and In re Patton are, to that extent, overruled. [11] The district court’s judgment reversing the bankruptcy court is reversed. The case is remanded to the bankruptcy court for reinstatement of the order enforcing the discharge injunction and for a determination whether the creditor acted willfully in violating the injunction under the standard we ESPINOSA v. UNITED STUDENT AID FUNDS 16203 announced in Zilog, Inc. v. Corning (In Re Zilog, Inc.), 450 F.3d 996 (9th Cir. 2006).7 REVERSED and REMANDED. 7 As we held in Zilog: A party who knowingly violates the discharge injunction can be held in contempt under section 105(a) of the bankruptcy code. See In re Bennett, 298 F.3d at 1069; Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 507 (9th Cir. 2002) (holding that civil con- tempt is an appropriate remedy for a willful violation of section 524’s discharge injunction). In Bennett, we noted that the party seeking contempt sanctions has the burden of proving, by clear and convincing evidence, that the sanctions are justified. We cited with approval the standard adopted by the Eleventh Circuit for violation of the discharge injunction: “[T]he movant must prove that the creditor (1) knew the discharge injunction was applicable and (2) intended the actions which violated the injunc- tion.” 450 F.3d at 1007 (citing Renwick v. Bennett (In re Bennett), 298 F.3d 1059, 1069 (9th Cir. 2002) (citing Hardy v. United States (In re Hardy), 97 F.3d 1384, 1390 (11th Cir. 1996)). That the creditor may have believed that the discharge was inappropriately entered, or that it could be set aside under Rule 60(b), is of no consequence. A creditor is not free to violate the discharge injunction because it has doubts as to the validity of the dis- charge. If the creditor believes the discharge is defective, it may petition the bankruptcy court to reopen and set aside the judgment under Rule 60(b), but it may not commence collection proceedings unless and until the court grants such relief. If the bankruptcy court finds that the creditor here willfully violated the injunction, it shall, at the very least, impose sanctions to the extent necessary to make Espinosa whole. See 2 Collier Bankruptcy Manual (3d rev. ed.) ¶ 524.02[2][c] (“In cases in which the discharge injunction was violated willfully, courts have awarded debtors actual damages, punitive damages and attorney’s fees.”) (footnote omit- ted).	{ "pile_set_name": "FreeLaw" }
153 N.J. Super. 521 (1976) 380 A.2d 704 ROBERT SCHERER, PLAINTIFF-RESPONDENT, v. ROBBERT HYLAND, ADMINISTRATOR OF THE ESTATE OF CATHERINE WAGNER, DECEASED, DEFENDANT-APPELLANT. Superior Court of New Jersey, Appellate Division. Submitted March 29, 1976. Decided April 21, 1976. 523 Before Judges ALLCORN, KOLE and ARD. Mr. Herbert M. Barnes, attorney for appellant. Messrs. Tumarkin & Nicolette, attorneys for respondent (Mr. David A. Nicolette, of counsel and on the brief; Mr. Robert J. Rudy, Jr., on the brief). PER CURIAM. Defendant, administrator of the estate of Catherine Wagner (hereafter "Wagner"), deceased, appeals from a summary judgment entered in favor of plaintiff Robert Scherer declaring that Wagner had made a valid gift causa mortis to plaintiff of a $17,400 check, its proceeds and the interest thereon. The court also denied defendant's motion for summary judgment. The undisputed facts in the record before us and the court below, including affidavits, police reports and depositions, follow. On January 23, 1974, the date of her death, Wagner, age 58, and plaintiff, age 65, had lived together for about 15 years. They resided in an apartment leased by plaintiff for which he paid the rent.[1] They were not married, since plaintiff had a wife from whom he was separated, although not 524 through any legal proceedings. Plaintiff and Wagner both worked, earned incomes and shared the household chores and expenses. In 1970 Wagner was involved in an automobile accident, apparently in Pennsylvania. Plaintiff was driving the auto in which she was injured. As a result of this accident, Wagner's hip was broken and she received facial wounds. Soon thereafter she was unable fully to perform her household responsibilities, to return to work or to earn any income. Plaintiff assisted her both physically and financially in these respects. As a result of a settlement from this automobile accident, Wagner was to receive $17,400. While she attempted to function to the best of her ability, she was dissatisfied with her condition and on January 9, 1974, two weeks prior to her death, unsuccessfully attempted suicide by slashing her wrists. On January 23, 1974, she received the $17,400 settlement check. She was the payee. The drawer was Michael Shehadi, a Pennsylvania attorney who represented her in the accident claim. She had her own savings and checking accounts. She and plaintiff had no joint bank accounts. At approximately 11:30 A.M. that day, plaintiff telephoned Wagner from work. He noticed nothing unusual in her voice or behavior during the telephone call. She informed him that she had received the check and that either (1) they would purchase a certificate of deposit in both their names the next day at the bank or (2) he should not then come home to deposit it but he should "wait until tomorrow" to make the deposit. Both of these versions of this conversation were given by plaintiff. They are not necessarily inconsistent; but even if they are, such inconsistency, in view of the other written evidence of Wagner's donative intention, is of no significance on the issue of delivery here involved. Whichever statement was then made by her, it is plain that she later had concluded to make a gift of the whole check and its proceeds to plaintiff. 525 Thereafter on the same date she prepared two handwritten notes. One note read as follows: To Whom it May Concern: I bequeath all my possessions to Robert Scherer. These include the check for $17,400.00 from Michael R. Shehadi. My checking account, a savings account, both at First National Bank, Kearny. The money in Otis Elevator Credit Union and all other residue of my estate including insurance. Bob has taken good care of me all these years and has spent much money on me. He deserves everything I have. /s/ Catherine E. Wagner The other note written to the plaintiff, reads as follows: Dearest Bob, Forgive me for taking the easy way out. I love you and hate myself for leaving you with such a mess. But I can't cope with the problems about of me. I am sick all the time and can't do anything in the house or for myself anymore. Everything seems so unsurmountable. My body has become so fat and misshaped. I don't think I can ____________________________________________________ __________________. You will probably need a lawyer to get the financial business straightened out. I hope you get something out of it all. I trust you will find a decent future with your family and find happiness again. God take care of you. May the Lord forgive me. Love to you darling /s/ Catherine You were so good and kind to me (over) always On the reverse side of this note to plaintiff decedent wrote: I hope my family will also forgive me for bringing this disgrace on them. They were always ____ kind and loving. I love them too. Wagner endorsed the $17,400 check in blank. She placed this check, together with the foregoing two notes, on the kitchen table in the apartment. She then left the apartment, 526 locked the door behind her, went to the roof of the apartment building and jumped to her death at approximately 3:25 P.M. She died intestate. Members of the Kearny Police Department responded and found her dead on the sidewalk. In the course of their investigation the police asked the superintendent of the building to unlock the apartment. The police entered the apartment and found the check and two suicide notes on the kitchen table. These items were brought to police headquarters. By telephone the police informed plaintiff at work of what had occurred. Thereafter, plaintiff was told of the check and the notes, although he never received possession of them. Even if we disregard defendant's concession in the court below that there were no genuine issues of material fact, we are satisfied that, giving him the benefit of all of the facts and inferences therefrom in the record, there were no such factual issues and the summary judgment in favor of plaintiff was properly granted. Judson v. People's Bank & Trust Co. of Westfield, 17 N.J. 67 (1954); R. 4:46-2. We are, of course, governed by the rigid standards established by Foster v. Reiss, 18 N.J. 41 (1955) for delivery with respect to gifts causa mortis and its statement as to the disfavor with which such gifts are held, since they constitute a "dangerous encroachment upon the policy embodied in the statute of wills." Id. at 53. Irrespective of whether in a gift causa mortis the property is considered as remaining in the donor until death or the transfer is absolute but defeasible before death, among other things, delivery of the property to the donee prior to the donor's death is essential before such a gift may be found. Foster v. Reiss, supra. There is no doubt that all of the requisites of a gift causa mortis exist in the present case. The gift of the check endorsed in blank by the deceased payee was made in view of her impending death, she died "of the disorder or peril", she was competent to make the gift, there was an intent on her 527 part to do so and there was an acceptance of the gift by the donee in the sense that the delivery to him of the endorsed check was such as was "actual, unequivocal and complete during the lifetime of the donor, wholly divesting" her "of the possession, dominion and control thereof." Weiss v. Fenwick, 111 N.J. Eq. 385, 388 (E. & A. 1932). This requirement as to delivery "is satisfied only by delivery by the donor, which calls for an affirmative act on her part, not by the mere taking of possession of the property by the donee." Foster v. Reiss, supra, 18 N.J. at 50-51. The property in the instant case was a negotiable instrument a check in which the donor was the payee that was negotiable or transferable by her by endorsement while living, provided the attendant circumstances plainly established a transfer or delivery thereof to the donee. A check or promissory note drawn or executed by a purported donor may not be the subject of a gift. However, where the negotiable instrument is one in which the donor is the payee, the necessary delivery thereof during her lifetime may be made by (1) manual or actual delivery to the donee with or without endorsement or (2) by endorsement in a factual setting which, as here, manifestly leads to the conclusion that the instrument was so delivered to the donee. See Fidelity Union Trust Co. v. Tezyk, 140 N.J. Eq. 474, 477 (E. & A. 1947); Weiss v. Fenwick, supra, 111 N.J. Eq. at 390; Farrell v. Passaic Water Co., 82 N.J. Eq. 97 (Ch. 1913); Corle v. Monkhouse, 50 N.J. Eq. 537, 545 (Ch. 1892). See also Voorhees v. Executors of Woodhull, 33 N.J.L. 494, 498 (E. & A. 1869); In re Brueck, 122 N.J. Eq. 329, 330 (Prerog. Ct. 1937), mod. on other gds. 124 N.J. Eq. 62 (E. & A. 1938).[2] 528 Title i.e., the ownership rights to a negotiable instrument generally does not pass, as between the immediate parties, until there is a manual tradition or actual authorized delivery thereof. But where a negotiable instrument is no longer in the possession of a person whose signature appears thereon, a valid and intentional delivery by that person is presumed until the contrary is proven. See Manna v. Pirozzi, 44 N.J. Super. 227, 236 (App. Div. 1957); Storm v. Hansen, 41 N.J. Super. 249, 255 (App. Div. 1956). See also First National Bank of Philadelphia v. Stoneley, 111 N.J.L. 519, 524 (E. & A. 1933); N.J.S.A. 12A:3-201. Compare "negotiation", N.J.S.A. 12A:3-202; Corle v. Monkhouse, supra. The following undisputed proofs raise the presumption of a valid and intentional delivery of the check to plaintiff by Wagner before her death, which has not been rebutted. After informing plaintiff by telephone on the day of her death that the check would be deposited the next day, she endorsed it in blank; placed it on the kitchen table with the two written notes plainly evidencing an intent to give it to plaintiff, who occupied the apartment with her and who she obviously expected would find it where she had placed it when he returned to their apartment; locked the apartment door after leaving it without any expectation of returning to the apartment, and went to the roof and committed suicide. These acts with respect to this instrument owned by decedent clearly established a "`transfer * * * in conjunction with the donative intention * * * [that] completely stripped the donor of [her] * * * dominion'" of the negotiable check to her order in favor of the donee, the plaintiff. Foster v. Reiss, supra, 18 N.J. at 50. See and compare Parker v. Mott, 181 N.C. 435, 107 S.E. 500, 25 A.L.R. 637 (1921); Annotation, "Delivery of bill or note of third person by way of gift", 25 A.L.R. 642. On the record before us, we are satisfied that the risks inherent in a finding of a gift causa mortis, referred to in Foster v. Reiss, supra, 18 N.J. at 53-54, are not present. 529 Defendant now presents for the first time, without having raised it below, the issue of decedent's competency to have made the gift in view of her suicide and her suicide attempt two weeks before her death. The matter is not properly before us. Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229 (1973); State v. Sidoti, 120 N.J. Super. 208 (App. Div. 1972). In any event, we are satisfied from our own review of the record, including the evidence relating to both the January 9 and January 23, 1974 suicide incidents, that none of the proofs presented raises a factual issue as to her lack of mental capacity when she made the gift of the check. See Conners v. Murphy, 100 N.J. Eq. 280, 282 (E. & A. 1926); In re Rein, 139 N.J. Eq. 122, 130 (Prerog. Ct. 1946). See also Berl v. Rosenberg, 169 Cal. App. 2d 125, 336 P.2d 975 (Dist. Ct. of Apps. 1959); In re Van Wormer's Estate, 255 Mich. 399, 238 N.W. 210 (1931); Page on Wills (3 ed.), § 7.33, at 338. Defendant contends that whether or not plaintiff was entitled to the check as repayment for services rendered and funds advanced was not a matter for a summary judgment. This question, involving an alternate claimed basis for relief by plaintiff, was not decided below, is not before us on appeal, and is rendered moot by the determination as to the gift causa mortis. Affirmed. ALLCORN, J.A.D. (dissenting). Quite obviously, there here was no delivery of the check prior to the death of the decedent and thus there was no completed gift, inter vivos or causa mortis. Foster v. Reiss, 18 N.J. 41 (1955); Weiss v. Fenwick, 111 N.J. Eq. 385 (E. & A. 1932). The single fact that the decedent decided to make the attempt on her life before delivering the check to the plaintiff does not transform an intention into a completed gift any more than her written and signed declaration purporting to dispose of her estate constituted a valid Will, in the absence 530 of execution or acknowledgement in the presence of at least two witnesses and their accordant attestation, pursuant to N.J.S.A. 3A:3-2. Id. For the foregoing reasons, I would reverse the judgment of the Chancery Division. NOTES [1] We do not consider the fact that plaintiff leased the apartment and paid the rent therefor as significant in our determination. Wagner and plaintiff both occupied the apartment and had keys therefor. [2] Whether the police or plaintiff arrived first at the apartment and took possession of the check is immaterial to the question of whether a valid delivery thereof to plaintiff has been made. To be effective such delivery had to be accomplished before the death of the donor Wagner.	{ "pile_set_name": "FreeLaw" }
386 N.W.2d 294 (1986) STATE of Minnesota, Respondent, v. John Gregory ZAYCHECK, Appellant. No. C0-85-2186. Court of Appeals of Minnesota. April 29, 1986. 295 Hubert H. Humphrey, III, Atty. Gen., Thomas Foley, Ramsey Co. Atty., Darrell C. Hill, Asst. Ramsey Co. Atty., St. Paul, for respondent. C. Paul Jones, Public Defender, Mark F. Anderson, Asst. Public Defender, Minneapolis, for appellant. Considered and decided by WOZNIAK, P.J. and HUSPENI and RANDALL, JJ., with oral argument waived. OPINION HUSPENI, Judge. Appellant John Zaycheck seeks review of his sentence, contending that he is entitled to jail credit for time spent in custody prior to sentencing. We reverse. FACTS On May 29, 1985, Zaycheck was charged in Ramsey County District Court with receiving stolen property and theft. At that time, he was already incarcerated in Stillwater State Prison for prior convictions in another county. He had a tentative release date of June 1986. Ramsey County did not request that any type of "hold" be placed on Zaycheck. He appeared in district court two days after the complaint was filed. Three months later Zaycheck pleaded guilty to the theft charge. The plea agreement entered into provided that his sentence would be served concurrently with the prison sentence he was then serving. On September 18, 1985, Zaycheck was sentenced to a term of twenty-eight months concurrent with any previous sentence. The trial court declined to grant Zaycheck any jail credit for the time he spent at Stillwater before sentencing. ISSUE Is appellant entitled to credit against his sentence for time spent in custody before sentencing? ANALYSIS A defendant is entitled to jail credit for "all time spent in custody in connection with the offense or behavioral 296 incident for which sentence is imposed." Minn.R.Crim.P. 27.03, subd. 4(B). See also Minnesota Sentencing Guidelines & Commentary III.C. Awards of jail credit are governed by principles of fairness and equity and determined on a case-by-case basis. See State v. Dulski, 363 N.W.2d 307, 310 (Minn.1985). The defendant has the burden of establishing that he/she is entitled to jail credit for a specific period of time. State v. Willis, 376 N.W.2d 427, 428 n. 1 (Minn.1985). The State contends that the "in connection with" requirement of Rule 27.03 is a threshold legal requirement that must be met before a court can consider such issues as the fairness and equity of an award of jail credit, the effect of concurrent sentencing, and the possibility of a de facto departure from the sentencing guidelines. The State essentially claims that the "in connection with" requirement is satisfied only if a "hold" has been placed upon a defendant. We cannot construe the requirement so narrowly. In Dulski, the supreme court determined that, because a "hold" was placed on the defendant, he met the "in connection with" requirement. 363 N.W.2d at 309. The court then stated: More importantly, the sentence that defendant received in Carlton County [on another matter] was a concurrent sentence. Crediting the jail time against both sentences in such a situation does not give the defendant an unfair double credit but instead prevents a de facto departure resulting in consecutive service. Id. at 309-10. This statement implies that issues such as the fairness of an award of jail credit or the possibility of a de facto departure are factors in determining whether the "in connection with" requirement is met. They are not, as the State suggests, simply factors to be considered only if a hold has been placed on a defendant. See also State v. Anderson, 378 N.W.2d 632, 635 (Minn.Ct.App.1985) ("Since the sentences are concurrent anyway it would be unfair to penalize him for the delay in holding the hearing by not allowing him credit"). In the present case, Zaycheck was readily available to Ramsey County authorities from the date he was charged. They knew he was at Stillwater and would not be leaving until June 1986. To a great extent the State had control over the length of time that would elapse between charging and sentencing on the theft offense. The trial court ordered that Zaycheck's sentence be served concurrently with the sentence he was then serving in Stillwater. The court's order conformed with the sentencing guidelines. The trial court did not articulate any factors that would justify a departure. Under the circumstances here, it is unfair to deny jail credit to Zaycheck. To do so would be to impose a de facto consecutive sentence upon him to the extent that there was any delay in the proceedings on the theft charge. DECISION Appellant shall be granted credit for time spent in custody from the date he was charged with the theft offense until the sentencing on that offense. Reversed.	{ "pile_set_name": "FreeLaw" }
395 P.2d 372 (1964) James A. WATTS and Walter B. Blue, Appellants, v. SEWARD SCHOOL BOARD and Board of Education, Appeal Hearing Committee, Appellees. No. 427. Supreme Court of Alaska. September 21, 1964. 373 Peter B. Walton, of Connolly, Walton & Hammond, Anchorage, for appellant. Theodore M. Pease, Jr., of Burr, Boney & Pease, Anchorage, for appellees. Before NESBETT, C.J., and DIMOND and AREND, JJ. AREND, Justice. The appeal in this case is from an order of the superior court denying a petition for review from the decision of the Alaska State Board of Education which affirmed the ruling of the Seward School Board that the appellants should not be retained in their postition as school teachers at Seward, Alaska. In March of 1960 the Seward School Board notified the appellants that it had decided not to retain them as teachers in the school system for the next school year, primarily on grounds of immoral conduct. At the request of the appellants a hearing was held before the School Board in April of 1960. This resulted in the Board affirming its previous decision. The appellants then appealed to the State Board of Education which, after a hearing during the summer of 1960, remanded the case to the School Board for a new hearing and with directions to enter findings of fact and conclusions of law on any action taken. The School Board heard the case again in the fall of 1960, reaffirmed its first decision and later entered findings of fact in support of its action. The appellants appealed a second time to the State Board and that body in May of 1961 once more affirmed the decision of the School Board but without stating the basis for its ruling. The following month the appellants filed a petition for review in the superior court, attacking, for one thing, the failure of the State Board to enter findings of fact and conclusions of law to support its decision. Judge Fitzgerald of the superior court held a hearing on the petition and thereafter remanded the case to the State Board "to make specific findings of fact and enter concrete conclusions" of law. Without holding any further hearings, the State Board responded to the court's mandate on July 31, 1962, by rendering an opinion which sustained the School Board's nonretention 374 of the appellant teachers, on two findings of immoral conduct and one of noncompliance with School Board Regulation E-7 regarding the channeling of complaints by school employees to the School Board. In August of 1962 the appellants filed a second petition for review in the superior court alleging that the State Board acted arbitrarily and capriciously in that its findings and conclusions were not supported by substantial evidence. The petition was heard by Judge Gilbert who denied it summarily, without oral or written opinion and without setting forth any findings. The appellants have now appealed to this court and charge that the superior court erred in failing to vacate and reverse the State Board's decision of July 31, 1962. The immoral conduct complained of as to the appellant Watts was his holding of private conversations with various teachers in which he solicited their support in an attempt to oust the school superintendent from his job. The allegedly immoral conduct of the appellant Blue was his making of a speech to a labor union at Seward in which he stated, "We have been unable to get rid of the [school] Superintendent, so we are going to get rid of the Board," or words to that effect. The appellants contend that to justify the discharge of a school teacher on grounds of immorality he must be shown to have conducted himself in a manner that would normally shock the conscience of good men and be sufficiently notorious to impair his services as a teacher in the community. To illustrate this concept of immorality the appellants draw examples from case law in which it was held to constitute immoral conduct for a teacher to imbibe intoxicating liquor on the school premises and offer it to students;[1] to misappropriate school funds;[2] to work as a cocktail waitress in a beer garden and, in the presence of school pupils, to drink beer, play a pinball machine and shake dice with customers for drinks;[3] or to make false statements as in a loyalty oath affidavit.[4] In none of the cases cited by the appellants did the legislatures in authorizing school boards to dismiss teachers for immorality define that term. This left the courts concerned free to place their own construction upon the word having regard, of course, to the context in which the legislature used it. Thus a New Jersey court stated: "`Immorality' is not necessarily confined to matters sexual in their nature. In a given context the word may be construed to encircle acts which are contra bonos mores, inconsistent with rectitude and the standards of conscience and good morals. Its synonyms are: corrupt, indecent, depraved, dissolute; and its antonyms are: decent, upright, good, right. Webster's International Dict. (2d ed.)" [Italics in the original.][5] The Alaska legislature, however, has seen fit to define "immorality." In providing for notification by the school board to an administrator or teacher of nonretention, "together with a clear statement of cause * * * for such nonretention,"[6] the legislature declared: "The term `cause * * * shall be based solely upon: (a) Incompetency * * ; or (b) Immorality which is defined as conduct of the person tending to bring the individual concerned or the teaching profession into public disgrace or disrespect; or (c) Substantial noncompliance 375 with the school laws * * or * * * regulations * * ."[7] [Emphasis supplied.] It is evident from the legislature's definition of immorality that it did not confine the meaning of the term to conduct which would normally shock the conscience of good men or offend the morals of the community definitions urged upon us by the appellants. Instead, the legislature adopted a much broader meaning for the word "immorality" as cause for the nonretention of a school teacher, for it stated that "immorality" should encompass any "conduct of the person tending to bring the individual concerned * * into public disgrace or disrespect." In the case at bar the Seward School Board found that the appellant Watts had solicited other teachers to join in an attempt to oust the school superintendent from his job and that Watts' conduct tended to bring him and the teaching profession into public disgrace or disrespect. They made a similar finding with respect to the conduct of the appellant Blue in making the speech to the labor union about getting rid of the School Board. The State Board of Education affirmed these findings and concluded that the conduct of the appellants constituted immorality as defined in the statute and provided sufficient grounds for their nonretention. The State Board further found that there was substantial evidence to support the School Board's findings. Although there was some conflict in the testimony and although the appellants claim that the trial court should have reversed and vacated the decision of the State Board as not being supported by substantial evidence and as being contrary to law, we fail to find any error committed in the proceedings below. The School Board was the original fact finder and there was substantial evidence in the record to sustain their findings and the additional findings and legal conclusions of the State Board. In our opinion the tactics shown to have been employed by the appellants to get the school superintendent and members of the School Board removed from their positions of responsibility in the community had a tendency to bring the appellants and the teaching profession into public disgrace or disrespect and sustained the administrative agency findings to that effect.[8] We agree with the statement made by the court in Horosko v. Mount Pleasant Tp. School District[9] that "It has always been the recognized duty of the teacher to conduct himself in such way as to command the respect and good will of the community, though one result of the choice of a teacher's vocation may be to deprive him of the same freedom of action enjoyed by persons in other vocations. * * "[10] We find it unnecessary to rule on the finding below that further cause for nonretention of the appellants was their alleged noncompliance with the School Regulation E-7 set forth in the margin.[11] However, for the guidance of those in the teaching profession we suggest that it will 376 be in the best interests of the school children, the teachers and the community generally for teachers with grievances to follow an orderly procedure of seeking redress first at the superintendent level and then at the school board level. The appellants voiced a broad and general claim in their brief on appeal that their constitutional rights to assemble and speak freely have been abridged in this case and that they have been deprived of their personal liberties and property rights without due process of law. They treat the subject in a very cursory fashion and cite us to no case law in support of their claim. Under these circumstances we need not consider the point. For the foregoing reasons the order of the superior court denying the appellants' second petition for review is affirmed. NOTES [1] Tracy v. School Dist. No. 22, 70 Wyo. 1, 243 P.2d 932, 247 P.2d 153 (1952). [2] Appeal of Flannery, 406 Pa. 515, 178 A.2d 751 (1962). [3] Horosko v. School Dist., 335 Pa. 369, 6 A.2d 866, cert. denied, 308 U.S. 553, 60 S.Ct. 101, 84 L.Ed. 465 (1939). [4] Negrich v. Dade County Bd. of Pub. Instruction, 143 So.2d 498 (Fla. Dist. Ct. App. 1962). [5] Appeal of Schneider, 12 N.J. Super. 449, 79 A.2d 865, 870 (App.Div. 1951). [6] § 37-5-11 ACLA Cum.Supp. (1957) [Now AS 14.20.140 and 14.20.150]. [7] § 37-5-12 ACLA Cum.Supp. (1957) [Now AS 14.20.170]. [8] See Keiner v. City of Anchorage, 378 P.2d 406 (Alaska 1963), in which we held at page 411 that the findings of an administrative agency should not be reversed "if in the light of the whole record they are supported by substantial evidence, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." [9] 335 Pa. 369, 6 A.2d 866, cert. denied, 308 U.S. 553, 60 S.Ct. 101, 84 L.Ed. 465 (1939). [10] Id. at 868. [11] Regulations E-7 of section I of the Seward School Board regulations provides as follows: "Grievances, complaints and communications from employees shall be submitted to the Board through the Superintendent. Any employee or group of employees may at any time appeal to the Board." Another regulation, E-9, states that "Employees or groups of employees desiring to address the Board shall address their communication to the Superintendent and not to individual members of the Board, except that copies of any communication may be sent to all Board members."	{ "pile_set_name": "FreeLaw" }
764 F.2d 263 19 Fed. R. Evid. Serv. 1238 UNITED STATES of America, Plaintiff-Appellee,v.David Ray KEITH, Defendant-Appellant. No. 84-3753. United States Court of Appeals,Fifth Circuit. June 17, 1985. Kerry P. Cuccia, New Orleans, La., for defendant-appellant. John P. Volz, U.S. Atty., Thomas Watson, Harry W. McSherry, Asst. U.S. Attys., for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of Louisiana. Before GEE, TATE, and HIGGINBOTHAM, Circuit Judges. TATE, Circuit Judge: 1 The defendant Keith appeals his conviction on three counts of manufacturing, distributing, and possessing with intent to distribute methaqualone, a Schedule II controlled substance. 21 U.S.C. Sec. 841(a)(1). His primary contention on appeal is that his admissions to Drug Enforcement Administration (DEA) agents and his admissions before the grand jury were inadmissible at trial as statements made in the course of plea discussions. Fed.R.Crim.P. 11(e)(6); Fed.R.Evid. 410(4). Finding no merit to this claim nor to any other claim made by Keith,1 we affirm his conviction. I. 2 On the mornings of March 27 and 29, 1984, Keith met with DEA agent Dodge in the DEA offices in New Orleans to discuss Keith's involvement in drug manufacturing and drug trafficking. The record indicates that the DEA initiated these meetings. When Keith arrived on both occasions, he was advised of his Miranda rights and signed a rights and waiver form. Keith cooperated fully with the DEA and admitted his involvement in the manufacture of phenylacetone and methaqualone, both Schedule II controlled substances. 21 U.S.C. Sec. 841(a)(1). 3 Keith's lawyer was with him at the second or March 29 conference, and on her advice Keith was fully cooperative. The initial conference of March 27 was primarily with regard to Keith's involvement in phenylacetone manufacture and distribution; the March 29 conference, which Keith's lawyer attended, had been scheduled to develop more information on this subject. Prior to attending this second or March 29 conference, Keith had asked his lawyer whether he should furnish information about his methaqualone activities (the offenses involved in the present appeal), about which the DEA agents apparently then knew nothing. She had advised him to cooperate, if the government agents brought up the subject. And, indeed, towards the conclusion of the March 29 conference, the DEA agents informed Keith that his cooperation would require him to tell the whole truth about any other type of criminal involvement, because if he failed to tell anything and this was discovered, his withholding of information would have an effect upon any plea bargaining to be conducted by the United States Attorney's Office. In response, Keith informed the government about his methaqualone activities, previously unknown by the government. 4 On the afternoon of the same day (March 29), 1984, Keith appeared before a grand jury. Before he testified, he was told that he had the right to remain silent, that if he chose to talk he must tell the truth, and that any admissions could later be used in proceedings against him. He was also informed of his right to ask for a recess to seek the advice of his attorney outside the grand jury room before answering any question, and he stated that he understood this; and, in fact, his attorney was available for him immediately outside the jury room during his testimony. In response to questioning before the grand jury, Keith fully admitted under oath his activities with phenylacetone and methaqualone. 5 On appeal, Keith contends (and at one point so testified, in the motion-to-suppress hearing) that, in return for his admittedly full cooperation, the DEA agent promised that Keith would not be prosecuted for any drug-related activity. However, Keith also later admitted at the suppression hearing that the DEA agent had represented only that he could recommend leniency. The DEA agent testified that the only promise made to Keith was that his cooperation would be made known to the United States Attorney for its favorable effect on "any type of plea bargaining agreement that he [Keith] would agree to with the United States Attorney's Office." Corroborative of the DEA agent's statement, is the testimony of Keith's own attorney, present at the discussion, that the agent only promised that, in return for Keith's cooperation, the agent would strongly "recommend " to the judge that Keith not be prosecuted for the offenses discussed at the conference. The record evidence is thus silent of any inference of misrepresentation by the DEA agents that they were authorized to make a binding plea bargain in return for Keith's cooperation. 6 Several days later, Keith entered into a plea agreement with the United States attorney to plead guilty to one count involving phenylacetone. He subsequently withdrew from this agreement at his arraignment. He was then charged in a superseding indictment with eleven counts relating to phenylacetone and three counts relating to methaqualone. The methaqualone offenses were severed and tried to a jury, which resulted in the convictions now on appeal. (Following sentencing, on motion of the government all of the phenylacetone counts were dismissed.) II. 7 At the jury trial, the government introduced Keith's methaqualone-related incriminating statements to the DEA agents, and a grand jury transcript of his methaqualone sworn admissions. The district court had earlier denied Keith's motions to suppress these statements and held that they were admissible. 8 The basis of Keith's objections to their admissibility was Fed.R.Evid. 410(4) (which provides that "any statement made in the course of plea discussions with an attorney for the prosecuting authority " (emphasis added) are inadmissible) and Fed.R.Crim.P. 11(e)(6)(D), which provides: 9 [E]vidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussion: 10 * * * 11 (D) Any statement made in the course of plea discussions with an attorney for the government which do not result in a plea of guilt or which result in a plea of guilty later withdrawn. [Emphasis added.] 12 Prior to its revision in 1979, Rule 11(e)(6) had simply provided for inadmissibility "of statements made in connection with, or relevant to," plea bargains or offers thereof. As the Advisory Committee Notes to the 1979 revision of Rule 11(e)(6) make plain, the purpose of this revision was to describe more precisely that by its terms the Rule was intended only to make inadmissible plea negotiations with an attorney for the government and to overrule legislatively decisions such as United States v. Herman, 544 F.2d 791 (5th Cir.1977). The Herman case specifically referred to in the notes, held to be inadmissible an accused's negotiations with law enforcement officers in an effort to secure concessions from the government in return for a guilty plea. 13 The rule, as amended in 1979, thus makes clear that the sort of plea bargain discussions that are inadmissible under it are only those had with a government attorney. Discussions with a law enforcement agency in the spirit of cooperation and with hope for leniency, are not inadmissible under 11(e)(6)(D). See, e.g., United States v. Jimenez-Diaz, 659 F.2d 562, 568 (5th Cir.1981). 14 Thus, the plea negotiations in question, made to the DEA agents and not to a prosecuting attorney, are not within the intended inadmissibility provided by Fed.R.Crim.P. 11(e)(6)(D) or Fed.R.Evid. 410(4). Nor do the circumstances above recounted fall within any exceptional situation that might make plea negotiations with other than an attorney inadmissible, where due for instance to governmental misrepresentations, the accused "exhibited an actual subjective expectation to negotiate a plea at the time of the discussion" and the "expectation was reasonable, given the totality of objective circumstances." United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir.1978) (en banc); United States v. Posey, 611 F.2d 1389, 1390 (5th Cir.1980). Conclusion 15 The district court therefore did not err in finding to be admissible Keith's incriminating admissions to the DEA agents and before the grand jury. Accordingly, we AFFIRM Keith's convictions. 16 AFFIRMED. 1 Keith also contends (1) that the indictment against him should have been dismissed under the doctrine of "equitable immunity"--but see United States v. Donahey, 529 F.2d 831 (5th Cir.1976) (rejecting a similar contention under similar facts); (2) that the indictment should have been dismissed owing to prosecutorial vindictiveness; (3) that the evidence was insufficient to support a conviction; (4) that a drug recipe book should not have been admitted into evidence at trial; (5) that agent Dodge should not have been qualified as an expert witness as to methaqualone manufacture and street-value; and (6) that the district court should have granted his motion for a mistrial. The contentions need no discussion, for they lack arguable merit	{ "pile_set_name": "FreeLaw" }
26 Cal.2d 696 (1945) ALICE EDWARD McDOWD, Respondent, v. PIG'N WHISTLE CORPORATION (a Corporation), Appellant. L. A. No. 19232. Supreme Court of California. In Bank. June 29, 1945. Sidney A. Moss for Appellant. Arthur C. Webb for Respondent. CARTER, J. This is an appeal from a judgment in favor of the plaintiff entered on the verdict of a jury in a negligence action. The chief contention made by appellant for reversal of the judgment is that the trial judge permitted the jurors to separate after the case was submitted to them. The record discloses that after the case had been submitted to the jurors for their deliberation, at the request of the trial judge, they were returned to the courtroom at about 5 o'clock in the afternoon and questioned by him as to whether they could reach a verdict. Receiving conflicting views from the jurors the judge dispersed the jury in order that they might return to their homes, remarking: "The court lately has departed from the rule that jurors may not separate at night because of the war conditions, so jurors are allowed to go to their respective homes rather than be kept together at night, because of the possibility of blackouts, air raid, and that sort of thing. So if you think there is no chance at all by working a while longer, we will continue the case until tomorrow morning." The court instructed the jury to return to their deliberations on the following morning at 9:30. The afternoon of that day they arrived at 698 the verdict. Defendant objected to the separation. (There is some question of the sufficiency of defendant's objection but in view of the conclusion reached herein it may be assumed to have been in proper form.) Defendant contends that the separation without the consent of both parties constituted prejudicial error. The issue may be stated as whether in a civil case the separation of the jury over night after the submission of the case to them, standing alone, is prejudicial error requiring a reversal of the judgment. To solve that question it must first be determined what power is vested in the trial court to permit such a separation. To that end we must examine the statutory provisions. [1] We must start with section 611 of the Code of Civil Procedure. It reads: "If the jury are permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with, or suffer themselves to be addressed by any other person, on any subject of the trial, and that it is their duty not to form or express an opinion thereon until the case is finally submitted to them." (Emphasis added.) The inescapable implication from that section is that the trial court has authority to separate the jury either before or after submission of the case to them. It refers to the jury being permitted to separate. The only one in a position to give such permission is the trial judge and it is contemplated that he has such power. It has been held that statutes of that character impliedly confer power on the court to separate the jury. (United Verde Copper Co. v. Kovacovich, 42 Ariz. 159 [22 P.2d 1085]; State v. McNeil, 59 Kan. 599 [53 P. 876]; State v. Haines, 128 Kan. 475 [278 P. 767]; State v. Howland, 157 Kan. 11 [138 P.2d 424, 428].) [2] In the absence of an authorizing statute the court may in its discretion order the separation of jurors. (Dulaney v. Burns, 218 Ala. 493 [119 So. 21]; Tolley v. Alexander (Mo.App.), 3 S.W.2d 1050; McGill v. Alabama Fuel & Iron Co., 221 Ala. 614 [130 So. 379]; Hand v. Hill, 167 Misc. 583 [5 N.Y.S.2d 838]; 53 Am.Jur., Trial, 864; 64 C.J. 1010; 16 R.C.L. 307.) [3] Section 613 of the Code of Civil Procedure reads, "When the case is finally submitted to the jury, they may decide in court to retire for deliberation; if they retire, they must be kept together, in some convenient place, under charge of an officer, until at least three fourths of them agree upon a verdict or are discharged by the court." That section interpreted in the light of the power 699 granted to the court by section 611, and it should be so interpreted (United Verde Copper Co. v. Kovacovich, supra; State v. McNeil, supra; State v. Haines, supra; State v. Howland, supra), must mean that the jury is not separate on their own volition or by permission of the officer in charge. It does not mean that the court may not order a separation. It provides that the jury must be kept together. That duty falls on the officer in charge. Hence, it is concerned with his duties rather than the power of the court to direct a separation. It follows therefore that it was not error for the court to exercise its discretion and separate the jury inasmuch as it had the authority to do so. The court having power to permit a temporary separation, the question is whether or not there has been an abuse of that power, and also the analogous question of whether prejudice has been suffered by the separation. Upon those matters several rules are pertinent. [4] First, the jury is presumed to perform its duty as required by law. It is presumed "That official duty has been regularly performed; ..." (Code Civ. Proc., 1963(15)) "That a person is innocent of crime or wrong; ..." (Code Civ. Proc., 1963(1)) and "That the law has been obeyed." (Code Civ. Proc., 1963(33).) Particularly applied it is presumed that the jurors have not communicated with anyone during the period of separation. [5] It is also true that the burden rests on the appellant to show on appeal that the error was prejudicial. (2 Cal.Jur. 1007-1009.) In the instant case the defendant (appellant) made no showing of prejudice whatsoever either in the trial court or here except the bare fact of separation. [6] Nor has it shown any abuse of discretion. On the contrary, the court stated a good and sufficient reason for the separation. [7] Even when the separation is not by leave of court it is almost the universal rule that in order to set aside the verdict "there must be some evidence of other misconduct, in addition to the mere fact of separation, which has operated to the party's prejudice." (Saltzman v. Sunset Tel. & Tel. Co., 125 Cal. 501, 508 [58 P. 169].) This court said in the Saltzman case at page 508: "The matter is fully discussed in a note to McKenny [McKinney] v. People, 43 Am.Dec. 65. The annotator says it is almost the universal rule that in order to set aside the verdict 'there must be some evidence of other misconduct, in addition 700 to the mere fact of separation, which has operated to the party's prejudice.'" "The rule in this state, I take it to be, in civil cases, that a separation, against the instruction of the court, with evidence that improper influence might have been brought to bear upon the juror, puts the burden upon the party seeking to sustain the verdict to negative the presumption and show that no such attempt was made. I think that was done in this case." (Emphasis added.) It will be noted that there must be evidence of misconduct occurring during the separation, that is, the complainant has the burden of establishing prejudice. This rule is iterated in Estate of McKenna, 143 Cal. 580 at page 589 [77 P. 461]: "But in civil cases proof of mere separation is not sufficient to set aside a verdict; it must appear in addition thereto that some prejudice to the moving party has occurred; that some substantial right of his has been affected by the separation. Counsel for contestants call our attention to several decisions in criminal actions upon this point, but they have no application, as a different rule applies in civil than obtains in criminal cases." (Emphasis added.) And even in criminal cases the general rule is that where there is a separation authorized by the court, where it may give such authorization, the burden is upon the defendant to establish prejudice. (People v. Yeager, 194 Cal. 452 [229 P. 40]; 79 A.L.R. 828; 34 A.L.R. 1214.) [8] Defendant contends that the court erred in admitting the hospital record covering the period when plaintiff was there for care, asserting that it was improper for use in showing the diagnosis of plaintiff's condition and the nature and extent of her injuries. A proper foundation was laid for the admission of the record. It was made in the regular course of business of the hospital and contained matters customarily contained in such records. It was held in Loper v. Morrison, 23 Cal.2d 600 [145 P.2d 1] that such records are admissible since the addition of sections 1953e, 1953f to the Code of Civil Procedure. In the Loper case the record contained entries "relative to the condition" of plaintiff while she was in the hospital. Although it was sought to use these records to impeach plaintiff's testimony as to her condition, that is not important. It is true that in passing upon the claimed error in the exclusion of the records in that case, and holding the exclusion was not prejudicial error, the court did not determine 701 the question of whether a proper foundation was laid for the introduction of the record. In the instant case a proper foundation was laid and the Loper case clearly held the records admissible in such event. The Loper case has since been followed. (Gunter v. Claggett, 65 Cal.App.2d 636 [151 P.2d 271].) (See, also, Ulm v. Moore-McCormack Lines, 115 F.2d 492, Rhg. denied 117 F.2d 222; Reed v. Order of United Commercial Travelers, 123 F.2d 252; and Gile v. Hudnutt, 279 Mich. 358 [272 N.W. 706].) The judgment is affirmed. Gibson, C.J., Traynor, J., and Spence, J., concurred. EDMONDS, J. The conclusion that, in a civil action, a trial judge may, without the consent of the parties, allow the jurors to separate during their deliberations and before they have reached a verdict, in my opinion, not only rests upon a strained and unwarranted construction of the applicable statute but also sets aside procedure which has been established in this state for more than fifty years. Moreover, the decision equally justifies the separation of the jurors in a criminal case, contrary to the practice long recognized as fundamentally necessary for a fair administration of justice. There is nothing in section 611 of the Code of Civil Procedure requiring an admonition of the jurors upon their separation, which is inconsistent with the mandate of section 613 directing that, when a cause is finally submitted to them, "they must be kept together." No interpretation of implied power reasonably may be drawn from section 611; on the contrary, the statute, in effect, only declares that when and if, under circumstances allowed by law, the jurors are permitted to disperse, they must be admonished. Certainly there is nothing in either section which justifies the implication that after a case has been submitted to the jurors, they may be allowed to separate over the objection of the parties. In support of the assertion that statutes of the character of section 611 of the Code of Civil Procedure "impliedly confer power on the court to separate the jury," Mr. Justice Carter cites State v. Howland, 157 Kan. 11 [138 P.2d 424]; State v. Haines, 128 Kan. 475 [278 P. 767]; State v. McNeil, 59 Kan. 599 [53 P. 876], and United Verde Copper Co. v. Kovacovich, 42 Ariz. 159 [22 P.2d 1085]. The decision in the Howland case was not based upon legislation identical to or even remotely similar to the California statute, nor was the court 702 there determining whether the trial judge had any discretion to allow the separation of the jurors. It appears that during the deliberations of the jury after usual court hours, two of its members, in the company of the bailiff, left their associates for the purpose of obtaining information from the trial judge, who was near by. In holding that the conduct of the jury under such circumstances was not prejudicial, the court emphasized the fact that the separation was with the knowledge of the defendant's counsel. Also, unlike the present case, no objection was interposed to the separation nor was any motion made for a mistrial or to discharge the jury. Another Kansas decision, State v. Haines, supra, considered a statute which clearly concerned a separation of the jury "after being impaneled" and before "the cause is finally submitted to them." From the statement of facts it does not appear that the dispersal was after submission of the cause to the jury. But again the court emphasized, "the record does not show that any objection was made to the separation of the jury. ..." Nor is State v. McNeil, supra, a third Kansas case, authority for construing section 611 of the Code of Civil Procedure as empowering a trial judge to allow the separation of the jury. A statute of Kansas provided as a ground for new trial, "When the jury has been separated without leave of the court after retiring to deliberate upon their verdict." By implication, said the court, the statute allowed the separation of the jury after the submission of a case. The California Code of Civil Procedure does not specify separation of the jury as the ground for a new trial although almost the exact wording of the Kansas statute is found in section 1168 of the Penal Code of this state. In United Verde Copper Co. v. Kovacovich, supra, it appears that after the jury was sworn the trial judge, upon application of the prevailing parties, "ordered that it be held together in the custody of the sheriff throughout the trial." Under the common law, said the court, the jury was not permitted to separate after being sworn but "it has become the fairly general practice in recent years to permit them to separate during recesses in civil cases." However, the court continued, there is not "any law requiring this to be done; in fact, under the statutes of this state the regular procedure is to hold them together. ..." The following statement, that "the court in the exercise of its discretion may permit them to separate" is dictum and is limited to the observation that such an order is not usually made "unless requested by one 703 of the parties." In any event, in the Kovacovich case the court was considering a separation of the jury "throughout the trial" and "during recesses" rather than after submission of the cause for deliberation. The additional fact, relied upon by Mr. Justice Carter, that courts in a relatively insignificant number of jurisdictions have held that a trial court may in its discretion order the separation of jurors in the absence of a statute authorizing it to do so, certainly has no controlling effect as against the legislative mandate in this state. Section 613 of the Code of Civil Procedure provides: "When the case is finally submitted to the jury, they may ... retire for deliberation; if they retire, they must be kept together, in some convenient place, under charge of an officer, until at least three-fourths of them agree upon a verdict or are discharged by the court. Unless by order of the court, the officer having them under his charge must not suffer any communication to be made to them, or make any himself, except to ask them if they or three-fourths of them are agreed upon a verdict. ..." Although in Saltzman v. Sunset Tel. & Tel. Co., 125 Cal. 501 [58 P. 169] a judgment was affirmed notwithstanding a very brief absence of one juror from his associates, the court held that a separation "with evidence that improper influence might have been brought to bear upon the juror, puts the burden upon the party seeking to sustain the verdict to negative the presumption and show that no such attempt was made." This language was quoted with approval in People v. Adams, 143 Cal. 208 [76 P. 954, 101 Am.St.Rep. 92, 66 L.R.A. 247]. The decision of Estate of McKenna, 143 Cal. 580 [77 P. 416], at almost the same time as the Adams case, was placed upon the ground that it was "doubtful, except technically, whether there was a separation at all." The fact that one of the jurors was delayed "no more than two minutes" in returning to the court room did not affect the substantial rights of the parties, said the court. These cases uphold the statutory mandate that there be no separation of the jury during the consideration of a case and where there has been any deviation from the prescribed procedure, require the party in whose favor the verdict has been returned to show that there was no attempt to bring influence to bear upon the determination. In the present case it may be argued that objection of counsel for Pig'n Whistle was only directed to the proposed action of the court in allowing deliberation of the jurors notwithstanding *704 their apparent inability to reach a verdict. But, according to the record, after the trial judge informed the jury that it would be permitted to separate over night, counsel stated: "I wonder if your Honor will be good enough to ask each of the jurors whether they think they can get together because certainly I wouldn't want to see them come back here and have to sit here all day tomorrow___" "It isn't necessary for that comment," was the judge's answer, "it doesn't make any difference whether they have to stay here tomorrow___" Counsel then continued: "I do not have to stipulate that the jury be discharged because I strenuously object___" but was interrupted by the ruling: "The jury will be discharged until 9:30 tomorrow morning. You may go straight to the jury room tomorrow morning." The next and final statement of counsel was: "May the record show my objection to the jury being back here tomorrow morning?" The reply was: "The record will so show. ..." The jurors then left the court room for their homes and the next day, after reassembling and deliberating for some time, they were returned to the court room for the reading of some testimony. Consideration of the case was then resumed. During this time, counsel for Pig'n Whistle, out of the presence of the jury, moved for a mistrial upon the ground that the jurors, while deliberating, had been permitted to separate and go home. The motion was denied. Later in the day the jury returned a verdict for the respondent. Although counsel might have been much more specific in resisting the proposed order, it appears that he was in a difficult position because of the trial judge's announcement in regard to the policy followed in that department of the court. Certainly counsel for Pig'n Whistle did not consent to the order allowing the jurors to go to their homes. At least impliedly, he was insisting that the jurors be kept together as required by section 613 of the Code of Civil Procedure. The requirements laid down by that statute are clear and certain and there should be no departure from them except upon the definite and unequivocal stipulation of counsel. Pig'n Whistle gave no such stipulation, and Mrs. McDowd has made no attempt to show lack of opportunity for improper influence to reach the jurors during the time they were apart. For these reasons, in my opinion, the judgment should be reversed. Shenk, J., and Schauer, J., concurred.	{ "pile_set_name": "FreeLaw" }
Abatement Order filed October 31, 2013. In The Fourteenth Court of Appeals ____________ NO. 14-13-00700-CR ____________ ERIC CLAYTON HARPER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 56th District Court Galveston County, Texas Trial Court Cause No. 11CR1058 ABATEMENT ORDER Appellant is represented by appointed counsel, Lynette K. Briggs. On October 3, 2013, time to file appellant’s brief expired without a brief, and no motion for extension of time was filed. See Tex. R. App. P. 38.6(a). Counsel and the trial court were notified on October 15, 2013, that no brief had been filed. Appellant filed no response. Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge of the 56th District Court shall (1) immediately conduct a hearing, at which appellant, appellant’s counsel, and state’s counsel shall participate, either in person or by video teleconference, to determine (a) whether appellant desires to prosecute his appeal; (b) whether appellant is indigent; (c) if not indigent, whether appellant has abandoned the appeal or whether appellant has failed to make necessary arrangements for filing a brief; (d) the reason for the failure to file a brief; (e) if appellant desires to continue the appeal, a date certain when appellant’s brief will be filed; and (2) prepare a record, in the form of a reporter’s record, of the hearing. If appellant is indigent, the judge shall take such measures as may be necessary to assure effective representation of counsel, which may include the appointment of new counsel. The judge shall see that a record of the hearing is made, shall make findings of fact and conclusions of law, and shall order the trial clerk to forward a transcribed record of the hearing, a videotape or compact disc, if any, containing a recording of the video teleconference, and a supplemental clerk’s record containing the findings and conclusions. Those records shall be filed with the clerk of this court on or before December 2, 2013. The appeal is abated, treated as a closed case, and removed from this Court’s active docket. The appeal will be reinstated on this Court’s active docket when the trial court’s findings and recommendations are filed in this Court. The Court will also consider an appropriate motion to reinstate the appeal filed by either party, or the Court may reinstate the appeal on its own motion. It is the responsibility of any party seeking reinstatement to request a hearing date from the trial court and to schedule a hearing in compliance with this Court’s order. If the parties do not request a hearing, the court coordinator of the trial court shall set a hearing date and notify the parties of such date. PER CURIAM 2 RULE 38. REQUISITES OF BRIEFS Tex. R. App. P. 38.8. Failure of Appellant to File Brief. (b) Criminal Cases. (1) Effect. An appellant=s failure to timely file a brief does not authorize either dismissal of the appeal or, except as provided in (4), consideration of the appeal without briefs. (2) Notice. If the appellant=s brief is not timely filed, the appellate clerk must notify counsel for the parties and the trial court of that fact. If the appellate court does not receive a satisfactory response within ten days, the court must order the trial court to immediately conduct a hearing to determine whether the appellant desires to prosecute his appeal, whether the appellant is indigent, or, if not indigent, whether retained counsel has abandoned the appeal, and to make appropriate findings and recommendations. (3) Hearing. In accordance with (2), the trial court must conduct any necessary hearings, make appropriate findings and recommendations, and have a record of the proceedings prepared, which record—including any order and findings—must be sent to the appellate court. (4) Appellate Court Action. Based on the trial court=s record, the appellate court may act appropriately to ensure that the appellant=s rights are protected, including initiating contempt proceedings against appellant=s counsel. If the trial court has found that the appellant no longer desires to prosecute the appeal, or that the appellant is not indigent but has not made the necessary arrangements for filing a brief, the appellate court may consider the appeal without briefs, as justice may require. 3	{ "pile_set_name": "FreeLaw" }
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) SALEEM EL-AMIN, ) ) Plaintiff, ) ) v. ) Civil Action No. 17-70 (ABJ) ) APRIL DOWNS et al., ) ) Defendants. ) ____________________________________) MEMORANDUM OPINION Plaintiff, a prisoner appearing pro se, has sued his former criminal defense attorney, April Downs, for legal malpractice, and the complaint also includes a claim against the District of Columbia under 42 U.S.C. § 1983. The claims against both defendants are based on a decision rendered by the D.C. Superior Court judge who presided over plaintiff’s criminal trial. Downs and the District of Columbia have each moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The District invokes judicial immunity, which the Court finds to be inapplicable, 1 and it also argues that under Heck v. Humphrey, 512 U.S. 477 (1994), plaintiff cannot maintain this civil lawsuit without first invalidating his conviction. See District of 1 Immunity defenses are available to individuals sued personally and to sovereign entities. See Kentucky v. Graham, 473 U.S. 159, 166-67 (1985) (explaining that “[w]hen it comes to defenses to liability, an official in a personal-capacity action may, depending on his position, be able to assert personal immunity defenses[.] In an official-capacity action, these defenses are unavailable. The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess”). No judge has been named as a defendant in this case, and “a municipality may not assert the judicial immunity enjoyed by its official.” Killinger v. Johnson, 389 F.3d 765, 771 (7th Cir. 2004). 1 Columbia’s Mem. in Support of Mot. Dismiss at 8-10 [Dkt. # 22]. Downs invites this Court to “decline to assert its jurisdiction . . . in light of the parallel local cases” in D.C. Superior Court and also contends that plaintiff has failed to state a claim of “Legal Malpractice or Breach of Fiduciary Duty . . . concerning the dismissal of a count against [him] in the course of his criminal trial.” Def. Downs’s Mot. to Dismiss ¶¶ 2, 4 [Dkt. # 27]. For the reasons explained below, the Court finds that the complaint fails to state a claim against either defendant. So the Court will grant each defendant’s motion and will deny plaintiff’s pending motions as moot. 2 BACKGROUND In May 2014, plaintiff was charged with armed robbery. In July 2014, the grand jury returned a superseding indictment adding a second count of assault with a dangerous weapon (“ADW”). See Downs’s Mem. at 2 and Ex. A, Superior Court Docket [Dkt. # 27, 27-1]. In September 2014, a jury trial was held in D.C. Superior Court before Judge William M. Jackson. Downs was plaintiff’s court-appointed counsel. Id. Based on the facts adduced at trial, the trial judge determined that the assault with a dangerous weapon was simply a lesser included offense of armed robbery. Therefore, he dismissed the separate ADW charge on September 16, 2014, and declined Downs’s request to instruct the jury on that charge. Downs’s Mem. at 5 and Ex. A. Plaintiff was convicted of armed robbery and sentenced on November 14, 2014 to a prison term of ten years. Id. 2 Pending are plaintiff’s motion for summary judgment on the claim against Downs (sans statement of material facts he contends are undisputed) [Dkt. # 7]; motion under Fed. R. Civ. P. 67 to compel defendant Downs to deposit funds for safekeeping [Dkt. # 10]; motion under Fed. R. Civ. P. 20(a)(2) for permissive joinder of Attorney April Fearnley [Dkt. 18]; and motion pursuant to Fed. R. Civ. P. 16 for a pretrial conference [Dkt. # 38]. 2 Plaintiff filed this action in January 2017 and the operative Amended Complaint [Dkt.# 13] in March 2017. 3 Plaintiff alleges the following: On 9/16/2014, employee of the District of Columbia a District of Columbia Superior Court Judge who makes final decisions for the District of Columbia D.C. Code Ann. 11-900 under “color of state law” D.C. Code Ann 11-101(2)(b) deprived me of my due process right of the reasonable doubt standard when he removed the ADW element of Armed Robbery from jury fact-finding role protected by the Fifth Amend[ment].4 Am. Compl. at 2-3. Plaintiff faults Downs for allegedly “agree[ing] not to report the District of Columbia Superior Court Judge ‘under State law’ D.C. Code Ann. 11-101(2)(b) violated my due process when he removed ADW from jury fact finding role.” Id at 3. Plaintiff seeks $5.1 million from the District and $1 million from Downs. Am. Compl. at 8; see Opp’n to Mot. to Dismiss at 2 [Dkt. # 34] (plaintiff confirms that he does not “want injunctive relief”). LEGAL STANDARD In evaluating a motion to dismiss under Rule 12(b)(6), the court must “treat the complaint's factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’ ” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. 3 On June 2, 2017, plaintiff filed a “Supplement Complaint” to add as a defendant Attorney April E. Fearnley, who was the sole defendant in a case plaintiff voluntarily dismissed in September 2016 [Dkt. # 26]; see El-Amin v. Fearnley, No. 16-cv-1683, Not. of Voluntary Dismissal [Dkt. # 7]. Plaintiff did not include a separate motion for leave to file; therefore, the pleading is not properly before this Court. See Fed. R. Civ. P. 15(d) (“on motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading . . . .”); United States v. Hicks, 283 F.3d 380, 385 (D.C. Cir. 2002) (“While a party may freely offer an amendment at any time before a responsive pleading is served, supplements always require leave of the court.” (emphasis added)). Besides, the supplemental pleading has no direct bearing on either the current defendants or the current issues and thus is beyond the scope of this litigation. 4 D.C. Code §§ 11-901-11; 11-921-25; and 11-941-47 govern the organization, jurisdiction, and powers of D.C. Superior Court. D.C. Code § 11-101(2)(B) establishes D.C. Superior Court pursuant to Article I of the Constitution. 3 Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (citations omitted). Nevertheless, the court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the court accept plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002); see Warren v. District of Columbia, 353 F.3d 36, 39-40 (D.C. Cir. 2004) (differentiating unacceptable conclusions of law from acceptable conclusions of fact). “To survive a [Rule 12(b)((6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face . . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted); see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (a plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the speculative level . . . .”) (citations omitted). While “[a] pro se complaint . . . must be held to less stringent standards than formal pleadings drafted by lawyers . . . even a pro se complaint must plead factual matter that permits the court to infer more than the mere possibility of misconduct.” Atherton v. District of Columbia Off. of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (internal quotations marks and citations omitted). ANALYSIS 1. Heck v. Humphrey The Supreme Court has held: [I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would 4 render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Heck, 512 U.S. at 486-47 (emphasis in original). Thus, if a favorable judgment in this case “would necessarily imply the invalidity of [plaintiff’s] conviction” of armed robbery, id. at 487, he cannot recover monetary damages without first invalidating the conviction through a writ of habeas corpus or another avenue specified in Heck. See Harris v. Fulwood, 611 Fed. App’x 1, 2 (D.C. Cir. 2015) (per curiam), quoting Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (Heck applies “no matter the relief sought (damages or equitable relief) . . . if success in [the] action would necessarily demonstrate the invalidity of confinement or its duration” (alterations in original)). The fact that the trial judge removed the lesser-included ADW charge from the jury's consideration does not “necessarily imply the invalidity” of the jury’s guilty verdict for armed robbery. Even if the judge was wrong, whether the jury would have convicted plaintiff on the lesser or greater charge is purely speculative, and “verdicts cannot be upset by speculation or inquiry into such matters.” Dunn v. United States, 284 U.S. 390, 394 (1932). Therefore, the Court does not find Heck to be applicable. That said, under the Prison Litigation Reform Act, a court is required to screen a prisoner’s action against a governmental entity “as soon as practicable” and to dismiss the complaint or “any portion of the complaint” that fails to state a claim upon which relief may be granted. 28 U.S.C. 5 § 1915A(a)-(b). Since, as discussed next, the Court finds that plaintiff has failed to state a § 1983 claim against the District, it will dismiss that portion of the complaint pursuant to § 1915A. 2. Section 1983 Claims Section 1983 provides a cause of action against [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. 42 U.S.C. § 1983. A plaintiff bringing a § 1983 claim “must allege both (1) that he was deprived of a right secured by the Constitution or laws of the United States, and (2) that the defendant acted ‘under color of’ the law of a state, territory or the District of Columbia.” Hoai v. Vo, 935 F.2d 308, 312 (D.C. Cir. 1991). 5 The District of Columbia may be held liable under § 1983 “for constitutional torts arising from ‘action pursuant to official municipal policy.’ ” Atherton, 567 F.3d at 691 (quoting Triplett v. District of Columbia, 108 F.3d 1450, 1453 (D.C. Cir. 1997)). “Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). To establish a municipal liability claim, a plaintiff must “show fault on the part of the city based on a course its policymakers consciously chose to pursue” and “the only acts [or omissions] that count . . . are ones by a person or persons who have final policy making authority under state law.” Triplett., 108 F.3d at 1453, quoting 5 To be clear, court-appointed counsel, such as Downs, “does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981). 6 Carter v. District of Columbia, 795 F.2d 116, 122 (D.C. Cir. 1986); Jett v. Dallas Independent School Dist., 491 U.S. 701, 737 (1989) (internal quotation marks and alteration omitted). Plaintiff’s claim against the District rests on the erroneous premise that the decision rendered by the presiding judge at his criminal trial constituted policymaking. “[B]ut a judge acting in his judicial capacity to enforce state law does not act as a municipal official or lawmaker.” Mackey v. Helfrich, 442 Fed. App’x 948, 950 (5th Cir. 2011), citing Pembaur v. Cincinnati, 475 U.S. 469, 480 (1986); see Burns v. Mayes, 369 Fed. App’x 526, 531 (5th Cir. 2010), quoting Krueger v. Reimer, 66 F.3d 75, 77 (5th Cir. 1995) (per curiam) (A “local judge acting in his or her judicial capacity is not considered a local government official whose actions are attributable to the county.”); Granda v. City of St. Louis, 472 F.3d 565, 569 (8th Cir. 2007) (A “judicial order incarcerating [plaintiff] was not a final policy decision of a type creating municipal liability under § 1983.”). Consequently, plaintiff’s claim against the District fails as a matter of law. 3. Legal Malpractice Claims To succeed on a legal malpractice claim under District of Columbia law, “a plaintiff must establish the applicable standard of care, a breach of that standard, and a causal relationship between the violation and the harm complained of.” Biomet Inc. v. Finnegan Henderson LLP, 967 A.2d 662, 664 (D.C. 2009). It is long established that “an attorney is not liable for mistakes made in the honest exercise of professional judgment,” so long as she has acted “with a proper degree of skill, and with reasonable care and to the best of [her] knowledge[.] Id. at 665, quoting National Sav. Bank v. Ward, 100 U.S. 195, 198 (1879). 7 Plaintiff’s malpractice claim fails because he has alleged no facts and cited no authority that would support an inference that Downs was under any duty “to report” the trial judge’s allegedly improper decision to remove the ADW charge from the jury’s consideration, nor has he identified where or to whom she was to report the ruling. More importantly, the D.C. Court of Appeals, which is “undeniably the final arbiter on questions of District of Columbia local law,” Stokes v. George Hyman Const. Co., 968 F.2d 92 (D.C. Cir. 1992) (per curiam), has determined that “a claim for legal malpractice does not accrue until the plaintiff-client has sustained some injury from the malpractice.” Knight v. Furlow, 553 A.2d 1232, 1235 (D.C. 1989) (citations and internal quotation marks omitted). And in the “usual case” where the malpractice claim is based on the attorney’s representation in a criminal prosecution that resulted in a conviction, “it is logical to require a successful challenge to the conviction before monetary damages are assessed against the lawyer, because otherwise there is no causal connection between the lawyer’s performance and the claimed injury.” Herbin v. Hoeffel, 806 A.2d 186, 195 (D.C. 2002). Plaintiff has not articulated an injury, and his conviction is not yet final. See El-Amin v. United States, No. 17-cv-1024 (D.D.C. July 14, 2017) (dismissing habeas action upon petitioner’s representation that “his appeal of the underlying conviction is pending” in the DCCA). 6 Plaintiff attempts to invoke the discovery rule that arises in the context of some civil cases, see Byers v. Burleson, 713 F.2d 856, 860 (D.C. Cir. 1983) (“[W]here a legal . . . injury is not readily apparent, the District of Columbia courts follow the discovery rule, which tolls the running of the statute of 6 In evaluating a Rule 12(b)(6) motion to dismiss, courts may take judicial notice of public records from other court proceedings. See Covad Commc'ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005), citing Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1228 (D.C. Cir. 1993); Akers v. Watts, 589 F. Supp. 2d 12, 15 (D.D.C. 2008) (taking “judicial notice of the records of this Court and of other federal courts”) (citations omitted). 8 limitations until the plaintiff-client discovers or reasonably should have discovered [his] injury.”), and he asserts: the “discovery rule in the District of Columbia is to redress situations [where] the fact of injury [is] not readily apparent or might not be for several years,” Opp’n to Downs’s Mot. at 1-2 [Dkt. # 34]. The doctrine is not applicable, though, in this situation, where the law is clear that a criminal defendant may not pursue a malpractice claim while his appeal remains unresolved. CONCLUSION The Court concludes that plaintiff has stated neither a § 1983 claim against the District of Columbia nor a claim of legal malpractice against Attorney April Downs. Therefore, each defendant’s motion to dismiss under Rule 12(b)(6) will be granted. A separate order will issue. AMY BERMAN JACKSON United States District Judge DATE: August 9, 2017 9	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED December 11, 2007 No. 06-31257 Conference Calendar Charles R. Fulbruge III Clerk RONALD WALTON Plaintiff-Appellant v. PARISH OF LASALLE; JOSEPH WILSON; JOSEPH KUTCH; J P MAUFFREY; J REED WALTERS Defendants-Appellees Appeal from the United States District Court for the Western District of Louisiana USDC No. 1:06-CV-1148 Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges. PER CURIAM:* Ronald Walton, Louisiana prisoner # 115318, appeals the district court’s dismissal of his 42 U.S.C. § 1983 action as frivolous and for failure to state a claim. Walton sued the Parish of LaSalle, the head of the Indigent Defender’s Board in LaSalle, the attorney appointed by the Indigent Defender’s Board to represent him, the trial judge, and the assistant district attorney who prosecuted * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 06-31257 him. He argues that the district court erred in holding that the defendants were immune from suit or did not act under color of state law. Walton argues that his counsel conspired with the prosecutor, the trial judge, and the head of the Indigent Defender’s Board to secure his conviction and continued imprisonment. Because he raises this conspiracy allegation for the first time on appeal, we do not consider it. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). Although Walton contends that the trial judge acted without jurisdiction and that the prosecutor was entitled only to qualified immunity, he has not shown that the district court erred in holding that these parties were entitled to immunity from suit. See Buckley v. Fitzsimmons, 509 U.S. 259, 269-70 (1993); Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993). Similarly, because the allegations made by Walton against his defense counsel related to his counsel’s performance in representing him, he has not shown that the district court erred in holding that his counsel did not act under color of state law. See Polk County v. Dodson, 454 U.S. 312, 325 (1981). The head of the Indigent Defender’s Board may not be held liable under § 1983 for appointing counsel to represent Walton. See id. at 325-27 (recognizing § 1983 will not support liability under a theory of respondeat superior). Walton contends that the district court also erred in applying Heck v. Humphrey, 512 U.S. 477 (1994), since he was not challenging the fact or duration of his confinement, and he sought declaratory and injunctive relief. Because a declaration that Walton’s conviction was secured through a violation of due process would call into question the validity of his conviction, the district court’s application of Heck was proper. See Heck, 512 U.S. at 486-87; Clarke v. Stalder, 154 F.3d 186, 190-91 (5th Cir. 1998) (en banc). Walton has abandoned his arguments against LaSalle Parish by failing to brief them on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). 2 No. 06-31257 Walton’s appeal is without arguable merit and is therefore dismissed as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. The dismissal of this appeal as frivolous counts as a strike under 28 U.S.C. § 1915(g), as does the district court’s dismissal of Walton’s complaint. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Walton is cautioned that if he accumulates three strikes under § 1915(g), he will not be permitted to proceed in forma pauperis in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g). APPEAL DISMISSED; SANCTION WARNING ISSUED. 3	{ "pile_set_name": "FreeLaw" }
41 So.3d 232 (2010) JOHNSON v. STATE. No. 5D10-1767. District Court of Appeal of Florida, Fifth District. July 20, 2010. Decision without published opinion Affirmed.	{ "pile_set_name": "FreeLaw" }
53 F.3d 331 150 L.R.R.M. (BNA) 2960 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Ralph A. MCINNES, Plaintiff-Appellant,v.JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Defendant-Appellee. No. 94-3178. United States Court of Appeals, Sixth Circuit. May 3, 1995. Before: KEITH, MARTIN, and GUY, Circuit Judges. PER CURIAM. 1 Ralph McInnes challenges the district court's decision granting summary judgment in favor of John Hancock Mutual Life Insurance Co. on McInnes' unlawful discharge claim pursuant to Section 301 of the Labor Management Relations Act (29 U.S.C. Sec. 185), and the court's decision granting summary judgment in favor of the United Food and Commercial Workers International Union, AFL-CIO and CLC, on McInnes' breach of duty of fair representation claim. For the following reasons, we AFFIRM the decision of the district court. 2 The events leading to this litigation may be summarized as follows. McInnes worked for John Hancock as a marketing representative from March 1982 to June 1991 when he was discharged. The Union was the certified collective bargaining representative for the bargaining unit of marketing representatives at the time of these events. McInnes was discharged for allegedly engaging in financial dealings not in a client's best interests. McInnes, who was President of the local union and District Office chairperson at the time, protested his discharge to the Union. McInnes alleged he was discharged for his union activities. The Union filed a grievance on McInnes' behalf, pursuant to the grievance procedure in the collective bargaining agreement. The grievance was denied at each step of the three-step grievance process. Article VI of the collective bargaining agreement provides that the Union may pursue arbitration if the grievance is denied in the Third Step.1 3 In this case, William Gerhauser, the union official responsible for the nationwide administration of the contract with John Hancock, decided not to pursue arbitration of McInnes' grievance. Throughout the course of the grievance proceedings, however, Gerhauser conducted an investigation of the matter. Gerhauser had union field representative James Fuchs assist him in conducting an investigation and also consulted other union officials to evaluate McInnes' claim and to decide what action to take. 4 McInnes claims that the court erred in determining, as a matter of law, that the grievance procedure under the collective bargaining agreement (the "contract") between the Union and John Hancock provides the exclusive and final remedy for a breach of the contract. The district court held that the three-step grievance procedure, and the contractual provision permitting the Union to pursue arbitration, is the exclusive and final remedy for an employee such as McInnes claiming wrongful termination under Article IX. Given the district court's decision that the contractual grievance procedure is the final and exclusive remedy, the court also decided that McInnes could not pursue a Section 301 claim because he failed to show that the union had breached its duty of fair representation. McInnes claims the district court did not consider the evidence, in a light most favorable to him, which showed that "the grievance procedure regarding McInnes' discharge was wholly futile to determine the merit of the grievance." He argues that, because some of the same people who discharged him were also involved in deciding the merits of his grievance, exhaustion of the contractual grievance procedure is not required as a prerequisite to his being able to pursue a Section 301 claim in federal court. 5 We review the decision of a district court to grant summary judgment de novo. Loschiavo v. City of Dearborn, 33 F.3d 548, 550 (6th Cir. 1994), cert. denied, 115 S. Ct. 1099 (1995). Summary judgment is appropriate 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. In determining whether the district court properly granted summary judgment, we must consider all the evidence before us in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 6 Here, the district court determined that, as a matter of contract interpretation, Article V of the collective bargaining agreement provided a final and exclusive grievance procedure for marketing representatives such as McInnes.2 We agree that this provision shows an intent by the Union and John Hancock that the grievance procedure be exclusive and final. Furthermore, we agree that the "Availability of Other Remedies" provision in Article V applies only as to the Union or John Hancock, and not to individual employees. The language of Article V, taken together with the rule that any doubts about the exclusivity of contractual grievance procedures are to be resolved in favor of finding such procedures to be exclusive, Republic Steel Corp. v. Maddox, 379 U.S. 650, 658-59 (1965), leads us to agree that McInnes is bound by the decision reached via the grievance procedure, absent a showing that the union breached its duty of fair representation, Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 562-63 (1976), or that John Hancock repudiated the contractual remedial procedures. Vaca v. Sipes, 386 U.S. 171, 185-86 (1967). 7 In order to prove a breach of the duty of fair representation, McInnes must show that the union acted arbitrarily, discriminatorily, or in bad faith. Walk v. PIE Nationwide, Inc., 958 F.2d 1323, 1326 (6th Cir. 1992) (citing Vaca v. Sipes, 386 U.S. 171 (1967)). Mere errors of judgment will not suffice to meet this standard. Id. McInnes argues that the Union breached its duty of fair representation by arbitrarily ignoring a meritorious grievance and treating it in a perfunctory manner. McInnes believes that the union failed to make a reasonable investigation into the allegations against him. He insists that had the Union properly investigated it would have decided to go forward to arbitration. McInnes also claims that the Union ignored evidence that he was discharged for his union activity. 8 The Supreme Court has said that a union's actions are arbitrary only if "in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a 'wide range of reasonableness' as to be irrational." Id. (citing Airline Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65 (1991). The record in this case shows that the "Union," including McInnes as a union official,3 knew of the facts from McInnes' point of view and that union officials conducted an investigation into McInnes' discharge. The district court found that McInnes did not refute the facts alleged by John Hancock on pages 13-15 of its brief showing that Gerhauser directed and conducted investigation of this matter. Furthermore, the union represented McInnes at each step of the process, arguing that John Hancock had wrongfully discharged McInnes. After reviewing the record, we reach the same conclusion. As to the claim that McInnes was discharged for union activity, McInnes states in his brief that the Union, through Gerhauser, determined that there was not enough evidence showing that McInnes was discharged for union activity.4 Essentially, McInnes disagrees with the Union as to the meaning of the facts and with the Union's decision (by Gerhauser) not to pursue arbitration. Based on this record, we cannot say that the Union's actions regarding the grievance procedure, including its decision not to pursue arbitration, were irrational. Therefore, we agree with the district court that the union did not breach its duty to McInnes. 9 Finally, McInnes claims, correctly, that the exclusivity and finality of a contractual grievance procedure is not a bar to pursuing a Section 301 action where it is wholly futile for an employee to do so. Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 330-31 (1969) (holding that employees need not exhaust contractual remedies where the bargaining representative and the employer colluded to deny promotions to employees). This is not a case like Glover where collusion by the bargaining representative and the employer made it wholly futile for the employees to pursue the contractual grievance procedure. Here, the Union's decision not to pursue arbitration was made by a union official (Gerhauser). McInnes does not allege that Gerhauser was in collusion with or conspired with John Hancock to deny McInnes any contractual rights. Furthermore, there is no evidence of any such conspiracy or collusion between the Union and John Hancock. Therefore, this exception to the exhaustion requirement is not applicable. 10 Because we believe the contractual grievance procedure to be the exclusive and final remedy for McInnes, and because the facts he alleges do not show a breach of the union's duty of fair representation, we AFFIRM the decision of the district court granting summary judgment to the defendant. 1 "If a grievance is not settled in the Third Step of the grievance procedure, then the Union may notify the Company of its intent to submit the grievance to arbitration." J.A. at 494 2 "All grievances between the Marketing Representative and/or the Union and the Company shall be disposed of in accordance with the following procedure in this Article. Grievances involving the termination of a Marketing Representative's employment for any reason shall be processed in accordance with the procedure set forth herein...." (emphasis added) 3 McInnes was one of the Union's representatives at the Second step meeting in the grievance procedure. "The union committee consisted of Ralph McInnes, James Fuchs and Glenn Cantor." Appellant's Brief at 10 4 "Gerhauser testified that he dismissed the allegations that McInnes was discharged for his union activity because of the lack of evidence. R. 88, 89, 90, 91." Appellant's Brief at 39	{ "pile_set_name": "FreeLaw" }
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE ALONSO REYES-LOMELI, Nos. 17-70060 16-72760 Petitioner, Agency No. A098-930-851 v. JEFFERSON B. SESSIONS III, Attorney MEMORANDUM* General, Respondent. On Petition for Review of Orders of the Board of Immigration Appeals Submitted July 10, 2018** Before: CANBY, W. FLETCHER, and CALLAHAN, Circuit Judges. In these consolidated petitions for review, Jose Alonso Reyes-Lomeli, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) orders dismissing his appeal from an immigration judge’s (“IJ”) decision denying his request for a continuance, and denying his motion to reopen. * 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). We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the agency’s denial of a continuance, Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009), and denial of a motion to reopen, Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petitions for review. The agency did not abuse its discretion or violate due process in denying Reyes-Lomeli’s request for an additional continuance, for failure to show good cause. See 8 C.F.R. § 1003.29; Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and substantial prejudice to prevail on a due process challenge). Reyes-Lomeli conceded removability, he had been granted several prior continuances, he submitted no evidence that a visa petition had been filed on his behalf, and he has not addressed the IJ’s determination that he abandoned his applications for cancellation of removal and asylum. See Ahmed, 569 F.3d at 1012 (listing factors to consider); Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir. 2008) (denial of a continuance was within the agency’s discretion where relief was not immediately available to petitioner). The BIA did not abuse its discretion in denying Reyes-Lomeli’s motion to reopen for failure to establish a prima facie case for cancellation of removal, where he did not submit any hardship evidence. See Najmabadi, 597 F.3d at 986 (the BIA can deny a motion to reopen for failure to establish a prima facie case for the relief sought); Patel v. INS, 741 F.2d 1134, 1137 (9th Cir. 1984) (“[I]n the context of a 2 17-70060 motion to reopen, the BIA is not required to consider allegations unsupported by affidavits or other evidentiary material.”); 8 U.S.C. § 1229b(b)(1)(D). We reject Reyes-Lomeli’s contention that the BIA applied an incorrect legal standard in denying the motion. 8 C.F.R. § 1003.2(c)(1). PETITIONS FOR REVIEW DENIED. 3 17-70060	{ "pile_set_name": "FreeLaw" }
47 F.3d 424 U.S.v.Solis* NO. 93-07742 United States Court of Appeals,Fifth Circuit. Jan 25, 1995 Appeal From: S.D.Tex., No. 93-CR-105-1 1 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	{ "pile_set_name": "FreeLaw" }
575 F.3d 24 (2009) Paul SIMMONS; Pedro Valentin; Dennis Beldotti, Plaintiffs, Appellees/Cross-Appellants, v. William Francis GALVIN, in his capacity as Secretary of the Commonwealth of Massachusetts, Defendant, Appellant/Cross-Appellee. No. 08-1569. United States Court of Appeals, First Circuit. Heard February 2, 2009. Decided July 31, 2009. 26 Kenneth W. Salinger, Assistant Attorney General, and Peter Sacks, Assistant Attorney General, with whom Martha Coakley, Attorney General of Massachusetts, was on brief for appellant/cross-appellee. Christopher P. Silva with whom Thomas H. Wintner, Gail E. Cornwall, and Edwards Angell Palmer & Dodge, LLP were on brief for appellee/cross-appellant. Before LYNCH, Chief Judge, TORRUELLA and BOUDIN, Circuit Judges. LYNCH, Chief Judge. By nearly a two-to-one margin in the year 2000, Massachusetts voters passed Article 120, which amended the state constitution to disqualify currently incarcerated felons from voting in certain elections. Shortly thereafter, the state legislature extended this disqualification by statute, Chapter 150, to prevent inmates from voting in all Massachusetts elections. In 2001, several incarcerated felons in state custody, challenged these provisions (collectively "Article 120") by suing the Secretary of the Commonwealth in federal court. This appeal concerns two of their claims: (1) that the Commonwealth's disenfranchisement provisions violated the Voting Rights Act ("VRA") § 2, 42 U.S.C. § 1973, because the percentage of imprisoned felons who are Hispanic or African-American is higher than the percentages of those groups in the population of the state; and (2) that the provisions violated the Ex Post Facto Clause, U.S. Const. art. I, § 10, as to those inmates who were not disqualified from voting before the these provisions took effect. As to their claim under the VRA, the plaintiffs make no allegation of any intentional discrimination or of any history by Massachusetts of intentional discrimination against minority voters. All they have claimed is that past practices in the Massachusetts criminal justice system produced inmate populations which, in combination with the disqualification of inmates imprisoned for felonies, have resulted in disproportionate disqualification of minorities from voting. Theirs is a claim of disparate impact. After allowing initial discovery, the district court in 2007 denied the Commonwealth's motion for entry of judgment on the pleadings on plaintiffs' VRA claim but granted the Commonwealth's motion for summary judgment on the Ex Post Facto Clause argument. We think it clear from the language, history, and context of the VRA that Congress never intended § 2 to prohibit the states from disenfranchising currently incarcerated felons. We do not say that direct vote denial claims of other types may not be brought under § 2, only that no VRA claim is stated against a state law which disenfranchises incarcerated felons. We reverse and order the dismissal of the VRA § 2 claim. We affirm the grant of summary judgment on the Ex Post Facto claim. I. A. Enactment of the Massachusetts Incarcerated Felon Disenfranchisement Provisions Before Article 120 was enacted, prisoners were able to vote by absentee ballot. In 1997, there was an unsuccessful proposal for legislation to disenfranchise currently 27 incarcerated persons for certain felonies: murder, rape, other sex-related offenses, and controlled substances offenses. Massachusetts prisoners responded by forming a political action committee ("PAC"), aimed at influencing criminal justice issues, including sentencing, prison reform, and "Draconian laws on punishment." PACs, inter alia, raise money for and endorse candidates. State elected officials reacted swiftly. On August 12, 1997, then-Acting Governor Cellucci proposed a constitutional amendment that would disenfranchise all incarcerated individuals (not just felons), saying: Criminals behind bars have no business deciding who should govern the law-abiding citizens of the Commonwealth. This proposed amendment will ensure that criminals pay their debt to society before they regain their right to participate in the political process. The legislature did not act on this proposal. Rather, the legislature approved a different proposed amendment that would disenfranchise only those currently incarcerated for felonies. Lawmakers received the legal opinions of House and Senate Counsel that such an alternative amendment would be constitutional under the U.S. Constitution. Article 120, the proposed amendment to Article 3 of the Amendments to the state constitution, was presented to the voters along with an Information for Voters Guide. That Guide constitutes relevant legislative history. The Guide included 150-word arguments written by proponents and opponents of each ballot question. The statement from the proponents stated, "A yes vote prevents criminals serving time for a felony conviction from voting in Massachusetts's elections while in jail." The proponents argued: When someone in Massachusetts is sentenced to jail for committing a felony, we deprive them of their liberty and right to exercise control over their own lives, yet current law allows these same criminals to continue to exercise control over our lives by voting from prison. This amendment will change the law that gives jailed criminals the right to vote. Massachusetts is one of only three states in our nation where felons serving time may vote while in jail. Voting yes on this important question will make the Commonwealth the 48th state to prohibit the practice of allowing convicted criminals to vote from jail. This change discriminates against no one except jailed criminals. The Guide also contained the opponents' argument: The Constitution of Massachusetts is clear on this point: Citizens retain their right to vote even while incarcerated. The founders of Massachusetts intended this right, and our Supreme Judicial Court affirmed in in 1977. In the history of the Commonwealth, we have never amended our Constitution in order to narrow fundamental rights. There is no reason to do so now. No one has alleged that prisoner voting has harmed our democracy or social fabric. Very few prisoners vote, and no one claims that prisoner voting has negatively influenced any election. Stripping incarcerated felons of their right to vote serves no public safety function. It will not deter crime, repair the harm done by crime, nor help to rehabilitate prisoners. The voters approved the amendment with 60.3% voting "yes" to 33.9% voting "no," and 5.8% of voters not casting a vote on the question. The amendment took effect on December 6, 2000. Article 3 now reads: 28 Every citizen of eighteen years of age and upwards, excepting persons who are incarcerated in a correctional facility due to a felony conviction, and excepting persons under guardianship and persons temporarily or permanently disqualified by law because of corrupt practices in respect to elections who shall have resided within the town or district in which he may claim a right to vote, six calendar months next preceding any election of governor, lieutenant governor, senators or representatives, shall have a right to vote in such election of governor, lieutenant governor, senators and representatives; and no other person shall be entitled to vote in such election. Mass. Const. amend. art. 3 (emphasis added). The Massachusetts legislature then enacted Chapter 150 of the Acts of 2001, which effectuated Article 120 by broadening the ban on felon voting to cover all Massachusetts elections and by changing the statutory requirements for obtaining absentee ballots. Chapter 150 took effect November 27, 2001. Unlike many other states, Massachusetts does not disqualify convicted felons from voting once they are released from prison. B. Procedural History of the Litigation Plaintiffs Paul Simmons, an African-American, Pedro Valentin, a Hispanic-American, and Dennis J. Beldotti, a Caucasian-American, are Massachusetts residents currently in the custody of the Massachusetts Department of Correction for felonies they committed on or before December 5, 2000. Plaintiffs were eligible to be Massachusetts voters before that date, but the record does not reveal whether they were registered to vote. Plaintiffs' pro se complaint was amended twice by court-appointed counsel. Their final amended complaint alleged that Article 120 violates § 2 of the VRA because it has a "disproportionately adverse effect on the voting rights of African-Americans and Hispanic Americans compared to its effect on the voting rights of other citizens." This effect "is caused by, among other things, the facts that African-Americans and Hispanic-Americans are over-represented in the population of Massachusetts incarcerated felons, and that there exists considerable racial and ethnic bias, both direct and subtle, in the Massachusetts court system."[1] Article 120, plaintiffs contended, "interact[s] with social and historical conditions to cause an inequality in the opportunities enjoyed by minority and non-minority voters to elect their preferred representatives." In describing plaintiffs' complaint, which alleges a "vote denial" claim, we distinguish vote denial cases from vote dilution[2] claims under § 2 of the VRA. The Supreme 29 Court first articulated the distinction in explaining that "[t]he right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot." Shaw v. Reno, 509 U.S. 630, 640, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (quoting Allen v. State Bd. of Elections, 393 U.S. 544, 569, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969)). Thus in voting rights parlance, "`[v]ote denial' refers to practices that prevent people from voting or having their votes counted." D.P. Tokaji, The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 S.C. L.Rev. 689, 691 (2006). Vote denial cases challenge practices such as literacy tests, poll taxes, white primaries, and English-only ballots. Id. By contrast, vote dilution challenges involve "practices that diminish minorities' political influence," such as at-large elections and redistricting plans that either weaken or keep minorities' voting strength weak. Id.; see also P.S. Karlan, The Impact of the Voting Rights Act on African Americans, in Voting Rights and Redistricting 121, 122 (M.E. Rush ed., 1998). To be clear, plaintiffs did not allege and have disavowed making a § 2 vote dilution claim, such as that the votes of African-Americans and Hispanics who are not imprisoned for felonies have been diluted by Article 120. This case also does not involve any claim that generalized rules or practices governing the administration of elections have resulted in a disproportionate denial of votes of minorities. Further, plaintiffs have not asserted that the state has otherwise created barriers to the election of minority group members or other participation of minorities in the political process. Finally, the plaintiffs' complaint made no allegation that the Commonwealth acted with racially discriminatory intent or purpose in enacting Article 120, and plaintiffs have specifically disavowed any such claim. This is a claim based purely on the allegation that Article 120 has a disparate impact on minorities by disqualifying from voting imprisoned felons. In support of their pleadings, the complaint referred to and appended a 1994 Final Report by the Commission to Study Racial and Ethnic Bias in the Courts to the Massachusetts Supreme Judicial Court ("SJC").[3] Plaintiffs alleged the legislators were aware of or should have been aware of the conclusions in that 1994 Report. That 1994 Report, however, was not referenced in or part of the Voters Guide, and there is no claim the voters were aware of it. Plaintiffs further alleged that Article 120 is punitive in purpose and effect and therefore violates the Ex Post Facto Clause as to those inmates who committed their offenses before the disenfranchisement measures took effect. The relief sought was a declaration that Article 120 was unconstitutional under the Ex Post Facto Clause and illegal under § 2 of the VRA, injunctive relief, and costs and attorneys' fees. 30 Plaintiffs unsuccessfully moved for a preliminary injunction; defendant opposed, filing affidavits which described the legislative history of Article 120 and the ratification process. The parties conducted written discovery.[4] Defendant then moved for summary judgment as to the Ex Post Facto and equal protection claims and for judgment on the pleadings as to the VRA § 2 claim on January 12, 2007. The plaintiffs opposed the Commonwealth's motions and also cross-moved for summary judgment as to the Ex Post Facto and equal protection claims. On August 30, 2007, the district court granted the Commonwealth's motion for summary judgment on the Ex Post Facto Clause claim and the equal protection claim and denied plaintiffs' cross-motion. The court denied the Commonwealth's motion on the VRA claim. On January 16, 2008, the district court certified its order on the VRA claim for interlocutory appeal. Plaintiffs petitioned to cross-appeal on the Ex Post Facto and equal protection claims. This court granted leave to appeal all three claims under 28 U.S.C. § 1292(b). Plaintiffs have abandoned the Equal Protection Clause claim and contest only the Ex Post Facto Clause ruling, and the Commonwealth appeals the denial of its motion for judgment on the pleadings as to the VRA § 2 claims. C. Standard of Review Our review of the court's ruling on both claims is de novo, and we take the facts in the light most favorable to the plaintiffs. Estate of Bennett v. Wainwright, 548 F.3d 155, 163, 165 (1st Cir.2008) (considering dismissals under Rule 12(c) and Rule 56). We treat the denial of a motion for judgment on the pleadings "much like a Rule 12(b)(6) motion to dismiss." Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir.2008).[5] "[T]o survive a Rule 12(b)(6) motion (and, by extension, a Rule 12(c) motion) a complaint must contain factual allegations that `raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007)). Nonetheless, questions of statutory interpretation are questions of law ripe for resolution at the pleadings stage. Gen. Motors Corp. v. Darling's, 444 F.3d 98, 107 (1st Cir.2006) ("Statutory interpretation typically raises questions of law engendering de novo review."). II. VRA § 2 CLAIM Plaintiffs' § 2 challenge is to the Massachusetts law disenfranchising only currently incarcerated felons. Article 120 is among the narrowest of state felon disenfranchisement 31 provisions.[6] Only two states permit incarcerated felons to vote, and Massachusetts is one of thirteen jurisdictions that limit disenfranchisement to the period of incarceration. Currently, thirty-five states prevent felons from voting during the period of their parole or probation or both. Eleven states disenfranchise felons beyond the term of their incarceration, probation, and parole. Two states disenfranchise felons for life. The question of state felon disenfranchisement laws and the VRA § 2 has been addressed by five circuits. Four circuits, including two en banc, have rejected § 2 challenges to broader disqualifications; one panel in the Ninth Circuit had allowed such a § 2 challenge to go forward, although it was ultimately unsuccessful. The Second Circuit, consistent with our holding here, has rejected a § 2 challenge to a state statute disenfranchising prisoners, as well as parolees. Hayden v. Pataki, 449 F.3d 305 (2d Cir.2006) (en banc). Faced with a state lifetime felon disenfranchisement law, the Eleventh Circuit concluded in an en banc decision that all felon disenfranchisement claims are excluded from the scope of § 2 of the VRA. Johnson v. Gov. of Fla., 405 F.3d 1214 (11th Cir. 2005) (en banc). Two circuits have rejected similar claims on the pleadings without directly considering whether felon disenfranchisement statutes are immune from attack under § 2. Howard v. Gilmore, No. 99-2285, 2000 WL 203984, at 1 (4th Cir. Feb.23, 2000) (per curiam); Wesley v. Collins, 791 F.2d 1255, 1259-61 (6th Cir.1986) (treating claim as a dilution claim). Our conclusion accords with that of the majority of the circuits. A Ninth Circuit panel decision has concluded that some disenfranchisement statutes, not as narrow as this one, may be challenged under § 2. Farrakhan v. Washington, 338 F.3d 1009 (9th Cir.2003) (addressing disenfranchisement of those convicted of an "infamous crime" until those former felons comply with civil rights restoration statute). Over a dissent by seven judges, the Ninth Circuit denied the state's petition for rehearing en banc in that case, Farrakhan v. Washington, 359 F.3d 1116, 1116 (9th Cir.2004) (Kozinski, J., dissenting). On remand, judgment was entered for the state. Farrakhan v. Gregoire, No. CV-96-076-RHW, 2006 WL 1889273 (E.D.Wash. July 7, 2006). A. Constitutional Background to the VRA § 2 Claim Under the U.S. Constitution, the states generally set the eligibility criteria for voters. "[T]he Constitution `does not confer the right of suffrage upon any one.'" Rodriguez v. Popular Democratic Party, 457 U.S. 1, 9, 102 S.Ct. 2194, 72 L.Ed.2d 628 (1982) (quoting Minor v. Happersett, 88 U.S. (21 Wall.) 162, 178, 22 L.Ed. 627 (1874)); see also U.S. Const. art. I, § 4; id. amend. XIV, § 2; Bush v. Gore, 531 U.S. 98, 104, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (per curiam) ("The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college."). The criteria for eligibility to vote are defined by the states, subject to certain federal restrictions, such as the federal 32 constitutional prohibition on exclusion from the franchise on the basis of race, sex, or payment of a poll tax. "No function is more essential to the separate and independent existence of the States and their governments than the power to determine within the limits of the Constitution the qualifications of their own voters for state, county, and municipal offices." Oregon v. Mitchell, 400 U.S. 112, 125, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970). The power of the states to disqualify from voting those convicted of crimes is explicitly set forth in § 2 of the Fourteenth Amendment. The Supreme Court has held, "the exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment." Richardson v. Ramirez, 418 U.S. 24, 55, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974). Section 2 concerns the abridgement of the right to vote at any election for "President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or members of the Legislature." U.S. Const. amend. XIV, § 2. The Amendment specifically excludes (from its non-abridgement language) and thus provides for the denial by states of the right to vote to persons "for participation in rebellion, or other crime." Id. The Fourteenth Amendment also grants Congress the power to enforce, by appropriate legislation, the provisions of that article. Id. § 5. Thus, the state's denial of the right to vote to felons has a constitutional grounding. Broad felon disenfranchisement provisions are presumptively constitutional. See Richardson, 418 U.S. at 54-55, 94 S.Ct. 2655.[7] There, the Court rejected a non-race-based equal protection challenge to the felon disenfranchisement provision of California's constitution. The Supreme Court has continued to adhere to Richardson. See Romer v. Evans, 517 U.S. 620, 634, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (describing principle that states may disenfranchise a convicted felon as "unexceptionable"). Richardson, to be clear, does not hold that a state felon disenfranchisement law may never raise equal protection concerns. If a state enacts a law which disenfranchises felons "with the intent of disenfranchising blacks," that state has run afoul of § 1 of the Fourteenth Amendment. Hunter v. Underwood, 471 U.S. 222, 229, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (holding Alabama's petty crime and misdemeanor disenfranchisement provisions unconstitutional under Equal Protection Clause based on evidence of discriminatory intent); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 477, 105 S.Ct. 3249, n. 25, 87 L.Ed.2d 313 (1985) ("[In Hunter], we did not suggest that felons could not be deprived of the vote through a statute motivated by some purpose other than racial discrimination."). Here, plaintiffs make no allegation of intentional discrimination, and on appeal they allege no constitutional violation other than the Ex Post Facto claim. By definition, then, plaintiffs do not assert that whatever discrimination existed in the state's criminal justice system rose to the level of an independent constitutional violation which caused the vote denial. A state's interest in preventing "persons who ... were not eligible to vote because they had been convicted of felonies" from inflating its voter rolls was accepted only last year by the Supreme Court as a "neutral 33 and nondiscriminatory reason" for a voter identification law. Crawford v. Marion County Election Bd., ___ U.S. ___, 128 S.Ct. 1610, 1619-20, 170 L.Ed.2d 574 (2008). The legitimacy of the reasons for this state interest in disqualifying imprisoned felons from voting is apparent. Judge Henry Friendly some time ago described some of the pragmatic purposes underlying disenfranchisement laws: [I]t can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws, the executives who enforce these, the prosecutors who must try them for further violations, or the judges who are to consider their cases. Green v. Bd. of Elections, 380 F.2d 445, 451 (2d Cir.1967).[8] Here, the Commonwealth enacted this prohibition after prisoners attempted to organize to change the laws under which they were convicted, sentenced, and imprisoned. The state has a strong interest in setting its own qualifications for voters, a strong interest in the integrity of its system of enforcing and administering its criminal laws, and a strong interest in how its correctional systems are maintained and run. Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ("It is difficult to imagine an activity in which a State has a stronger interest... than the administration of its prisons."); cf. Hayden, 449 F.3d at 327. The Massachusetts provision, it is important to note, is narrowly tailored. Because the disqualification is confined to currently imprisoned felons, the state interests it serves are clearly at their strongest. Further, Article 120 of the Massachusetts constitution does not raise issues about a history of laws in Massachusetts, including felon disenfranchisement laws, that were used deliberately to impede voting by minorities. Such historical concerns about practices in other states have been the subject of academic commentary. See, e.g., G. Brooks, Comment, Felon Disenfranchisement: Law, History, Policy and Politics, 32 Fordham Urb. L.J. 851, 858-59 (2005) (concluding that the VRA does not reach state felon disenfranchisement laws). Plaintiffs have made no claim that Massachusetts has historically ever used any tests or devices to discourage minority voting or minority candidates. Nor is there any claim that Massachusetts has defined Article 120 disenfranchisement in terms of felonies that have higher conviction rates for minorities than for whites. Cf. Hunter, 471 U.S. at 229, 105 S.Ct. 1916. B. Text, Context and Legislative History of § 2 It is against the backdrop of the Constitution's express approval of felon disenfranchisement provisions, which were not motivated by intentional race discrimination, that Congress enacted the VRA in 1965. 34 Section 2 of the VRA, 42 U.S.C. § 1973, as amended in 1982, now provides: (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.... (b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. While the language of the original § 2 tracked the language of the Fifteenth Amendment, prohibiting practices that deny or abridge the right to vote on account of race, the 1982 amendment to § 2 inserted the phrase "results in a denial or abridgment." § 1973(b) (emphasis added). The amendment of § 2 also made clear that an abridgement or denial could be identified "as provided in subsection (b)," which was added by the 1982 amendments. To start, it is clear that under the plain terms of the statute, not every "voter qualification" is actionable under § 2. For § 2 to apply, the burden is on the plaintiffs to make other showings, including that the qualification "results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." § 1973(a); see also Metts v. Murphy, 363 F.3d 8, 12 (1st Cir.2004) (en banc) (per curiam). Plaintiffs' theory of how they meet this burden under § 2 is that from the very enactment of § 2 in 1965, the broad language of § 2 has created a cause of action on these facts. Article 120, they contend, is obviously a voter disqualification and the disqualification results in a denial of the right to vote "on account of race" because the percentages of incarcerated felons who are black or Hispanic are higher than those two groups in the population as a whole. Plaintiffs argue the language of § 2(a) is so clear it stands alone and that rules of statutory construction prohibit consideration of the history or context of § 2.[9] Plaintiffs' claim assumes that felon disenfranchisement laws are not different from and should be treated like any other voting qualification under § 2. That assumption is a fatal flaw in their case. Felon disenfranchisement statutes are not like all other voting qualifications. Congress has treated such laws differently. They are deeply rooted in our history, in our laws, and in our Constitution. We conclude Congress did not intend § 2 to provide a cause of action against Article 120. 35 As a matter of textual analysis, it is neither plain nor clear that plaintiffs' claim fits within the text of § 2(a). For example, it is logical to understand the state law disenfranchisement of incarcerated felons as not "resulting" in a denial "on account of race or color" but on account of imprisonment for a felony, and thus not within the text of § 2 at all.[10] We agree with the Second Circuit that the language of § 2(a) is both broad and ambiguous and that judicial interpretation of a claim concerning felon disenfranchisement under the VRA may not be limited to the text of § 2(a) alone. See Hayden, 449 F.3d at 315 (citing Watt v. Alaska, 451 U.S. 259, 266, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981); Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 73 L.Ed. 170(1928)). Under any set of rules of construction, our inquiry into § 2(a) neither starts nor ends with an examination of that text. "[S]tatutory interpretation turns on `the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.'" Nken v. Holder, ___ U.S. ___, 129 S.Ct. 1749, 1756, 173 L.Ed.2d 550 (2009) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). Under Supreme Court precedent, we cannot adopt plaintiffs' limited approach. The direction to look at context, structure, history, and constitutional concerns is particularly true of the VRA, a complex statute with an extensive legislative history and caselaw. See Nw. Austin Mun. Util. Dist. No. 1 v. Holder, ___ U.S. ___, 129 S.Ct. 2504, 2513-14, 174 L.Ed.2d 140 (2009) ("[S]pecific precedent, the structure of the Voting Rights Act, and underlying constitutional concerns compel a broader reading of the [VRA's] bailout provision."). The Supreme Court itself, in deciding § 2 cases has never resorted to plain text alone to give § 2 meaning. See, e.g., Chisom v. Roemer, 501 U.S. 380, 397, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991). It has commonly used legislative history. See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 426, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006); see also 2A N.J. Singer & J.D. Singer, Sutherland Statutes and Statutory Construction § 48A:11 (7th ed. 2008) ("In reviewing legislative history, the Court consults ... committee reports, floor debates, hearings, rejected proposals, and even legislative silence."). In examining § 2, we are required to comply with "the cardinal rule that a statute is to be read as a whole," King v. St. Vincent's Hosp., 502 U.S. 215, 221, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991). As "the meaning of statutory language, plain or not, depends on context," id., we must "look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy." Dada v. Mukasey, ___ U.S. ___, 128 S.Ct. 2307, 2317, 171 L.Ed.2d 178 (2008) (quoting Gozlon-Peretz v. United States, 498 U.S. 395, 407, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991)) (internal quotation marks omitted). When we look at the terms of the original VRA as a whole, the context, and recognized sources of congressional intent, 36 it is clear the original § 2 of the VRA of 1965 was not meant to create a cause of action against a state which disenfranchises its incarcerated felons. The purposes and congressional history of the 1982 amendments, as well as congressional action after 1982, further confirm our understanding that § 2 does not encompass this claim. 1. The Original VRA of 1965 The original VRA was enacted against the background of explicit constitutional and congressional[11] approval of state felon disenfranchisement laws and expressed no intention to invalidate such laws, but rather an intention to leave such laws untouched. Prior to the enactment of the VRA, enforcement of the Fifteenth Amendment guarantee that the "right of citizens of the United States to vote shall not be denied or abridged ... on account of race, color, or previous condition of servitude," U.S. Const. amend. XV, § 1, was unsatisfactory. Nw. Austin, 129 S.Ct. at 2508-09. In 1965, Congress enacted the VRA with the intent to "banish the blight of racial discrimination in voting, which ha[d] infected the electoral process in parts of our country for nearly a century." South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). Plaintiffs' claim here concededly does not involve any such intent. The language of the original § 2 "tracked ... the text of the Fifteenth Amendment," Bartlett, 129 S.Ct. at 1240. The Court emphasized this point when it said that the original § 2 did "no more than elaborate[] upon ... the Fifteenth Amendment," id. at 1241 (omission in original) (quoting City of Mobile v. Bolden, 446 U.S. 55, 60-61, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980) (plurality opinion)) (internal quotation marks omitted). The VRA's original object was plainly to combat specific forms of racial discrimination.[12] Beyond § 2, the remainder of the VRA set up a scheme of stringent remedies to address the most flagrant practices. "[T]he Act directly pre-empted the most powerful tools of black disenfranchisement in the covered areas. All literacy tests and similar voting qualifications were abolished by § 4 of the Act." Nw. Austin, 129 S.Ct. at 2509, (citing Voting Rights Act of 1965, §§ 4(a)-(d), 79 Stat. 437, 438-439). The legislative history of the VRA shows that Congress was not silent with respect to felon disenfranchisement laws. In fact, Congress explicitly considered the effect of the VRA on state felon disenfranchisement laws, and did so under § 4, rather than under § 2.[13] Section 4 of the VRA bans any "test or device" that impermissibly limits the franchise. 42 U.S.C. § 1973b(c). Congress, in enacting § 4(c) proscribed several categories of historically discriminatory tests or devices, including some literacy tests, educational achievement or knowledge tests, and good moral character qualifications. But Congress was careful to carve out from its proscription of tests for good moral character any and all state 37 felon disenfranchisement laws. H.R.Rep. No. 89-439 (1965), reprinted in 1965 U.S.C.C.A.N. 2437, 2547-57. In excluding felon disenfranchisement laws from the scope of § 4, Congress took the view that it did not consider such laws to be a discriminatory voter qualification or a "tool[] of black disenfranchisement." Nw. Austin, 129 S.Ct. at 2509. The Senate Judiciary Committee Report explicitly stated that this § 4 prohibition on tests and devices "would not result in the proscription of the frequent requirement of States and political subdivisions that an applicant for voting or registration for voting be free of conviction of a felony or mental disability." S.Rep. No. 89-162 (1965), reprinted in 1965 U.S.C.C.A.N. 2508, 2562 (joint views of Senators Dodd, Hart, Long, Kennedy, Bayh, Burdick, Tydings, Dirksen, Hruska, Fong, Scott, and Javits). The House Report confirms the Senate's understanding. It stated that the VRA "does not proscribe a requirement of a State or any political subdivision of a State that an applicant for voting or registration for voting be free of conviction of a felony or mental disability." H.R.Rep. No. 89-439, reprinted in 1965 U.S.C.C.A.N. at 2457. In drafting the VRA, Congress considered felon disenfranchisement statutes, and it viewed them as a potential test or device that fell within the purview of § 4 and not § 2. We are not free to second guess Congress's categorizations of felon disenfranchisement statutes. Further, Congress made clear that it did not purport to outlaw state felon disenfranchisement statutes based on their effect. Rather, under § 4, Congress enumerated and outlawed tests or devices it viewed as disqualifications excluding minority voters. Felon disenfranchisement laws were specifically removed from this category by Congress and were considered nondiscriminatory. In light of this express history, Congress could not have intended to create a cause of action under § 2 of the VRA against disenfranchisement of incarcerated felons while saying explicitly elsewhere that it did not intend to proscribe any such laws. Other courts agree with our conclusion. Hayden, 449 F.3d at 319 ("[I]t is apparent to us that Congress's effort to highlight the exclusion of felon disenfranchisement laws from a VRA provision that otherwise would likely be read to invalidate such laws is indicative of its broader intention to exclude such laws from the reach of the statute."); see also Farrakhan, 359 F.3d at 1120-21 (Kozinski, J., dissenting from denial of reh'g en banc). This point is buttressed by another aspect of § 4. As drafted in 1965, § 4 applied to covered jurisdictions.[14] Congress would not have permitted felon disenfranchisement laws in covered jurisdictions where there was a history of discrimination, while prohibiting them in non-covered jurisdictions like Massachusetts. To subject felon disenfranchisement in a non-covered jurisdiction to a VRA cause of action while prohibiting such a cause of action for a covered jurisdiction would itself raise significant 38 constitutional concerns. See Nw. Austin, 129 S.Ct. at 2513. If there were any doubt as to Congress's intent not to create a cause of action against laws like Article 120, other actions show congressional acceptance of even broader felon disenfranchisement laws than involved here, reinforcing the conclusion that § 2 was not meant to proscribe laws such as Article 120. In 1971, just six years after passing the VRA, Congress affirmatively enacted a broader felon disenfranchisement statute covering both imprisoned and paroled felons in the District of Columbia, over which it then exercised plenary power. Act of Dec. 23, 1971, Pub.L. No. 92-220, § 4, 85 Stat. 788, 788; see also Hayden, 449 F.3d at 315. Congress would not have prohibited states from imposing such disqualifications when it imposed them itself on the District. Further, between the passage of the VRA in 1965 and the 1982 amendments, Congress considered and rejected proposals to amend the VRA[15] to prohibit certain types of state felon disenfranchisement laws. Congress understood that the VRA, as enacted in 1965, did not permit claims against state felon disenfranchisement laws and that amendment of the VRA would be needed to permit such suits, and it declined to make those amendments. Two points are important. First, Congress rejected each those proposed amendments. Second, even those rejected amendments would have precluded suits raising claims of disenfranchisement of a "citizen [who] is confined in a correctional facility at the time of such ... election," as does Article 120 now at issue. See Ex-Offenders Voting Rights: Hearing on H.R. 9020 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the H. Comm. on the Judiciary, 93d Cong. 4 (1974). In 1972, the House Judiciary Committee held hearings on "The Problems of the Ex-Offender." See Corrections, Part VI, Illinois: The Problems of the Ex-Offender: Hearing Before Subcomm. No. 3 of the H. Comm. on the Judiciary, 92d Cong. (1972). In response to these hearings, several prominent VRA advocates in Congress jointly introduced a bill designed "to amend the [VRA] to prohibit the States from denying the right to vote in Federal elections to former criminal offenders who have not been convicted of any offense related to voting or elections and who are not confined in a correctional institution." Hayden, 449 F.3d at 319 (emphasis added) (quoting H.R. 15,049, 92d Cong. (1972)) (internal quotation marks omitted). The bill did not result in legislation. Id. Similarly, Congress held hearings in 1973 expressly addressing but not adopting proposed amendments to the VRA to allow challenges to felon disenfranchisement for only that category of ex-offenders who were not imprisoned.[16]See Ex-Offenders Voting Rights: Hearing on H.R. 9020, supra, 93d Cong. 1-38; see also Hayden, 449 F.3d at 319. 39 Plaintiffs' claim that § 2 as drafted in 1965 permits a cause of action against Article 120 fails. 2. The 1982 Amendments We reject plaintiffs' position that § 2(b), added in 1982, may not be considered in analyzing whether they have a claim under § 2(a).[17] Furthermore, we conclude that those amendments, while altering the law as to vote dilution claims and perhaps as to other claims (which we need not decide), undercut plaintiffs' arguments that Congress intended the VRA to reach laws disenfranchising incarcerated felons. The 1982 amendments did not alter the prior understanding that the VRA did not reach the disenfranchisement of currently incarcerated felons. When "Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the [administrative or judicial] interpretation given to the incorporated law, at least insofar as it affects the new statute." Lorillard v. Pons, 434 U.S. 575, 581, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). Nothing in the text, context,[18] or history supports plaintiffs' position. The Supreme Court held that "Congress amended § 2 of the VRA to make clear that certain practices and procedures that result in the denial or abridgement of the right to vote are forbidden even though the absence of proof of discriminatory intent protects them from constitutional challenge." Chisom, 501 U.S. at 383-84, 111 S.Ct. 2354 (emphasis added); Johnson, 405 F.3d at 1228. Felon disqualification was not among those certain practices and procedures. Plaintiffs admirably admit that Congress's specific purpose in amending § 2 of the VRA[19] was to overrule certain aspects 40 of the Supreme Court's decision in Bolden, which was concerned with vote dilution claims, not direct denial claims. We explain. Prior to Bolden, in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), minority plaintiffs had successfully challenged a state districting plan on vote dilution grounds. There, the Court did not require a showing of discriminatory intent. See id. at 766. By contrast, the Bolden plurality held that state action "that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose," 446 U.S. at 61, 100 S.Ct. 1490, and altered the White evidentiary standard in vote dilution cases to require direct evidence of discriminatory intent.[20]See Bartlett, 129 S.Ct. at 1240-41. In 1982, Congress focused on reversing this aspect of Bolden and clarifying the standard for vote dilution claims. Congress aimed to reinstate the "results test," which had been the rule developed in the pre-Bolden case law for vote dilution claims under White. See Metts, 363 F.3d at 10 (stating the 1982 amendments made it clear that "discriminatory intent is not a necessary element in a violation and that Congress [instead] intended a broad range of factors to be taken into account"). But the reinstated, multifactored results test was not meant to extend to this limited felon disenfranchisement claim any more than the pre-Bolden tests were. Nothing in the legislative history of § 2(b) indicated any intent to expand the VRA to create a cause of action against a state felon disenfranchisement law such as Article 120. To the contrary, in enacting § 2, Congress noted that it was impossible to predict the variety of means that would be used to infringe on the right to vote and that the voting rights landscape was marked by innovation in discrimination. S.Rep. No. 89-162, at 5 (1965); S.Rep. No. 89-439, at 10. But these concerns do not go to felon disenfranchisement, which was neither a new innovation nor a predictable future innovation. Felon disenfranchisement was a well-known and accepted part of the voting landscape. "The Senate Report, which details many discriminatory techniques used by certain jurisdictions, made no mention of felon disenfranchisement provisions." Johnson, 405 F.3d at 1234; see also Tokaji, supra, at 707 ("The legislative history of the 1982 amendments thus shows that Congress was almost exclusively focused on vote dilution claims.").[21] Further, the language of § 2(b) undercuts plaintiffs' assertion they have stated a claim under § 2(a). The text of subsection (b) protects a "class of citizens" who by law may and should enjoy as full an "opportunity [as] other members of the electorate to participate in the political process." § 1973(b). For a host of valid reasons, incarcerated prisoners cannot participate in the political process equally with free citizens outside the prison walls. Hayden, 449 F.3d at 342 (Jacobs, J., concurring). As noted by Hayden, "There is no question that incarcerated persons cannot 41 `fully participate in the political process'they cannot petition, protest, campaign, travel, freely associate, or raise funds." Id. at 321. Further, the 1982 Congress amended § 2 to assuage expressed fears that the courts would interpret a results test as a requirement for proportional representation in vote dilution cases, and therefore the statute was amended to expressly disclaim any right to proportional representation. § 1973(b) ("[N]othing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population."); Tokaji, supra, at 705-06. This suggests that Congress was fundamentally concerned with remedying discrimination in voting, rather than guaranteeing proportionality in political representation. See, e.g., S. Issacharoff, Polarized Voting and the Political Process, 90 Mich. L.Rev. 1833 (1992). Plaintiffs' claim, which is based on mere disproportionality in the prison population from felon disenfranchisement, does not implicate these concerns. 3. Post-1982 Congressional Actions Assume the Validity of State and Federal Felon Disenfranchisement Laws Congressional action, both after 1982 and in the aftermath of Bush v. Gore, also undercuts the plaintiffs' reading of the amended § 2 to support a claim against imprisoned felon disenfranchisement laws. These statutes show continuing congressional approval of state laws disenfranchising imprisoned felons. The National Voter Registration Act of 1993, which generally restricts states' ability to remove names from the voter rolls, explicitly exempts state decisions to disenfranchise individuals "by reason of criminal conviction." 42 U.S.C. § 1973gg-6(a)(3)(B). The Help America Vote Act of 2002 directs states to remove disenfranchised felons from their lists of those eligible to vote in federal elections. 42 U.S.C. § 15483(a)(2)(A)(ii)(I). These two recent statutes are entirely inconsistent with reading § 2, whatever its breadth, to create a cause of action against Article 120. Further, Congress has continued to consider and reject numerous proposals to require states to enfranchise even former felons. Even these efforts have expressly excluded currently incarcerated felons. See, e.g., Civic Participation and Rehabilitation Act of 1999: Hearing on H.R. 906 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 106th Cong. 1, 3 (2000) (quoting H.R. 906, 106th Cong. (1999)).[22] Congress has excepted from the reach of the VRA protections from vote denial for claims against a state which disenfranchises incarcerated felons. We do not need to decide[23] what is needed to prove a denial 42 (as opposed to a dilution) claim under § 2 which is not a claim against a state provision disenfranchising imprisoned felons.[24] Given the historic legitimacy of felon disenfranchisement, the constitutional recognition of the authority of states to disenfranchise imprisoned felons, the congressional recognition of that authority and the express congressional statements that the VRA was not meant to proscribe that authority, this is not the case in which to test the standards for other types of purported direct disenfranchisement claims. While our emphasis is somewhat different, we agree with the Second Circuit in Hayden that the seven circumstances it identifies all necessitate the conclusion that the this claim is not actionable. 449 F.3d at 315-16. Plaintiffs have failed to state a claim under VRA § 2. We have no need to reach the serious constitutional questions which the Commonwealth argues would be raised were we to adopt plaintiffs' construction of the statute. In Northwest Austin, the Supreme Court emphasized the principle that courts, particularly in VRA cases, should avoid deciding constitutional issues where statutory interpretation obviates the issue, as here. Nw. Austin, 129 S.Ct. at 2508 ("Our usual practice is to avoid the unnecessary resolution of constitutional questions."); see also Hayden, 449 F.3d at 328 n. 24; Johnson, 405 F.3d at 1230. III. EX POST FACTO CLAUSE CLAIM We turn to plaintiffs' appeal from the district court's grant of summary judgment 43 in favor of the Commonwealth on the Ex Post Facto Clause arguments. There are no material facts in dispute in the record. Plaintiffs argue the Ex Post Facto Clause was violated because "the only plainly discernible purpose for Article 120 was to seek to impose an additional measure of punishment upon those who had violated the laws of the Commonwealth." Plaintiffs point to the a transcript of the debates at the 1998 and 2000 Constitutional Conventions over the bill that ultimately became Article 120. Plaintiffs also rely on language from Acting Governor Cellucci's proposed amendment and his statements to the public, an amendment which was not accepted. These statements include: "The time has come to tell would-be criminals in Massachusetts that committing crimes has serious consequences," and that "[p]risons are a place for punishment." Even though his initial proposal was never in fact acted on by the legislature, we consider his comments as part of the background. Analysis of the Ex Post Facto Clause claim involves a two-part inquiry. The first asks whether the denial of the right to vote is a civil, regulatory measure within the meaning of the caselaw, or whether it is punitive. "[W]here unpleasant consequences are brought to bear upon an individual for prior conduct," the central question "is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation." De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960) (holding that state statutory bans against employment of convicted felons in certain jobs did not impose punishment under Ex Post Facto Clause). Only a punitive measure can violate the Ex Post Facto Clause. See, e.g., Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); see also United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (holding preventative detention under the Bail Reform Act was permissible because it was regulatory and preventative, rather than punitive). The Supreme Court has stated that felon disenfranchisement provisions are considered regulatory rather than punitive. In Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), the Court explained: [A] statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose.... The point may be illustrated by the situation of an ordinary felon. A person who commits a bank robbery, for instance, loses his right to liberty and often his right to vote. If, in the exercise of the power to protect banks, both sanctions were imposed for the purpose of punishing bank robbers, the statutes authorizing both disabilities would be penal. But because the purpose of the latter statute is to designate a reasonable ground of eligibility for voting, this law is sustained as a nonpenal exercise of the power to regulate the franchise. Id. at 96-97, 78 S.Ct. 590; see also Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 51, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959) (criminal record is an "obvious" factor that "a State may take into consideration in determining the qualifications of voters"). Article 120 is no exception. Even if the Supreme Court had not already described such regulation of the franchise with respect to incarcerated felons as nonpenal, we would still find Article 120 to be a civil regulatory scheme. In examining Article 120 "on its face," Hudson v. United States, 522 U.S. 93, 100, 118 44 S.Ct. 488, 139 L.Ed.2d 450 (1997), there is no language indicating the Commonwealth's provision is penal. Article 120 is not in the Commonwealth's criminal code, but rather its civil constitutional and statutory voter qualification provisions. See Hendricks, 521 U.S. at 361, 117 S.Ct. 2072, ("[The State's] objective to create a civil proceeding is evidenced by its placement of the Act within the [State's] probate code, instead of the criminal code" (citations omitted)). Article 120 also disenfranchises persons under guardianship, persons disqualified because of corrupt elections practices, and all persons under eighteen years of age, as well as incarcerated felons. And the disqualification is enforced civilly, not criminally. Article 120 does not involve a more general period of disenfranchisement because of commission of a felony; rather Article 120 is limited to the period of incarceration. Article 120 thus creates a temporary qualification on the right to vote coincident with imprisonment, rather than a long-term consequence for the commission of a crime. Article 120 is a constitutional amendment, which was later effectuated and extended by statute. The voters of Massachusetts ratified Article 120 in a statewide election. The Voter Guide read by the voters, which we described earlier, made no mention of any goal of punishing prisoners. "The Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences." Smith, 123 S.Ct. at 1153. Secondly, even if the legislature intended to deem a particular law "civil," courts must further inquire whether "the statutory scheme was so punitive either in purpose or effect as to negate that intention." United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980). "`[O]nly the clearest proof' will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Hudson, 522 U.S. at 100, 118 S.Ct. 488 (quoting Ward, 448 U.S. at 249, 100 S.Ct. 2636). Plaintiffs fail to meet this standard. We review whether plaintiffs' allegations of punitive purpose meet the non-exclusive factors test set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), and followed in Smith, 538 U.S. at 97, 123 S.Ct. 1140. The Mendoza-Martinez factors are: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishmentretribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether there is a rational connection to a nonpunitive purpose; and (7) whether it appears excessive in relation to the alternative purpose assigned. Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct. 554. The most relevant factors are whether felon disenfranchisement "has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose." Smith, 538 U.S. at 97, 123 S.Ct. 1140. First, Article 120 does not impose any affirmative disability or restraint, physical or otherwise. See Smith, 538 U.S. at 100, 123 S.Ct. 1140 ("[I]mprisonment... is the paradigmatic affirmative disability or restraint."). Disenfranchisement 45 during the period of incarceration imposes no additional term of imprisonment, see Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960), and is not as enduring as permanent occupational debarment, which the Court has held is nonpunitive. Hudson, 522 U.S. at 104, 118 S.Ct. 488; De Veau, 363 U.S. at 144, 80 S.Ct. 1146; Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (1898) (revocation of a medical license does not violate Ex Post Facto clause). Second, felon disenfranchisement has historically not been regarded as punitive in the United States, as the Supreme Court indicated in Trop v. Dulles. Indeed, in holding that felon disenfranchisement has "affirmative sanction" in § 2 of the Fourteenth Amendment of the U.S. Constitution, Richardson, 418 U.S. at 54, 94 S.Ct. 2655, the Supreme Court noted the historical prevalence of state felon disenfranchisement laws and never characterized even California's broad disqualification of former felons as punitive. Id. at 55, 94 S.Ct. 2655. As to the third and fifth factors, Article 120 is effective regardless of a finding of scienter or the type of crime so long as it is a felony. That Article 120 may be "tied to criminal activity" is "insufficient to render the statut[e] punitive." United States v. Ursery, 518 U.S. 267, 291, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). The fourth Mendoza-Martinez factor considers whether felon disenfranchisement will promote the traditional aims of punishment, retribution and deterrence, to see whether plaintiffs have offered the clearest proof to overcome the statement of nonpenal purpose. Plaintiffs rely on some statements made by some legislators that could be viewed as retributive, such as that felons "don't deserve to vote." To the extent the legislators' comments are relevant, they are sporadic and do not clearly evince a retributive purpose. More significantly, since Article 120 was put before the voters, the Information for Voters Guide is a better source of context. The Guide contained a balanced debate about the merits of allowing currently incarcerated felons to vote in state elections, noted the problem of prisoners being able to affect the laws under which they were confined by voting, and nowhere suggests an intent to punish prisoners. As to the sixth factor, there is an obvious rational nonpunitive purpose for disenfranchisement: as the Guide shows, voters were concerned about the influence of currently incarcerated felons in "exercis[ing] control over [their] lives by voting from prison." See also Smith, 123 S.Ct. at 1147 (noting that "even if the objective of the Act is consistent with the purposes of the [state] criminal justice system, the State's pursuit of it in a regulatory scheme does not make the objective punitive."). Finally, Article 120 is not excessive in accomplishing this purpose. Article 120 does not violate the Ex Post Facto Clause. IV. The entry of judgment against the plaintiffs' Ex Post Facto Clause claim is affirmed; the court's denial of the motion to dismiss the VRA claim is reversed and the case is remanded to the district court for dismissal of both claims with prejudice. Each side shall bear its own costs. So ordered. TORRUELLA, Circuit Judge (Dissenting). Lest we be misled by the majority's choice of emphasis, this is not a case about the state's authority to disenfranchise convicted felons, nor about the popularity or desirability of that practice. Were that 46 the issue before us, I too would be in the majority, as the validity of felon disenfranchisement laws, as a general matter, has been established. See Richardson v. Ramirez, 418 U.S. 24, 56, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974). Moreover, were that the issue before us, it would not have spawned reams of conflicting opinions, vigorous dissents and en banc reversals among our sister circuits.[25] Rather this is a case about interpreting a clearly worded congressional statute, the Voting Rights Act of 1965 ("VRA"), according to its terms, when there is no persuasive reason to do otherwise. Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. ___, 129 S.Ct. 2504, 2513, 174 L.Ed.2d 140 (2009) ("The Fifteenth Amendment empowers `Congress,' not the [c]ourt[s], to determine in the first instance what legislation is needed to enforce it."). It is also a case about the constitutional validity of altering the legal consequences for committing a crime, long after the crime's completion. Because I disagree with the majority's resolution of both of these novel issues, I respectfully dissent. I. Voting Rights Act Claim Section 2 of the VRA, as amended in 1982, plainly provides that "[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State ... in a manner which results in a denial or abridgement of the right ... to vote on account of race or color...." 42 U.S.C. § 1973(2)(a) (emphasis added); see also Nw. Austin, 557 U.S. ___, 129 S.Ct. 2504, 2508. Notably, § 2(a) employs a "`results'" test, under which proof of discriminatory intent is not necessary to establish a violation of the section. Chisom v. Roemer, 501 U.S. 380, 395, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991). Rather, plaintiffs can state a § 2 claim by showing that under the "totality of circumstances," a "certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." Thornburg v. Gingles, 478 U.S. 30, 43-44, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986).[26] The allegations in plaintiffs' complaint, 47 which we must accept as true at this preliminary stage, see Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir.2008), are that Massachusetts' Article 120, which disqualifies incarcerated felons from voting in the Commonwealth, has a disproportionately adverse effect on the voting rights of African-Americans and Hispanic-Americans, who are over-represented in the incarcerated felon population. Plaintiffs allege that this disparate impact is caused, in part, by racial and ethnic bias in the Massachusetts court system, and operates to deny these racial minorities the right to vote, in violation of § 2 of the VRA. Plaintiffs further allege that when enacting Article 120, Massachusetts legislators were aware of the data regarding racial bias in the criminal justice system.[27] The felon disenfranchisement provision at issue is clearly a "voting qualification." Whether or not this provision results in the denial of the right to vote "on account of race or color" under the "totality of the circumstances" remains the ultimate question for the trier of fact. But "[e]ven if serious problems lie ahead in applying the `totality' of the circumstances standard described in [VRA] § 2(b), that task, difficult as it may prove to be, cannot justify a judicially created limitation on the coverage of the broadly worded statute, as enacted and amended by Congress." Chisom, 501 U.S. at 403, 111 S.Ct. 2354. Plaintiffs have stated a claim sufficient to preclude dismissal at this preliminary stage and are entitled to the opportunity to develop it. In order to avoid this obvious result, the majority makes an expansive and unwarranted holding. It holds that despite the broad language of VRA § 2, covering all "voting qualifications," Congress actually never intended for felon disenfranchisement laws, even discriminatory ones, to be challengeable under that provision. It does so by disregarding the plain and unambiguous text of the statute and resorting to a collection of secondary evidence, none of which stand for the proposition the majority seeks to establish. In the face of so startling a holding, I am left wondering, in the words of Judge Calabresi, "[w]hat is behind this remarkable decision to buck text, context, and legislative history in order to insulate a particular racially discriminatory practice from an anti-discrimination rule of general applicability?" Hayden, 449 F.3d at 365 (Calabresi, J., dissenting). The fatal flaw in the majority's reasoning begins with its improper reliance on legislative history given the plain and unambiguous language of § 2(a), the section of the VRA governing the central "applicability" question before us. See Robinson 48 v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ("Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." (emphasis added)). The plain language of § 2(a) unambiguously applies to all "voting qualifications." 42 U.S.C. § 1973. A provision disqualifying incarcerated felons, listed among the provisions of the Massachusetts Constitution governing qualifications to vote, clearly constitutes a "voting qualification." Therefore, where it is alleged, as here, that this "qualification" is being applied "in a manner which results" in the denial of the right to vote on account of race, a cognizable VRA claim has been stated. Id. As the text of the statute unambiguously manifests its meaning, there was no need to go any further in order to conclude that plaintiffs have stated a cognizable claim under § 2 of the VRA. This is the reasoning upon which the Ninth Circuit decision, holding that an identical VRA claim had been stated in that Circuit, starts and ends. See Farrakhan, 338 F.3d at 1016 ("Plaintiff's claim of vote denial [resulting from Washington's felon disenfranchisement law] is cognizable under Section 2 of the VRA because `[f]elon disenfranchisement' is a voting qualification, and Section 2 is clear that any voting qualification that denies citizens the right to vote in a discriminatory manner violates the VRA" (emphasis added)).[28] As Judge Sotomayor similarly explained in her powerful dissenting opinion in Hayden: It is plain to anyone reading the Voting Rights Act that it applies to all `voting qualifications.' And it is equally plain that [the felon disenfranchisement provision at issue] disqualifies a group of people from voting. These two propositions should constitute the entirety of our analysis. 449 F.3d at 367-68; see also Johnson, 405 F.3d at 1247 (Barkett, J., dissenting) ("[Plaintiffs'] contention that Florida's felon disenfranchisement law effectively denies their right to vote because they are black is clearly encompassed by the plain language of the VRA."). The majority cannot dispute "the traditional rule that where the plain text of the statute is unmistakably clear on its face, there is no need to discuss legislative history." Succar v. Ashcroft, 394 F.3d 8, 31 (1st Cir.2005) (Lynch, J.) (quoting Sutton v. United Air Lines, Inc., 527 U.S. 471, 481, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999)). While the majority cites Nken v. Holder, ___ U.S. ___, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) for the general proposition that statutory interpretations turns on language as well as context, id. at 1756, neither Nken nor the case upon which it relies addressed a statute whose plain meaning is as evident and clear on its face as the one before us. In fact, contrary to the majority's contention, even with complicated statutory schemes like the VRA, courts have not hesitated to rely on the plain language of the text, where the text plainly answers the very question before them. See, e.g., Lopez v. Monterey County, 525 U.S. 266, 278-79, 119 S.Ct. 693, 142 49 L.Ed.2d 728 (1999); Chisom, 501 U.S. at 396, 111 S.Ct. 2354. There is simply no support in our precedent for disregarding so plain and unambiguous a statutory mandate based on nothing more than our own assumption that Congress did not mean what it said. See BedRoc Ltd., LLC, 541 U.S. at 183, 124 S.Ct. 1587 (explaining that absent ambiguity we are bound by the "preeminent canon of statutory interpretation [that] requires us to presume that [the] legislature says in a statute what it means and means in a statute what it says there" (internal quotation marks omitted)); United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 83, 53 S.Ct. 42, 77 L.Ed. 175 (1932) (quoting Hamilton v. Rathbone, 175 U.S. 414, 421, 20 S.Ct. 155, 44 L.Ed. 219 (1899) for proposition that legislative history may be resorted to in order "to solve, but not to create, an ambiguity" (emphasis added)); Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 8 (1st Cir.2007) (explaining that we "are not free to disregard the plain language of a statute and, instead, conjure up legislative purposes and intent out of thin air"). Though it is unable to point to any actual textual ambiguity, the majority nevertheless makes a conclusory assertion that "[t]he language of § 2(a) is both broad and ambiguous." Breadth, however, does not render a statute ambiguous. See BedRoc Ltd., LLC v. United States, 541 U.S. 176, 187 n. 8, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) ("Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction." (emphasis added & citation omitted)); Diamond v. Chakrabarty, 447 U.S. 303, 315, 100 S.Ct. 2204, 65 L.Ed.2d 144 (1980) ("Broad general language is not necessarily ambiguous when congressional objectives require broad terms."). Rather, "a statute is ambiguous only if it admits of more than one reasonable interpretation." United States v. Vidal-Reyes, 562 F.3d 43, 51 (1st Cir.2009) (quoting United States v. Godin, 534 F.3d 51, 56 (1st Cir. 2008)). But "[c]onspicuously absent from the majority opinion is so much as a hint of an intelligible reading under which [the felon disenfranchisement provision] is not a `voting qualification or prerequisite to voting or standard, practice or procedure.' (What else on earth could [the provision] possibly be?)". Hayden, 449 F.3d at 346 (Parker, J., dissenting). There is simply no reasonable interpretation of § 2 under which a felon disenfranchisement law would not be a "voting qualification or prerequisite to voting" actionable thereunder.[29] Given the clarity of the VRA language, which plainly encompasses the claim before us, the majority's resort to secondary sources to justify its contrary result constitutes a "radical abandonment of our longstanding precedents that permit resort to legislative history only when necessary to interpret ambiguous statutory text." Id. at 187 n. 8, 124 S.Ct. 1587. I cannot endorse this impermissible practice. But even if, for the sake of argument, I take up the majority's invitation to investigate history and context, I find that none of the evidence cited by the majority indicates 50 congressional intent to exclude felon disenfranchisement laws from § 2's purview so as to justify departing from the plain language of that provision. In fact, my reading of the legislative history is that it confirms the plain meaning of the text. One need not delve too deeply into the legislative history to discover that Congress enacted the Voting Rights Act of 1965 pursuant to its powers to enforce the Fifteenth Amendment for the "broad remedial purpose of `rid[ding] the country of racial discrimination in voting.'" Chisom, 501 U.S. at 403, 111 S.Ct. 2354 (quoting South Carolina v. Katzenbach, 383 U.S. 301, 315, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966)); see also Nw. Austin, 557 U.S. ___, 129 S.Ct. 2504, 2508-09.[30] At that time, although the Fifteenth Amendment guaranteeing the right to vote without regard to race or color had been in effect for nearly a hundred years, and thus, intentional discrimination was already prohibited, states continued to devise facially "neutral" devices such as gerrymandering, poll taxes, literacy tests and grandfather clauses, which, coupled with violence and intimidation, served to effectively bar minorities from access to the polls and preclude the Fifteenth Amendment's promise of racial equality in voting from becoming a reality. See Nw. Austin, 557 U.S. ___, 129 S.Ct. 2504, 2508-09 (describing "the first century of congressional enforcement of the [Fifteenth] Amendment" as a "failure" and noting the "creativ[ity] [of states] in `contriving new rules' to continue violating the Fifteenth Amendment" (quoting Katzenbach, 383 U.S. at 335, 86 S.Ct. 803)); Andrew L. Shapiro, Note, Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy, 103 Yale L.J. 537, 543 (1993). Accordingly, the text of the original § 2 "tracked, in part, the text of the Fifteenth Amendment." Bartlett v. Strickland, ___ U.S. ___, 129 S.Ct. 1231, 1240, 173 L.Ed.2d 173 (2009). While the legislative history of § 2 of the VRA is silent on the particular question of felon disenfranchisement, that history does clearly indicate that Congress intentionally kept § 2(a) as broad as possible because it found it "impossible to predict the variety of means that would be used to infringe on the right to vote" and wanted to encompass all such measures that states could devise. Johnson, 405 F.3d at 1243 (Wilson, J., concurring in part and dissenting in part); see also Katzenbach, 383 U.S. at 335, 86 S.Ct. 803 (noting that "Congress knew that some of the States ... had resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees" and that "Congress had reason to suppose that these States might try similar maneuvers in the future"); H.R. Rep. 89-439, at 10 (1965), reprinted in 1965 U.S.C.C.A.N. 2437 (1965) (describing how, "even after defeat resisters s[ought] new ways and means of discriminating," and, as a result, rejected the case by case approach that "too often ha[d] caused no change in result, only in methods."). Thus, Congress intentionally chose the expansive language "voting qualifications or prerequisite to voting, or standard, practice, or procedure" for § 2 so as to be "all-inclusive of any kind of practice" that might be used by states to deny citizens that right. Allen v. State Bd. of Elections, 393 U.S. 544, 566-67, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) (citing testimony from Senate Judiciary 51 Committee Hearings on the VRA).[31] As the Supreme Court has held, Congress intended the term "voting qualification" in § 2 to have the "broadest possible scope" and to reach "any state enactment which altered the election of a covered State in even a minor way." Id., 393 U.S. at 566-67, 89 S.Ct. 817.[32] "Criminal disenfranchisement is an outright barrier to voting that, like the poll tax and literacy test, was adopted in some states with racially discriminatory intent and has operated throughout our nation with racially discriminatory results." Shapiro, supra, at 543.[33] Thus, these laws were precisely the type of potentially discriminatory qualification that Congress intended to subject to scrutiny under the VRA. Yet the majority definitively concludes that the VRA of 1965 was not meant to allow such an action against any felon disenfranchisement law. The majority makes much of the fact that felon disenfranchisement was not specifically mentioned in the legislative history, but "it would be a strange canon of statutory construction that would require Congress to state in committee reports or elsewhere in its deliberations that which is obvious on the face of a statute." Harrison v. PPG Industries, Inc., 446 U.S. 578, 592, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980). It is also illogical to interpret silence as intent to exclude, given that the very purpose of § 2's broad language was to avoid reciting the various maneuvers that states 52 may devise in the course of their "unremitting and ingenious defiance." Katzenbach, 383 U.S. at 309, 86 S.Ct. 803. Rather, the VRA subjects all voting qualifications to scrutiny. In any event, if I were to read anything into that silence, I would reach the opposite conclusion. This is because felon disenfranchisement laws, which were undoubtedly among the mechanisms being employed by states throughout the post-reconstruction era to deprive minorities of the vote,[34] were inevitably within Congress's contemplation when drafting the VRA. Had Congress had intended to exclude this particular type of qualification from the reach of the statute, it could have done so explicitly. But Congress made no provisos to carve felon disenfranchisement laws out from the purposely "all inclusive" language of § 2(a). See Allen, 393 U.S. at 566, 89 S.Ct. 817. In this historical context, congressional silence suggests, if anything, that no such exclusion was intended. Moreover, through the 1982 amendments to the VRA, Congress expanded the remedial power of the Act even further by relieving plaintiffs of the burden of proving discriminatory intent. Overturning a Supreme Court case that held that the original Act contained such a requirement, see Mobile v. Bolden, 446 U.S. 55, 61, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), Congress, through the 1982 amendments, made clear that a violation of § 2 could be established by proof of discriminatory results. See Thornburg, 478 U.S. at 43-44, 106 S.Ct. 2752 (emphasis added) (reading the 1982 Amendment to the VRA as effectively overturning the Bolden requirement of showing purposeful discrimination); S.Rep. No. 97-417, at 27-28, 36-37 (1982), as reprinted in 1982 U.S.C.C.A.N. 177, 204-06, 214-15 (noting that the purpose of the Amendments was to repeal Bolden and to focus the judicial inquiry only into whether there exists equal access to electoral opportunity). Congress did so because it recognized the difficulty of proving deliberate and purposeful discrimination, and sought to ensure that "in the context of all the circumstances in the jurisdiction in question," any disparate racial impact of facially neutral voting requirements did not result from racial discrimination. S.Rep. No. 97-417 at 27. This "results test" was intended "to serve as a prophylactic against voting practicessuch as felon disenfranchisement ... adopted or retained due to intentional discrimination that would be difficult to prove in court." Daniel P. Tokaji, The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 S.C. L.Rev. 689, 722 (2006). And its Report accompanying the enactment of the 1982 amendments, the Senate endorsed statements made by the Attorney General during the original VRA hearings that the purpose of "Section 2 w[as][to] ban `any kind of practice ...' if its purpose or effect was to deny or abridge the right to vote on account of race or color." S.Rep. No. 97-417, at 17 (emphasis added). Given this history, it would be wholly incongruous with Congress's broad ameliorative intent to conclude, as does the majority, that where the particular voter qualification that results in racial discrimination happens to be a felon disenfranchisement law, in this eventuality only, does the VRA provide no relief and permit the discriminatory qualification to persist. To reach this unlikely result, the majority relies on assorted evidence of the widespread use and general sanction of felon disenfranchisement laws in various contexts. But all that any of this evidence actually shows is that felon disenfranchisement is not presumptively invalid, a proposition 53 as to which, after Richardson, 418 U.S. at 56, 94 S.Ct. 2655, there is no doubt. None of the majority's arguments support its conclusion that Congress intended to insulate such laws from scrutiny under § 2 of the VRA where they are alleged to effect a discriminatory result. Specifically, the evidence relied on by the majority includes (1) § 2 of the Fourteenth Amendment, (2) the legislative history of VRA § 4, and (3) Congressional endorsement of felon disenfranchisement generally. I will address each of these sources in turn. A. Section 2 of the Fourteenth Amendment The majority suggests that felon disenfranchisement somehow differs from other voting qualifications because the "power of the states to disqualify from voting those convicted of crimes is explicitly set forth in § 2 of the Fourteenth Amendment." But, looking at the text of that provision in context, it is by no means a grant of power to states to disenfranchise felons. See U.S. Const. amend. XIV, § 2. Rather, that provision simply states that disenfranchised felons, unlike other persons disenfranchised by the States, are to be included within the census for purposes of apportioning representatives.[35] The most that can be gleaned from this language is that by addressing the eventuality of "abridg[ment] ... for participation in ... crime," Congress contemplated that at least in some circumstances, felon disenfranchisement could exist. Thus, it merely implies that there is no per se ban on such laws. But VRA § 2 is targeted at precisely those voting qualifications that are not the subject of a per se ban. See S.Rep. No. 97-417, at 16 (explaining that under § 2 as amended in 1982, "electoral devices... per se would not be subject to attack under section 2. They would only be vulnerable, if, in the totality of circumstances, they resulted in the denial of equal access to the electoral process"). As plaintiffs do not allege that felon disenfranchisement laws are unlawful per se, but only as applied in Massachusetts, where they "result in a denial ... of the right ... to vote on account of race," 42 U.S.C. § 1973, there is absolutely no conflict between § 2 of the Fourteenth Amendment and allowing plaintiffs to challenge disenfranchisement laws under the VRA. In other words, that § 2 of the Fourteenth Amendment contemplates disenfranchisement as a potential qualification is unremarkable. As similarly emphasized by the majority, "[t]he criteria for eligibility to vote are defined by the states," and states have the power to fix all kinds of qualifications for voting, disqualifying felons included, but only where the exercise of that power "do[es] not contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed." Lassiter v. Northampton County Bd. Of Elections, 360 U.S. 45, 50, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959).[36] However, "[w]hile 54 a State may choose to disenfranchise some, all or none of its felons based on legitimate concerns, it may not do so based upon distinctions that have the effect, whether intentional or not, of disenfranchising felons because of their race." Hayden, 449 F.3d at 346 (Parker, J., dissenting) (quoting Baker, 85 F.3d at 937); see also Farrakhan, 338 F.3d at 1016 (noting that although, as a general matter, "states may deprive felons of the right to vote without violating the Fourteenth Amendment, ... when felon disenfranchisement results in denial of the right to vote ... on account of race or color, Section 2 affords disenfranchised felons the means to seek redress"). B. Legislative History of VRA § 4 To support its contention that Congress did not intend to include felon disenfranchisement laws within the scope of VRA § 2, the majority also relies on statements in the legislative history of § 4, claiming that § 4 "would not result in the proscription of the frequent requirement of States... that an applicant for voting ... be free of conviction of a felony." S.Rep. No. 89-162 (1965), as reprinted in 1965 U.S.C.C.A.N. 2508, 2562. This argument is deeply flawed. It is error to assume that a statement about one section of a statute applies to all other sections thereof. See Hayden, 449 F.3d at 352-53 (Parker, J., dissenting) (stating that legislative history of one section of an expansive statute such as VRA is "typically of no value" when attempting to understand another, entirely different, section). In fact, the Supreme Court has explicitly warned against doing so in the VRA context. Hall, 512 U.S. at 883, 114 S.Ct. 2581 ("To be sure, if the structure and purpose of § 2 mirrored that of § 5, then the case for interpreting §§ 2 and 5 to have the same application in all cases would be convincing. But the two sections differ in structure, purpose, and application."). This is especially true in the case before us given that the two provisions, § 2 and § 4, "differ in structure, purpose, and application." Id. Specifically, § 4 is a provision that categorically bans, in covered jurisdictions, the use of certain facially neutral tests or devices including literacy tests, educational requirements, and "any requirement that a person as a prerequisite for voting or registration for voting ... possess good moral character." See 42 U.S.C. § 1973b(a)(1)(A), § 1973b(c). In contrast, § 2 applies to "a broader range of practices than those `tests and devices' defined in Section 4." Johnson, 353 F.3d at 1306 n. 27. While § 4 applies only to "covered jurisdictions," and "imposes an outright ban on tests or devices," "§ 2(a), [applies nationally, and] creates a `results' test, which requires investigating and weighing numerous factors." Hayden, 449 F.3d at 353 (Parker, J., dissenting) (internal citation omitted); see also Nw. Austin, 557 U.S. ___, 129 S.Ct. 2504, 2508 (distinguishing § 2 of the VRA, which "operates nationwide ... [to] forbid[ ] any `standard practice or procedure' that `results in a denial or the abridgment of the right of any citizen ... to vote on account of race or color'" from § 4 and the remainder of the VRA which, "[r]ather than continuing to depend on case-by-case litigation ... 55 directly pre-empted the most powerful tools of black disenfranchisement in the covered areas." (emphasis added & internal citations omitted)). Thus, considering congressional statements about § 4 in the context of the provision at which they were addressed (§ 4), they signify nothing about the scope of what § 2 was intended to cover. Given § 4's absolute bar on "good moral character" tests, and the natural susceptibility of "moral character" being read as a proxy for criminal history, the statements upon which the majority relies merely clarify that the categorical bar on "good moral character" tests in § 4 should not be interpreted as also an outright ban on felon disenfranchisement. See Hayden, 449 F.3d at 364-65 (Calabresi, J., dissenting) ("[S]uch legislative statements simply make the uncontroversial point that felon disenfranchisement laws are not `good moral character' requirements within the meaning of § 4(c)."). In contrast, "section 2 addresses voting regulations that are not per se invalid under section 4 but nonetheless result in a racially disparate impact on voting rights." Thomas G. Varnum, Let's Not Jump to Conclusions: Approaching Felon Disenfranchisement Challenges Under the Voting Rights Act, 14 Mich. J. Race & L. 109, 136 (2008). Statements regarding § 4 thus provide no indication that Congress intended to insulate felon disenfranchisement laws from scrutiny under § 2 where it is alleged that the operation of a particular law results in the denial of the right to vote on account of race. See Johnson, 405 F.3d at 1249 (Barkett, J., dissenting) (noting that decision not to add felon disenfranchisement statutes to list of per se violations does not show intent to exempt these laws from the VRA); Hayden, 449 F.3d at 365 (Calabresi, J., dissenting) ("The fact that race-neutral felon disenfranchisement is permissible under § 4(c) tells us nothing at all about whether § 2 allows racially discriminatory felon disenfranchisement." (emphasis in original)). In support of its argument for applying § 4's legislative history to § 2, the majority suggests that, in light of § 4's limited applicability to "covered jurisdictions" with a history of discrimination, in contrast to § 2's nationwide reach, Congress could not have "permitted" felon disenfranchisement laws in covered jurisdictions, while "prohibiting" them in non-covered jurisdictions like Massachusetts. But this argument similarly misses the mark, precisely because it mischaracterizes the statute. To be sure, the majority's argument would be persuasive if § 2 categorically "prohibit[ted]" felon disenfranchisement laws in Massachusetts and other "non-covered" jurisdictions. But it does not. See S.Rep. No. 97-417, at 16. Nor does the VRA "permit" felon disenfranchisement laws, in "covered jurisdictions," or otherwise. Rather, § 2 uniformly imposes a "totality of the circumstances" test to all "voting qualifications," anywhere in the country, prohibiting them only in the event that they result in racial discrimination. There is nothing illogical about creating a per se ban on certain presumptively discriminatory qualifications in "covered jurisdictions" only, as was done in § 4, but also permitting scrutiny of all voting qualifications nationally, including felon disenfranchisement laws, to ensure that no particular qualification is discriminatory as applied under the particular circumstances. And that is precisely what Congress did through § 2. By exporting the legislative history of § 4 into the § 2 context, the majority ignores the very plausible interpretation that Congress intended § 2 to include felony disenfranchisement laws precisely because it chose to exclude them from § 4's list of categorically barred regulations. 56 While Congress did not seek to have felon disenfranchisement banned in all cases, it nevertheless intended that they be subjected, just like every other voting qualification anywhere in the country, to a "totality of the circumstances" test to assess whether they effectuate a discriminatory result. The fact that members of Congress were sufficiently cognizant of felon disenfranchisement laws to carve them out from the scope of § 4, yet made no such statements in regard to § 2, despite the intentionally broad language of that provision, indicates that Congress did not in fact intend a similar restriction in the § 2 context. See Vidal-Reyes, 562 F.3d at 53 (quoting United States v. Councilman, 418 F.3d 67, 73 (1st Cir.2005)) ("`[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.'").[37] Thus, as it stands, the legislative history of § 4 shows that while Congress did not intend to enact a blanket ban on felon disenfranchisement laws as a prohibited "moral character" requirement neither did it intend to exclude discriminatory laws from the scope of VRA scrutiny. C. Historical Legitimacy and Congressional Endorsement of Felon Disenfranchisement Law The remainder of the arguments in the majority opinion rely on Congress' sanctioning or presupposing the validity of felon disenfranchisement in various contexts, such as where (1) it has rejected proposals to outright bar felon disenfranchisement, either through the VRA or otherwise, and (2) endorsed disenfranchisement laws generally in the aftermath of the VRA. First of all, "subsequent legislative history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment." Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 170 n. 5, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (quoting Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118 n. 13, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980)). But more importantly, these arguments are entirely irrelevant to the question before us. Congressional refusal to pass categorical prohibitions on felon disenfranchisement or even its subsequent affirmation of the practice generally, is not inconsistent with Congress's clear intent to subject to scrutiny, through § 2 of the VRA, "any state enactment which altered the election law of a covered State in even a minor way." Allen, 393 U.S. at 566-67, 89 S.Ct. 817 (emphasis added). Congress may very well have decided not to bar felon disenfranchisement wholesale (as it did by omitting it from § 4) and may even have endorsed the practice where it was motivated by and served legitimate ends. But it may have nevertheless chosen, in order to make the guarantees of the Fifteenth Amendment meaningful, to restrict the adoption of this "qualification" in those cases where it is applied "in a manner which results" in the denial of the right to vote on account of race. This reading of the legislative history, which is consistent with the statutory text, is far more compelling than the majority's analysis. Ultimately, "the plainer the language, the more convincing contrary legislative history must be to overcome the natural purport of a statute's language." United 57 States v. U.S. Steel Corp., 482 F.2d 439, 444 (7th Cir.), cert. denied, 414 U.S. 909, 94 S.Ct. 229, 38 L.Ed.2d 147 (1973). I see a clear textual mandate, uncontradicted by any legislative history, that felon disenfranchisement laws, like all voting qualifications, may be challenged under § 2 of the VRA. "If the language of law is to have any meaning at all, then surely it must prevail over the kind of speculation that is entailed in such an enterprise as th[is] court[ ] ha[s] undertaken." United States ex rel. Siller v. Becton Dickinson & Co., 21 F.3d 1339, 1355 (4th Cir.1994). The plain language of the statute being as clear as it is, and the legislative history and purpose only bolstering that clarity, I cannot help but speculate that the majority is jumping through hoops to defeat the remedial purpose for which the provision was enacted in order to produce a result consistent with its own preference in policy. But "[t]he Fifteenth Amendment empowers `Congress,' not the [c]ourt[s], to determine in the first instance what legislation is needed to enforce it." Nw. Austin, 557 U.S. ___, 129 S.Ct. at 2513. And even if we "question the wisdom of Congress's decision to enact a statute that permits challenging felon disenfranchisement laws, we are judges, not policy-makers." Hayden, 449 F.3d at 348 (Parker, J., dissenting). "The duty of a judge is to follow the law, not to question its plain terms." Id., 449 F.3d at 368 (Sotomayor, J., dissenting). "I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created." Id. Finally, I see no constitutional issues posed by interpreting the VRA according to its language and consistent with its purpose, so as to encompass felon disenfranchisement laws. Rather, § 2 of the VRA is firmly within the scope of Congress's power to enforce the Reconstruction amendments, which includes the power to "enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct." Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 727-28, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003). Finding challenges to felon disenfranchisement laws to be cognizable under the VRA, I have no trouble concluding that the plaintiffs have stated a claim sufficient to preclude dismissal at this early juncture. Thus, I would affirm the district court's decision on this issue. II. Ex Post Facto Clause Claim The second issue raised on appeal, a question of first impression in this circuit, is whether the retroactive application of a felon disenfranchisement provision violates the Ex Post Facto Clause when it is applied to felons incarcerated for crimes committed prior to the provision's passage into law. The Ex Post Facto Clause "bars application of a law `that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed[.]'" Johnson v. United States, 529 U.S. 694, 699, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) (quoting Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798)); see U.S. Const. art. 1, § 10 ("No State shall ... pass any ... ex post facto Law."). Plaintiffs, incarcerated in Massachusetts for offenses committed prior to Article 120's enactment, contend that Article 120 is unconstitutional as applied to them because it subjects them to additional punishment not provided for by the laws of the Commonwealth when they committed the acts underlying their convictions. The majority affirms the dismissal of plaintiffs' claim on grounds that the deprivation of the right to vote, as accomplished by Article 120, does not constitute "punishment," and thus, falls outside the protections of the Ex Post Facto Clause. I 58 cannot agree. While disenfranchising convicted felons prospectively might be perfectly constitutional, I would hold that the disenfranchisement provision here is a punitive measure, which cannot be retroactively applied. "The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact." Cummings v. Missouri, 4 Wall. 277, 71 U.S. 277, 320, 18 L.Ed. 356 (1866). As the majority accurately explains, analysis of whether a particular enactment imposes retroactive punishment so as to implicate the Ex Post Facto Clause requires a two-part inquiry. The first part asks whether the challenged law has a civil, regulatory purpose, or whether it is intended to punish. See Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2002) (citing Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)). If a court finds that the law was intended to be punitive, then it constitutes "punishment" for purposes of the Ex Post Facto Clause and would violate the clause if retroactively applied. Id. However, if the law conveys a non-punitive, regulatory purpose, the court moves to the second part of the test to ascertain whether the law is "so punitive either in purpose or effect as to negate [the state's] intention to deem it civil." Id. (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). The ultimate question is "whether [Article 120] is intended to be, or by its nature necessarily is, criminal and punitive, or civil and remedial." United States v. One Assortment of 89 Firearms, 465 U.S. 354, 362, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984). While legislative purpose is not easily discernible given the unique procedural history of Article 120's enactment by popular referendum, I nevertheless find that a close look at the provision's language and history reveals that it was intended by its proponents to be a primarily punitive measure. Moreover, even if the primary intent behind the enactment of Article 120 could not be clearly identified,[38] I would find this disenfranchisement law to be so punitive in effect that it nevertheless constitutes a criminal punishment under the second prong of Smith. A. The Legislative Intent Was Punitive We first ask whether Article 120 was intended to be a civil or criminal measure. See Smith, 538 U.S. at 92, 123 S.Ct. 1140. Determining whether Article 120 was intended to be civil or criminal "`is first of all a question of statutory construction.'" Id. (quoting Hendricks, 521 U.S. at 361, 117 S.Ct. 2072). As this court has made clear, analysis of statutory construction "begin[s] with the language of the statute." Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 139 (1st Cir.2006) (quoting Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002)). Yet, in holding that Article 120 conveys a regulatory intent, the majority again departs from this well-established framework. The majority disposes of the first prong of Smith by citing Trop v. Dulles for the proposition that "felon disenfranchisement provisions are considered regulatory rather than punitive." See 356 U.S. 86, 94, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). But leaving aside the merits of this proposition for 59 the moment, the fact that disenfranchisement provisions are generally considered regulatory rather than punitive is not dispositive of what the Massachusetts voters and legislators intended here. Rather, the relevant questions are what Article 120's particular language says and if there are any inferences that can be drawn from its broader structure. See Smith, 538 U.S. at 92, 123 S.Ct. 1140 (instructing that we should first "consider the statute's text and its structure to determine the legislative objective"). "[C]onsiderable deference must be accorded to the intent as the legislature has stated it." Id. In this case, looking at the text of Article 120, there is no indication on the face of the provision of the legislative intent behind its enactment. Article 120, which was passed pursuant to a ballot question placed before Commonwealth voters, lacks any kind of express "statement of purpose" which legislation often includes, and none of its language reveals a particular government interest in felon disenfranchisement, either regulatory or punitive.[39] Instead, Article 120 merely lays out the substantive voting requirements, including the newly enacted exclusion of incarcerated felons. Beyond the language of the provision, it is possible that the "broader structure" of the provision may provide some indication of its purpose. Id. The majority relies on the placement of Article 120 within the Commonwealth's civil voter qualification provisions, rather than in its criminal code, to infer a regulatory purpose. But while manner of codification is certainly one factor relevant to ascertaining the nature of a provision, the Supreme Court has held that the "location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one," or vice versa. Smith, 538 U.S. at 94, 123 S.Ct. 1140; see also Trop, 356 U.S. at 94, 78 S.Ct. 590 ("How simple would be the tasks of constitutional adjudication and of law generally if specific problems could be solved by inspection of the labels pasted on them! Manifestly the issue of whether [a statute] is a penal law cannot be thus determined."). Rather, the Supreme Court instructs that "a penalty [] cannot be converted into [a non-penal measure] by so naming it," and we must "ascribe to [the particular statute] the character disclosed by its purpose and operation, regardless of name." United States v. Constantine, 296 U.S. 287, 294, 56 S.Ct. 223, 80 L.Ed. 233 (1935) (holding that even though labeled a "tax" on conducting retail liquor business, challenged statute was nevertheless a "penalty" designed to punish the violation of state liquor laws). Likewise, "even a clear legislative classification of a statute as `non-penal' would not alter the fundamental nature of a plainly penal statute." Trop, 356 U.S. at 95, 78 S.Ct. 590 (holding that a statute stripping army deserters of citizenship is a "penal law" despite its codification amidst the regulatory provisions of the "Nationality Act"); see also One Assortment of 89 Firearms, 465 U.S. at 364-65, 104 S.Ct. 1099 (holding a forfeiture provision to be a civil action despite its codification in the state's criminal code). It follows that the Commonwealth's authority to regulate voting requirements as part of its civil power does not, in and of itself, establish that Article 120 was intended as a regulatory measure. Moreover, any inference of legislative intent that could be drawn from the codification of Article 120 in a civil section of 60 Massachusetts' constitution is undermined by the fact that the Commonwealth was required to amend that constitutional provision, which governs voting qualifications generally, in order to disenfranchise felons. In addition, the subject matter of Article 120 is consistent not only with civil voting requirements, but also with criminal rules imposing an additional deprivation upon persons convicted of particular crimes and in the custody of the criminal justice system. In that sense, Article 120's broader structure implies both criminal punishment and civil regulation. In sum, neither the language nor the structure of Article 120 betrays a clear regulatory or punitive intent. Without a clear indication of intended purpose from Article 120 itself, we look to legislative history for evidence of legislative intent.[40]Rolland v. Romney, 318 F.3d 42, 48 (1st Cir.2003). Here, there are two helpful sources of legislative history public statements made by Massachusetts' politicians about a series of disenfranchisement proposals that ultimately resulted in Article 120,[41] and the "Information for Voters" Guide ("the Guide") that was distributed to voters at the law's ratification stage. First, the public statements of proponents of the legislation are quite revealing of the punitive motivation behind Article 120. Writing to the Massachusetts Legislature to propose an earlier version of the instant disenfranchisement law, Governor Cellucci argued that "the time has come to tell would-be criminals in Massachusetts that committing crimes has serious consequences."[42] He advocated for the proposal because it would "ensure that criminals pay their debt to society before they regain their right to participate in the political process." Governor Cellucci also argued in favor of disenfranchising incarcerated felons because "prisons are a place for punishment." Striking a similar tone, State Representative Paul Frost argued that prisoners "don't deserve to vote" and that "this is an issue about justice." Senator Guy Glodis advocated for the law by stating that "philosophically, no inmates deserve the right to vote." These comments, reflecting classic punitive rationales, see, infra, section II.B.4 (discussing traditional theories of criminal punishment), provide strong evidence that Article 120 was motivated by an intent to punish felons. As the majority recognizes, the Guide for voters regarding the ballot question 61 that culminated in the enactment of Article 120, is also relevant to deciphering legislative intent. The Guide stated that the proposal would change the law that "allows criminals to continue to exercise control over our lives by voting from prison." The majority found such language to indicate regulatory intent. I disagree. While this language is more ambiguous as to intent than anything else, it suggests to me another retributive statement about what felons "deserve," i.e. to have their right to participate in government revoked. See id. The Guide also stated that "[a] yes vote will protect democracy's greatest giftthe right to vote, by reserving it for the law-abiding." I believe this language is further evidence of the punitive principle of "just desert." In any event, the ambiguous indications of intent revealed by the Guide do not outweigh the plainly punitive comments by the measure's proponents. Confronted with potentially mixed manifestations of legislative purposeand I believe such a characterization is generous to the Commonwealth's positionthis court should decipher the law's "primary function." See Mendoza-Martinez, 372 U.S. at 169, 83 S.Ct. 554 (emphasis added). Whereas Article 120 itself is unclear as to intent, the Guide is also, at best, ambiguous, and the statements made by Massachusetts politicians are strongly indicative of punitive intent, I find that plaintiffs have made a compelling argument that the weight of the evidence of intent reveals Article 120 to have been intended primarily as a punitive measure. This punitive measure having been applied to plaintiffs retroactively, I believe that an Ex Post Facto violation could be found without further inquiry. But in an abundance of caution, I will proceed. B. The Effect of Article 120 Is Punitive Under the second prong of the Smith analysis, even if a clear punitive intent is not discernable for the challenged law, it would nevertheless constitute a criminal punishment subject to the Ex Post Facto Clause if the measure's effect is so punitive as to negate any intent to deem it civil. Hendricks, 521 U.S. at 361, 117 S.Ct. 2072 (citing Ward 448 U.S. at 248-49, 100 S.Ct. 2636). The majority correctly explains that, in order to gauge the actual effect of the law, this court reviews the seven factors described in Mendoza-Martinez: [ (1) ] Whether the sanction involves an affirmative disability or restraint, [(2)] whether it has historically been regarded as a punishment, [(3)] whether it comes into play only on a finding of scienter, [ (4) ] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [(5)] whether the behavior to which it applies is already a crime, [(6)] whether an alternative purpose to which it may rationally be connected is assignable for it, and [ (7) ] whether it appears excessive in relation to the alternative purpose assigned. See Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct. 554 (footnotes omitted). These factors, which are "neither exhaustive nor dispositive," serve as "useful guideposts." Smith, 538 U.S. at 97, 123 S.Ct. 1140 (citations omitted). I agree with the majority that, where the legislature has clearly stated a civil regulatory intent in enacting the challenged sanction, `"only the clearest proof' will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (quoting Ward, 448 U.S. at 249, 100 S.Ct. 2636). However, I disagree that plaintiffs should be held to that burden, in this case, 62 where the legislative intent is ambiguous at best. The Supreme Court has not resolved this particular question directly. However, where the legislature fails to make its intent clear through express language, or by implication through a law's broader structure, or even through legislative history, there is strong support for the proposition that a challenged law should be subjected to neutral evaluation when determining its effect. See Mendoza-Martinez, 372 U.S. at 169, 83 S.Ct. 554 (holding that, "[a]bsent conclusive evidence of congressional intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face"); Smith, 538 U.S. at 107, 123 S.Ct. 1140 (Souter, J., concurring) (distinguishing between cases where the legislative intent is clear and those where it is ambiguous, and rejecting the "clearest proof" burden where it is ambiguous). Accordingly, I would approach the application of the Mendoza-Martinez factors, without any starting presumption, to determine whether the actual purpose or effect of Article 120 is punitive. See Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct. 554. Applying the most relevant of these factors to the inquiry before us, I find that each of them weighs in favor of recognizing Article 120 to be a penal measure subject to the Ex Post Facto Clause. 1. Scienter & Criminality The third and fifth Mendoza-Martinez factors, "whether the challenged sanction comes into place only on a finding of scienter," and relatedly, "whether the behavior to which it applies is already a crime," weigh heavily in favor of concluding that Article 120 is a penal statute. See id. at 168, 83 S.Ct. 554. First of all, "the disciplinary sanction here [is] triggered by a criminal conviction which incorporate[s] a finding of criminal intent, and so the disciplinary sanction came into play `only on a finding of scienter,'" Porter v. Coughlin, 421 F.3d 141, 147 (2d Cir.2005) (quoting Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. 554). Similarly, as Article 120 applies only to persons who have already been convicted of a felony, "the behavior to which it applies is [undoubtedly] already a crime," as the fifth Mendoza-Martinez factor requires. Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. 554; see also Dep't of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 781, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) (noting that fact that a tax on marijuana was "conditioned on the commission of a crime" is "`significant of [its] penal and prohibitory intent'"). 2. History The second Mendoza-Martinez factor asks whether a particular sanction has "historically been regarded as punishment." Id. at 168, 83 S.Ct. 554. There is substantial evidence to this effect. First of all, federal courts have frequently characterized felon disenfranchisement as a punitive measure. In its decision in Johnson, the Eleventh Circuit described felon disenfranchisement laws as a "punitive device stemming from criminal law" and explained that "throughout history, criminal disenfranchisement provisions have existed as a punitive device." See 405 F.3d at 1228 & n. 5. Similarly, the Second Circuit has noted the "nearly universal use of felon disenfranchisement as a punitive device." Muntaqim v. Coombe, 366 F.3d 102, 123 (2d Cir.2004) (vacated en banc on other grounds). "Congress [has also] recognized the punitive nature of felon disenfranchisement laws." See Pamela A. Wilkins, The Mark of Cain: Disenfranchised Felons and the Constitutional No Man's Land, 56 Syracuse L.Rev. 85, 133-34 (2005) (describing how Congressional acts readmitting former Confederate States to the Union did so on the condition that 63 States prohibited disenfranchisement "except as a punishment for ... crimes"). This point is reinforced by renowned historian, Alexander Keyssar's review of voting rights in this country in which he unequivocally characterizes America's felon disenfranchisement laws as an intentionally punitive device. Id. (citing Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 316 (2000)). And the ALI's Model Penal Code, a compilation examining the penal law of the United States, labels prisoner disenfranchisement "an integral part of the criminal law." Model Penal Code § 306.3 (Proposed Official Draft 1962). This is strong evidence that, regardless of how a particular disenfranchisement provision is codified, the purpose of disenfranchising felons in American history has been to punish them for their crimes. There is also substantial evidence, presented by plaintiffs, of the historical use of felon disenfranchisement as a penal mechanism throughout the world. See Hayden, 449 F.3d at 315-16 (describing use of "civil death" laws in Medieval continental Europe, "attainder" laws in medieval England, and "infamy" laws in ancient Greece and Rome, all of which revoked political rights, including the right to vote, "as additional punishment for [certain] crimes"); Keyssar, supra, at 62-63 ("Disenfranchisement for [infamous] crimes had a long history in English, European, and even Roman law, and it [is] hardly surprising that the principle of attaching civil disabilities to the commission of crimes appeared in American law as well."). Although the district court dismissed this evidence as not relevant to disenfranchisement provisions in American history, that approach misreads this factor as used in Mendoza-Martinez. In fact, in Mendoza-Martinez itself, the Supreme Court explicitly relied on the history of citizenship deprivation in other countries in determining that the challenged law depriving draft evaders of citizenship was punitive in effect. See 372 U.S. at 168 n. 23, 83 S.Ct. 554 (discussing Roman and English societies' use of forfeiting citizenship as a punishment). Thus, evidence of the historical use of felony disenfranchisement laws both in this country and others is relevant, and both reveal the prevalent historic use of such laws as a penal mechanism. To refute the extensive evidence that disenfranchisement laws have been historically regarded as punitive, the majority cites one court decision that did not concern the disenfranchisement of felons, Trop. See 356 U.S. at 96-97, 78 S.Ct. 590. Trop does contain dicta suggesting hypothetically that "the purpose of [a felon disenfranchisement statute] is to designate a reasonable ground of eligibility for voting," id., but as dicta, that language is not binding upon us. See Wilkins, supra, at 102 (arguing that "Trop's discussion of disenfranchisement statutes was dicta and, therefore, does not excuse judges from the hard work necessary to analyze real disenfranchisement laws"). Trop also explains alternatively, that if "[disenfranchisement] were imposed for the purpose of punishing [an offender], the statute[ ] would be penal." 356 U.S. at 96-97, 78 S.Ct. 590. Moreover, that decision says nothing about how such laws have historically been regarded. In any event, the problem with relying on Trop's suggestion that felon disenfranchisement could be a "reasonable ground of eligibility for voting," is that Trop fails to reveal what legitimate purpose disenfranchisement serves that would render it a "reasonable ground." This failure to identify why disqualifying felons is a "reasonable ground" is particularly problematic in light of the fact that both cases cited by Trop for this proposition, Davis v. Beason and Murphy v. Ramsey, involve voting qualifications that 64 are no longer regarded as valid.[43] As several scholars argue, Trop was decided at a time when the government had virtually unrestricted power to regulate the franchise, prior to the Warren's court's curtailment of that power when it recognized the fundamental nature of voting rights. See Wilkins, supra, at 102-04; Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate Over Felon Disenfranchisement, 56 Stan. L.Rev. 1147, 1150-54 (2004). As such, scholars argue that the dicta in Trop regarding the regulatory nature of felon disenfranchisement laws was premised on an "outdated conception of voting rights," rendering its continued validity questionable. Wilkins, supra, at 102-04. Thus, seeing sparse evidence to the contrary, I am persuaded that the evidence cited by plaintiffs of the historical use of disenfranchisement weighs in favor of deeming the practice to be a punitive device. 3. Affirmative Disability or Restraint In light of this country's struggle for independence in pursuit of participatory democracy and the centrality attributed to the right to vote in our legal and political culture,[44] I am compelled to conclude that the deprivation of the franchise is an "affirmative disability or restraint" of the gravest sort. Yet the majority concludes otherwise. In support of its holding that felon disenfranchisement does not constitute criminal punishment, the majority concludes that Article 120 does not impose "any affirmative disability or restraint, physical or otherwise." To the extent the majority suggests that a restraint need be "physical" in order to resemble a punitive sanction, such a requirement simply does not exist. Rather, Smith discusses physical restraints as only one kind of possible restraint a criminal law might impose. Smith, 538 U.S. at 100, 123 S.Ct. 1140. In fact, our society regularly punishes wrongdoers without actually imposing physical restraints on them, most commonly, with criminal fines. And Supreme Court decisions tasked with applying the Mendoza-Martinez factors to ascertain the penal or regulatory nature of a particular sanction have regularly found non-physical sanctions to be affirmative disabilities or restraints. See, e.g., Kurth Ranch, 511 U.S. at 774, 114 S.Ct. 1937 (holding a tax on illegal drugs to be a punitive measure in part because it "allowed for sanctions by restraint of Debtors' property"). In fact, Mendoza-Martinez itself held a non-physical sanction, the deprivation of citizenship, 65 to constitute a sanction "essentially penal in character." The majority also argues that disenfranchisement during incarceration is not an affirmative disability because it is "not as enduring as permanent occupational debarment." See Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (1898) (holding that revocation of medical license does not violate the Ex Post Facto clause). But revoking a license to practice a particular profession is also not the deprivation of a fundamental right. In holding the revocation of citizenship rights to be punitive in Mendoza-Martinez, the Supreme Court emphasized that it is the "utmost import" and "value" of citizenship rights that renders their deprivation among the gravest of sanctions. Mendoza-Martinez, 372 U.S. at 160, 83 S.Ct. 554. Like citizenship itself, the right to vote, a fundamental component of citizenship, is certainly comparable in its utmost value and importance. Tashjian v. Republican Party, 479 U.S. 208, 217, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986) (noting that the right to vote is a fundamental right inherent in citizenship). It is the importance of the right to vote that renders the gravity of its deprivation so devastating a "disability." See Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ("The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strikes at the heart of representative government."); Igartúa-De La Rosa v. United States, 417 F.3d 145, 177 (1st Cir. 2005) (Torruella, J., dissenting) ("There are few countries in the world in which the right to vote is as exalted as it is in the United States."); McLaughlin v. City of Canton, 947 F.Supp. 954, 971 (S.D.Miss. 1995) (describing disenfranchisement as the harshest sanction imposed by a democratic society and noting that when one is "brought beneath its axe, the disenfranchised is severed from the body politic and condemned to the lowest form of citizenship, where voiceless at the ballot box the disenfranchised, the disinherited must sit idly by while others elect his civic leaders and while others choose the fiscal and governmental policies that will govern him and his family"). Disenfranchisement, though neither physical nor permanent, deprives U.S. citizens of a fundamental right, and as such, is undoubtedly an affirmative disability. 4. Traditional Aims of Punishment The fourth Mendoza-Martinez factor provides that a sanction is more likely punitive if "its operation will promote the traditional aims of punishmentretribution and deterrence." Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. 554; see also Bell v. Wolfish, 441 U.S. 520, 539, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (noting that the Supreme Court has established that "[r]etribution and deterrence are not legitimate nonpunitive governmental objectives" (emphasis added)).[45] Of course, the threat of being deprived of a fundamental right will, to a certain extent, always operate to deter a rational person from engaging in unlawful conduct.[46] But as the Supreme 66 Court has recognized, the deterrent effect of a sanction cannot be wholly dispositive of criminal punishment as all civil penalties have some deterrent effect. See Kurth Ranch, 511 U.S. at 777, 114 S.Ct. 1937. It is, however, in its retributive nature that felon disenfranchisement truly reveals its punitive colors. See Karlan, supra, at 1166 (arguing that "disenfranchisement really can be justified only under a retributive theory of criminal punishment"). In this sense, this factor also conclusively weighs in favor of the plaintiffs. As a form of retribution, "`[p]unishment is the way in which society expresses its denunciation of wrongdoing.'" Gregg v. Georgia, 428 U.S. 153, 184 n. 30, 96 S.Ct. 2909, 49 L.Ed.2d 859. The notion is that the offender "owes a debt to society" and "must now atone for his sins by suffering punishment for his transgression." Peter W. Low et. al., Criminal Law 2 (1982). "This ... conception of punishment ... makes primary the meting out to a responsible wrongdoer of his just deserts." H.L.A. Hart, Punishment and Responsibility, 158-59 (1968). Other scholars have characterized the retributive aim of criminal punishment as predicated upon the notion of restoring the status quo after an offender, by his contravention of the law, has usurped from his victim or from society generally, something to which he is not fairly entitled. See, e.g., Herbert Morris, Guilt and Innocence, 33-36 (1976) (characterizing punishment as restoring the fair distribution of benefits and burdens that is displaced when a person violates the rules that others have assumed, thereby gaining an unfair advantage); Jean Hampton, Retributivism and Its Critics (1992) (characterizing retributive punishment as a message that restores the prior status hierarchy between victim and offender which was violated by an offender's degradation of a victim's worth through criminality). In the context of the retributive purposes of criminal punishment, it becomes apparent how fundamentally intertwined criminal disenfranchisement laws generally, and Article 120 in particular, are with this punitive objective. The statement from Governor Cellucci's letter, referenced supra, that the disenfranchisement proposal would "ensure that criminals pay their debt to society" is the textbook articulation of the retributive theory. Similarly, Representative Frost's statement that felons do not "deserve to vote" is fundamentally linked to the retributive notion of "just deserts." And Representative Marini's promise that the law would apply to those who did "despicable things" is consistent with theory of retributive punishment as a means by which society expresses its moral denunciation of unlawful conduct. Moreover, even the statements contained in the Information for Voters guide, cited by the Commonwealth as evidencing a regulatory non-punitive purpose, in fact, reveal the opposite when considered in the context of criminal punishment theory. For example, the statement that Article 120 would change the law that "allows criminals to continue to exercise control over our lives by voting from prison," is consistent with Morris' and Hampton's notions of retributive punishment as a means of restoring the proper hierarchy between the offender and society, unfairly tipped in the offender's favor by his desecration of society's rules. By preventing offenders from benefitting further, at society's expense, 67 through their political participation, disenfranchisement helps to restore that lost equilibrium. Finally, felon disenfranchisement laws, by "deny[ing] the civic and human dignity of persons who have been convicted of doing wrong," are emblematic of the denunciatory function of criminal law. See Bell, 441 U.S. at 592-93 n. 26, 99 S.Ct. 1861 (Stevens, J., dissenting) (citing letter from Learned Hand to the University of Chicago Law Review). 5. Connection to Non-Punitive Purpose The sixth Mendoza-Martinez factor asks "whether an alternative purpose to which [the challenged sanction] may rationally be connected is assignable for it." 372 U.S. at 168-69, 83 S.Ct. 554. I note, as a threshold matter and as discussed above, that there was no legitimate non-punitive purpose expressly assigned to Article 120, and that the purpose of the statute as revealed by its legislative history is primarily punitive. But even if we were to speculate as to non-punitive rationales potentially assignable to the provision, I simply cannot agree with the majority that there is an "obvious rational non-punitive purpose for disenfranchisement." The reality is that "[c]ourts have been hard pressed to define the state interest served by laws disenfranchising persons convicted of crimes." Dillenburg v. Kramer, 469 F.2d 1222, 1224-25 (9th Cir. 1972) ("Appellee does not explain why disenfranchisement of those convicted of offenses that can result in confinement in state prison is `necessary' to vindicate any identified state interest."); see also Stephens v. Yeomans, 327 F.Supp. 1182, 1188 (D.N.J.1970) (striking down New Jersey felon disenfranchisement law because court "perceive[d] no rational basis for the... classification" of felons as a group that could not vote). My reading of the legislative history of Article 120, much of which indicates a punitive motivation, and the lack of a sufficient rational nexus to any non-punitive purpose, suggest that any purported regulatory motivations are, in fact, disingenuous. Moreover, the potential non-punitive rationales for felon disenfranchisement are, in many cases, now regarded as illegitimate grounds for restricting the vote, and as such, should not be credited. See Trop, 356 U.S. at 96, 78 S.Ct. 590 (holding that a statute is non-penal "if it imposes a disability, not to punish but to accomplish some other legitimate governmental purpose." (emphasis added)). That leaves criminal punishment as the only legitimate discernible "legislative aim" behind Article 120. I will consider, in turn, the various non-punitive justifications potentially assignable to Article 120 and explain why each cannot be rationally assignable to it. First, the majority suggests that the "obvious rational non-punitive purpose for disenfranchisement" is the concern about felons "exercis[ing] control over [people's] lives by voting from prison." But as explained supra, this concern actually boils down to the punitive sentiment that felons do not "deserve" to do so. Second, the Commonwealth argues, on appeal, that the purpose of Article 120, evidenced by its placement alongside other valid voter qualifications in the Massachusetts constitution, was to exempt from the franchise those persons "deem[ed] unfit to vote," such as minors, persons under guardianships, and persons convicted of corrupt election practices. That argument rests on the principle that, due to their lack of respect for the criminal law, felons, like minors and mentally incompetent persons, "have raised questions about their ability to vote responsibly," and therefore, "cannot be trusted" to do so. Given the absence of any reference to voter "competence" 68 in the legislative history of Article 120, and the weak connection between disenfranchising incarcerated felons and the alleged interest in responsible voting, I am inclined to dismiss this explanation as a pre-textual rationale masking a punitive purpose. See Hendricks, 521 U.S. at 371, 117 S.Ct. 2072 (Kennedy, J., concurring) ("If the object or purpose of the Kansas law had been to provide treatment but the treatment provisions were adopted as a sham or mere pretext, there would have been an indication of the forbidden purpose to punish."). This is because disenfranchising felons is both under and over-inclusive of this alleged rationale. It is under-inclusive because if persons who violate the law have shown that they cannot vote responsibly, then not only incarcerated felons, but all persons who commit any kind of crime should be disenfranchised, whether they are serving a custodial sentence or not. Moreover, all citizens who for any reason have shown themselves to be irresponsible voters should be disenfranchised as well. It is over-inclusive because some incarcerated felons, despite their prior transgressions, may have, through the rehabilitative elements of their sentence, developed great respect for society's rules. While it is true that "[a] statute is not deemed punitive simply because it lacks a close or perfect fit with the non-punitive aims it seeks to advance," Smith, 538 U.S. at 102-03, 123 S.Ct. 1140 (emphasis added), the connection here seems especially attenuated, especially in light of the fundamental right that is at stake. This suggests that the concern with felons being "unqualified" is "simply a fictional concern advanced to mask a punitive purpose." United States v. Brown, 381 U.S. 437, 446-47, 85 S.Ct. 1707, 14 L.Ed.2d 484 (White, J., dissenting). More importantly, I question whether the Commonwealth can rely on a felon's purported incapacity to vote responsibly as the "non-punitive rationale" for Article 120 given that neither the ability to vote responsibly nor respect for the existing law remain "reasonable ground[s] of eligibility for voting." See Trop, 356 U.S. at 96-97, 78 S.Ct. 590. Rather, the idea that a particular group may be disqualified from voting based on a lack of respect for existing criminal law now constitutes a form of viewpoint discrimination that has been expressly rejected. See, e.g., Romer, 517 U.S. at 634, 116 S.Ct. 1620 (see parenthetical, supra, n. 19); Dunn v. Blumstein, 405 U.S. 330, 354-56, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (rejecting durational residency requirements that rested on claims about the desirability of ensuring that citizens understood, and shared, community values before they were permitted to vote); see also Carrington v. Rash, 380 U.S. 89, 94, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) ("`Fencing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible."). Thus, according to one scholar, "contemporary voting rights doctrine casts a serious shadow on the central traditional non-penal justification for felon disenfranchisement: the claim that ex-offenders should not be permitted to vote because they lack the qualities of mind or character voters ought to possess." Karlan, supra, at 1152. Third, a similar analysis applies to the purported non-punitive "regulatory" purpose arbitrarily assigned to Article 120 by the district court. The district court suggested that prisoners are somehow unqualified to participate in the "participatory and collegial process" of "representative democracy" because they "have limited access to information and little opportunity to discuss issues with individuals who are not also being punished for breaking the law." Not only is this "inability-to-become-informed" rationale entirely absent 69 from the discussions motivating the enactment of Article 120, but it is simply not rationally connected with disenfranchising the entire convicted felon population, many of whom may very well have access to newspapers, media, and contact to outside visitors, as well as the leisure time to become politically informed, and thereby, even more knowledgeable voters than law-abiding persons on the "outside." But again, and more importantly, the Supreme Court has consistently rejected restrictions on the franchise in order to further "knowledgeable or intelligent voting." See, e.g., Dunn, 405 U.S. at 356, 92 S.Ct. 995. Thus, "[i]f neither good character nor intelligent use of the ballot nor support for existing criminal laws are generally permissible prerequisites for voting, then it would be perverse to rely on criminal convictions as evidence that individuals lack qualities that voters are not required to have." Karlan, supra, at 1155. "The obvious alternative is to conclude that disenfranchisement is indeed punitive and that if it is to be justified, it must be justified as a legitimate form of punishment, rather than as a species of political regulation." Id. Finally, that this "alternative purpose" factor of the Mendoza-Martinez analysis weighs in favor of deeming Article 120 a punitive sanction is bolstered by examining what has been found to constitute a "legitimate non-punitive purpose" in prior Mendoza-Martinez cases, and what has not. That examination reveals that those cases holding particular sanctions to constitute non-punitive regulatory measures have served far clearer and more substantial societal interests than the attenuated justifications provided for felon disenfranchisement. For example, in Hendricks, the state civil commitment law held to be non-punitive was intended to protect the public from dangerous mentally ill persons "likely to engage in `predatory acts of sexual violence.'" 521 U.S. at 350, 117 S.Ct. 2072. Similarly, Alaska's sexual offender registration requirement, held to be non-punitive in Smith, had the express purpose of "protecting the public from sex offenders" who "pose a high risk of reoffending." 538 U.S. at 93, 123 S.Ct. 1140; see also United States v. Salerno, 481 U.S. 739, 747, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (holding that preventative detention under Bail Reform Act, justified by the need to prevent "danger to the community," was regulatory and preventative, rather than punitive). On the other hand, the provision being challenged before us bears a far greater resemblance to the one at issue in Mendoza-Martinez itself. In Mendoza-Martinez, where "there was no reference to the societal good that would be wrought by the legislation," the Supreme Court concluded that "the obvious inference" was that "Congress was concerned solely with inflicting effective retribution upon this class of draft evaders and, no doubt, on others similarly situated." Mendoza-Martinez, 372 U.S. at 182, 83 S.Ct. 554; see also Trop, 356 U.S. at 97-98, 78 S.Ct. 590 (holding that statute stripping military deserters of citizenship rights cannot rationally be treated other than as a penal law). Finding no legitimate non-penal interest served by the legislation, the Supreme Court in Mendoza-Martinez did not go on to speculate as to potential alternative justifications. But even if it had, the conceivable legitimate non-penal justification for stripping an American of his citizenship rights for violating a criminal statute prohibiting the evasion of military service, as in Mendoza-Martinez and Trop, is no more substantial than the conceivable justifications for stripping a U.S. citizen of an essential component of those rights (i.e. voting), for violating another criminal statute. Of course, one could argue that by abandoning the obligations of 70 citizenship by evading the military obligations attendant thereto, a person shows that he is not "competent" to exercise the benefits and burdens of citizenship, just like one could argue that a person who breaches the criminal law shows that he is not competent to exercise the responsibility of aiding in its enactment. But the Supreme Court has refused to make this leap, and neither should we here. Given the similarities between the respective sanctions[47]deprivation of citizenship and deprivation of voting rightsthe lack of any clear non-punitive interest for either sanction, and the similar triggering event for the imposition of each, namely, violation of a criminal law, I think we are compelled by Mendoza-Martinez to hold Article 120 to be a penal measure. Finding Article 120 to be a penal measure, its constitutionality is subject to the constraints of the Ex Post Facto Clause, and violates that clause as retroactively applied to the plaintiffs. To be abundantly clear, I see nothing constitutionally impermissible about disenfranchising felons as a form of criminal punishment. Criminals who are convicted of serious offenses pursuant to a legitimate process are properly deprived by the state of a panoply of fundamental individual and civil rights. But "punishment" must be labeled what it is, and imposed only in compliance with the time-honored constitutional guarantees that legitimate the exercise of that practice. Central among these guarantees is the prohibition against the enactment of ex post facto laws. As Article 120 inflicts a greater punishment upon convicted felons than the law annexed to their crimes when committed, see Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798), I would invalidate its retroactive application. Thus, I would reverse the decision of the district court as to the ex post facto claim, and order that judgment be entered for plaintiffs. For the reasons herein stated, I respectfully dissent. NOTES [1] By "over-represented" the complaint referred to the representation of African-Americans and Hispanic-Americans in the prison population compared with their representation in the Massachusetts population at large, but gave no statistics. [2] Vote dilution claims comprise the vast majority of § 2 claims. See E. Katz et al., Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act Since 1982, 39 U. Mich. J.L. Reform 643, 650 (2005), available at http://sitemaker. umich.edu/votingrights/files/finalreport.pdf; D.P. Tokaji, The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 S.C. L.Rev. 689, 709 (2006) ("[I]t is clear that the overwhelming majority of Section 2 lawsuits since 1982 have involved claims of vote dilution and not vote denial."); see generally, Bartlett v. Strickland, ___ U.S. ___, 129 S.Ct. 1231, 1240-41, 173 L.Ed.2d 173 (2009) (plurality opinion). [3] The specific findings in the 1994 Commission Report, as stated in the pleadings, included that "racial minorities were underrepresented in jury pools selected from communities with large racial and ethnic populations; that Massachusetts courts are an unfriendly environment for people whose primary language is not English ...; and that minorities are underrepresented in [the] Massachusetts bar and bench." The 1994 Report itself goes on to say, as to sentencing, that it lacked the necessary data to "test [the] hypothesis" that "[r]acial and ethnic bias may influence sentencing decisions." The report did not conclude that any race bias resulted in minority defendants being sentenced as felons. [4] Plaintiffs served interrogatories and document requests on defendant William Galvin, Secretary of the Commonwealth, seeking data as to the effect of Article 120 on minorities. For example, plaintiffs requested through interrogatories information on all individuals who have been arrested in Massachusetts since 1985 by name, date of birth, Social Security Number, race, ethnicity, skin color, and/or alleged offense. Defendant replied saying defendant did not maintain such records and had no responsive information. [5] Despite the nomenclature of the defendant's motion on the VRA § 2 claim as a motion for judgment on the pleadings, in fact both sides brought additional undisputed materials to the court's attention. "In reviewing a motion [for judgment on the pleadings] under Rule 12(c) ... we may consider `documents the authenticity of which are not disputed by the parties; ... documents central to plaintiffs' claim; [and] documents sufficiently referred to in the complaint.'" Curran v. Cousins, 509 F.3d 36, 44 (1st Cir.2007) (alteration and omission in original) (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993)). [6] See Developments in the LawOne Person, No Vote: The Laws of Felon Disenfranchisement, 115 Harv. L.Rev.1939, 1942-49 (2002) (surveying state felon disenfranchisement statutes). This led the student law review note to comment: "The nation seems to be nearing a consensus that the presently incarcerated should not have the right to vote." Id. at 1942. [7] The SJC has also recognized that under Richardson states may disenfranchise felons. Dane v. Bd. of Registrars of Voters, 374 Mass. 152, 371 N.E.2d 1358, 1364 (1978) ("Disfranchisement of convicted criminals by State law was held by the ... Supreme Court in Richardson... not to violate the equal protection clause."). [8] There are philosophical reasons as well, such as that those who violate the laws so seriously have removed themselves from the Lockean notion of the social contract: The early exclusion of felons from the franchise by many states could well have rested on Locke's concept, so influential at the time, that by entering into society every man "authorizes the society, or which is all one, the legislature thereof, to make laws for him as the public good of the society shall require, to the execution whereof his own assistance (as to his own decrees) is due." A man who breaks the laws he has authorized his agent to make for his own governance could fairly have been thought to have abandoned the right to participate in further administering the compact. Green, 380 F.2d at 451. [9] In addition, plaintiffs contend § 2(a) must be read to be independent of § 2(b), which was added by the 1982 amendments. And even if § 2(b) is read as informing and restricting the meaning of § 2(a), plaintiffs submit, they have nonetheless stated a claim under the clear language of § 2(a). Plaintiffs alternatively argue that, to the extent § 2(b) may be considered, it only establishes a totality of the circumstances test for proving a violation of § 2(a) and in no way limits the scope of § 2(a). Plaintiffs argue that, to the extent § 4 and § 5 (which ban certain practices) are relevant, those later sections demonstrate only that Congress meant § 2(a) to be read broadly. If legislative history is consulted, they argue that the legislative history of § 2 establishes that their claim falls within Congress's intent in enacting § 2. [10] There are questions as to whether a claim of disparate impact is sufficient to state a § 2 vote denial case. See Johnson, 405 F.3d at 1235-37 (Tjoflat, J., concurring); see also Goosby v. Town Bd. of Hempstead, 180 F.3d 476, 499 (2d Cir.1999) (Leval, J., concurring); Nipper v. Smith, 39 F.3d 1494, 1524-25 (11th Cir.1994) (en banc); LULAC v. Clements, 999 F.2d 831, 859-63 (5th Cir.1993) (en banc). Whether a claim of mere disproportionality alone supports a "resulting" claim is not clear under § 2 and is a difficult question we need not reach. [11] Indeed, in re-admitting southern states to the Union following the Civil War, Congress approved new state constitutions containing felon disenfranchisement provisions. Richardson, 418 U.S. at 48-52, 94 S.Ct. 2655. [12] Plaintiffs rely heavily on the Court's statement, in a vote dilution case, that Congress intended "to give the Act the broadest possible scope," Allen v. State Bd. of Elections, 393 U.S. 544, 567, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) (interpreting the phrase "qualification... or procedure" in § 2(a)). This language in Allen must be understood in light of the Court's other statements in subsequent cases, including Bolden and Bartlett. [13] The 1965 legislative history indicates that Congress focused much more attention on the import of § 4 and § 5 than on § 2 of the VRA. [14] Congress continued to revisit the discriminatory tests or devices banned by § 4. Later VRA amendments extended the § 4 ban on literacy tests nationwide. See Voting Rights Act Amendments of 1970, Pub.L. No. 91-285, § 201, 84 Stat. 314, 315 (current version at 42 U.S.C. § 1973aa) (extending temporary ban to entire nation); Voting Rights Act Amendments of 1975, Pub.L. No. 94-73, § 201, 89 Stat. 400, 400-01 (current version at 42 U.S.C. §§ 1973b-1973c) (making the temporary nationwide ban permanent). Congress never changed its view that felon disenfranchisement laws were not within the reach of the VRA. [15] The 1975 Amendments to the VRA added protections for linguistic minorities and permanently banned literacy tests. 1975 Amendments §§ 203, 207, 89 Stat. at 401-02 (codified as amended at 42 U.S.C. §§ 1973b(f), 1973l(c)(3)). Nothing in those amendments indicated any intent to broaden the VRA to permit suits against state laws disenfranchising incarcerated felons. [16] The proposed amendment would have authorized "the Attorney General ... to institute in the name of the United States such actions against States ... including actions for injunctive relief, as he may determine to be necessary to implement the purposes of this title." Ex-Offenders Voting Rights: Hearing on H.R. 9020, supra, at 4 (quoting H.R. 9020, 93d Cong. (1973)). [17] Under Supreme Court and circuit precedent, we read both § 2(a) and § 2(b) together and resort to legislative history. The text of § 2(b) is explicit that its purpose is to give content and context to the terms used in § 2(a). The Supreme Court has interpreted both sections together. See Bartlett, 129 S.Ct. at 1241 ("The 1982 amendments ... added... § 2(b), providing a test for determining whether a § 2 violation has occurred."); Chisom, 501 U.S. at 395, 111 S.Ct. 2354 ("The two purposes of the amendment [to § 2] are apparent from its text. Section (a) adopts a results test.... Section (b) provides guidance about how the results test is to be applied."). This court's precedent also requires we read §§ 2(a) and 2(b) together and in light of history and context. See Metts, 363 F.3d at 10 ("The Delphic language of the [1982] amendment [to § 2] can be understood only against the background of its legislative history and subsequent Supreme Court interpretation."). [18] The context of the 1982 amendments confirms our understanding that § 2 was not amended in isolation from the rest of the statute and must be read in conjunction with the other sections, including § 4. The 1982 amendments to § 2 arose in the wake of Bolden because § 5 of the VRA was scheduled for reauthorization in that year by the terms of the 1975 VRA amendments. S. Issacharoff et al., The Law of Democracy 713-14 (rev.2d ed.2002). Indeed, in the House, most debate focused on the structure of the preclearance and bailout provisions of the VRA, while less attention focused on the § 2 amendments. Id. at 716; see also T.M. Boyd & S.J. Markman, The 1982 Amendments to the Voting Rights Act: A Legislative History, 40 Wash. & Lee L.Rev. 1347 (1983). [19] Congress was clear about its intent. The Senate Report states: This Amendment is designed to make clear that proof of discriminatory intent is not required to establish a violation of Section 2. It thereby restores the legal standards, based on the controlling Supreme Court precedents, which applied in voting discrimination claims prior to the litigation involved in Mobile v. Bolden. The amendment also adds a new subsection to Section 2 which delineates the legal standards under the results test by codifying the leading pre-Bolden vote dilution case, White v. Regester. See S.Rep. No. 97-417, at 2, reprinted in 1982 U.S.C.C.A.N. 177, 179; see also id. at 27, reprinted in 1982 U.S.C.C.A.N. at 205 ("The `results' standard is meant to restore the pre-Mobile legal standard which governed [vote dilution cases]."). [20] The Bolden plurality also held that the "language of § 2 [of the VRA] no more than elaborates upon that of the Fifteenth Amendment, and the sparse legislative history of § 2 makes clear that it was intended to have an effect no different from that of the Fifteenth Amendment itself." 446 U.S. at 61, 100 S.Ct. 1490. [21] We need not reach the question of whether this amendment was meant to reach other types of § 2 claims than vote dilution claims; even if so, the amendments were not meant to create a cause of action against imprisoned felon disenfranchisement laws. [22] The Civic Participation and Rehabilitation Act would have restored the voting rights of ex-felons, but not imprisoned felons, in federal elections. H.R. 906 was not drafted as an amendment to the VRA, but contained a savings clause clarifying that the measure operated in addition the VRA and the National Voter Registration Act. Civic Participation and Rehabilitation Act of 1999: Hearing on H.R. 906, supra, at 4. A number of recent unsuccessful bills are consistent with H.R. 906's proposal to restore the rights of only former felons. And even these have been flatly rejected by Congress. See, e.g., Democracy Restoration Act of 2008, S. 3640, 110th Cong. (2008); Democracy Restoration Act of 2008, H.R. 7136, 110th Cong. (2008); Count Every Vote Act of 2005, S. 450, 109th Cong. (2005); Ex-Offenders Voting Rights Act of 2005, H.R. 663, 109th Cong. (2005). [23] It is doubtful plaintiffs have articulated a viable § 2 direct denial theory, in any event. Plaintiffs have explained only that they think this claim falls within a broad reading of § 2, provided one ignores the text of § 4, the legislative history of the Act, and the purpose and context of § 2(b). But they have not explained even what their theory of liability is, what standards a court would apply, or what the components of a winning claim would be. This is the situation eight years after they filed suit and have had discovery from defendants. The most plaintiffs have suggested is that despite the self-evident racial neutrality of depriving all incarcerated felons from voting while imprisoned, there may be some causal connection between being incarcerated for felonies and their race. But the very 1994 Commission Report on which they rely concludes that no such connection was shown. More than that, it concluded that if one wished to see if such a connection could be shown, the data simply did not exist to permit the testing of the hypothesis. When plaintiffs asked the defendant officials in discovery for data which would presumably assist them, the defendants said they did not have and did not keep such data. There is nothing else. Even if one were to look more broadly at the Senate factors so often used in vote dilution cases, see S.Rep. No. 97-417, at 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-07, those factors do not aid plaintiffs. Further, given our disposition of the case, we need not reach the concerns raised by Judge Kozinski about the role of evidence of statistical disparities in § 2 challenges. Farrakhan, 359 F.3d at 1119 (Kozinski, J. dissenting from denial of reh'g en banc); see also Ricci v. DeStefano, ___ U.S. ___, 129 S.Ct. 2658, 2678, 174 L.Ed.2d 490 (2009) (reliance on threshold showing of a raw statistical disparity in test results is not strong evidence of disparate impact). [24] Some have commented on a "potential tension in the case law [because] ... section 2 [from 1982 onward] had been used almost entirely for vote dilution claims [while] [t]he felon disenfranchisement cases involve an older kind of claim involving access to the ballot itself; such cases involve not vote dilution but vote denial." S. Issacharoff et al., The Law of Democracy 140 (rev.2d ed. Supp. 2006); see Tokaji, supra, at 709 ("While Gingles and its progeny have generated a well-established standard for vote dilution, a satisfactory test for vote denial cases under Section 2 has yet to emerge .... [and] the Supreme Court's seminal opinion in Gingles ... is of little use in vote denial cases."); Karlan, supra, at 122 (["T]he second generation of voting rights activity address the problem of racial vote dilution rather than outright disenfranchisement."); A.A. Peacock, From Beer to Eternity, in Redistricting in the New Millennium 119, 125 (P.F. Galderisi ed., 2005) 119, 125 (same). [25] Compare Farrakhan v. Washington, 338 F.3d 1009 (9th Cir.2003) (holding that § 2 of the VRA applies to felon disenfranchisement statutes); Johnson v. Governor of Fla., 353 F.3d 1287 (11th Cir.2003) (same); Baker v. Cuomo, 58 F.3d 814 (2d Cir. 1995) (same); Howard v. Gilmore, No. 99-2285, 2000 WL 203984, at 1 (4th Cir. Feb.23, 2000)(assuming without expressly deciding that § 2 of the VRA applies to felon disenfranchisement laws and evaluating plaintiff's vote dilution claim thereunder); Wesley v. Collins, 791 F.2d 1255 (6th Cir. 1986) (same) with Hayden v. Pataki, 449 F.3d 305 (2d Cir.2006) (en banc) (reversing its previous decision and denying coverage under the § 2 of the VRA for felon disenfranchisement statutes); Johnson v. Governor of Fla., 405 F.3d 1214 (11th Cir.2005) (en banc) (same); Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996) (en banc) (dividing evenly on the question of whether felon disenfranchisement claim can proceed under § 2 the VRA, thus reinstating the district court decision dismissing the claim). [26] Among the non-exhaustive factors listed by the Senate as relevant to assessing the validity of a voter qualification is "the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process." S.Rep. No. 94-417, at 29 (1982), as reprinted in 1982 U.S.C.C.A.N. 177, 207. The ultimate inquiry, according to the Senate Report is "whether, in the particular situation, the practice operated to deny the minority plaintiff an equal opportunity to participate and to elect candidates of their [sic] choice." Id. at 30. The Ninth Circuit, applying this test, has explicitly held that evidence of racial bias in the criminal justice system is a relevant "social and historical condition" for purposes of the totality of the circumstances test, reasoning that "such discrimination would clearly hinder the ability of racial minorities to participate effectively in the political process as disenfranchisement is automatic." Farrakhan, 338 F.3d at 1020; see also Nipper v. Smith, 39 F.3d 1494, 1513-14 (11th Cir. 1994) (en banc) (holding that the existence of racial bias in the community is relevant to a § 2 claim). "Thus, racial bias in the criminal justice system may very well interact with voter disqualifications to create the kinds of barriers to political participation on account of race that are prohibited by Section 2." Farrakhan, 338 F.3d at 1020. [27] Notably, bearing on the question of plausibility of plaintiffs' claim, one scholar has found that an analysis of the factors inducing states to impose or eliminate felon disenfranchisement provisions concluded that "[s]tates with greater nonwhite prison populations have been more likely to ban convicted felons from voting than states with proportionally fewer non-whites in the criminal justice system." Angela Behrens, et al., Ballot Manipulation and the "Menace of Negro Domination": Racial Threat and Felon Disenfranchisement in the United States, 1850-2002, 109 Am. J. Soc. 559, 596 (2003). [28] The majority attempts to distinguish Farrakhan on the ground that the Washington provision at issue in that case was "not as narrow as this one." I, however, see no meaningful difference between disenfranchising felons until the completion of their sentences as under the Washington statute, or only while incarcerated, as in the case before us. In any event, the narrowness or breadth of a particular felon disenfranchisement scheme bears no relevance upon the question of whether challenges to these types of laws are cognizable under the VRA. [29] We acknowledge that § 2(b) of the VRA, containing a "totality of the circumstances" test for proving a violation of § 2(a), may require further interpretation. However, any ambiguity in § 2(b) is irrelevant to whether a felon disenfranchisement provision is a voting qualification governed by the Acta question which the plain language of § 2(a) unambiguously answers in the affirmative. See Robinson, 519 U.S. at 340, 117 S.Ct. 843 (identifying the relevant question as "whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." (emphasis added)). [30] Notably, despite its insistence on resorting to secondary sources to ascertain congressional intent, the majority places curiously little emphasis on the historical and policy considerations that prompted Congress to pass into law the very statute whose meaning it endeavors to ascertain. [31] Indicative of Congress's intent to give this prophylactic statute the broadest possible scope, it is notable that an earlier draft of § 2(a) used the slightly narrower language "qualification or procedure," but during Senate Hearings on the bill, one Senator expressed concern that the word `procedure' was not broad enough to cover all the various practices that might effectively be employed to deny citizens their right to vote. See Allen, 393 U.S. at 566-67 & n. 8, 89 S.Ct. 817 (citing legislative history). In response, the Attorney General said he had no objection to expanding the language of the section, to be all-inclusive. Id. Congress then expanded the language in the final version of § 2 to include any "`voting qualifications or prerequisite to voting, or standard, practice, or procedure.'" Id. (quoting 42 U.S.C. § 1973 (1964)). [32] In fact, in his concurrence in Holder v. Hall, Justice Thomas acknowledged that § 2 of the VRA was broadly phrased "with an eye to eliminating the possibility of evasion." 512 U.S. 874, 917, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994) (Thomas, J., Concurring). Although Justice Thomas argued for a more restrictive interpretation of the scope of § 2 than the majority of the Supreme Court had recognized, his more restrictive interpretation of the provision was as follows: [T]he specific items described in § 2(a) ... indicate that Congress was concerned in this section with any procedure, however it might be denominated, that regulates citizens' access to the ballotthat is, any procedure that might erect a barrier to prevent the potential voter from casting his vote. Id. (emphasis added). Surely, felon disenfranchisement laws, which outright bar a segment of the population from voting, fall into this expansive category. [33] See also George Brooks, Comment, Felon Disenfranchisement: Law, History, Policy and Politics, 32 Fordham Urb. L.J. 851, 858 (2005) (noting that "[f]elon disenfranchisement was sometimes used as a tool by the states to disenfranchise blacks" and citing examples of states passing laws "disenfranchising those convicted of what were considered to be `black' crimes, while those convicted of `white' crimes did not lose their right to vote"); Virginia E. Hench, The Death of Voting Rights: The Legal Disenfranchisement of Minority Voters, 48 Case W. Res. L.Rev. 727, 738 (1998) (describing how, during Reconstruction, in an effort to prevent African-Americans from voting, several states enacted felon disenfranchisement laws and "carefully selected disenfranchising crimes in order to disqualify a disproportionate number of black voters" and noting that "many of today's laws disenfranchising felons can trace their roots to attempts by Reconstruction constitutional conventions to enact laws that would keep black voters out of the electoral process"). [34] See, e.g., Shapiro, supra, at 543; Brooks, supra, at 858; Hench, supra, at 738. [35] In relevant part, that provision states as follows: Representatives shall be apportioned among the several States according to their respective numbers,.... But when the right to vote ... is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. U.S. Const. amend. XIV, § 2. [36] In fact, the majority's contrary interpretation of § 2 of the Fourteenth Amendment, i.e. that felon disenfranchisement is constitutionally protected and cannot be restricted, would result in a direct conflict between constitutional directives in that it is well-established that a felon disenfranchisement statute intended to discriminate against minorities are prohibited under § 1 of the Fourteenth Amendment. See Hunter v. Underwood, 471 U.S. 222, 229, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (holding Alabama's disenfranchisement for commission of petty crime or misdemeanor provision unconstitutional). The only reading of § 2 that respects the validity of Hunter and similar precedent is one that permits states to disenfranchise felons only where federal law does not otherwise preclude them from doing so. [37] While this rule, known as the expressio unius est exclusio alterius canon of construction, see Councilman, 418 F.3d at 73-74, is useful for evaluating the import of omissions and inclusions in statutory text, I believe its principle is equally persuasive with respect to express omissions and inclusions in the legislative history of a statute. [38] See Gabriel J. Chin, Are Collateral Sanctions Premised on Conduct or Conviction?, 30 Fordham Urb. L.J. 1685, 1686 (2003) (opining that "it is not always clear that the primary legislative motivation for a collateral sanction is civil rather than punitive, nor is it always a simple matter to discern the primary motivation"). [39] For an example of the kind of clear language "express[ing] the objective of [a] law in the statutory text itself," see Smith, 538 U.S. at 93, 123 S.Ct. 1140 (citing the Alaska Legislature's public safety interest in "protecting the public from sex offenders" as the basis for its sex offender registration provision). [40] It is surprising that, given its extensive reliance on statements in the legislative history to analyze the clear statutory language of the VRA, the majority only mentions legislative history briefly in its Ex Post Facto Clause analysis, even though the language and structure of Article 120 is actually ambiguous as to whether Article 120 was intended to be punitive or regulatory. While the majority states that it will consider certain comments made by Governor Cellucci, it never analyzes these or other comments by Article 120's proponents relevant to the legislative history of the provision. [41] The legislative process resulting in the passage of Article 120 is worth noting. A constitutional amendment initiated by a legislator must be approved by two successive joint sessions of the Massachusetts legislature and then ratified by Massachusetts voters. Commonwealth Mass. Const. Art. 49, Init., pt. IV, §§ 2-5. [42] I agree with the majority that, even though earlier proposals for felon disenfranchisement laws did not pass, their legislative histories are relevant here. These earlier proposals are nearly identical to Article 120, so the motivation for them is relevant evidence for the motivation behind Article 120. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 180, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963) (using the legislative history of earlier legislation when assessing the motivation of a law "quite obviously patterned on that of its predecessor"). [43] See Romer v. Evans, 517 U.S. 620, 634, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (holding that the decision of the Court in Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890), which upheld the disenfranchisement of polygamists on grounds that they advocate "practical resistance to the laws of the Territory" and "approve the commission of crimes forbidden by it" is "no longer good law" because "persons advocating a certain practice may [not] be denied the right to vote"). Murphy v. Ramsey, 114 U.S. 15, 5 S.Ct. 747, 29 L.Ed. 47 (1885), involved a suit similar to Davis in which the Supreme Court upheld a voting qualification disqualifying any "polygamist, bigamist, or any person cohabiting with more than one woman ..." from voting in Utah. Id. at 38, 42-43, 5 S.Ct. 747. Though Murphy was not expressly overruled by name, as was Davis in Romer, it is evident, given the similarity between the Davis and Murphy challenges, that neither decision continues to represent valid law. The rejection of this line of cases suggests that keeping "undesirable" persons, including felons, from voting is no longer a valid regulatory purpose. [44] See Werme v. Merrill, 84 F.3d 479, 482 (1st Cir. 1996) ("It is apodictic that the right to vote is a right that helps to preserve all other rights."). [45] See also Wilkins, supra, at 133 & n. 316 (noting that in his history of American suffrage, Alexander Keyssar characterized felon disenfranchisement laws as intentionally punitive, noting that "disenfranchisement, whether permanent or for an extended period, serves as retribution for committing a crime and as a deterrent to future criminal behavior"). [46] That some of Article 120's proponents considered this possibility is evident from statements such as that of Governor Celucci in his letter in support of the disenfranchisement amendment: The time has come to tell would be criminals in Massachusetts that committing crimes has serious consequences, not only in terms of prison time, but also in terms of the right to participate in deciding how society should be run. (Emphasis added). This language suggests that the proposal was intended to deter "would be" criminals from committing crimes. [47] See Nw. Austin, 557 U.S. at ___, 129 S.Ct. 2511 (describing "the right to vote" as "one of the most fundamental rights our citizens"); Tashjian, 479 U.S. at 217, 107 S.Ct. 544; Wolfish, 441 U.S. at 589-90 & n. 22, 99 S.Ct. 1861 (Stevens, J. dissenting) (noting that "[t]he withdrawal of rights is itself among the most basic punishments that society can exact, for such a withdrawal qualifies the subject's citizenship and violates his dignity" and citing disenfranchisement as the "classic example of the coincidence of punishment and the total deprivation of rights").	{ "pile_set_name": "FreeLaw" }
724 S.E.2d 517 (2012) STATE of North Carolina v. Aadil Shahid KHAN. No. 45A12. Supreme Court of North Carolina. April 12, 2012. Douglas E. Kingsbery, Raleigh, for Khan, Aadil Shahid. Laura Edwards Parker, Assistant Attorney General, for State of North Carolina. C. Colon Willoughby, Jr., District Attorney, for State of North Carolina. *518 ORDER Upon consideration of the petition filed by State of NC on the 2nd of February 2012 for Writ of Supersedeas of the judgment of the Court of Appeals, the following order was entered and is hereby certified to the North Carolina Court of Appeals: "Allowed by order of the Court in conference, this the 12th of April 2012."	{ "pile_set_name": "FreeLaw" }
UNITED STATES, Appellee v. Christopher A. GREATTING, Staff Sergeant U.S. Marine Corps, Appellant No. 07-0575 Crim. App. No. 200401945 United States Court of Appeals for the Armed Forces Argued January 16, 2008 Decided May 6, 2008 ERDMANN, J., delivered the opinion of the court, in which EFFRON, C.J., and BAKER and RYAN, JJ., joined. STUCKY, J., filed a separate dissenting opinion. Counsel For Appellant: Lieutenant Commander Kristina B. Reeves, JAGC, USN (argued); Lieutenant Commander M. Eric Eversole, JAGC, USN (on brief). For Appellee: Major Brian K. Keller, USMC (argued); Commander Paul C. LeBlanc, JAGC, USN, and Lieutenant Commander Jessica M. Hudson, JAGC, USN. Military Judge: R. S. Chester This opinion is subject to revision before final publication. United States v. Greatting, No. 07-0575/MC Judge ERDMANN delivered the opinion of the court. Staff Sergeant Christopher A. Greatting was the staff noncommissioned officer-in-charge of the K-9 Military Working Dog Section (K-9 Section) at Camp Pendleton. Consistent with his pleas at a general court-martial, Greatting was convicted of a number of charges arising from his supervision of the K-9 Section, as well as wrongful use of marijuana. At trial the defense moved for the military judge’s recusal because he had presided over four companion cases and had privately discussed certain aspects of those cases with the convening authority’s staff judge advocate (SJA). The motion was denied. The United States Navy-Marine Corps Court of Criminal Appeals affirmed the findings of guilty and the sentence. United States v. Greatting, No. NMCCA 200401945, 2007 CCA LEXIS 108, at 20, 2007 WL 1709533, at 8 (N-M. Ct. Crim. App. Mar. 29, 2007). We granted review to consider whether the military judge’s decision not to recuse himself was an abuse of discretion. 65 M.J. 345 (C.A.A.F. 2007). “[A] military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned.” Rule for Courts-Martial (R.C.M.) 902(a). Presiding over companion cases does not alone constitute grounds for recusal. United States v. Lewis, 6 M.J. 43, 45 (C.M.A. 1978). However, the ex parte discussion that 2 United States v. Greatting, No. 07-0575/MC took place between the military judge and the SJA prior to Greatting’s court-martial and while clemency matters and appeals in the companion cases were pending would lead a reasonable person to question the military judge’s impartiality. Considering the factors articulated by the Supreme Court in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988), we conclude that Greatting is entitled to relief. Accordingly, we reverse the Court of Criminal Appeals, set aside the findings and sentence, and authorize a rehearing.1 BACKGROUND As the staff noncomissioned officer in charge of the K-9 Section at Camp Pendleton, Greatting was responsible for ensuring that the handlers and the dogs were properly trained, that there were proper records to document the training, and that the kennel was run in accordance with applicable regulations and orders. Greatting and his subordinates worked together to falsify paperwork that certified the dogs had completed aspects of a training regimen that were never undertaken. 1 We also granted review as to whether the Court of Criminal Appeals erred by failing to afford meaningful relief after determining that Greatting was prejudiced by the denial of his due process right to a timely review and appeal. 65 M.J. 345 (C.A.A.F. 2007). In light of our resolution of this case on the recusal issue, we decline to reach that issue. 3 United States v. Greatting, No. 07-0575/MC In addition, with Greatting’s knowledge and consent, some members of the unit boarded unauthorized non-military dogs at the base kennel. One of these non-military dogs, a trained attack dog, was seriously injured when the dog handlers tried to control him. Due to the dog’s injuries, Greatting’s subordinates were required to put the dog down. Greatting subsequently lied to law enforcement agents about the dog, reporting that the dog was fine after he knew the dog had been killed. Four subordinate Marines in the K-9 Section were also convicted, consistent with their pleas, of charges arising from this conduct. All of the companion cases were heard before Judge C. Staff Sergeant Ruben Cadriel was convicted on April 16, 2003, at a general court-martial. In addition to charges arising from the operation of the K-9 Section, Cadriel was also convicted of assault and disobeying a superior commissioned officer. He was sentenced by Judge C to a bad-conduct discharge, confinement for four years, and reduction to E-1. On October 4, 2004, the convening authority approved the sentence, but suspended confinement in excess of seventy-five days pursuant to Cadriel’s pretrial agreement. The other three Marines were tried by special court- martial. Corporal Aaron L. Hutchings was convicted on July 1, 2003, Corporal Jamie A. Marmolejo on July 7, 2003, and Sergeant 4 United States v. Greatting, No. 07-0575/MC Christian M. Blue on September 10, 2003. Hutchings was sentenced to reduction to E-3. Marmolejo was sentenced to reduction to E-1 and hard labor without confinement for three months. Blue was sentenced to reduction to E-2 and confinement for seventy-five days. The convening authority approved Hutchings’s sentence on October 31, 2003. On February 6, 2004, the convening authority approved only the reduction in Marmolejo’s case. Blue’s sentence was approved on May 28, 2004. Greatting’s court-martial was convened on June 5, 2003 and he was arraigned on August 11, 2003. By the date of Greatting’s arraignment, the court-martial proceedings for Cadriel, Hutchings, and Marmolejo were completed, while Blue’s court- martial was still pending. The convening authority had yet to take action in any of the cases. At Greatting’s arraignment, Judge C informed the parties: I have detailed myself to this court-martial in my capacity as the Circuit Military Judge for the Sierra Judicial Circuit. . . . I will not be a witness for either side in this case, and I am not aware of any matters which I believe may be a grounds for challenge. However, I would note for the record that I did preside over the cases of United States vs. Cadriel, Hutchings, and Marmolejo, which are all, I believe, related cases to this case. Judge C asked if either side wanted to conduct voir dire or challenge his participation. Greatting’s defense counsel requested the opportunity to reserve both “given the fact that 5 United States v. Greatting, No. 07-0575/MC we do not know who is going to be the ultimate military judge, although you do have the assignment authority.” Judge C indicated that it was his intention to preside over the case but he would allow the defense to revisit voir dire and challenge at a later time. Greatting also reserved entering pleas at that time. Court-martial proceedings for the last of Greatting’s subordinates, Blue, concluded on September 10, 2003. About two weeks later, on September 23, 2003, Greatting signed a pretrial agreement, which was approved by the convening authority on September 30, 2003. The pretrial agreement provided, in part, that confinement in excess of fifteen months would be suspended, as would any forfeitures. Automatic forfeitures would be deferred for the benefit of Greatting’s wife. Greatting’s court-martial reconvened on October 30, 2003. Prior to Greatting entering his pleas, his defense counsel requested the opportunity to conduct voir dire of the military judge. Judge C acknowledged that the underlying events in this case were the same as the events in the four companion cases in which he had presided. While he agreed that the companion cases dealt with the purported role played by Greatting in the various offenses, he stated that he could not recall the specifics of each case or whether each case touched upon Greatting. Judge C went on to state: 6 United States v. Greatting, No. 07-0575/MC If I had to say, my recollection was that Staff Sergeant Cadriel had a greater involvement in what was going on, although some of the charges which aren’t here today, the accused is not going to plead guilty to today, involved drinking in the work spaces; and I believe Staff Sergeant Greatting was implicated in those cases that involved that allegation and was implicated in those as having approved that conduct as well as the falsification of certain records, the failure to train dogs and test them to certain standards. The defense counsel then asked Judge C whether he had discussed these cases with anyone other than a fellow military judge. Judge C responded that he had, as it was his practice to conduct post-trial critiques with counsel. He also stated that he talked to “the staff judge advocate and probably his deputy[,] not about [Greatting’s] case other than that it was coming, they mentioned it was coming, but about the other cases.” The military judge recounted his interaction with the SJA as follows: With respect to Cadriel, it was that I thought they sold the case too low given his culpability, his admissions in the Court, given the severity of his conduct, and the repercussions of his conduct on the junior Marines that were involved in the section, the security of this installation. . . . . I think I also mentioned following the other, as you indicated three cases and I think that’s right, the other three cases, that I felt given the level of culpability of Cadriel versus the younger Marines who were perhaps more guided or motivated by misguided loyalty to the two staff NCO’s that they worked for, I questioned the appropriateness of their being at a special court-martial. 7 United States v. Greatting, No. 07-0575/MC Judge C stated that he would not second-guess or presuppose what the pretrial agreement provided for in Greatting’s case and that he had no preconceived ideas of what the sentence should be. He said that he believed he would be able to put the other cases out of his mind and judge the case on the facts introduced in the proceeding before him. Following voir dire, the defense counsel moved for Judge C to recuse himself on the basis of implied bias under R.C.M. 902(a). The motion was denied. After Judge C accepted Greatting’s pleas and conducted a sentencing hearing, he sentenced Greatting to six months confinement, reduction to E-1, and a bad-conduct discharge. The confinement limitation of fifteen months in the pretrial agreement was therefore not triggered. The convening authority approved the sentence but reduced confinement to ninety days as an act of clemency. On appeal to the Court of Criminal Appeals Greatting argued, inter alia, that the military judge abused his discretion when he denied the motion to recuse himself. The lower court held that the military judge was not disqualified and did not abuse his discretion by presiding over the case. Greatting, 2007 CCA LEXIS 108, at 9-11, 2007 WL 1709533, at *4. 8 United States v. Greatting, No. 07-0575/MC DISCUSSION Before this court, Greatting renews his argument that Judge C abused his discretion in denying the motion to recuse himself. Noting that Judge C presided over four companion cases and provided advice to the SJA regarding the proper forums and sentences in those cases, Greatting contends that Judge C’s activities created the appearance that the military judge had become an advocate for the Government. As such, Greatting argues, Judge C’s actions created a reasonable question regarding his impartiality and he should have recused himself on the grounds of implied bias under R.C.M. 902(a). The Government responds that there was no implied bias and characterizes Judge C’s discussion with the SJA as a “personal and private conversation between two military officers regarding already completed courts-martial.” The Government goes on to contend that there was no risk to fairness or public perception because Greatting was the last of the coconspirators to enter pleas of guilty and sign a pretrial agreement, his adjudged sentence was far less than the next most culpable member of the conspiracy, and he received clemency resulting in only ninety days of confinement. “An accused has a constitutional right to an impartial judge.” United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001) (citation and quotation marks omitted). R.C.M. 902(a) 9 United States v. Greatting, No. 07-0575/MC provides that “a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned.” In reviewing a military judge’s ruling on a recusal motion, we consider the facts and circumstances under an objective standard. Butcher, 56 M.J. at 91. The test is whether there was “[a]ny conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned.” Id. (citation and quotation marks omitted). It has long been recognized that merely presiding over a companion case does not constitute grounds for disqualification. See Lewis, 6 M.J. at 45; United States v. Jarvis, 22 C.M.A. 260, 262, 46 C.M.R. 260, 262 (1973). Were that the sole issue before us, we would have no hesitation in affirming the action of the Court of Criminal Appeals. In this case, however, we are concerned about Judge C’s decision to provide an ex parte critique to the SJA “and probably his deputy” about the overall prosecution of the K-9 Section defendants at a time when court- martial proceedings had not yet commenced in one of the cases, and where clemency matters and appeals had not been completed in any of the cases. The Uniform Code Military Justice (UCMJ) and the Manual for Courts-Martial, United States give the convening authority significant power and discretion in proceedings related to 10 United States v. Greatting, No. 07-0575/MC trials by courts-martial. See Article 60, UCMJ, 10 U.S.C. § 860 (2000); R.C.M. 407; R.C.M. 705; R.C.M. 1107. The convening authority’s SJA is responsible for providing critical legal advice on these issues. Article 60(d), UCMJ; R.C.M. 105(a); R.C.M. 406; R.C.M. 1106; R.C.M. 1113(c)(1)(B). We have previously held that the nature of relationships between a military judge and non-judge members of the judge advocate community requires increased vigilance to ensure propriety: The interplay of social and professional relationships in the armed forces poses particular challenges for the military judiciary. Both before and after service in the judiciary, a judge advocate typically will serve in a variety of assignments as a staff attorney and supervisor. Such assignments normally include duties both within and outside the field of criminal law. In the course of such assignments, the officer is likely to develop numerous friendships as well as patterns of societal activity. . . . When assigned to the judiciary, the military judge frequently will find himself or herself in close and continuing contact with judge advocates outside the courtroom. . . . In light of these [and other] circumstances, members of the military judiciary must be particularly sensitive to applicable standards of judicial conduct. Butcher, 56 M.J. at 91. We have also recognized that: Ex parte contact with counsel does not necessitate recusal under R.C.M. 902(a), particularly if the record shows that the communication did not involve substantive issues or evidence favoritism for one side. However, an ex parte communication which might have the effect or give the appearance of granting undue advantage to one party cannot be condoned. 11 United States v. Greatting, No. 07-0575/MC United States v. Quintanilla, 56 M.J. 37, 79 (C.A.A.F. 2001) (citation and quotation marks omitted). We believe the same holds true when considering the propriety of ex parte contact between a military judge and an SJA. Here, a judicial officer provided case-specific criticism to the convening authority’s SJA and “probably his deputy” about companion cases. While clearly aware that Greatting’s case was coming to trial, Judge C told the SJA that the convening authority had sold Cadriel’s case “too low” and mentioned that the younger marines “were perhaps more guided or motivated by misguided loyalty to the two staff NCO’s that they worked for.” He provided this criticism in an ex parte conversation with the very individual responsible for advising the convening authority on all aspects of the K-9 Section cases, including the terms of pretrial agreements and clemency recommendations. And he did so before clemency matters had been resolved in any of the companion cases and possibly before the pretrial agreement in Greatting’s case had been finalized. Also, after commenting on the potential culpability of Greatting as one of the “two staff NCOs”, he later assigned himself Greatting’s case. In the circumstances of this case, we conclude that the military judge’s ex parte discussion with the SJA would lead a reasonable person, knowing all the circumstances, to the conclusion that the military judge’s impartiality might 12 United States v. Greatting, No. 07-0575/MC reasonably be questioned. We hold that he was obliged to recuse himself under R.C.M. 902(a) and that he abused his discretion by not doing so.2 Having found that the military judge abused his discretion by denying the recusal motion, we next consider whether relief is warranted. In making this determination we have relied on the factors set forth in Liljeberg, a case in which the Supreme Court considered whether reversal was warranted where a judge had erroneously failed to recuse himself under 28 U.S.C. § 455(a), the civilian equivalent of R.C.M. 910(a). 486 U.S. at 858-64; see Butcher, 56 M.J. at 92; see also Quintanilla, 56 M.J. at 80-81. These three factors are “the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process.” Liljeberg, 486 U.S. at 864. Greatting argues that relief is warranted because the conversation had a detrimental impact on his pretrial agreement to the extent it capped the maximum period of confinement at 2 Our consideration of this case is limited to the issue of implied bias under R.C.M. 902(a). We need not and do not reach questions of actual bias. Contrary to the suggestion of the dissent, therefore, our finding of error does not suggest that Judge C was specifically biased toward a harsh sentence in this case. United States v. Greatting, ___ M.J.___ (3) (C.A.A.F. 2008) (Stucky, J., dissenting). Nor have we assumed that Judge C approached the case with any sort of vengeful agenda. Id. at ___ (2-3). 13 United States v. Greatting, No. 07-0575/MC fifteen months, well beyond the seventy-five day maximum in Cadriel’s pretrial agreement.3 Greatting also argues that public confidence and future accused are at risk if the court condones a system that allows a military judge to interfere in the referral process and a convening authority’s decision to negotiate a pretrial agreement. In response, the Government contends that there is no risk of injustice to Greatting where his adjudged sentence of six months was lower than the confinement limitation of fifteen months provided for in the pretrial agreement, and where the military judge overruled Government objections to defense sentencing witnesses. The Government also contends that the fact that Greatting was the last to enter a pretrial agreement explains the disparity between the confinement term in his agreement and the confinement term in the pretrial agreements of his codefendants. The Government maintains that “[n]o reasonable person, apprised of the facts in this case and the companion cases, would believe that the judicial process did not work where [Greatting] pled guilty, presented sentencing 3 Greatting alleged in his brief that the pretrial agreement in each of the companion cases limited confinement to seventy-five days while Greatting’s agreement extended to fifteen months. Greatting does not point to evidence in the record to support this assertion. The convening authority’s discussion of the companion cases in Greatting’s court-martial order supports this assertion only as to Cadriel. 14 United States v. Greatting, No. 07-0575/MC evidence, and ultimately received an approved and executed sentence extending only to 90 days and a bad-conduct discharge.” Focusing first on fairness to the parties, we conclude that the conversation between Judge C and the SJA about the sentence limitations in Cadriel’s pretrial agreement could be seen to have had a negative impact on the terms of Greatting’s pretrial agreement. The record does not make clear exactly when the conversation took place, but it is apparent that the conversation could have occurred before the convening authority agreed to the terms of Greatting’s pretrial agreement. While other factors may well have contributed to the disparity between the two confinement caps, the record establishes a risk that the military judge’s conversation with the SJA adversely affected Greatting’s position in pretrial negotiations. As to the second factor, risk that denial of relief will produce injustice in other cases, we stated in Butcher that under the facts of that case it was “not necessary to reverse the results of the present trial in order to ensure that military judges exercise the appropriate degree of discretion in the future.” 56 M.J. at 93. Nevertheless, we do not believe that considerations under this factor caution us against awarding relief. As stated in Liljeberg, “providing relief in cases such as this will not produce injustice in other cases; to the contrary, [enforcing R.C.M. 902(a)] may prevent a 15 United States v. Greatting, No. 07-0575/MC substantive injustice in some future case by encouraging a [military] judge . . . to more carefully examine possible grounds for disqualification . . . .” 486 U.S. at 868. We now turn to the third factor, whether the circumstances of this case create the risk of undermining the public’s confidence in the judicial process. In an ex parte conversation with the SJA, Judge C criticized the manner in which the convening authority was handling the K-9 Section defendants, while Greatting’s case was pending and before the convening authority had considered clemency in any of the cases. Such interference by a judicial officer into matters entirely within the discretion of the convening authority is not only inappropriate, it gives the appearance that Judge C was aligned with the Government.4 This infringement was exacerbated when Judge C subsequently assigned himself to the Greatting case after he had commented on Greatting’s potential culpability. The Supreme Court recognized in Liljeberg that we “must continuously bear in mind that to perform its high function in the best way justice must satisfy the appearance of justice.” 486 U.S. at 864 (citation and quotation marks omitted). The conduct of Judge C in this case has created the risk of 4 There is a significant difference between a military judge conducting a post-trial critique of trial counsel’s performance and a military judge critiquing the convening authority’s actions in prior companion cases and commenting on the potential culpability of a defendant in an upcoming case. 16 United States v. Greatting, No. 07-0575/MC undermining the public’s confidence in the military justice system. Under the Liljeberg factors, Greatting is entitled to relief. DECISION The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed. The findings of guilty and sentence are set aside. The record of trial is to be returned to the Judge Advocate General of the Navy and a rehearing is authorized. 17 United States v. Greatting, No. 07-0575/MC STUCKY, Judge (dissenting): The majority finds prejudicial error in the military judge’s private conversation with the staff judge advocate (SJA) about four already-completed cases and sets aside the findings and sentence pursuant to the multi-factor analysis of Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988). Because I would find no error or, alternatively, find any assumed error not prejudicial under Liljeberg, I respectfully dissent.1 The conversation between the military judge and the convening authority’s SJA neither concerned Appellant’s case nor gave any indication of a lack of impartiality by the military judge. The military judge admitted talking “with the staff judge advocate and probably his deputy[,] not about [Appellant’s] case other than that it was coming . . . but about the other cases.” In particular, he told the SJA that With respect to Cadriel, it was that I thought they sold the case too low given his culpability, his admissions in the Court, given the severity of his conduct, and the repercussions of his conduct on the junior Marines that were involved in the section, the security of this installation. . . . . 1 Trial defense counsel requested recusal based on the military judge’s “extensive exposure to the related cases and the nature of that exposure.” As the majority correctly notes, however, presiding over companion cases does not, without more, constitute grounds for recusal. United States v. Lewis, 6 M.J. 43, 45 (C.M.A. 1978). United States v. Greatting, No. 07-0575/MC . . . [F]ollowing my adjourning the Court, the defense counsel and the accused were high-fiving in the back of the courtroom and I felt that very inappropriate, unprofessional, and displayed a lack of remorse I thought on behalf of the accused in that particular case, and that was the Cadriel case. I think I also mentioned following the other . . . three cases . . . , that I felt given the level of culpability of Cadriel versus the younger Marines who were perhaps more guided or motivated by misguided loyalty to the other two staff NCO’s that they worked for, I questioned the appropriateness of their being at a special court-martial. The military judge also assured trial defense counsel that he could decide Appellant’s case fairly, based on the facts presented at Appellant’s court-martial alone. These statements fall into two categories, neither of which has the effect or gives the appearance of granting an undue advantage to one party in Appellant’s court-martial. United States v. Quintanilla, 56 M.J. 37, 79 (C.A.A.F. 2001). First, the military judge’s critique of trial defense counsel’s inappropriate conduct can hardly be considered error, let alone illustrative of prejudice. Indeed, a military judge has a duty under the Rules of Professional Conduct to advise an SJA of the unprofessional conduct of junior attorneys. See Dep’t of the Navy, Judge Advocate General Instr. 5803.1C, Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General, Enclosure (1): Rules of Professional Conduct Rule 8.3 (Nov. 9, 2004). Second, to 2 United States v. Greatting, No. 07-0575/MC suggest that the military judge’s comments about Staff Sergeant (SSgt) Cadriel’s relatively low sentence evidenced a bias toward a harsh sentence in Appellant’s case ignores civilian defense counsel’s concession that no actual bias existed in this case and assumes a perverse willingness on the part of the military judge to use Appellant’s court-martial to avenge a perceived failing in SSgt Cadriel’s case. I am aware of no case law supporting the proposition that a private conversation such as the one in this case constitutes grounds for recusal. In re Boston’s Children First, 244 F.3d 164 (1st Cir. 2001), and United States v. Cooley, 1 F.3d 985 (10th Cir. 1993), cited by Appellant, are inapposite. Both cases involved judges who commented on pending cases through the national media. Children First, 244 F.3d at 166 (letter to the editor of the Boston Herald); Cooley, 1 F.3d at 990 (television interviews, including one with Barbara Walters). The military judge in this case spoke to the convening authority’s SJA in private and restricted his comments to matters no longer before him. Before today, such actions were not, to my knowledge, even considered inappropriate, let alone grounds for recusal.2 2 I do not question that it might have been better practice for the military judge to have limited his comments to the arguably improper behavior of counsel, and kept his comments regarding sentencing in other cases to himself. However, the question before us is whether recusal was required, and I cannot find it was on these facts. 3 United States v. Greatting, No. 07-0575/MC Even assuming arguendo that the military judge abused his discretion by not recusing himself, I would decline to reverse for want of prejudice. While the majority correctly notes that Liljeberg requires us to assess (1) the risk of injustice to the parties in the particular case, (2) the risk that denial of relief will produce injustice in other cases, and (3) the risk of undermining the public’s confidence in the judiciary, I do not find the majority’s analysis persuasive. Liljeberg, 486 U.S. at 864. The risk of injustice to Appellant is minimal. Appellant, after all, pled guilty, and providently so, and the military judge handed down a sentence with confinement of less than half the limitation in Appellant’s pretrial agreement (PTA). The majority concedes that the disparity between the confinement cap in Appellant’s case and those in the companion cases may have resulted, in part, from the fact that Appellant was the last to enter a PTA. Together with its failure to provide any evidence that the military judge’s conversations with the SJA influenced the convening authority’s decision to agree to the terms of Appellant’s PTA, these facts make the majority’s conclusion that Appellant faced a significant risk of injustice highly dubious. Furthermore, not reversing this case will not produce injustice in other cases. This Court clearly stated in United States v. Butcher, 56 M.J. 87 (C.A.A.F. 2001), that “[i]t is not 4 United States v. Greatting, No. 07-0575/MC necessary to reverse the results of the present trial in order to ensure that military judges exercise the appropriate degree of discretion in the future.” Id. at 93. This prong essentially asks us to consider whether a lack of reversal would encourage similar conduct in the future. The facts of this case are so distinct and innocuous –- private conversations about already-completed trials –- that I very much doubt that they could encourage any pattern of undesirable behavior. Finally, the public’s confidence in the military justice system will likely not be undermined by the military judge’s conduct in this case. Given the guilty plea and the lenient sentence, no reasonable person could view the entire facts of this case and see bias and, as such, no reasonable person could see this case as a taint on the image of the military judiciary. Therefore, since I would find no error, and any assumed error does not warrant relief under the applicable standard, I respectfully dissent. 5	{ "pile_set_name": "FreeLaw" }
49 F.2d 886 (1931) SUN RAY GAS CORPORATION et al. v. BELLOWS-CLAUDE NEON CO. et al. No. 5644. Circuit Court of Appeals, Sixth Circuit. May 12, 1931. Kwis, Hudson & Kent, Lloyd L. Evans, and A. J. Hudson, all of Cleveland, Ohio, and George F. Scull, of New York City, for appellants. Harold Elno Smith, of Cleveland, Ohio, and William Bohleber, of New York City (Smith & Freeman, of Cleveland, Ohio, and Francis H. Fassett, of Dayton, Ohio, on the brief), for appellees. Before DENISON, HICKS, and HICKENLOOPER, Circuit Judges. HICKENLOOPER, Circuit Judge. Appellants urge the invalidity of claim 1 of patent No. 1,125,476, for a "system of illuminating by luminescent [neon] tubes" (issued January 19, 1915, upon application of Georges Claude), upon the ground of insufficient disclosure in the specification upon the allegedly essential and all-important subject of pressure; and because the claim, printed in the margin,[1] has used what is said to be a meaningless ratio as descriptive of the size of the electrodes. It is also claimed that the appellants' tubes do not infringe, in that electrodes of the cap type are used, and these are said not to be "internal electrodes" nor to have been specifically "deprived of occluded gases," and because the neon is said not to be "previously purified." We shall consider first the contention of noninfringement. It is true that Claude disclosed in his specification a method of purifying the neon gas "on the spot," or when and as the tube was exhausted and then partially filled (to less than atomspheric pressure) with said gas, and that defendants do not use that method for securing a practically pure neon content for their tubes. But this method of purification was not, we think, of the essence of Claude's invention. He was vitally interested in securing a pure neon content, and to this end it was probably necessary that he describe a method by which this could be accomplished. He has described such a method. At that time neon gas was just coming into commercial production, as a by-product of the liquification of air, and the various pumping apparatus for producing vacuum were much less efficient than they are today. A 887 practically complete vacuum can now be produced, and a substantially pure commercial neon can then be admitted to the tube, thus dispensing with the necessity of Claude's scavenging process. We feel constrained to construe the words "containing previously purified neon" as descriptive only of the state or degree of purity of the neon gas after introduction into the tube and when such tube is ready for operation. In other words, the claim calls for the tube after complete construction and as ready for operation, and one descriptive element is a content of a substantially pure neon. Viewed in the above light, the phrase "said electrodes being deprived of occluded gases" also operates to the same general end, although it is directed not so much to the initial purity of the neon as to the provision for a continuance of that purity and an avoidance of contamination through the subsequent release of occluded gases. Neither of the clauses above discussed may be regarded as requiring more than that, when completed, the tube shall contain, and shall continue to contain during operation, a substantially and operatively pure neon. It is therefore immaterial that the defendant does not use the methods disclosed by Claude for purifying its neon or for removing the occluded gases from the tube and electrodes. We are also of the opinion that the defendants' electrodes are within the call of the claim for "internal electrodes." It may well be that the cap electrodes are an improvement upon the cylindrical type, open at opposing ends, and that the fact that there were, or might be, more useful designs and shapes for the electrodes than the cylindrical and plate types then in common use, may not have occurred to the mind of Claude, but we think that he intended to distinguish only between those electrodes (of carbon, graphite, or metal) which came into immediate contact with the gas, and which were directly connected with conductors for the electric current, and electrodes which were external to the tube, did not contact with the gas, and operated by induction. It is obvious that the defendant's cap electrodes fall within the former and not the latter of the two types. A somewhat more difficult question is presented by the contention that the disclosure upon the subjects of pressure and volume of the neon is wholly insufficient to enable one, even though as of that time to be considered skilled in the art, to practice the invention; and that, except as regards certain pressures, the ratio of at least 1.5 square decimeters of electrode surface per ampere is wholly meaningless. Both contentions are based upon the provisions of Rev. St. § 4888 (35 U. S. C. § 33 [35 USCA § 33]), that the specification shall contain "a written description of the (invention) * * in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound, and use the same; * * * and he [the applicant or patentee] shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery." Definiteness is expressly required both in the description and the claims. But by the terms of the act also the specification is addressed to those "skilled in the art," and a specification should be held sufficient if a mechanic skilled in such art, with the specification and drawings before him, and without the necessity of further experiment itself of an inventive nature, can construct and practice the invention of the patent. O'Reilly v. Morse, 15 How. 62, 118, 119, 14 L. Ed. 601; Tyler v. Boston, 7 Wall. 327, 330, 19 L. Ed. 93; Loom Co. v. Higgins, 105 U. S. 580, 585, 26 L. Ed. 1177; The Incandescent Lamp Patent, 159 U. S. 465, 474, 475, 16 S. Ct. 75, 40 L. Ed. 221; Minerals Separation, Ltd., v. Hyde, 242 U. S. 261, 271, 37 S. Ct. 82, 61 L. Ed. 286; Beidler v. U. S., 253 U. S. 447, 453, 40 S. Ct. 564, 64 L. Ed. 1006; Eibel Co. v. Paper Co., 261 U. S. 45, 66, 43 S. Ct. 322, 67 L. Ed. 523; American Lava Co. v. Steward, 155 F. 731, 736 (C. C. A. 6), affirmed 215 U. S. 161, 30 S. Ct. 46, 54 L. Ed. 139; and Featheredge Rubber Co. v. Miller Rubber Co., 259 F. 565, 570 (C. C. A. 6), are a few of the many authorities establishing the rule of decision in such cases. In some of the above authorities the claims were held void for vagueness or insufficiency of the description; in others the description was held adequate. The difficulty is not with the rule, but with its application, and in applying it due regard must be given to the collateral principles that the claims measure the invention (Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 510, 37 S. Ct. 416, 61 L. Ed. 871, L. R. A. 1917E, 1187, Ann. Cas. 1918A, 959; Paper Bag Patent Case, 210 U. S. 405, 419, 28 S. Ct. 748, 52 L. Ed. 1122; McClain v. Ortmayer, 141 U. S. 419, 424, 12 S. Ct. 76, 35 L. Ed. 800), that such claims should be liberally construed so as to uphold and not destroy the right of the inventor, especially in the 888 case of a generic invention (Temco Co. v. Apco Co., 275 U. S. 319, 48 S. Ct. 170, 72 L. Ed. 298), and that a claim is not invalidated by the omission of that which is immaterial, well known, described in the specification, or easily supplied by one skilled in the particular art. That which is, and was understood to be, necessary to make the claim operative may then be implied therein, provided always that the description of the claim and specification is sufficient to meet the requirements of the phase of the rule first above discussed. Cf. Westinghouse v. Boyden Power Brake Co., 170 U. S. 537, 558, 18 S. Ct. 707, 42 L. Ed. 1136; Deering v. Winona Harvester Works, 155 U. S. 286, 302, 15 S. Ct. 118, 39 L. Ed. 153; Loom Co. v. Higgins, supra; Jones v. Evans, 215 F. 586 (C. C. A. 7); Crown Cork & Seal Co. v. Sterling Cork & Seal Co., 217 F. 381 (C. C. A. 6). In each such case one must seek to determine, primarily, just what it was that the inventor conceived and sought to describe and patent (cf. Mossberg v. Nutter, 135 F. 95, 99 [C. C. A. 1]); and, if the claims when construed in the light of the specification and prior art disclose a meritorious invention, a truly valuable advance step in the art, courts will go as far as possible in upholding such claims. Cf. Permutit Co. v. Wadham, 13 F.(2d) 454 (C. C. A. 6); Cincinnati Cadillac Co. v. English & Mersick Co., 18 F.(2d) 542 (C. C. A. 6). The prior art in the instant case and the extent of the disclosure of the specification upon the subject of pressure are fully set forth in the opinions rendered upon other adjudications of the patent in suit. See Claude Neon Lights v. E. Machlett & Son, 27 F.(2d) 702 (C. C. A. 2); the same case on subsequent appeal (C. C. A.) 36 F.(2d) 574, 578; Claude Neon Lights v. American Neon Light Corp., 39 F.(2d) 548 (C. C. A. 2); Claude Neon Electrical Products, Inc., v. Brilliant Tube Sign Co., 40 F.(2d) 708 (D. C., Washington), reversed 48 F.(2d) 176 (C. C. A. 9); and the report of the special master in Electrical Products Corporation v. Neale, Inc., 48 F.(2d) 824 (D. C., So. Dist. Cal., Central Div.). Repetition in detail need not here be made. It is sufficient to say, as Judge Hand said in the second Machlett Case, that the prior art "understood all that took place; the cathode drop, its effect upon the electrode, the resulting imprisonment of atoms of the gas, the consequent exhaustion of the gas and its final rarification to the point of non-conduction." Nor do we consider that Claude was the first to conceive that the use of electrodes of vastly increased surface area would reduce "sputtering" and volatilization of the electrodes, and thus conduce to a longer life of the tube by decreasing the imprisonment of atoms of the gas in the plating adjacent such electrodes. See patent to Moore, No. 755,306, March 22, 1904. What Claude really discovered was that the conductivity of a pure neon gas, and its great resistance to chemical change when rendered luminous by electric current, were such as to peculiarly adapt it to use in Geissler tubes of the Moore type. Claude himself said in one instance: "I have succeeded beyond my expectations in the way of a utilization of neon, in simple Geissler tubes, similar to the Moore tube." The subject of his patent was a luminescent tube. The change over the prior art the advance step was the substitution and efficient maintenance, in a Moore tube, of neon in lieu of the commoner gases theretofore used (nitrogen and carbon dioxide). This substitution enabled him to employ a higher pressure (greater volume) of the gaseous content, which, neon also being more inert than the gases formerly used, dispensed with the necessity of periodic replenishment of the gas through a breather valve. The large tubes, the greatly enlarged electrodes, the increased quantity and pressure of the gas, possible only with neon, and the intrinsic nature of the neon gas itself, all contributed to an increased longevity and commercial utility. But this step was not a mere substitution of materials theretofore recognized as available equivalents for such a purpose; it was a true combination, albeit of known or old elements, co-operating to produce a new product which was available for an enlarged commercial use because of its inherent properties and its longer life. It is immaterial that Claude apparently regarded the peculiar orange-red color of the light emitted by neon, when ignited, as a detriment (French patent to Claude, No. 434,525, Feb. 6, 1912), or that he may not have as fully understood, as is the fact to-day, the principles underlying the operation of his tube, the relationship between sputtering and current density or the cathode drop, the effect of pressure in the determination of the most efficient operative ratio between electrode surface area and current density, the part played by heat in the volatilization of the electrodes, and the like. It would seem enough if he made a valuable contribution to the art, even though by a 889 substitution of the material of which one element of those combined consisted, provided such substitution involved invention, as we think was the case here. Smith v. Goodyear Dental Vulcanite Co., 93 U. S. 486, 496, 23 L. Ed. 952; Edison Electric Light Co. v. U. S. Lighting Co., 52 F. 300, 308 (C. C. A. 2); Walker on Patents (6th Ed.) § 66; and compare, Corona Co. v. Dovan Corp., 276 U. S. 358, 369, 48 S. Ct. 380, 72 L. Ed. 610. Construing the claim in the light of what has already been said, appropriate pressure to make the tube operative must be understood. The specification contains a somewhat ambiguous translation of the French "de l'ordre du millimètre de mercure" as indicating an acceptable or preferred pressure, but this is followed immediately by "that is to say at least ten times higher than in nitrogen tubes resulting in a provision of gas which is likewise more than ten times greater." There is evidence indicating that the Moore tubes were operated at about two-tenths of a millimeter of pressure and this operating pressure of one or two millimeters seems to conform with the disclosures of the French patent to Claude, No. 424,190, May 6, 1911, where he says that, upon immersion of the carbon container in liquid air, "the internal pressure falls, for instance, to one or two millimeters due to the fact that the carbon will soon absorb the gases, that is, all of the oxygen, all of the nitrogen, and a portion of the neon and of the helium." There is also evidence tending to prove that Claude was especially interested in illumination or volume of light, and that it is at pressures of one or two millimeters that the greatest intensity of lighting effect is obtained. Thus the appellants urge that foundation is laid for the argument that, if an operative pressure is to be implied, it cannot exceed 2 mm., and at that pressure the patent must fail for want of commercial utility, that a life of at least 1,000 hours is required, and that at even two millimeters pressure the life of the tube would be far less than the minimum requirement for successful operation. No contention is made, however, that the tube was inoperative at these lower pressures, or that the use of neon at ten times the pressure of the commoner gases previously used did not greatly increase the life of the tube. The only contention is that it did not increase such life to at least 1,000 hours. Conceding that present day competitive conditions require a life of 1,000 hours, that Claude contemplated the use of say 2 mm. pressure, that at this pressure the life of the tube would be much less than 1,000 hours, and that the present great commercial utility of neon tubes is due almost exclusively to the later discovery by some one of the advantages of using pressures as high as 15 mm., or even 20 mm., the argument still falls far short of establishing invalidity. The invention of Claude was the primary one on which all subsequent developments were founded. The test is not that of commercial utility, but rather of operative utility and the forward step. The patent is entitled to that liberality of construction which is accorded generic inventions, and so construed we find no lack of utility in the sense of the Patent Act. The Telephone Cases, 126 U. S. 1, 535, 8 S. Ct. 778, 31 L. Ed. 863; Hildreth v. Mastoras, 257 U. S. 27, 34, 42 S. Ct. 20, 66 L. Ed. 112; Mergenthaler Linotype Co. v. Press Pub. Co., 57 F. 502, 505 (C. C., N. J.); Scott v. Fisher Knitting Machine Co., 145 F. 915, 922 (C. C. A. 2); A. B. Dick Co. v. Barnett, 288 F. 799, 801 (C. C. A. 2); McDonough v. Johnson-Wentworth Co., 30 F.(2d) 375, 380 (C. C. A. 8). In this connection it is also to be observed that, although an operative pressure is to be implied when construing the claim, the pressure used by Claude and indicated by his specification (according to appellants' contention) does not serve to limit the claim to that pressure and that alone. The Paper Bag Patent, 210 U. S. 405, 418, 28 S. Ct. 748, 52 L. Ed. 1122. The claim is silent as to pressure. There is thus no limitation, and any and all operative pressures are therefore included. The appellants failing in the defense of nonutility of a neon tube of one or two millimeters pressure, they must also be held to have failed in the defense that, under Rev. St. § 4888 (35 USCA § 33), the description is insufficient to permit one skilled in the art to practice the invention, for the specification at least teaches the construction of a tube of that pressure and kind. At best, the greatly increased pressure of the more modern device is but an improvement which does not invalidate the original patent. Finally, it is claimed that at the indicated pressure of say, 2 mm., the ratio of 1.5 square decimeters of electrode surface area per empere of current, stated in the claim, is arbitrary and meaningless, and, since it was this pressure of not to exceed 2 mm. which Claude had in mind, the indicated ratio did not represent a "critical point," above which all was good and below which all was bad, and this invalidated the claim. We do not deem it necessary, in order to uphold the claim, that *890 the stated ratio designate a critical area, as was found by Judge Manton in the first Machlett Case (C. C. A.) 27 F.(2d) 702, 706. It seems to us that an applicant for a patent may be partly arbitrary in the selection of a limitation above which he claims and below which he abandons his invention to the public. Minerals Separations, Ltd., v. Hyde, 242 U. S. 261, 37 S. Ct. 82, 61 L. Ed. 286, is expressly in point. Doubtless the Patent Office requires such limitation in many cases, while in others a greater indefiniteness has been allowed. See Mowry v. Whitney, 14 Wall. 620, 644, 20 L. Ed. 860; Tilghman v. Proctor, 102 U. S. 707, 729, 26 L. Ed. 279; Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 403, 436, 22 S. Ct. 698, 46 L. Ed. 968; Eibel Co. v. Paper Co., 261 U. S. 45, 66, 43 S. Ct. 322, 67 L. Ed. 523; and other cases already cited. The rule upon which the appellant relies forbids only such limitations as are wholly arbitrary, that is, which in no true sense describe or define the nature of the invention and its departure from the prior art. Such is not the case here. The ratio of 1.5 is descriptive of a vastly increased surface area of the electrodes over those used in the spectral tubes of the prior art, the only tubes theretofore employing a content of neon. At some pressures the ratio does indicate a "critical point." At all pressures it is indicative of an important element of the invention. We have no serious doubts in this connection, but, if we had, we should feel constrained to resolve them in favor of a finding of validity, in consideration of the doctrine of Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 485, 488, 20 S. Ct. 708, 44 L. Ed. 856. The individual organizers and officers of the defendant Sun Ray Gas Corporation were made defendants, and were included in the injunction; but the accounting was not decreed as against them. Under the facts disclosed by this record, we are of the opinion that the injunction, at least, was proper. See Proudfit Loose Leaf Co. v. Kalamazoo Loose Leaf B. Co., 230 F. 120, 140; D'Arcy Spring Co. v. Marshall Ventilated Mattress Co., 259 F. 236, both decisions of this court. Affirmed. DENISON, Circuit Judge. I concur; but, when we take together the specification and the publications which by reference it incorporates, the record indicates to me, in a fairly satisfactory way though not as clearly as would be desirable that the older gases were in familiar use in the spectral and similar tubes, at pressures averaging 5/10 of a millimeter; so that, multiplying by ten, Claude was contemplating and disclosing a use of perhaps 5 mm. If this view were correct, it would remove much of the difficulty coming from a somewhat uncertain translation of a French idiomatic phrase, which probably, as such phrases do in English, takes variant meanings from variant contexts. This view, too, makes the stated ampere-electrode ratio indicate, not a critical point in any close sense, but an approximation, and suggests that, by including this ratio as an element of his claim, Claude has only failed to inclose a fraction of his field. NOTES [1] "1. A luminescent tube containing previously purified neon and provided with internal electrodes for illuminating said gas, said electrodes being deprived of occluded gases and having an area exceeding 1.5 square decimeters per ampere, to decrease the vaporization of the electrodes and prevent the consequent formation upon the walls of the tube, in proximity to said electrodes, of deposits containing said gas, whereby the luminosity of the tube is maintained constant for a very considerable period of time without a fresh introduction of gas."	{ "pile_set_name": "FreeLaw" }
160 N.W.2d 87 (1968) 183 Neb. 347 Roscoe LINCOLN, Appellant, v. Maurice SIGLER, Appellee. No. 36893. Supreme Court of Nebraska. June 28, 1968. Roscoe Lincoln, pro se. Clarence A. H. Meyer, Atty. Gen., Calvin E. Robinson, Asst. Atty. Gen., Lincoln, for appellee. Heard before WHITE, C. J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ. SMITH, Justice. Petitioner, who had gained a commutation of a consecutive term of imprisonment to a concurrent term, completed the requirements of the commutative order. On the ground that those facts discharged him from further liability under the first sentence, he petitioned for a writ of habeas corpus. The district court disallowed the writ without an adversary hearing, and petitioner has appealed. Petitioner had received two sentences, a 15-year term imposed in 1951 and a consecutive term of 1 year imposed in 1960 for escape from custody. On March 13, 1963, the Board of Pardons ordered that the 1-year term run concurrently with the 15-year term. In October 1963, the board discharged petitioner from further liability under the second sentence, and it released him on parole from confinement under the first sentence. Petitioner was subsequently returned to custody. Without considering possible alternative grounds, we put our decision on one ground. Petitioner asserts that the change from the consecutive to the concurrent term necessarily violated this statute. "The Board of Pardons shall in no case assume to act as a court of review to pass upon the correctness, regularity or legality of the proceedings of the trial court, but shall confine itself to a hearing and consideration of those matters only which properly bear on the propriety of extending executive *88 clemency." S. 29-2612, R.R.S.1943. Prior to passage of the statute in 1921, judicial views on the subject were expressed in Hubbard v. State, 72 Neb. 62, 100 N.W. 153, and Evers v. State, 87 Neb. 721, 127 N.W. 1066. Commutation of punishment is substitution of a milder punishment known to the law for the one inflicted by the court. See, Whittington v. Stevens, 221 Miss. 598, 73 So.2d 137; Black's Law Dictionary (4th Ed.), "commutation," p. 351. By common understanding a change from a consecutive term to a concurrent term is a commutation. See, In re Hall, 34 Neb. 206, 51 N.W. 750; Duehay v. Thompson, 9 cir., 223 F. 305. The Board of Pardons possesses authority in extending clemency to grant a commutation of punishment for escape from custody. See, Art. IV, s. 13; Constitution of Nebraska; ss. 29-2604, 29-2605, 29-2606(1), 29-2612, and 29-2636, R.R.S.1943. The board in this case acted well within its authority. The judgment is affirmed. Affirmed.	{ "pile_set_name": "FreeLaw" }
Electronically Filed Intermediate Court of Appeals CAAP-15-0000122 22-JUN-2015 10:39 AM	{ "pile_set_name": "FreeLaw" }
755 F.2d 31 8 Soc.Sec.Rep.Ser. 339, Unempl.Ins.Rep. CCH 15,878CITY OF NEW YORK, New York City Health and Hospitals Corp.,State of New York, Cesar Perales, Commissioner, N.Y.S. Dept.of Social Services, William F. Morris, Acting Commissioner,N.Y.S. Office of Mental Health, Jane Does I and II, RichardDoes I, II, III & IV, Plaintiffs-Appellees,v.Margaret M. HECKLER, Secretary of Health and Human Services,John A. Svahn, Commissioner of U.S. SocialSecurity Administration, Defendants-Appellants. No. 1095, Docket 84-6037. United States Court of Appeals,Second Circuit. Feb. 7, 1985. Before LUMBARD, NEWMAN and PRATT, Circuit Judges. ON PETITION FOR REHEARING JON O. NEWMAN, Circuit Judge: 1 The Secretary of Health and Human Services has petitioned for rehearing of this panel's decision of August 27, 1984, affirming a judgment of the District Court that provided relief to a class of mentally ill persons in New York State who were unlawfully denied disability benefits either through rejection of their applications or termination of their prior disability status. 742 F.2d 729 (2nd Cir.1984), affirming 578 F.Supp. 1109. The Secretary's initial petition reargued issues concerning the 60-day filing and exhaustion of remedies provisions of 42 U.S.C. Sec. 405(g), which were the principal points raised on the main appeal; no dispute had been raised on the merits. We see nothing in the original petition that persuades us to alter our decision on those threshold issues. 2 On October 25, 1984, the Secretary supplemented her papers with additional arguments based upon the Social Security Disability Benefits Reform Act of 1984 ("Reform Act"), Pub.L. No. 98-460, 1984 U.S.Code Cong. & Ad.News (98 Stat.) 1794, enacted on October 9, 1984. We afforded plaintiffs an opportunity to respond to the Secretary's supplemental papers. The Secretary presents two arguments based on the Reform Act, each of which we have concluded lacks merit. 3 The Secretary's first argument is essentially an invocation of the maxim expressio unius. As she notes, the Reform Act explicitly provides a limited exception to the normal requirements of section 405(g), which will permit unnamed members of certain class actions to pursue their challenges to the termination of their disability benefits. Reform Act Sec. 2(d)(3). The exception to section 405(g) aids unnamed members of a class certified on or before September 19, 1984, in a class action challenging the termination of benefits on the ground that medical improvement has not been shown--what the Reform Act calls "a class action relating to medical improvement." Though acknowledging that the instant suit is not an "action relating to medical improvement," the Secretary argues that the Congressional decision to exempt this group of plaintiffs from the requirements of section 405(g) carries with it an implied refusal to permit any other plaintiffs to proceed without strict compliance with section 405(g). We disagree. 4 The Reform Act is remedial legislation, enacted principally to be of assistance to large numbers of persons whose disability benefits have been terminated. It would be a perverse view of Congressional intent if we were to infer from this beneficial legislation a determination on the part of Congress to deny other disability claimants the fruits of a judgment entered in their favor after a ruling that their claims had been unlawfully processed by the Secretary. What the Secretary is urging us to hold is that the Reform Act renders the finality and exhaustion requirements of section 405(g) more stringent than they were before the passage of the Act. We see no basis for reaching such a conclusion. In our view, those not specifically exempted by the Reform Act from the requirements of section 405(g) confront precisely the same threshold obstacles that section 405(g) created before the Reform Act was passed. On the initial argument of this appeal, the Secretary argued vigorously that those obstacles were insurmountable for the plaintiffs in this litigation. We disagreed for reasons set forth at length in our initial decision. In our view, the plaintiffs were entitled to prevail prior to enactment of the Reform Act, and they are not worse off after its passage. 5 The Secretary's second argument also proceeds from passage of the Reform Act. That Act requires that the cases of members of a class action relating to medical improvement shall be remanded to the Secretary. Reform Act Sec. 2(d)(3). See Heckler v. Kuehner, --- U.S. ----, 105 S.Ct. 376, 83 L.Ed.2d 312 (1984).1 The Secretary points out that many members of the class in the instant litigation are also members of a class action relating to medical improvement, Schisler v. Heckler, 574 F.Supp. 1538 (W.D.N.Y.1983). Any member of the class in the instant litigation whose disability benefits were terminated after the beginning date of the Schisler class, June 1, 1976, is also a member of the Schisler class. The Secretary contends that the disposition that Congress has directed for the members of the Schisler class must preclude relief in the instant case for members of this class who are also members of the Schisler class. We disagree. 6 As with the Secretary's first argument, we see no reason to believe that Congress, in enacting the Reform Act, intended to deny to any social security claimant in a case not raising medical improvement issues the benefits of a district court judgment rendered in his favor and affirmed on appeal. The Secretary makes no claim that the remedies available to members of the Schisler class by virtue of the Reform Act are inconsistent with the remedies available to members of the instant class by virtue of the judgment of the District Court, and we discern no inconsistency. In the Reform Act Congress specified a remedy for those raising the medical improvement issue. No member of the instant class is raising that issue in this lawsuit. The plaintiffs in this suit have secured a remedy for the wrong done to them by the unlawful procedure that was used in the processing of their claims. The Reform Act does not deny the members of the class in this litigation the remedy they have secured. If, in the course of providing members of the Schisler class the remedy to which they are entitled, it should develop that some aspect of that remedy is unnecessary for those who are members of both the Schisler class and the class in the instant litigation, the judgment in this case will not prevent the Secretary from applying to the District Court for the Western District of New York for appropriate adjustment of the remedy in the Schisler suit. 7 Finally, we note that section 5 of the Reform Act imposes a moratorium on continuing eligibility reviews for persons "determined to be under a disability by reason of a mental impairment" until revised criteria have been promulgated by the Secretary pursuant to the Act. The Secretary makes no claim that section 5 modifies any provision of the judgment in this case. Whether section 5 will have an effect upon the administrative actions to be taken by the Secretary in implementing the judgment in this case is a matter to be determined in the first instance at the administrative level. 8 For these reasons, the petition for rehearing is denied. 1 In Heckler v. Kuehner, supra, the Supreme Court, acting upon supplemental papers submitted by the Solicitor General with respect to a petition for a writ of certiorari in a class action relating to medical improvement that had not produced a final judgment of the District Court in favor of the plaintiff class, summarily granted the writ, vacated the judgment of the Third Circuit, and remanded the case with directions to have the District Court remand the cases of the class members to the Secretary pursuant to the provisions of the Reform Act. The Supreme Court adopted the form of disposition order proposed by the Solicitor General with the notable exception that the final provision of the Court's order instructed the Third Circuit to instruct the District Court to "take other actions appropriate in light of [the Reform] Act," whereas the final provision of the Solicitor General's proposed order had directed dismissal of the complaint, a course the Supreme Court declined to follow. Compare Heckler v. Kuehner, supra, 105 S.Ct. at 376 (order of Supreme Court), with id., Brief for the Petitioners in Reply to the Supplemental Brief for the Respondents at 8 (order proposed by Solicitor General)	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-6764 GARY B. WASHINGTON, Petitioner - Appellant, versus RONALD HUTCHINSON, Warden; ATTORNEY GENERAL FOR THE STATE OF MARYLAND, Respondents - Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (CA-02-3973-WDQ) Submitted: December 22, 2005 Decided: December 29, 2005 Before WIDENER, NIEMEYER, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. Howard Margulies, Baltimore, Maryland, for Appellant. John Joseph Curran, Jr., Attorney General, Mary Ann Rapp Ince, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Gary B. Washington seeks to appeal the district court’s order dismissing his petition filed under 28 U.S.C. § 2254 (2000). The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed the record and conclude that Washington has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 2 -	{ "pile_set_name": "FreeLaw" }
712 F.Supp. 96 (1989) PREFERRED RISK MUTUAL INSURANCE COMPANY, Plaintiff, v. Cindy Madison COLLIER, Defendant. Civ. A. No. J87-0497(L). United States District Court, S.D. Mississippi, Jackson Division. April 5, 1989. 97 Michael K. Randolph and V.K. Smith, Bryan, Nelson, Allen, Schroeder and Randolph, Hattiesburg, Miss., for plaintiff. Cindy Madison Collier, Poplarville, Miss., pro se. Richard C. Fitzpatrick, Poplarville, Miss., for Cindy Collier. MEMORANDUM OPINION AND ORDER TOM S. LEE, District Judge. Previously in this cause, by order dated February 14, 1989, this court denied a motion by the third party defendant, Cindy Madison Collier, to dismiss the claim asserted against her by Preferred Risk Mutual Insurance Company (Preferred Risk). The motion was subsequently renewed and evidence presented to the court for consideration in connection therewith. Now, having carefully reconsidered its prior ruling, the court finds that the order of February 14, 1989 should be vacated and the motion to dismiss granted. This lawsuit was filed by Desiree D. Cheramie following an automobile collision involving a vehicle driven by Cheramie and one driven by Collier. At the time of the accident, Cheramie was operating an automobile insured under a policy of liability insurance issued by Preferred Risk; the policy provided for uninsured motorist benefits in the amount of $35,000. Collier, at the time of the accident, was uninsured as was the car she was driving. Immediately after the accident, Banks Turner, claims manager for Preferred Risk, conducted an investigation into the cause of the collision and concluded that Preferred Risk's insured, Cheramie, was "clearly at fault." Therefore, on February 28, 1986, Preferred Risk paid to Collier the sum of $13,080.85; Collier executed a "release of all claims" pursuant to which she agreed to accept the $13,080.85 in full compromise, settlement and satisfaction of, and as sole consideration for the final release and discharge of all actions, claims and demands whatsoever ... against ... Desiree Cheramie and Preferred Risk Mutual Ins. Co. ... as a result of [the] accident.... Once Cheramie instituted suit against Preferred Risk to recover benefits under its policy of insurance, Preferred Risk filed a third party complaint against Collier seeking to exercise its right of subrogation. Collier sought and now seeks dismissal of Preferred Risk's claim on the basis that there has been a full and complete accord and satisfaction between Collier and Preferred Risk for and on behalf of Cheramie. Collier contends that as a result of the release executed by her, Preferred Risk is estopped to claim any relief against her since the release, which contained no reservation of rights by Preferred Risk, compromised and settled all claims between them. The overwhelming weight of authority clearly supports the position taken by Collier that "the making of a settlement without an express reservation of rights constitutes complete accord and satisfaction of all claims of immediate parties to the settlement arising out of the same accident." Butters v. Kane, 347 A.2d 602, 604 (Me. 1975); see also Sexton v. First Nat'l Mercantile Bank & Trust Co., 713 S.W.2d 30, 31 (Mo.Ct.App.1986) (absent express reservation, where party has been released from all claims arising from collision, he is estopped from suing party who gave the release for damages); Mutual of Enumclaw Ins. v. State Farm Mut. Automobile Ins. Co., 37 Wash.App. 690, 682 P.2d 317, 319 (1984) (except for claims expressly reserved, settlement agreement presumed to embrace all existing claims of parties arising from underlying incident); Greene v. Anders, 473 S.W.2d 622, 626-27 (Tex.Ct. App.1971) (settlement between parties without express reservation of rights operates as accord and satisfaction of all claims of immediate parties); Burke v. Shaffer, 184 Neb. 100, 165 N.W.2d 352, 353 (1969) (settlement between parties to accident without express reservation of rights against parties executing release operates 98 as accord and satisfaction of all claims of immediate parties since it is logically and factually impossible to reconcile valid claim by one party with valid claim by adverse party); Brown v. Hughes, 251 Iowa 444, 99 N.W.2d 305, 307 (1960) (one who elects to settle opposing claim and to buy release from other party will be held to have elected to compromise entire controversy absent express reservation of right to sue on his own claim). The sole deviation from this rule cited by Preferred Risk is the Fifth Circuit case of Standard Oil Company of Kentucky v. Illinois Central Railroad Company, 421 F.2d 201 (5th Cir.1969). In that case, Illinois Central settled a claim by the estate of one Morris Pigott, who died as the result of a collision between an Illinois Central train and a truck owned by Weathersby, a bulk agent for Standard Oil. Pigott was considered an agent for Weathersby and Standard Oil. The settlement in that case was effected between Illinois Central, the Pigott estate and, because of workmen's compensation, Weathersby and his compensation carrier. After payment to the Pigott estate in settlement of its claims, Illinois Central filed suit against Standard and Weathersby seeking to recover from them two-thirds of the amount it had paid to the Pigott estate, claiming that those parties, as joint tortfeasors, were liable for contribution. Standard and Weathersby took the position that Illinois Central, by virtue of the release executed by the Pigott estate, had released its rights against Pigott and hence Standard and Weathersby as Pigott's privies. The court there observed that [t]he release does not even purport to release Pigott from claims of the railroad. A letter written by the IC attorney to counsel for the estate says the railroad will make no claim against the estate. It does not say the IC releases anything. And the letter refers to the intention to proceed against Standard and Weathersby, against whom suit was then pending. Standard Oil, 421 F.2d at 205. The court then concluded, without discussion, that as a matter of law there was no release of the Pigott estate. Id. This court initially denied Collier's motion to dismiss on the basis of the Fifth Circuit's holding in the Standard Oil case. A more thorough review of the case leads the court now to conclude, however, that it is distinguishable significantly distinguishable from the case at bar such that this court is not constrained by its holding. In that case, one of the parties against whom suit was brought post-release, Standard Oil, was not a party to the release. The other defendant, Weathersby, was a party, but signed only because it, as Pigott's employer, carried workmen's compensation insurance for the benefit of its employees. Moreover, the opinion's recitation indicates that a letter was written by the attorney for Illinois Central, the releasee, expressing an intention to proceed against Standard and Weathersby; obviously there was nothing in the case at bar to indicate to Collier that, at the time of her execution of the release, Preferred Risk intended or even conceived that it might later proceed against her. Had it done so, she may well have reconsidered her decision to release Preferred Risk from liability. In addition to this critical distinction, the court finds it notable that the Fifth Circuit, in Standard Oil, a case governed by Mississippi law, did not purport to determine the manner in which the Mississippi Supreme Court might determine the issue nor does the court's opinion demonstrate the rationale behind its conclusion. The Mississippi Supreme Court has not addressed the question of whether a releasee may maintain an action against his releasor. This court, though, is of the opinion that if given an opportunity to do so, Mississippi would adopt the majority view discussed above. As one court has stated, the rule that absent express reservation, a releasee's claims are barred and he is estopped from proceeding against the releasor after execution of a release, is "[fortunate] ... for the reputation of the law for fairness." Lugena v. Hanna, 420 S.W.2d 335, 340 (Mo.1967). Were the law otherwise, the policy favoring settlement would be overshadowed by doubt as to the effectiveness of a release. *99 If releases obtained under the circumstances and facts now before [the court] are to be taken lightly and rescinded, there would be few settlements without litigation.... No one settling a case would be secure from litigation short of the statute of limitations. Mutual of Enumclaw, 682 P.2d at 319. The Mississippi cases make it clear that Mississippi has a strong and abiding policy favoring settlement, and under Mississippi law, a release is valid and enforceable and cannot be set aside absent fraud. Parker v. Howarth, 340 So.2d 434, 437 (Miss.1976); Hines v. Hambrick, 210 Miss. 358, 49 So.2d 690, 694 (1951). Rejection of the position advanced by Collier would be tantamount to the disregard of this stringent standard by allowing a release to be nullified at the whim of the releasee. Such a result clearly is not consonant with Mississippi's clear policy of favoring and enforcing settlements. The facts presented in the case sub judice give special impetus to the court's conclusion. Banks Turner, Preferred Risk's claims manager and the individual who had complete authority to settle this case, stated that the decision to make the payment to Collier was based on his "firm conclusion" that Cheramie, not Collier, was "clearly at fault." He explained that at the time the money was paid, he was aware that Cheramie intended to file for benefits under the uninsured motorist coverage of the policy, yet nevertheless made the decision to make the payment to Collier. That is, he was aware even at the time of the settlement that Preferred Risk's insured contemplated recovery from Preferred Risk on the basis of Collier's alleged negligence. Particularly in view of this fact, the lack of any reservation of rights by Preferred Risk to proceed against Collier in the event Cheramie pressed her claim indicates that Preferred Risk intended to settle all matters. In fact, Banks Turner so testified by stating that at the time of the settlement it was his intention on behalf of Preferred Risk to settle all claims between Preferred Risk and Collier and that he never even considered a claim against her. Under these circumstances, the court cannot in good conscience allow to stand its prior holding denying Collier's motion to dismiss. Accordingly, based on the foregoing, it is ordered that the court's prior ruling of February 14, 1989 is hereby vacated and it is ordered that the motion to dismiss filed by Collier is granted. A separate judgment shall be entered in accordance with Federal Rule of Civil Procedure 58. ORDERED.	{ "pile_set_name": "FreeLaw" }
949 N.E.2d 657 (2011) 350 Ill. Dec. 865 BRAND v. ALLSTATE INS. CO. No. 111605. Supreme Court of Illinois. March 1, 2011. Disposition of Petition for Leave to Appeal[] Denied (Thomas, J., took no part.). NOTES [] For Cumulative Leave to Appeal Tables are preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table.	{ "pile_set_name": "FreeLaw" }
579 F.3d 304 (2009) NATIONWIDE LIFE INSURANCE COMPANY, Appellant v. COMMONWEALTH LAND TITLE INSURANCE COMPANY. No. 06-2890. United States Court of Appeals, Third Circuit. Argued January 28, 2009. Opinion Filed: August 31, 2009. 305 Justin K. Miller, Esquire, C. Paul Scheuritzel, Esquire (Argued), Larsson & Scheuritzel, Philadelphia, PA, for Appellant. Craig R. Blackman, Esquire, Neal R. Troum, Esquire (Argued), Stradley, Ronon, Stevens & Young, Philadelphia, PA, for Appellee. Before SCIRICA, Chief Judge, AMBRO, and SMITH, Circuit Judges. OPINION OF THE COURT AMBRO, Circuit Judge. Nationwide Life Insurance Company ("Nationwide") appeals the District Court's dismissal of its claim under a title insurance policy issued by Commonwealth Land Title Insurance Company ("Commonwealth"). Nationwide seeks payment for a loss arising from land title restrictions that allowed a former owner of Nationwide's real property to prevent its sale by Nationwide. It asserts that the District Court erred in ruling that Commonwealth had "expressly excepted" from insurance coverage any loss related to these restrictions. 306 To decide this case, we interpret the standard-form policy drafted by the American Land Title Association ("ALTA") and used by Commonwealth. In particular, we determine what a title insurer must do to except restrictions from coverage under a specific endorsement to the policy. The District Court held that an insurer can do so merely by listing in a schedule of exceptions to the policy the document in which the restrictions are found. Because we believe that an insurer must list the actual restriction in such a schedule to except them, we reverse. I. Factual and Procedural Background PMI Associates ("PMI") purchased real property (the "Property") from Liberty Mills Limited Partnership ("Liberty Mills") in 1988. According to the complaint filed by Nationwide, PMI and Liberty Mills entered into a Declaration of Restrictions (the "Declaration"), vesting Liberty Mills with, among other things, the right to refuse approval of future purchasers of the Property.[1] The Declaration also gave Liberty Mills an option to repurchase the Property in certain circumstances.[2] In 2001, PMI borrowed $3.5 million from Nationwide, using the Property as collateral. Nationwide insured its lender's interest in the Property by purchasing a title insurance policy from Commonwealth. The policy contains a specific endorsement, known as an ALTA 9 Endorsement, that, among other things, covers Nationwide against loss from "a right of first refusal or the prior approval of a future purchaser or occupant" unless "expressly excepted" in a schedule of exceptions appended to the policy. PMI defaulted in 2003 on the balance of its loan from Nationwide. As a result, PMI conveyed the Property to Nationwide by fee simple deed. Nationwide attempted to sell the Property to Ironwood Real Estate, LLC ("Ironwood"). This sale was halted, however, when Liberty Mills's successor in interest, Franklin Mills Associates Limited Partnership ("Franklin Mills"), refused to approve Ironwood as a buyer in accordance with Franklin Mills's rights conferred by the restrictions in the Declaration.[3] 307 Following Franklin Mills's rejection of Ironwood, Nationwide submitted a claim for coverage to Commonwealth. Nationwide alleged that Franklin Mills's rights of refusal were covered restrictions that made the Property unusable and unsalable. Commonwealth denied Nationwide's claim, stating that its policy expressly excepted coverage for loss resulting from Franklin Mills's invoked rights. Nationwide responded by filing suit in the United States District Court for the Eastern District of Pennsylvania. It argued that the ALTA 9 Endorsement to its policy covered loss resulting from Franklin Mills's rights of refusal because those rights were not expressly excepted in the policy's schedule of exceptions. Commonwealth answered with a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). It asserted that the rights were expressly excepted from coverage provided by the ALTA 9 Endorsement because the Declaration, in which the rights were stated, was listed in the policy's schedule of exceptions. The District Court granted Commonwealth's motion to dismiss. It held that the general listing of the Declaration under the heading "exceptions from coverage" in the policy's exceptions schedule unambiguously eliminated coverage for loss stemming from the rights of refusal. See Nationwide Life Ins. Co. v. Commw. Land Title Ins. Co., No. 05-281, 2005 WL 2716492, at 7 (E.D.Pa. Oct.19, 2005). In doing so, it rejected Nationwide's claim that only a specific listing of the rights in the exceptions schedule could exempt them from ALTA 9 Endorsement coverage. See id. Nationwide then filed a motion for reconsideration with exhibits, contending that the Court's interpretation of the policy and endorsement was inconsistent with industry custom and practice. The Court denied this motion and struck most of Nationwide's exhibits from the record. It reiterated its prior interpretation of the policy, rejected Nationwide's reference to custom and practice, and held that "it was [Nationwide]'s duty to exercise proper diligence before issuing the subject mortgage" on the Property. Nationwide Life Ins. Co. v. Commw. Land Title Ins. Co., No. 05-281, 2006 WL 1192998, at 1-3 (E.D.Pa. May 3, 2006). Nationwide appeals to us. II. Jurisdiction and Standard of Review The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the District Court's dismissal of an action under Rule 12(b)(6). See Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). "[W]e `accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Rodriguez v. Our Lady of Lourdes Med. Ctr., 552 F.3d 297, 302-03 (3d Cir.2008) (quoting Phillips, 515 F.3d at 233). Interpretation of an insurance policy is a question of law over which we exercise plenary review. See Regents of Mercersburg College v. Republic Franklin Ins. Co., 458 F.3d 159, 163 (3d Cir.2006). Under Pennsylvania law, which applies to this action, we ascertain the intent of the parties by reading the policy as a whole, and we give unambiguous terms their plain meaning. See Jacobs Constructors, Inc. v. NPS Energy Servs., Inc., 264 F.3d 365, 308 375-76 (3d Cir.2001); J.C. Penney Life Ins. Co. v. Pilosi, 393 F.3d 356, 363 (3d Cir.2004). We also consider evidence of industry custom and practice. Sunbeam Corp. v. Liberty Mut. Ins. Co., 566 Pa. 494, 781 A.2d 1189, 1193 (2001) ("[C]ustom in the industry or usage in the trade is always relevant and admissible in construing commercial contracts and does not depend on any obvious ambiguity in the words of the contract."). We construe ambiguous terms strictly against the insurer, but avoid reading the policy "to create ambiguities where none exist." Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220 (3d Cir.2005). III. Discussion Nationwide claims that, under the policy issued by Commonwealth, it (1) is covered for loss arising from the rights of refusal contained in the Declaration, and (2) did not bear the burden of diligence to ensure that its title to the Property was free from harmful rights or restrictions. We agree on both points. The text and purpose of the policy, along with custom and practice in the title insurance industry, convince us that the ALTA 9 Endorsement covers loss stemming from rights of refusal unless those rights are explicitly noted in a schedule of exceptions to the policy. Insurers may not except rights of refusal or other title restrictions[4] from ALTA 9 Endorsement coverage simply by listing as exceptions the instruments in which they are embedded. Instead, the burden is on the title insurer to find and except them expressly. A. Excepting a Restriction from ALTA 9 Endorsement Coverage The title insurance policy that Commonwealth issued to Nationwide is a 1992 ALTA Loan Policy with an ALTA 9 Endorsement. Like all such policies, it contains six sections: (1) the Insuring Provisions stating the basic coverage terms; (2) the Exclusions from Coverage, which list standard coverage exclusions; (3) the Conditions and Stipulations that define relevant terms and note the parties' responsibilities; (4) Schedule A, which describes the Property and amount of insurance; (5) Schedule B, which lists, in two parts, coverage exceptions specific to the Property; and (6) the ALTA 9 Endorsement (also referred to hereinafter as "the Endorsement"), which, for an additional price, insures over certain exceptions in Schedule B. See Joyce D. Palomar, 1 Title Insurance Law §§ 5.17-9.4 (2005); Amy W. Beatie & Arthur R. Kleven, The Devil in the Details: Water Rights and Title Insurance, 7 U. Denver Water L.Rev. 381, 398-400 (2004); Charles B. DeWitt, III, Title Insurance: A Primer, 3 Tenn. J. Prac. & Proc. 15, 18-19 (2001). We read these sections together, giving effect to all their provisions. See Western United Life Assur. Co. v. Hayden, 64 F.3d 833, 837 (3d Cir.1995); Eric Holmes, 4 Holmes' Appleman on Insurance § 20.1 (2d ed.1998). The Insuring Provisions of the policy state: SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, COMMONWEALTH LAND TITLE INSURANCE COMPANY, a Pennsylvania corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of 309 Insurance stated in Schedule A, sustained or incurred by the insured by reason of: 1. Title to the estate or interest described in Schedule A being vested other than as stated therein; 2. Any defect in or lien or encumbrance on the title; 3. Unmarketability of the title; ... 6. The priority of any lien or encumbrance over the lien of the insured mortgage;.... Together with Schedule A, which identifies the Property and sets a $3.5 million amount of insurance, these provisions obligate Commonwealth to insure Nationwide's interest in the Property against loss from any restriction not stated in the Exclusions from Coverage or listed as an exception in Schedule B. Schedule B, which is captioned "EXCEPTIONS FROM COVERAGE," lists a number of instruments that affect the Property. Part I of Schedule B sets out matters excepted from coverage that might cause loss to Nationwide. Part II of Schedule B lists matters affecting the Property that are subordinate to Nationwide's interest. The Declaration containing the restrictions giving rise to Nationwide's loss is listed in Part I of Schedule B: This policy does not insure against loss or damage ... which arise by reason of: .... 5. Declaration of Restrictions between Liberty Mills Limited Partnership and PMI Associates dated August 15, 1988 and recorded in Deed Book FHS 1155, page 206, and First Amendment to Declaration of Restrictions between Franklin Mills Associates Limited Partnership and PMI Associates dated December 5, 1989 and recorded December 21, 1989 in Deed Book FHS 1518, page 541. (The "PMI Declaration"). The Declaration is thus "an exception from coverage contained in Schedule B." The Declaration's listing as an exception, however, does not necessarily exempt from coverage all losses stemming from it. As noted, the ALTA 9 Endorsement brings back into play coverage for restrictions contained in instruments listed in Schedule B unless those restrictions themselves are set out in that Schedule. See James L. Gosdin, Title Insurance: A Comprehensive Overview 257 (3d ed.2007); Holmes, supra, § 20.1. Paragraph 1(b)(2) of the Endorsement reads: The Company insures the owner of the indebtedness secured by the insured mortgage against loss or damage sustained by reason of: 1. The existence at Date of Policy of any of the following: .... (b) Unless expressly excepted in Schedule B .... (2) Any instrument referred to in Schedule B as containing covenants, conditions or restrictions on the land which, in addition, (i) establishes an easement on the land; (ii) provides a lien for liquidated damages; (iii) provides for a private charge or assessment; (iv) provides for an option to purchase, a right of first refusal or the prior approval of a future purchaser or occupant. App. at 39 (emphases added). Accordingly, because the Declaration is an "instrument 310 referred to in Schedule B as containing... restrictions on the land which ... provides for an option to purchase, a right of first refusal or the prior approval of a future purchaser or occupant," loss arising from it is covered under paragraph 1(b)(2) of the ALTA 9 Endorsement "[u]nless expressly excepted in Schedule B." As one might expect, Commonwealth argues that loss arising from the Declaration is "expressly excepted in Schedule B," and therefore is not covered by paragraph 1(b)(2) of the ALTA 9 Endorsement. Nationwide contends otherwise. No provision of the policy or Endorsement, however, explains how to determine whether loss from the Declaration is expressly excepted. Commonwealth asserts that Schedule B's two-part structure provides the framework that distinguishes the Declaration as "expressly excepted" from ALTA 9 Endorsement coverage. Looking first to what Schedule B excepts from the Insuring Provisions of the policy, Commonwealth alleges that only Part I of Schedule B contains exemptions from policy coverage, whereas Part II of Schedule B "contains not exemptions from coverage (like Part I) but rather the prioritization of liens." Commw.'s Br. at 3. It states that "the respective lead-in language in Parts I and II of Schedule B removes any doubt about this important difference between the two Parts." Id. at 10. The caption to Part I, it notes, states: SCHEDULE B EXCEPTIONS FROM COVERAGE PART I But the caption to Part II reads: SCHEDULE B PART II Commonwealth then highlights that Part I begins, "This policy does not insure against loss or damage ... which arise by reason of," while Part II reads: In addition to the matters set forth in Part I of this Schedule, the title to the estate or interest in the land described or referred to in Schedule A is subject to the following matters, if any be shown, but the Company insures that these matters are subordinate to the lien or charge of the insured mortgage upon the estate or interest. This "lead-in" language, states Commonwealth, shows that Schedule B, Part I, contains "the stuff of exception," while Schedule B, Part II, simply lists those matters "referred to in Schedule B" as "subordinate to the ... insured mortgage." Id. Building on this framework, Commonwealth claims that the instruments in Schedule B, Part I, are "expressly excepted" from Endorsement coverage because they are the only "exceptions from coverage" in the policy, whereas the instruments in Schedule B, Part II, fall within the coverage of the Endorsement because they are "referred to in Schedule B" but not "expressly excepted in Schedule B." See id. at 9-10. Commonwealth argues that this construction provides a clear way to identify matters covered by the ALTA 9 Endorsementloss from instruments in Schedule B, Part I, is not covered; loss from instruments in Schedule B, Part II, is covered. And because the Declaration is listed in Schedule B, Part I, Commonwealth concludes that no loss stemming from it is covered by paragraph 1(b)(2) of the Endorsement. See id. Nationwide dismisses Commonwealth's interpretation, and responds that loss resulting from the Declaration is covered by the ALTA 9 Endorsement because the rights of refusal stated within it are not 311 specifically mentioned in Schedule B. Nationwide argues that both parts of Schedule B contain exceptions from coverage and asserts that "to signify an exception to ALTA 9 Endorsement coverage, an insurer [must] expand[] the description of the pertinent instrument [i]n Schedule B to describe any included .... rights specified in subparagraph 1(b)(2) ... of the ALTA 9." Nationwide's Br. at 14-15. "In other words," it claims, "exceptions to the coverage afforded by the ALTA 9 are not made merely by listing a document on Schedule B, coverage is instead negated by specifically referring to and excepting the covenant, condition, or right in question." Nationwide's Supp. Br. at 10; see also Nationwide, 2006 WL 1192998, at 2. Nationwide argues that this construction of the policy best serves insurers and lenders, and it emphasizes that it "is the construction widely followed in the title insurance industry." Nationwide's Reply Br. at 1. The District Court was persuaded by Commonwealth's reasoning, holding that the "heading and language of Schedule B, Part I, clearly indicate that the Declaration is `expressly excepted in Schedule B.'" Nationwide, 2005 WL 2716492, at 7. It opined that "[t]he Policy would be clearer had [Commonwealth] placed the `Exceptions from Coverage' header under `Part I' instead of under `Schedule B,'" but it ruled that "the language preceding Part I makes clear that the items listed in Part I are exceptions from coverage ..., while the language preceding Part II indicates that the items listed in Part II are not exceptions from coverage...." Id. (internal citations omitted). We disagree with Commonwealth and the District Court. In our view, concluding that Schedule B, Part II, does not contain "exceptions from coverage," and reading the caption and initial language of Schedule B, Part I, to "expressly except" from ALTA 9 Endorsement coverage loss stemming from all matters in instruments listed therein, runs roughshod over the policy's language, purpose, and usage. We instead adopt Nationwide's construction of the policy and hold that paragraph 1(b)(2) of the ALTA 9 Endorsement extends coverage to loss from an instrument in either part of Schedule B unless the insurer takes express exception to the specific restrictions stated in the instrument. This interpretation fits the textual scheme of the policy, and reflects the purpose and industry custom associated with the ALTA 9 Endorsement. 1. Text Contrary to Commonwealth's interpretation, we think the placement of the line "EXCEPTIONS FROM COVERAGE" above "PART I" in the caption of Schedule B is evidence that both Parts I and II contain "exceptions from coverage." This interpretation is reinforced by a reading of a blank 1992 ALTA Loan Policy, which shows that the caption's drafting was not an error and indicates that the seeming inapplicability of the line "EXCEPTIONS FROM COVERAGE" to Part II is the result of nothing more than the page break between Parts I and II of Schedule B. See Gosdin, supra, at 38. It also finds support in an intratextual reading of the policy, which never distinguishes between Parts I and II of Schedule B and instead refers only to "the exceptions from coverage contained in Schedule B." A textual comparison of the ALTA 9 Endorsement (which covers an ALTA Loan Policy) to its companion ALTA 9.1 Endorsement (which covers an ALTA Owner's Policy) also rejects Commonwealth's suggestion that paragraph 1(b)(2) of the ALTA 9 Endorsement covers only 312 matters in Schedule B, Part II. An ALTA 9 Endorsement, to repeat, states: The Company insures the owner of the indebtedness secured by the insured mortgage against loss or damage sustained by reason of: 1. The existence at Date of Policy of any of the following: .... (b) Unless expressly excepted in Schedule B .... (2) Any instrument referred to in Schedule B as containing covenants, conditions or restrictions on the land which, in addition,... provides for an option to purchase, a right of first refusal, or the prior approval of a future purchaser or occupant. Similarly, an ALTA 9.1 Endorsement reads: The Company insures against loss or damage sustained by the insured by reason of: 1. The existence at Date of Policy of any of the following unless expressly excepted in Schedule B: .... (b) Any instrument referred to in Schedule B as containing covenants, conditions or restrictions on the land which, in addition, ... provides for an option to purchase, a right of first refusal, or the prior approval of a future purchaser or occupant.... Given the essentially identical language of the two endorsements, one would expect the interpretation of "unless expressly excepted in Schedule B" to remain constant. In particular, if Commonwealth's suggestion is correct, the ALTA Owner's Policy should list express exceptions in Part I of Schedule B and non-exceptions covered by the ALTA 9.1 Endorsement in Part II of Schedule B. But that is not the case. Rather, the ALTA Owner's Policy does not contain a two-part Schedule B.[5] In the context of language identical to that in an ALTA 9 Endorsement, an insurer drafting an ALTA Owner's Policy thus must do more than simply list an instrument in a part of Schedule B to except all loss related to it from coverage under an ALTA 9.1 Endorsement. It must distinguish between those Schedule B matters that are merely "exceptions from coverage," to which the ALTA 9.1 Endorsement applies, and those that are "expressly excepted" from all coverage. This recognition correlates with interpreting the ALTA 9 Endorsement to cover loss from an instrument in either part of Schedule B unless the insurer explicitly notes the rights or restrictions contained in the instrument. Requiring insurers to take express exception in Schedule B to rights of refusal or other restrictions mentioned in paragraph 1(b)(2) of the ALTA 9 Endorsement, moreover, does not "torture[] the language of the Policy." Nationwide, 2005 WL 2716492, at 7. The Endorsement recognizes a difference between "excepted" instruments and "expressly excepted" restrictions.[6] The very term "expressly excepted" 313 implies as well that an insurer seeking to retract Endorsement coverage of a restriction must do so specifically. 2. Purpose Commonwealth's constrained interpretation of the ALTA 9 Endorsement also flouts the purpose of the Endorsement. Lenders seeking to insure their mortgage interest in a property pay an additional premium for an ALTA 9 Endorsement to cover, among other things, "any instrument referred to in Schedule B as containing covenants, conditions or restrictions." See Beatie & Kleven, supra, at 400. We cannot conceive why, as Commonwealth suggests, lenders would do so only to cover instruments in Schedule B, Part II, which already are insured as "subordinate to the lien or charge of the insured mortgage upon the estate or interest." More specifically, it surpasses strange to think that Nationwide would pay for an ALTA 9 Endorsement just to cover the matters already listed as subordinate to its interest in Schedule B, Part II, especially where, as here, Nationwide is directly involved in each of those matters[7] and needed no extra assurance that they were harmless to its interest.[8] Additionally, Commonwealth's interpretation would thwart the purpose of the ALTA 9 Endorsement by eliminating the notice benefits it provides. Through its requirement that insurers "expressly except[]" the restrictions they do not want to cover under paragraph 1(b)(2), the Endorsement gives lenders crucial notice of the specific matters that may harm their mortgage interests.[9] By permitting insurers to except expressly all loss from an instrument simply by listing that instrument in Schedule B, Part I, Commonwealth's interpretation would strip away this notice benefit from the ALTA 9 Endorsement. 314 3. Custom and Practice The title insurance industry's treatment of the ALTA 9 Endorsement strongly supports our reading of the Endorsement. It is one of the "most common" endorsements used to "insure against the effect or aspects of exceptions," Gosdin, supra, at 257, and the "standard endorsement for commercial lending transactions." App. at 60; see also Palomar, supra § 9.3. Industry custom and practice show that both parts of Schedule B contain exceptions over which the ALTA 9 Endorsement insures. No guideline or article produced by a title insurer, including Commonwealth,[10] states that only Schedule B, Part I, contains exceptions from coverage or that the ALTA 9 Endorsement covers only matters in Schedule B, Part II.[11] Indeed, contrary to Commonwealth's claim that Part II of Schedule B does not contain "exceptions from coverage," we note that, in an internal memorandum reviewed by the District Court, LandAmerica Financial Group, Inc. ("LandAmerica"), the parent company of Commonwealth at the time it drafted Nationwide's policy,[12]315 unambiguously describes the matters in Part II of Schedule B as "exceptions": SCHEDULE BPART II: Enter all exceptions to title discovered in the title search and from the survey, if any, that are subordinate to the lien of the insured mortgage.... Schedule BPart II sets out only those matters affecting the title to the insured land that are subordinate in priority to the lien of the insured mortgage. You must take exception to all such defects in title, liens, encumbrances and outstanding interests affecting the title.... The items found in Schedule BPart II are generally lien interests and sometimes leasehold interests.... Probably more often than not, you will have no exceptions for Schedule BPart II. If you have no exceptions, insert the word "NONE" in the schedule to show that no exception has been taken. App. at 55-56 (emphases added). Industry custom and practice also confirm that the ALTA 9 Endorsement covers loss from matters in instruments mentioned in paragraph 1(b)(2) of the Endorsement unless the insurer explicitly notes those matters in Schedule B. For example, LandAmerica provides the following guidance to agents issuing ALTA 9 Endorsements: Instruments identified in Exceptions in Schedule B[may] also contain any of the following matters which are NOT shown as separate Schedule B exceptions: (1) Easements (2) Liens for liquidated damages (3) Charges or liens for assessments (4) Options to purchase, rights of first refusal, or rights of prior approval of purchasers. If instruments described in Schedule B Exceptions do contain any of those elements, they should be shown as separate exceptions, or stated as separate components of an exception. For example, if a subdivision "declaration of ... restrictions" also contains grants or reservations of easements, or rights of first refusal, the Schedule B exception should appear as follows: METHOD 1 (Multiple exceptions): "Declaration of ... Restrictions for ___ dated ___ recorded at book __ page __" "Easements reserved in Declaration of ... Restrictions for ___ dated ___ recorded at book __ page __" "Rights of first refusal reserved in Declaration of ... Restrictions for ___ dated ___ recorded at book __ page __" METHOD 2 (Single exception describing several elements): "Declaration of ... Restrictions for ___ dated ___ recorded at book __, page __; also, easements and right of first refusal reserved in said declaration." LandAmerica, https://www.agentxtra.net/Extranet/singlesource/NavMaster.asp?IndexID=3202&IndexTerm=PUD&LinkID=5178317 (last visited Aug. 28, 2009) (emphases added).[13] This guidance document 316 states precisely that the insurer must take separate and specific exception to the matters contained in instruments listed in Schedule B in order to avoid covering them under the ALTA 9 Endorsement. Even Commonwealth appears to follow the interpretive approach we now endorse. In an internal bulletin produced by its "D.C. and Maryland Agency Operations," Commonwealth explains that it is "OK" for its agents to use an ALTA 9 Endorsement if a document with restrictions "contains an easement, a lien provision, charge or... option/right of first refusal/future purchase approval ... [b]ut when taking exception to [the document with restrictions], [the agent] must expressly include [the] relevant provision, e.g., `Terms and provisions of a Declaration, including access easement created therein dated ___.'" Commw.'s Supp. Br. at 3-4 (quoting Commonwealth, 98-07 Commonwealth Offers ALTA 9 Coverage on Residential Mortgagee Policies, 3-4 (June 22, 1998), https://www.agentxtra.net/extranet/SingleSource/content/State Law/DistrictofColumbia/Bulletins/DC_98-07_CommonwealthOffersALTA9Coverage.htm) (emphasis added).[14] The advice in this bulletin dovetails with the guidance document produced by LandAmerica and contrasts with what Commonwealth now argues. It also appears to be the advice that Commonwealth followed in taking exception to a License Agreement in Schedule B, Part I, of Nationwide's policy: 6. The appurtenant easement rights insured under the License Agreement dated March 4, 1991 between Franklin Mills Associates Limited Partnership f/k/a Liberty Mills Partnership and PMI Associates ..., as located on survey ... Dated March 16, 2001[,] ... are subject to the following: a. Terms and conditions of said Agreement b. Questions of marketability due to the Agreement being unrecorded; and c. All mortgages, easements, covenants, conditions and restrictions affecting the property now or formerly of Franklin Mills Associates Limited Partnership, adjacent to the insured premises and the subject of said Agreement. App. at 35-36. Though not stated in the exact manner suggested by the LandAmerica guidance document or Commonwealth bulletin, this listing follows the industry practice of expressly excepting the rights within an instrument (in this listing, the "appurtenant easement rights") so as to remove them from coverage under paragraph 1(b)(2) of the ALTA 9 Endorsement. In fact, industry practice is so settled in favor of requiring insurers to state the 317 specific matters they are excepting from ALTA 9 Endorsement coverage that one industry expert directly criticized the District Court's decision in Commonwealth's favor. Writing in a work published by the American Bar Association's Section of Real Property, Probate and Trust Law, James L. Gosdin detailed the Court's reasoning and concluded: The result of this case is surprising and is inconsistent with the widespread interpretation of the Endorsement in the title insurance industrythat the Schedule B exception must refer at least to the "right of first refusal" or "easement" or other such right, although there is no need to refer to the specific paragraph or location in the document of the right. Gosdin, supra, at 258. * * * * * In sum, the text, purpose, and industry usage of the ALTA 9 Endorsement convince us that the District Court erred in granting Commonwealth's motion to dismiss. To except expressly from ALTA 9 Endorsement coverage a right of refusal or other restrictions noted in paragraph 1(b)(2) of the Endorsement, an insurer must list those restrictions specifically in Schedule B. It is not enough for the insurer merely to list in some part of Schedule B the document in which the restrictions are embedded. Commonwealth thus failed to "expressly except[]" from ALTA 9 Endorsement coverage loss from the restrictions contained in the Declaration, and should cover Nationwide's claim. B. Assigning the Burden of Diligence To Discover Restrictions In addition to holding that loss from the rights of refusal contained in the Declaration was "expressly excepted" from ALTA 9 Endorsement coverage, the District Court also determined that Nationwide "bore the burden of completing proper diligence" to ensure that the Declaration did not contain restrictions harmful to its interest in the Property. Nationwide, 2006 WL 1192998, at 3. The Court based this determination on its reading of a passage in a LandAmerica article cited by Nationwide that describes paragraph 1(b)(2) of the ALTA 9 Endorsement: Paragraph 1(b)(2) insures the lender that a document, described only as containing restrictions, doesn't contain a grant of easement, a lien for liquidated damages, a private charge or assessment, an option, a right of first refusal or a right for prior approval of a future purchaser or occupant.... Paragraph 1(b)(2) is found under paragraph 1(b) because an exception that fully describes the features of a document kills the coverage. The Insured will not be misled by an exception that discloses the features of a recorded instrument. If the exception has incomplete disclosure, the lender must review all of the recorded documents for an opinion that none contains a provision that might harm it. Id. at 2 (quoting Robert S. Bozarth, LandAmerica SingleSource: Commercial Transactions 101 (May 2003), https://www.agentxtra.net/extranet/SingleSource/NavMaster.asp?IndexID=3770&IndexTerm=Zoning&LinkID=5187463). The Court particularly focused on the last sentence of this passage to support its ruling. See id. at 2-3. Nationwide asserts that the Court misread the passage and ruled "in conflict with years of industry practice." See Nationwide's Br. at 16 n. 8. Nationwide is correct. The quoted passage makes clear that (1) an insurer must "fully describe the features of a document" to except loss arising from them, and (2) a full description of any excepted "feature" ensures that 318 "[t]he Insured will not be misled." In this context, it is unlikely that the passage further means to state, as the District Court ruled, that an insurer's failure to note a matter contained in a document in Schedule B forces "the lender [to] review all of the recorded documents for an opinion that none contains a provision that might harm it." Nationwide, 2006 WL 1192998, at 2. Instead, we read the passage's remarks about "incomplete disclosure" as distinguishing between the two methods of taking express exception to matters outlined in the LandAmerica guidance document quoted above. To repeat, the first method lists both an excepted document and every matter within it as a separate exception: METHOD 1 (Multiple exceptions): "Declaration of ... Restrictions for ___ dated ___ recorded at book __ page __" "Easements reserved in Declaration of ... Restrictions for ___ dated ___ recorded at book __ page __" "Rights of first refusal reserved in Declaration of ... Restrictions for ___ dated ___ recorded at book __ page __" LandAmerica, https://www.agentxtra.net/Extranet/singlesource/NavMaster.asp?IndexID=3202&IndexTerm=PUD&LinkID=5178317 (last visited Aug. 28, 2009). This method completely discloses to the insured lender the nature of each expressly excepted matter, the party benefitting from its terms, the date it was recorded, and its location in a deed book. Alternatively, the second method lists the excepted document in detail but only mentions in general the expressly excepted matters within the document: METHOD 2 (Single exception describing several elements): "Declaration of ... Restrictions for ___ dated ___ recorded at book __, page __; also, easements and right of first refusal reserved in said declaration." Id. This method still marks the matters within a document as expressly excepted from coverage, but it does not disclose to the insured lender (1) the party benefitting from each expressly excepted matter, (2) the date on which each matter was recorded, or (3) the location of the matters in a deed book. Thus, when an insurer uses this method to take express exception to a matter within a document, the insured lender must research that matter further to determine its details. In our view, this is what the passage from the LandAmerica article quoted by the District Court means when it states that "[i]f the exception has incomplete disclosure, the lender must review all of the recorded documents for an opinion that none contains a provision that might harm it." Nationwide, 2006 WL 1192998, at 2. The history and purpose of land title insurance further repudiate the District Court's conclusion "that it was [Nationwide]'s duty to exercise proper diligence before issuing the subject mortgage." Id. at 3. Since the first land title insurance company opened in 1876,[15] "[o]ne of the big talking points for title insurance is that it relieves the investor from title work, examinations and worry therefrom, as well as affording protection." Gosdin, supra, at 319 1 (internal quotations omitted). Title insurers also advertise their ability to review titles accurately and efficiently through use of their title records, which "are more effectively organized than public records,... may also contain more complete title information, [and may] provide a more efficient means of evaluating title than ... a search through public records." Beatie & Kleven, supra, at 400-01. The District Court's contention that a lender or buyer paying for title insurance "b[ears] the burden of completing proper diligence" accordingly robs title insurance of one of its primary reasons to exist. Nationwide paid Commonwealth to review its interest in the title to the Property and either cover any title restrictions or explicitly identify them as exceptions. In so doing, Nationwide discharged its "burden of completing proper diligence" to the extent that Commonwealth did not expressly except such restrictions from coverage in Schedule B of the policy. IV. Conclusion When Commonwealth issued its title insurance policy to Nationwide, it failed to except expressly the restrictions contained in the Declaration from coverage under paragraph 1(b)(2) of the policy's ALTA 9 Endorsement. To avoid paying for this failure (and Nationwide's claim), Commonwealth seeks to lead us down a path that would make title insurance a Barmecide feast. That is not the purpose of title insurance, it is not how the title insurance industry perceives what it does, and it is not how the text of and guidelines for title insurance read. We thus hold that Commonwealth bore the burden of detecting the restrictions stated in the Declaration, and had to list those restrictions explicitly as exceptions to avoid covering loss from them. For these reasons, we reverse the District Court's order granting Commonwealth's motion to dismiss and remand for further proceedings consistent with this opinion. NOTES [1] Commonwealth disputes that the Declaration contains a prior-approval-of-future-purchaser restriction, arguing instead that Nationwide seeks simply to evade the Declaration's use restrictions. Commw.'s Br. at 4-5 n. 2. Commonwealth accepts, however, that because this case was decided at the motion to dismiss stage in the District Court, the allegations in Nationwide's complaint "must be accepted as true for purposes of this appeal." Id. [2] In a related case in the District Court, Liberty Mills's successor, Franklin Mills Associates Limited Partnership, alleged as an affirmative defense that this right is one of "first refusal." Answer and Affirmative Defenses to Plaintiff's Complaint, Nationwide Life Ins. Co. v. Franklin Mills Assocs. Ltd. P'ship, No. 04-05049, at 5 (E.D. Pa. April 4, 2005). Typically a right of first refusal comes into play where one has the option to buy, or buy back, a property before it can be sold to a proposed buyer by the property's then-owner. We are unaware of anything in the record indicating that Franklin Mills sought to purchase the Property that Nationwide proposed to sell to another. Indeed, Commonwealth asserts there is no right of first refusal involved in this case. Commw.'s Br. at 4-5 n. 2. [3] Because Franklin Mills based its refusal on the Declaration's restrictions, Commonwealth's calling them another nameuse restrictions rather than a prior-approval-of-future-purchaser restriction or some other right of refusal, see supra nn. 1 & 2is irrelevant. Though we need not decide whether use restrictions necessarily are restrictions on the approval of future purchasers of property, they are deemed so here because that is the practical effect of Franklin Mills's actions in this case. (In any event, use restrictions are, like prior-approval-of-future-purchaser restrictions, among the important items of information lenders and owners seek in obtaining title insurance policies.) [4] For purposes of our opinion, "restrictions" include defects in title, liens, easements, encumbrances, conditions, and covenants (such as the rights at issue in this case) affecting the insured property. [5] Schedule B of a blank ALTA Owner's Policy reads: SCHEDULE B EXCEPTIONS FROM COVERAGE This policy does not insure against loss ... which arise[s] by reason of: [6] Paragraph 1(b)(4) of the ALTA 9 Endorsement, for instance, insures against loss or damage sustained by reason of.... (b) Unless expressly excepted in Schedule B.... (4) Any encroachment of existing improvements located on the land ... subject to any easement excepted in Schedule B. App. at 39 (emphases added). Under this paragraph, an insurer seeking not to have the Endorsement cover an encroachment on land "subject to any easement excepted in Schedule B" must take specific exception to the encroachment in order to distinguish it from the already excepted easement under which it could cause a loss. [7] The following matters are listed in Schedule B, Part II, of Nationwide's policy: [1] Unrecorded Lease between PMI Associates... and Phar-Mor, Inc., dated February 2, 1989 and subordinated by a Subordination, Non-Disturbance and Attornment Agreement between Nationwide Life Insurance Co., and Phar-Mor, Inc. dated February 28, 2001 ...[;] [2] Assignment of Leases, Rents and Profits between PMI Associates ... and Nationwide Life Insurance Company ... dated March 22, 2001 ... [; and] [3] UCC-1 financing statements from PMI Associates ... to Nationwide Life Insurance Company recorded ... on April 2, 2001. App. at 37. [8] This recognition undercuts Commonwealth's suggestion that Nationwide purchased the ALTA 9 Endorsement to provide "an affirmative grant of insurance coverage to the extent that harm results from any matter listed on Part II of Schedule B ... [containing] an option to purchase, a right of first refusal or the prior approval of a future purchaser or occupant which impair[s] the mortgage lender's mortgage interest...." Commw.'s Br. at 17 (internal quotations omitted). As a party to each matter listed in Schedule B, Part II, Nationwide had no reason to fear that one of them might contain a restriction that would cause it loss or damage. [9] The importance of notice is shown by this case. Nationwide asserts it did not know until 2003 that the Declaration contained the restrictions on which Franklin Mills refused approval of the proposed future purchaser of the Property. See Tr. Or. Arg. at 9-10. It "relied on the policy," which it purchased "in part ... so the title insurer w[ould] go through [the documents relevant to its interest in the Property] and point out potential traps." Id. [10] At oral argument, Commonwealth's counsel suggested that he was "not aware of any explicit guidelines" produced by Commonwealth pertaining to the ALTA 9 Endorsement. Tr. Or. Arg. at 16-17. But a guideline document quoted in Commonwealth's supplemental brief includes an "Underwriting Checklist for Lender's ALTA 9" produced by a branch operation of Commonwealth. Commw.'s Supp. Br. at 3-4 (quoting Commonwealth Land Title Insurance Co., D.C. and Maryland Operations, 98-07 Commonwealth Offers ALTA 9 Coverage on Residential Mortgage Policies, 3 (June 22, 1998)). This document draws no distinction between the two parts of Schedule B, and notes that "the ALTA 9 protects the lender against loss due to any [covenants, conditions, or restrictions] violation, encroachment, charge, assessment, option, easement, etc., not expressly excepted to in Schedule B." Id. at 1-2. [11] In supplemental briefing, Commonwealth quoted from an article written by the Knight-Barry Title Group to show "that only instruments listed in Schedule B, Part II, can trigger coverage from Paragraph 1(b)(2)" of the ALTA 9 Endorsement. Commw.'s Supp. Br. at 3. The article describes the relationship of an ALTA 9 Endorsement to a "Knight-Barry commitment": Paragraph 1(b)(2) ... [i]nsures that any instrument in Schedule B-II of a Knight-Barry commitment[,] which includes [covenants, conditions, or restrictions,] does not in addition ... provide for an option to purchase, a right of first refusal, or the prior approval of a future purchaser or occupant.... If one of these additional items exists, then we will call out the additional item(s) as an exception on Schedule B-II of the commitmentmany times prompting the parties to take further action. For example, if there is a right-of-first refusal in an [instrument], Knight-Barry will include the right-of-first refusal as an exception on Schedule B-II.... Commw.'s Supp. Br. at 3 (quoting Cheri Hipenbecker and Craig Haskins, The ALTA 9 Endorsement for Loan Policies, Knight-Barry Title Group (2009)). Although this article seemingly links paragraph 1(b)(2) of the ALTA 9 Endorsement to "Schedule B-II," it is ultimately unhelpful to Commonwealth. A close reading of the article reveals that Schedule B-II of a Knight-Barry commitment is different from Schedule B, Part II, of the 1992 ALTA Loan Policy used as the model for Nationwide's policy. In particular, Schedule B-II of the Knight-Barry commitment appears to serve the function of both parts of the ALTA Schedule B by including all exceptions to the commitment. See id. Even Commonwealth does not suggest that Schedule B, Part II, of the ALTA Loan Policy is so broad. See Tr. Or. Arg. at 25. More importantly, the article undermines Commonwealth's claim that a listing of an instrument is sufficient to "expressly except[]" matters within it from coverage under paragraph 1(b)(2) of the ALTA 9 Endorsement, noting instead that the insurer must "call out" the specific matters. [12] At oral argument, Commonwealth's counsel stated that he did not "know the simple answer" to whether LandAmerica owned Commonwealth. Tr. Or. Arg. at 17. On April 2, 2001, the date Commonwealth issued Nationwide's policy, LandAmerica owned Commonwealth. See App. at 30 (describing Commonwealth as "a LandAmerica Company"). Today it does not. See LandAmerica, http://www.landam.com/index.htm (last visited Aug. 28, 2009) (noting that LandAmerica sold Commonwealth to Fidelity National Financial, Inc. on December 22, 2008). [13] This guidance document is published at a website cited by both parties. See Nationwide's Supp. Br. at 4 (citing LandAmerica, https://www.agentxtra.net/extranet, as a source containing "at least some published underwriting guidelines" relevant to the ALTA 9 Endorsement); Commw.'s Supp. Br. at 3-5. The District Court also admitted and considered information from this website. See App. at 54 (denying Commonwealth's motion to strike "all factual allegations regarding... [LandAmerica]'s website") [14] Although Commonwealth quoted this bulletin in its supplemental brief and did not object to our review of it in full, see Tr. Or. Arg. at 40, it emphasized that "this is not a Commonwealth Land Title Insurance Company document." Id. It is apparent, however, that the D.C. and Maryland Agency Operations are branch offices of Commonwealth, see Commonwealth, http://www.cltic.com (last visited Aug. 28, 2009), and Pennsylvania title insurers follow the same drafting custom described in the quoted bulletin. See William C. Hart, The Law of Titles in Pennsylvania, 1104 (4th ed.2005), available at http://www.titlelawannotated.com/021703.pdf. [15] The first title insurer was the Real Estate Title Insurance Company of Philadelphia. See DeWitt, supra, at 17. This company was the forerunner of Commonwealth and sprang up in response to the Pennsylvania Supreme Court's decision in Watson v. Muirhead, 57 Pa. 161 (1868), which held that a conveyancer who failed to disclose a defect in a property's title was not liable for losses arising from the defect sustained by the buyer of the property. See id.	{ "pile_set_name": "FreeLaw" }
545 F.Supp. 1008 (1982) Jose GOLDBAUM, Plaintiff, v. BANK LEUMI TRUST COMPANY OF NEW YORK, Defendant. No. 80 Civ. 6294 (KTD). United States District Court, S. D. New York. August 18, 1982. 1009 Opert & Herisko, Cambridge, Mass., for plaintiff; Lawrence R. Opert, Cambridge, of counsel. Gottesman, Wolgel, Smith & Secunda, New York City, for defendant; Harold H. Wolgel, Lawrence L. Flynn, New York City, of counsel. 1010 OPINION KEVIN THOMAS DUFFY, District Judge: In this diversity action plaintiff Jose Goldbaum, a citizen and resident of Chile, seeks to recover for water damage to certain of his rare medals and coins stored in two safety deposit boxes at a branch of defendant Bank Leumi Trust Company ("Bank Leumi"), a New York banking corporation. The complaint alleges two causes of action: one for breach of the bank's alleged warranty to maintain the boxes safely, and another for damage caused by defendant's negligence. Plaintiff seeks $100,000 in compensatory damages on each cause of action. A two day nonjury trial was held before me on July 26, 1982. The trial commenced three days after I denied a belated motion by the defendant for summary judgment. My denial of the motion was the subject of a memorandum and order dated July 23, 1982, familiarity with which is assumed. The following shall constitute my findings of fact and conclusions of law. I. Goldbaum has had an interest in rare coins and medals since he was a child. He has been a numismatist for the past thirty-one years, concentrating in Chilean and other South American coins and medallions. He collects silver, bronze and copper coins and medals, and today his entire collection consists of approximately 2,500 pieces (1,600 coins and 900 medals). In 1973, Goldbaum arranged through Samuel Rosovsky, his cousin, life-long friend and a resident of New York City, to have a large box-full of approximately 900 of his rare medals and 100 of his coins deposited in a safety deposit box at the Bank Leumi. This arrangement was prompted by the tumultuous political climate in Chile in 1973 and Goldbaum's desire to place these valuable pieces in a more stable country. Goldbaum, who is Jewish, specifically chose Bank Leumi as a depository because of its relationship with Israel. In June, 1973, Rosovsky went to the Fifth Avenue branch of Bank Leumi and signed on plaintiff's behalf two contracts for the lease of two safety deposit boxes. The rental charge for the boxes was paid by the plaintiff out of an account he maintained at the bank. Both Rosovsky and the plaintiff kept copies of keys to the boxes. The coins and medals brought to the bank were wrapped in either of three different ways: first, there were three green cardboard velvet lined display boxes that contained separate fittings; second, many coins and medals were in individual plastic folders; and third, the remaining coins and medals were individually wrapped with special paper. On February 13, 1979, the sprinkler system at the Fifth Avenue branch malfunctioned and flooded the two safety deposit boxes containing plaintiff's coins and medals. The next day the bank called Rosovsky and asked him to come down to the bank to inspect the plaintiff's boxes. Rosovsky went to the bank on February 15th and discovered that a substantial amount of water was in the boxes, that most of the wrappings were destroyed and that most of the coins and medals were wet. The coins in plastic wrappers were untouched by the water but about 90 percent of the plastic wrappings had to be discarded. The bank manager and several bank employees helped Rosovsky dry the coins and medals one by one. When all the coins and medals were dry, some four hours later, Rosovsky placed them in three new safety deposit boxes, one of which was provided by the bank free of charge after Rosovsky was unable to fit the pieces in two new boxes provided by the bank. II. Plaintiff argues that the foregoing evidence establishes the defendant's liability. As explained in my July 23, 1982 memorandum and order, the parameters of the bank's liability are defined by its bailor-bailee relationship with Goldbaum. See Sagendorph v. First National Bank of Philmont, 218 App.Div. 285, 218 N.Y.S. 191 (3d Dep't 1926); Williston on Contracts § 1045, 1011 pp. 958-60 (3d ed. 1967). Bank Leumi is responsible to the plaintiff for any negligent loss or damage to the contents of the safety deposit boxes unless the parties agreed upon an alternative standard of liability. See Consolidated Launderies Corp. v. Regis Operators, Inc., 26 A.D.2d 383, 274 N.Y.S.2d 815 (3d Dep't 1966); Klar v. H. & M. Parcel Room, 270 App.Div. 538, 61 N.Y. S.2d 285 (1st Dep't 1946), aff'd, 296 N.Y. 1044, 73 N.E.2d 912 (1947). By presenting evidence that the items given over to the bailee were returned in a damaged condition, plaintiff has established a prima facie case of Bank Leumi's negligence. See Singer Co. v. Stott & Davis Motor Exp., Inc., 79 A.D.2d 227, 436 N.Y.S.2d 508 (4th Dep't 1981). The bank raises two arguments challenging its liability for the flooding. First, the lease agreements between Goldbaum and Bank Leumi stated that the bank "shall have no liability or loss [sic] from fire, water, radiation, the forces of nature, .... [etc.]." Defendant urges that since the plaintiff's coins and medallions were damaged by water from the bank's sprinkler system the lease agreements expressly exclude liability. For the reasons stated in my memorandum and order dated July 23, 1982, this argument is without merit. New York courts will honor the terms and conditions of bailment agreements developed by the parties. Nevertheless, contracts which exclude liability for damage due to factors beyond man's control will not exclude a defendant from liability for his negligent failure to avoid damage. Defendant argued at trial that this rule did not apply here because the lease agreement's reference to "water" excluded natural sources, such as rainstorms and floods; these sources were covered by "the forces of nature" clause in the same sentence of the contract. Defendant submits that the term "water" in the agreement covers only manmade sources of "water," including the sprinkler system which damaged plaintiff's possessions. I do not accept the bank's interpretation of these clauses which is corroborated solely by its counsel's argument. A close look at the pertinent language in the lease agreement reveals some ambiguity, and the inclusion of "force of nature" and "water" in the same sentence does not necessarily render their meanings mutually exclusive. Water can come from rainstorms or fire hoses. Fire can spring from a stricken match or a bolt of lightening. By listing "fire, water" next to "forces of nature" in its contract, the bank cannot disavow the reasonable interpretation that "fire, water" refer also to natural sources. An equally viable interpretation is that "forces of nature" was added to the clause to exculpate the bank from liability for damages caused by "forces of nature" other than fire and water, such as earthquakes and tornadoes. In other words, it does not follow as defendant suggests that the "fire" and "water" clause only applies to man-made sources. New York courts have not construed ambiguous agreements to exclude liability for a bailee's own negligence, especially where, as here, the bailee drafted the inexplicit language. See, e.g., Zayenda v. Spain & Spain, Ltd., 201 Misc. 963, 109 N.Y.S.2d 87, aff'd, 280 App.Div. 752, 113 N.Y.S.2d 115 (1st Dep't 1952). Accordingly, I do not find that the defendant has demonstrated that the lease agreement excludes any liability for all types of water damage for which defendant's negligence may have been responsible. If the defendant wished to prevent its liability for damage caused by a faulty sprinkler system then it should have been more explicit in the lease agreement. The next defense raised at trial is that plaintiff's coins and medals are not "jewelry" within the meaning of the lease agreement. The agreement stated that Goldbaum was only to keep "securities, jewelry and valuable papers in the security deposit boxes," and "that the duty of the Lessor with respect to any such securities, jewelry and valuable papers is limited to the exercise of reasonable care in preventing access to the box by unauthorized persons, and that under no circumstances shall the Lessor be liable for the loss or destruction of any other property, including money, alleged 1012 to have been placed in the box." Paragraph 4 of Lease Agreement. In denying defendant's motion for summary judgment, I explained that "[i]f plaintiff can prove at trial that his coins fall within the meaning of the term `jewelry' in the lease agreement and that the bank failed to deliver this property in an undamaged condition upon demand, then the burden of production of proof would shift from bailor to bailee to establish bailee's non-negligence." Slip. op. at p.8. Plaintiff has presented evidence of delivery in a damaged condition. Defendant concedes damage to plaintiff's property but argues that the coins and medals were money and not "jewelry" therefore absolving the bank of liability. I find that the plaintiff has proven that his coins and medals were "jewelry" within the meaning of the contract. A "jewel" is defined in The Random House Dictionary (Revised Edition) as 1. a cut and polished precious stone; gem. 2. a fashioned ornament for personal adornment, esp. of a precious metal set with gems. 3. a precious possession .... The plaintiff, a numismatist for over thirty years, testified that medals are "commemorative collector's items or art specimens" and coins are generally "currency." A medal easily fits within the definition of "jewelry" as "a precious possession." The medals which plaintiff stored in the safety deposit boxes were pieces from South American countries commemorating various historical events. Although they may not have been used for personal adornment, they were unquestionably precious possessions. Similarly, plaintiff's coins were precious possessions. Despite defendant's protestations to the contrary, coins which at one time were used as currency are not necessarily restricted to that status forever. As I suggested to counsel at trial, if a nickel was mistakenly minted portraying an Indian with its thumb up to its nose it would have a value greater than five one hundreths of a dollar. It would be more than mere "money" as defined in the lease agreement. I interpret the parties' agreement to prohibit use of the safety deposit boxes for coins that are currently circulating mediums of exchange and have no value over and above their face value. The agreement does not, however, exclude precious possessions, including coins that have value greater than their face value. Cf. California Federal Life Ins. Co. v. Comm'r. of Internal Revenue, 680 F.2d 85 (9th Cir. 1982) (gold coins are not "money" within the meaning of the Tax Code); Joslin v. United States, 666 F.2d 1306 (10th Cir. 1981) (per curiam) (silver dollars received for legal services are taxed at fair market value); In re Midas Coin Co., 264 F.Supp. 193 (E.D.Mo.1967), aff'd sub nom. Zuke v. St. John's Community Bank, 387 F.2d 118 (8th Cir. 1968) (valuable coins were "goods" under U.C.C.). Defendant's argument that the agreement precluded storing these pieces in the safety deposit boxes is untenable for equitable reasons as well. At least as of February 15, 1979, the bank manager knew the contents of the boxes and said nothing about the propriety of keeping the coins and medals there. In fact, an extra box was provided for these pieces after the flood. Defendant cannot now strictly enforce the agreement when it chose not to before this suit was filed. To summarize, Jose Goldbaum has established a prima facie case of the defendant's negligence which Bank Leumi has totally failed to rebut.[1] Accordingly, I find 1013 that defendant was negligent and is liable for those damages proximately caused by its negligence. I turn now to the issue of damages. III. As stated earlier, Goldbaum kept 900 medals and 100 coins at the Fifth Avenue Bank Leumi branch. All of the coins are South American in origin and most are from Chile. The plaintiff submitted an inventory of his collection originally prepared in 1973 and brought up-to-date in March, 1979. Close to 430 of the medals kept in New York were in "mint condition," i.e. they have been preserved in the same state as they were in the day they were made. The mint condition medals were kept in cardboard boxes. Those not in mint condition were folded in plastic. Some of the coins and medals in Goldbaum's collection at the defendant's Fifth Avenue branch were not valuable. One for example was a jukebox token which Goldbaum had kept since childhood. Some were made of tin and other less valuable metal alloys. On the basis of his own expertise and appraisals performed in Chile, however, Goldbaum testified that the mint condition coins increased in value 15 percent a year while the non-mint pieces inflated no more than 5 percent annually in value. Thus, had there been no accident, according to Goldbaum, the collection would have a value today of approximately $164,818.00. Goldbaum produced at trial several coins that were in the flooded boxes. To my uninitiated eye it was plain that the coins and medals had been marked in some way by the water. According to Goldbaum the mint condition pieces exposed to water decreased in value 60 percent and the other pieces devalued 20 percent. Goldbaum estimated his total loss from the flooding to be $86,482.00. Goldbaum had no documentary proof for these estimated valuations. He did not have any price lists nor did he know of any auction house prices. In addition, Goldbaum did not have any receipts for the purchase of any part of his collection. Apparently, certain pieces have different values in different markets. For instance, most of plaintiff's collection presumably has greater value in Chile than in the United States. Nevertheless, Goldbaum's testimony of the Chilean values is entitled to substantial weight based on his long experience as a numismatist in that country. He had one of the largest collections of Chilean coins anywhere in the world, and he had lectured on the subject. On this basis, I permitted much of Goldbaum's testimony to be introduced as expert testimony. In the face of Goldbaum's testimony, defendant offered no contradictory proof of the value of the coins either before or after the flooding. Defense counsel did request permission to put an expert numismatist on the stand to rebut Goldbaum's testimony. This request, however, came at the end of trial, and no mention of a defense expert had been made in the pre-trial order signed by defendant's counsel. Thus, to accede to counsel's belated request would have required a number of day's delay in the trial. To make matters worse, when counsel informed me of his desire to offer an expert he was not even certain of the testimony that would be given. A trial is no place to be conducting discovery or surmising as to what testimony might be. Defendant must bear the consequences of general unpreparedness and incomplete discovery at the commencement of trial in a two year old case. Based on the evidence at trial I find that plaintiff lost $86,482.00 due to defendant's negligence.[2] Accordingly, judgment will 1014 enter in favor of the plaintiff in that amount. Plaintiff is entitled to pre-judgment interest from February 14, 1979. Settle judgment within ten days of the date hereof on five days' notice. NOTES [1] An effort was made by defendant's counsel to have the manager of the Fifth Avenue branch of Bank Leumi, Nancy Mulligan, testify at trial about the unexpected nature of the sprinkler system malfunction. Defendant's attorney, however, was unable to timely produce this witness despite the court waiting almost an hour for the witness to arrive. This occurred on the second day of trial and therefore counsel had no excuse for failing to produce Ms. Mulligan on time. In any event, the branch manager's expected testimony would not have advanced defendant's cause. If, as counsel told me, Ms. Mulligan would have testified that the flooding was unexpected this would not have proven defendant's non-negligence. The bank had a duty to inspect regularly the system and properly maintain it. Only testimony surrounding the bank's efforts to fulfill this duty would have been probative to the issues at bar. Defendant's counsel made no offer of proof akin to these issues and indeed indicated that he had yet to discuss the matter in depth with the proposed witness. [2] Plaintiff's remaining claim for breach of warranty was not proven at trial. Plaintiff failed to demonstrate that the lease agreement contained any warranties express or implied other than to exercise reasonable care. Accordingly, judgment on this cause of action will not be entered in plaintiff's favor.	{ "pile_set_name": "FreeLaw" }
447 F.2d 1302 David BRIGGS, Petitioner-Appellant,v.Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee. No. 71-1510 Summary Calendar.* United States Court of Appeals, Fifth Circuit. September 13, 1971. Appeal from the United States District Court for the Western District of Texas; Jack Roberts, District Judge. David Briggs, pro se. Crawford C. Martin, Atty. Gen., Larry J. Craddock, Asst. Atty. Gen., Austin, Tex., for respondent-appellee. Before GEWIN, GOLDBERG, and DYER, Circuit Judges. PER CURIAM: 1 David Briggs, a prisoner of the State of Texas, has taken this appeal from the district court's denial of his petition for habeas corpus relief. We affirm. 2 Appellant is confined by authority of a life sentence imposed on February 16, 1968, following a jury conviction for murder with malice. There was no direct appeal. After considering evidence contained in affidavits filed pursuant to 28 U.S.C.A. § 2246, the district court below denied habeas relief on the ground that Briggs intentionally bypassed his state remedy of direct appeal from the conviction. See Fay v. Noia, 1963, 372 U.S. 391, 438-440, 83 S.Ct. 822, 9 L.Ed.2d 837. This holding was based on facts stated in the affidavit of one of the appellant's former court-appointed counsel. That affidavit indicated positively that Briggs knowingly and intentionally waived his right to take a direct appeal. It stated that at Briggs' request, counsel first had attempted to bargain with the State for a life sentence on a guilty plea, but that the prosecutor refused to accept this offer and sought the death penalty at trial. After rendition of the verdict, in which the jury imposed a life sentence, the appellant, according to his attorney's affidavit, waived all delays and received his sentence immediately. Counsel alleged that he fully advised Briggs of his direct appeal rights, whereupon appellant reportedly said, "Why on earth would I appeal a case that I have won?!!" He then expressed his appreciation to his counsel for their representation of him. 3 We find no error in the determination by the district court that Briggs intentionally bypassed his right to appeal. The district court accepted as true the detailed and specific affidavit testimony of the attorney, rather than the conclusory allegations contained in the affidavit of appellant, and the court was not clearly erroneous in so doing. See Tyler v. Beto, 5 Cir. 1968, 391 F.2d 993, cert. denied, 393 U.S. 1030, 89 S.Ct. 642, 21 L.Ed.2d 574; cf. McGarrah v. Dutton, 5 Cir. 1967, 381 F.2d 161. On the basis of this affidavit evidence, it would be hard to imagine a more definite and intentional waiver. See Henderson v. Heinze, 9 Cir. 1965, 349 F.2d 67; Watkins v. Crouse, 10 Cir. 1965, 344 F.2d 927. The judgment is therefore 4 Affirmed. Notes: * [1] Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, 5 Cir. 1970, 431 F.2d 409, Part I	{ "pile_set_name": "FreeLaw" }
STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED January 17, 2017 Plaintiff-Appellee, v No. 329606 Washtenaw Circuit Court ROMUALDO FIESTA GABUT, LC No. 14-000027-FC Defendant-Appellant. Before: WILDER, P.J., and BORRELLO and GLEICHER, JJ. PER CURIAM. A jury found defendant guilty of two counts of CSC-I, MCL 750.520b(2)(b) (victim under 13), and two counts of CSC-II, MCL 750.520c(1)(a) (victim under 13). The trial court sentenced defendant to serve concurrent sentences of 25 to 50 years prison sentence for each CSC-I conviction and a 7 to 15 years prison sentence for each CSC-II conviction. For the reasons set forth in this opinion, we affirm the convictions of defendant. I. BACKGROUND This matter comes to this court following the victim reporting to a counselor that she had been sexually abused by defendant. Defendant, who is the uncle of the victim in this case, was accused by the victim of engaging her in sexual acts when the two were either alone in the home of the victim’s mother or when there was another adult in the house who was incapacitated.1 In addition to the complaints of the victim in this case, during the course of their investigation, police learned that another of defendant’s nieces (hereinafter niece) claimed that defendant had sexually assaulted her, at the same house, when the niece was a minor. Pursuant to MCL 768.27a plaintiff sought to admit the testimony of the niece at trial. Plaintiff asserted that the evidence of past criminal sexual conduct was relevant to whether 1 Defendant also lived in the home with the victim, the victim’s mother and grandmother. The grandmother died prior to trial. -1- defendant committed the charged offenses against the victim, the victim’s truthfulness, defendant’s intent, and to rebut any claim of accident or mistake. Additionally plaintiff argued, “the probative value of the other-acts evidence . . . substantially outweighs any possibility of unfair prejudice.” Conversely, defendant argued that the niece’s testimony should be excluded because it was not “legally and logically relevant,” as it would not make the victim’s testimony any more or less truthful. Additionally defendant argued that the “high degree of similarity” between the allegations would “confuse the jury and prejudice [it] against . . . [d]efendant before [it has] fully deliberated the evidence in the case at hand”; and defendant was not claiming accident or mistake. Defendant also argued that the evidence’s probative value was substantially outweighed by the danger of undue prejudice because its “very limited probative value” was outweighed by the fact that the allegations were “‘nearly identical’ ” to the allegations in this case. After hearing arguments on the issue of the admissibility of the proffered evidence, the trial court concluded “that the notice is well-founded and that the evidence is admissible pursuant to the notice that’s been filed.” Defendant was convicted and sentenced as outlined above. This appeal then ensued focusing on the trial court’s admission of the testimony of the niece. II. ANALYSIS Defendant’s issue on appeal is whether the trial court abused its discretion in permitting defendant’s niece to testify pursuant to MCL 768.27a. We review a “trial court’s decision to admit or exclude evidence . . . for a clear abuse of discretion,” which occurs “when the trial court’s decision falls outside the range of reasonable and principled outcomes.” People v Solloway, ___ Mich App ___; ___ NW2d ___ (2016) (Docket No. 324559); slip op at 9. MCL 768.27a(1) provides: Notwithstanding section 27, in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the defendant at least 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered.2 2 CSC-I and CSC-II are among the listed offenses. MCL 768.27a(2)(a); MCL 28.722(j), (w)(iv), and (w)(v). -2- “Evidence is relevant if it has ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” People v Watkins, 491 Mich 450, 470; 818 NW2d 296 (2012), quoting MRE 401. Accordingly, under its clear language, MCL 768.27a “permits the admission of evidence” of “a defendant’s propensity to commit a crime,” notwithstanding MRE 404(b). Id. at 469-471, 475. Additionally, evidence can be relevant if offered to address a victim’s truthfulness, People v Mann, 288 Mich App 114, 118; 792 NW2d 53 (2010), a victim’s credibility, Watkins, 491 Mich at 492, a defendant’s modus operandi, id., a defendant’s common plan, scheme, or system of doing an act, People v Masroor, 313 Mich App 358, 367; 880 NW2d 812 (2015), lv gtd sub nom on other grounds People v Steanhouse, 499 Mich 934; 879 NW2d 252 (2016), a defendant’s opportunity to commit a crime, People v Miller, 165 Mich App 32, 43; 418 NW2d 668 (1987), or a defendant’s motive to commit a crime, id. However, evidence offered pursuant to MCL 768.27a must still pass a MRE 403 balancing test. People v Uribe, 499 Mich 921, 922; 878 NW2d 474 (2016); Watkins, 491 Mich at 481. MRE 403 provides that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Evidence’s probative value can be substantially outweighed by the danger of unfair prejudice when there “is an undue tendency [that the jury will] decide [the case] on an improper basis, [such as on] an emotional” basis, People v Vasher, 449 Mich 494, 501; 537 NW2d 168 (1995), or when the evidence is “ ‘marginally probative’ ” and there is “ ‘a danger that [it] will be given undue or pre-emptive weight,’ ” People v Mills, 450 Mich 61, 75- 76; 537 NW2d 909, mod on other grounds 450 Mich 1212 (1995), quoting Sclafani v Peter S Cusimano, Inc, 130 Mich App 728, 735-736; 344 NW2d 347 (1983) (alteration added). The Court in Watkins provided the following illustrative, nonexclusive list of factors that could result in exclusion under MRE 403: (1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant’s and the defendant’s testimony. . . . [Watkins, 491 Mich at 487-488.] If evidence is admissible for a relevant purpose pursuant to MCL 768.27a and is not excluded by MRE 403, trial courts can instruct the jury on how to consider the evidence, “to ensure that the jury properly employs that evidence,” Watkins, 491 Mich at 490, thereby mitigating any unfair prejudicial impact, People v Pesquera, 244 Mich App 305, 320; 625 NW2d 407 (2001). M Crim JI 20.28a is the model criminal jury instruction for considering MCL 768.27a evidence. Watkins, 491 Mich at 490. In this case, defendant was charged with committing two counts of CSC-I and two counts of CSC-II against a minor, and his niece that defendant committed, at least, CSC-II against her when she was a minor. Hence, MCL 768.27a is applicable. -3- Next, we turn our analysis to determine whether the niece’s testimony was not prohibited by MRE 403. We begin by noting that plaintiff offered the evidence for a relevant purpose. MCL 768.27a; MRE 401. As previously stated, plaintiff asserted in its notice that the evidence was relevant to whether defendant committed the offenses against the victim, the victim’s truthfulness, defendant’s intent, and to rebut any claim of accident or mistake. Defendant correctly asserted before trial that the victim’s credibility was the primary issue in the case. Due to the time lag between when the criminal sexual conduct occurred and the time when the victim reported the abuse to a counselor who then reported it to the police, plaintiff was unable to offer any physical evidence at trial. Rather, plaintiff offered the testimony of three witnesses—the victim, Police Officers Stephen Andrews and Eric Roth—and the latter’s testimony stemmed in significant part from the victim’s version of events. As testified to by the victim, other than defendant, she was the only eyewitness to the assaults. The niece’s testimony of defendant’s prior, similar acts committed against her in the same house when she was roughly the same age as the victim supported the victim’s credibility. Watkins, 491 Mich at 492; Mann, 288 Mich App at 118. Further, the niece’s testimony suggests that defendant intended to sexually assault the victim. Review of the record also reveals that the niece’s testimony was not substantially more prejudicial than probative.3 The evidence was not “ ‘marginally probative.’ ” Mills, 450 Mich at 75-76, quoting Sclafani, 130 Mich App at 735-736. Rather, the niece’s testimony was relevant to a variety of matters at issue, including defendant’s intent, his propensity to commit criminal sexual conduct against minor relatives, his opportunity to commit the crimes, his modus operandi, and his use of a common scheme, plan or system of committing criminal sexual conduct. Significantly, the niece’s testimony was highly relevant to the victim’s credibility (a consideration bolstered by the tendency of the evidence to make it more probable that the other matters identified point to defendant’s guilt). Additionally, the Watkins factors allow for admission of the evidence. “[T]he acts are not so dissimilar as to preclude admission of [the niece’s] other-acts evidence.” Solloway, ___ Mich App at ___; slip op at 10 (applying the Watkins factors). Indeed, both sets of acts are quite similar. Both the victim and the niece testified that defendant repeatedly touched their vaginal areas (at least 15 times each) at the victim’s home when they were between five and seven years old. Defendant concedes that the acts are similar, but argues that the high degree of similarity is actually prejudicial. This Court rejected such an argument in Solloway, ___ Mich App at ___; slip op at 10. In Solloway, this Court held that the question is not simply whether the evidence is prejudicial; rather, the question is whether the evidence is unfairly prejudicial. The prejudicial nature of the evidence recognized by defendant is a function of its high probative value. Id., quoting Watkins, 491 Mich at 487 (“ ‘[W]hen applying MRE 403 to evidence admissible under MCL 768.27a, courts must weigh the propensity inference in favor of the evidence’s probative value rather than its prejudicial effect.’ ”) 3 The trial court is required to make a clear finding on this issue and erred when it failed to do so. Uribe, 499 Mich at 922. However, we find the trial court’s omission harmless. See Masroor, 313 Mich App at 361, 367-368. -4- Additionally, we find that there exists a “temporal divide” between defendant’s acts against the niece and the victim, as stressed by defendant. Solloway, ___ Mich App ___; slip op at 10. The niece testified that defendant abused her sometime around 1995, and the victim testified that defendant abused her between the time she was six or seven, which would be five to ten years later. However, “given how similar the acts are, the temporal divide between their occurrences, standing alone, does not preclude the evidence’s admission. Solloway, ___ Mich App ___; slip op at 10. Indeed, the passage of time can be viewed as simply a function of when victims of a similar age were accessible. Further, there is no evidence of “any intervening acts that would weigh against the admissibility of [the niece’s] other-acts evidence.” Id. at ___ slip op at 11. Additionally, defendant’s other acts were not infrequent. Watkins, 491 Mich at 487-488. Rather, the niece testified that defendant molested her “[t]wenty or so” times over a “couple year[ ]” period. See Solloway, ___ Mich App ___; slip op at 10. When addressing “the lack of reliability of the evidence supporting the occurrence of the other acts,” defendant argues that there is no evidence supporting the niece’s testimony. Watkins, 491 Mich at 487-488. It is true that there was no physical evidence or eyewitness testimony offered to corroborate the niece’s testimony. But as testified to by the niece, the validity of her allegations also constitutes the classic “he-said-she-said” situation. In this vein, Roth’s testimony that the niece’s testimony in court was consistent with what she told him before trial supports the reliability of the evidence. Finally, defendant argues that the niece’s testimony was not needed because plaintiff could seek a conviction based on the victim’s testimony alone. Watkins, 491 Mich at 487-488. It is true that the crimes of CSC-I and CSC-II can be proven simply on the basis of the victim’s testimony. MCL 750.520h. But defendant made the victim’s credibility the focus of his defense. For example, defendant argued in closing that she “d[id]n’t like” defendant, and that “kids get confused” and “make statements that aren’t completely accurate.” And under such a circumstance, other acts testimony from a second victim is properly admitted to corroborate the victim’s testimony. See, e.g., Solloway, ___ Mich App ___; Watkins, 491 Mich at 492; slip op at 9-10; Mann, 288 Mich App at 118. That the jury might have convicted based on the victim’s testimony alone does not mean that the jury necessarily must do so, or that the probability of conviction based on her testimony alone is so high that the other acts evidence was not needed. Additionally, we note that the trial court instructed the jury how to consider the niece’s testimony when it offered a jury instruction mirroring M Crim JI 20.28a: The prosecution has introduced evidence of claimed acts of sexual misconduct by the defendant with a minor, [the niece], for which he is not on trial. Before you may consider such acts as evidence against the defendant you must first find that the defendant actually committed those acts. If you find that the defendant did commit those acts you may consider them in deciding if the defendant committed the offense for which he is now on trial. You must not convict the defendant here solely because you think he is guilty of other bad conduct. The evidence must convince you beyond a -5- reasonable doubt that the defendant committed the crimes or you must find him not guilty. Because “[i]t is well established that jurors are presumed to follow their instructions,” People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998), it can be presumed that this instruction mitigated the possible unfairly prejudicial effect of the niece’s testimony, Pesquera, 244 Mich App at 320.4 Affirmed. /s/ Kurtis T. Wilder /s/ Stephen L. Borrello /s/ Elizabeth L. Gleicher 4 Plaintiff also argues on appeal that the niece’s testimony was admissible under MRE 404(b). The trial court admitted the evidence under MCL 768.27a, not MRE 404(b). And MCL 768.27a allows admission of the evidence notwithstanding MRE 404(b). Watkins, 491 Mich at 469-471, 475; MCL 768.27. Therefore, we need not consider whether the niece’s testimony was admissible pursuant to MRE 404(b). -6-	{ "pile_set_name": "FreeLaw" }

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