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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00155-CV
IN THE INTEREST OF K.J.L.
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellant F.C. (Father) appeals the judgment terminating his parental
rights to his daughter, K.J.L. Father argues in one issue that the evidence is
legally and factually insufficient to support the trial court’s finding that termination
of his parental rights is in K.J.L.’s best interest. We affirm.
1
See Tex. R. App. P. 47.4.
II. Background
K.J.L.’s mother (Mother) voluntarily relinquished her parental rights to
K.J.L. and is not a party to this appeal. Father was represented by counsel at the
April 2013 termination trial but did not personally appear.
Keri Wellinghoff is an investigator for the Department of Family and
Protective Services (the “Department”). She investigated a June 13, 2012
referral about K.J.L., who was about three and one-half months old at the time.
Wellinghoff met with Mother on the day of the referral and tested Mother for drug
use; the test was positive for methamphetamines, amphetamines, and cocaine.
Mother informed Wellinghoff that she had recently relinquished her parental
rights to her older daughter, that she had previously lived in several different
shelters, and that she had most recently stayed in a motel but had been evicted.
Mother admitted leaving K.J.L. with a woman who was essentially a stranger the
night before. The woman lived at the motel from which Mother had been evicted,
and Mother said she left K.J.L. with the woman so that K.J.L. could sleep inside
since Mother was sleeping outside. The woman refused to relinquish K.J.L. to
Mother the next day, and the women had an altercation.
Mother told Wellinghoff that Father had recently been released from jail for
assaulting Mother in January 2012 while Mother was pregnant with K.J.L.
Mother said the January 2012 assault charge was Father’s third and that he was
on parole.
2
Mother provided Wellinghoff with three temporary placements for K.J.L.,
but all three placements were ruled out, two for prior history with the Department
and the third for unwillingness to take custody of K.J.L. Wellinghoff also spoke
with Mother’s mother, who expressed concern about Mother’s ability to care for
K.J.L. and about the domestic violence between Mother and Father.
Wellinghoff met with Father later the same day. Father expressed concern
about Mother’s instability but not Mother’s drug use. He confirmed that he had
two prior assault charges, but he said that he was not the aggressor. Father
admitted, though, that he had been jailed for assaulting Mother. Wellinghoff also
learned that Father had prior Department referrals with reason-to-believe
dispositions for domestic violence against the mothers of his children.
Wellinghoff testified that she did not feel comfortable releasing K.J.L. to
Father because of the domestic violence involving Mother. She asked Father for
potential placements but could not approve any of Father’s suggestions. The
Department thus staffed the case for emergency removal and placed K.J.L. into
foster care.
Several documents were admitted into evidence that relate to Father’s
criminal history. Those exhibits reflect that, including the assault charges
discussed above, Father had convictions for terroristic threat and resisting arrest
in May 2003, criminal trespass in May 2005, possession of marijuana in February
2006, assault causing bodily injury in April 2007, assault causing bodily injury to
3
a family member in October 2007, assault causing bodily injury in September
2009, and delivery of marijuana and burglary of a habitation in November 2009.
Gladys Demus testified that she was the Department caseworker for this
case. Upon receiving the assignment and reviewing the parents’ current
information and Department history, Demus was concerned about Mother’s
homelessness, drug use, history of abusive relationships, and voluntary
relinquishment of her parental rights to her older child. Demus was concerned
about Father’s criminal record, including his history of domestic violence, and his
history with the Department that included reason-to-believe dispositions.
Demus prepared a service plan for Father and spoke with him shortly after
the case began. Father did not show up for his appointment to discuss the
service plan, and Demus testified that she only spoke with Father “maybe twice”
by telephone during the case. Demus later mailed Father’s service plan to him at
the address he had provided on his waiver of service form, but the service plan
was returned as undeliverable. Demus asked Father for his current contact
information, but he refused to provide it. Father told her that the phone number
he had provided was his sister’s.
Demus testified that she received a telephone call one day from a woman
who asked to take custody of K.J.L. and who said that Father had asked her to
call. Demus asked the woman to have Father call her and confirm that Father
was requesting that K.J.L. be placed with the woman. Demus testified that
Father never called her about the woman and that her last contact with Father
4
was in July 2012. She said that she heard in about November 2012 that Father
had been shot and hospitalized, but she was not able to confirm that information.
Demus testified that Father had not made any progress toward his service plan,
nor had he visited K.J.L. during the case. Father, in her opinion, had not shown
an ability to provide a safe environment for K.J.L., and Demus testified that
termination of Father’s parental rights would be in K.J.L.’s best interest.
Demus testified that K.J.L. was placed with A.C. and M.C. in November
2012 and lives there with her half-sister. A.C. is related to Mother or Father, but
the relationship is not clear from the record. When K.J.L. first went into foster
care, she had seasonal allergies, would occasionally breakout with a rash, but
was “pretty healthy.” By the time of trial, K.J.L. was “doing great,” was starting to
walk, and seemed to enjoy living with A.C. Demus testified that K.J.L. is “very
close and bonded” with her foster parents and her sister and that she has had
visitations with Mother’s mother. K.J.L. is developmentally on target. A.C. and
M.C. wish to adopt K.J.L., and Demus testified that she believed they will be able
to meet K.J.L.’s emotional, physical, and financial needs.
The trial court signed a judgment on April 15, 2013, terminating Father’s
parental rights. The trial court found that termination would be in K.J.L.’s best
interest; that Father had knowingly placed or knowingly allowed K.J.L. to remain
in conditions or surroundings that endangered her emotional or physical well-
being; that Father had engaged in conduct or knowingly placed K.J.L. with
persons who had engaged in conduct that endangered her physical or emotional
5
well-being; and that Father had constructively abandoned K.J.L. This appeal
followed.
III. Standards of Review
In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except the child’s
right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to sever
permanently the relationship between a parent and a child, it must first observe
fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex. 2012)
(citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92
(1982)). We strictly scrutinize termination proceedings and strictly construe
involuntary termination statutes in favor of the parent. Id.; Holick, 685 S.W.2d at
20–21. “While parental rights are of constitutional magnitude, they are not
absolute. Just as it is imperative for courts to recognize the constitutional
underpinnings of the parent-child relationship, it is also essential that emotional
and physical interests of the child not be sacrificed merely to preserve that right.”
In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. § 161.001 (West Supp. 2012), § 161.206(a)
(West 2008). Due process demands this heightened standard because “[a]
parental rights termination proceeding encumbers a value ‘far more precious
6
than any property right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S.
at 758–59, 102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see
In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for
termination and conservatorship). Evidence is clear and convincing if it “will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007 (West
2008).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Id. § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex.
2005). Both elements must be established; termination may not be based solely
on the best interest of the child as determined by the trier of fact. Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re D.T., 34 S.W.3d
625, 629 (Tex. App.—Fort Worth 2000, pet. denied) (op. on reh’g).
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the challenged ground for
termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We
review all the evidence in the light most favorable to the finding and judgment.
Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder
could have done so. Id. We disregard all evidence that a reasonable factfinder
7
could have disbelieved. Id. We consider undisputed evidence even if it is
contrary to the finding. Id. That is, we consider evidence favorable to
termination if a reasonable factfinder could, and we disregard contrary evidence
unless a reasonable factfinder could not. Id. We cannot weigh witness credibility
issues that depend on the appearance and demeanor of the witnesses, for that is
the factfinder’s province. Id. at 573, 574. And even when credibility issues
appear in the appellate record, we defer to the factfinder’s determinations as long
as they are not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the
parent violated the relevant conduct provision of section 161.001(1) and that
termination of the parent-child relationship would be in the best interest of the
child. Tex. Fam. Code Ann. § 161.001; C.H., 89 S.W.3d at 28. If, in light of the
entire record, the disputed evidence that a reasonable factfinder could not have
credited in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction in the truth of its finding, then
the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
IV. Best Interest
Father contends that the evidence is legally and factually insufficient to
support the trial court’s finding that termination of his parental rights is in K.J.L.’s
8
best interest. Father does not challenge the trial court’s statutory endangerment
findings, and we therefore do not address them.
A. Applicable Law
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and
permanent placement of the child in a safe environment is also presumed to be
in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008).
Nonexclusive factors that the trier of fact in a termination case may use in
determining the best interest of the child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the
future;
(C) the emotional and physical danger to the child now and in the
future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote
the best interest of the child;
(F) the plans for the child by these individuals or by the agency
seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
9
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted).
These factors are not exhaustive; some listed factors may be inapplicable to
some cases; other factors not on the list may also be considered when
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
B. Discussion
To support his argument, Father points to evidence that he was not the
offending parent that led to the Department referral and that there is no evidence
to link him to the event. Father also points out that the clerk’s record contains an
apartment address for him, which he says “implies that [he] can provide K.J.L.
with a stable home [and] adequate housing.”
Without repeating the evidence discussed above, Father has an extensive
criminal history that includes possession and delivery of marijuana, burglary of a
habitation, and domestic violence. He assaulted Mother while she was pregnant
with K.J.L. He did not exercise visitations with K.J.L. during the case, nor did he
complete any portion of his service plan. Father also refused to provide contact
information upon request by Demus. See In re V.V., 349 S.W.3d 548, 558 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied) (en banc) (holding that parent’s
extensive criminal record also reflects on best interest of children in maintaining
10
relationship with that parent); In re R.R., 294 S.W.3d 213, 235 (Tex. App.—Fort
Worth 2009, no pet.) (holding that exposure to domestic violence is relevant
when considering child’s best interest); see also In re T.D.L., No. 02-05-00250-
CV, 2006 WL 302126, at *9 (Tex. App.—Fort Worth Feb. 9, 2006, no pet.) (mem.
op.) (noting in best-interest analysis the mother’s failure to complete her service
plan other than attending a few parenting classes). Moreover, the Department
was unable to approve of any of Father’s or Mother’s suggested placements for
K.J.L., and Demus testified that K.J.L. is doing well in foster care; that K.J.L. is
bonded with her sister and foster parents; that the foster parents wish to adopt
K.J.L.; and that the foster parents can provide for K.J.L.’s emotional, physical,
and financial needs.
Considering the Holley factors listed above and applying the appropriate
standards of review, we hold that legally and factually sufficient evidence
supports the trial court’s finding that termination of Father’s parental rights is in
K.J.L.’s best interest. We overrule Father’s sole issue.
V. Conclusion
Having overruled Father’s sole issue, we affirm the trial court’s judgment.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DELIVERED: September 12, 2013
11
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212 Cal.App.2d 450 (1963)
JOHN D. WALSH, Plaintiff and Respondent,
v.
HOOKER & FAY, Defendant, Cross-complainant and Appellant; JOSEPH D. SCANNELL, Defendant, Cross-defendant and Respondent.
Civ. No. 20228.
California Court of Appeals. First Dist., Div. Two.
Jan. 29, 1963.
Elden C. Friel for Defendant, Cross-complainant and Appellant.
Nicholas Zoller for Plaintiff and Respondent.
No appearance for Defendant, Cross-defendant and Respondent.
AGEE, J.
Plaintiff was induced by false representations, made to him by defendant Scannell, to buy 4,000 shares of stock in Sastex Oil & Gas Co. Scannell was employed as an "account executive" or salesman by defendant Hooker & Fay, a stock brokerage firm.
Plaintiff purchased the stock in two lots, on November 7, 1956, and November 9, 1956, respectively, at a total cost of $3,606.17. He discovered the falsity of Scannell's representations on November 6, 1957, at which time the stock had a reasonable market value of $180. (Plaintiff does not object to the cut-off date of November 6, 1957, although he later sold the stock at a net to him of only $111.16.) Damages of $3,426.17 were awarded to plaintiff against both defendants, each of whom filed an appeal from the judgment. Scannell's appeal has been dismissed for failure to file an opening brief, leaving Hooker and Fay as the only appellant.
The pertinent findings of the trial court may be summarized *452 as follows: On or about November 1, 1956, Scannell suggested and recommended to plaintiff that he purchase stock in Sastex Oil and Gas; that for the purpose of inducing plaintiff to do so, Scannell represented to plaintiff that Sastex was backed by the Doheny interests and that they were drilling for oil in Southern California, that he had some of the stock himself, and that he had talked with one of the partners of Hooker and Fay who said (with reference to the stock), "Yes, it's all right"; that these representations were false, were known by Scannell to be untrue, and were made by him with the intent to induce the plaintiff to act in reliance thereon; that plaintiff had no knowledge or information on said stock; that he believed the representations made by Scannell and, in reliance thereon, ordered him to purchase for his account (with Hooker and Fay) 4,000 shares of Sastex stock; that Scannell, without the knowledge or consent of Hooker and Fay authorized General American and Canadian Securities, Inc., a securities brokerage firm, to make such purchase; that this firm purchased said stock (on the Calgary Stock Exchange) from an undisclosed vendor at a total cost to plaintiff of $3,606.17, of which $80 was for its commission; that Hooker and Fay paid this amount to said firm upon plaintiff's authorization; that on November 6, 1957, plaintiff discovered the falsity of the representations made by Scannell; that as the result of said false representations plaintiff was damaged in the sum of $3,426.17, that being the difference between the cost to plaintiff and the value of the stock as of the date of the discovery of the fraud; that all of the acts of Scannell above specified were done in the course of his employment by Hooker and Fay as its agent; that neither Scannell nor Hooker and Fay was the vendor or owner of said stock but instead each acted as the agent of plaintiff in connection with said stock purchase; that at all times involved herein, a fiduciary relationship existed between the plaintiff and the defendants. (1 Witkin, Summary of California Law 404, Agency and Employment 26; Webb v. Saunders, 79 Cal.App.2d 863, 870 [181 P.2d 43]; Kinert v. Wright, 81 Cal.App.2d 919, 925 [185 P.2d 364].)
Amendment of complaint to conform to proof. Plaintiff's original complaint contained the following paragraph: "That on or about the 1st day of November, 1956, defendant, JOSEPH SCANNELL, as such agent [of Hooker and Fay] and in the course of his employment for defendant, HOOKER & FAY, offered to sell to plaintiff 4000 shares of stock of Sastex Oil and Gas Co. at a price of $3,606.00." (Emphasis ours.) Thus, the *453 relationship between plaintiff and the defendants was alleged to have been that of vendee-vendor.
In a memorandum opinion, filed on March 9, 1961, the trial judge stated that the evidence established that the relationship was not that of vendee- vendor but rather was that of principal and agent and was fiduciary in character; "that the measure of damages for a violation of such a fiduciary duty is that applied to contract cases generally, i.e., the amount which will compensate the principal for all the detriment proximately caused by the breach"; that the complaint did not plead such a fiduciary relationship and, therefore, a finding to this effect could not be made; that, in the absence of such a finding, the measure of damages would be controlled by section 3343 of the Civil Code.
This section provides, generally, that one defrauded in the purchase of property is entitled to recover the difference between the actual value of that with which he parted and the actual value of that which he received.
In its original findings and conclusions, which were filed on the same day as the foregoing memorandum opinion, the trial court found that the value of the stock at the time plaintiff received it was $3,526.17, this being the quoted price of the stock on the Calgary Stock Exchange at the time it was purchased for him. The court accordingly limited damages to $80, the amount of the commission.
On March 16, 1961, plaintiff filed a motion to amend his complaint to conform to the proof. These amendments reflected the court's findings previously made and the memorandum opinion referred to above. The principal amendment requested was that the allegation, "offered to sell to plaintiff," be changed to the allegation, "suggested and recommended to plaintiff that he purchase."
Plaintiff's affidavit in support of his motion alleged that it was not until the trial of the action that the full and accurate relationship of the parties was determined; that the facts as to this relationship were established at the trial and were uncontroverted; that no objection was interjected by defendants when this proof of relationship was developed at the trial. This affidavit was not controverted.
On April 6, 1961, the trial court granted the motion to amend the complaint and, on the same date, amended paragraphs I and XI of its findings and paragraph I of its conclusions by adding the following: "I. That at all times herein mentioned, defendant, Joseph Scannell, was an agent *454 of defendant, Hooker and Fay, a copartnership, and all of the acts hereinafter specified and done by said Joseph Scannell were done in the course of his employment for defendant, Hooker and Fay. That at all times herein mentioned, defendants, Joseph Scannell and Hooker and Fay, a copartnership, were the agents of plaintiff, and all of the acts hereinafter specified and done by said defendants, respectively, were done in the course of their employment for said plaintiff. ... XI. That as a result of said representations plaintiff has been damaged in the sum of $3,426.17. ... I. [Conclusions] That at all times mentioned herein a fiduciary relationship existed between the plaintiff and the defendants and that accordingly plaintiff is entitled to recover from defendants, Joseph Scannell and Hooker and Fay, the sum of $3,426.17, together with his costs of suit." Judgment was entered accordingly on April 11, 1961.
Section 473 of the Code of Civil Procedure authorizes the trial court, "in its discretion," to allow amendments to any pleading, "in furtherance of justice." In 2 Witkin, California Procedure 1605, Pleading, section 594, it is stated: "The policy of great liberality in permitting amendments at any stage of the proceeding was declared at an early date and has been repeatedly restated." (Citing authorities.) [1] The same treatise states ( 597): "An amendment after the conclusion of the trial, with the evidence in and arguments completed, is permissible ... [t]o conform to proof, without introducing new evidence. Here the rule is extremely liberal." In Eatwell v. Beck (1953) 41 Cal.2d 128, 135-136 [257 P.2d 643], the Supreme Court held that, the complaint having sufficiently alleged facts of fraud and injury, it was reversible error not to permit the plaintiffs to amend their complaint to allege more clearly the facts supporting recovery on the correct rule of damages.
We find no abuse of discretion by the trial court in allowing the complaint to be amended. This being so, it follows that the trial court was required to amend its findings and conclusions in order to cover the amended allegations of the complaint.
Respondeat Superior. Appellant's liability to respondent for the fraudulent representations of Scannel is based upon the theory of ostensible agency. The trial court found that all of the acts of Scannell which are involved herein were done in the course of his employment by appellant. It further found, however, that appellant had no knowledge of nor did it consent to the act of Scannell in authorizing *455 General American to purchase 4,000 shares of Sastex for plaintiff's margin account with it.
However, respondent dealt with Scannell in the belief that Scannell was acting as the agent of appellant and we agree with the trial court that he had reasonable grounds for such belief. His prior purchases of stock made through Scannell for his account with appellant had been handled in the same way as the Sastex purchase, with the exception that, in the latter, the sale confirmation slips were on the printed form of General American instead of that of the appellant. However, respondent testified that he had not seen any significance in this. He further testified, without objection, that it was his impression that he was dealing with appellant throughout the entire transaction.
The purchase price of the Sastex stock plus the commission to General American was paid by appellant and charged to respondent's account. The stock was delivered to appellant pursuant to plaintiff's authorization and was held by it in respondent's account in the same manner as all of his other stocks. The monthly statements sent by appellant to respondent listed 4,000 shares of Sastex as "Bought or Received" by it. Appellant made an adjustment of $100 in respondent's account when an overcharge in this amount by General American was discovered. The purchase of the Sastex stock caused a debit balance in respondent's account of $3,389.29, and appellant charged respondent interest thereon at 6 per cent per annum.
Scannell testified that his duties were to place orders for customers to buy securities "and quite often we are called upon to make certain recommendations or suggestions to the people to buy securities"; that his job was to solicit accounts and handle the execution of any orders that customers
Pertinent to appellant's liability to respondent for the placed with him; that he was assigned to certain accounts and that one of these was the respondent's.
acts of its agent, Scannell, are the following provisions of the Civil Code. "An agency is either actual or ostensible." ( 2298.) "An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent. ..." ( 2300). "An agent has such authority as the principal, actually or ostensibly, confers upon him." ( 2315.) "Ostensible authority is such as a principal, intentionally or by want of ordinary *456 care, causes or allows a third person to believe the agent to possess." ( 2317.) "[A] principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business. ..." ( 2338) (emphasis ours).
[2] The theory of ostensible agency is that the agent's position facilitates the consummation of the fraud, in that from the point of view of the third person, the transaction seems regular on its face and the agent appears to be acting in the ordinary course of the business confided to him. It is immaterial that the principal receives no benefit from the transaction. (Rutherford v. Rideout Bank, 11 Cal.2d 479, 484 [80 P.2d 978, 117 A.L.R. 383]; Brown v. Oxtoby, 45 Cal.App.2d 702, 708 [114 P.2d 622]; Ghiglione v. American Trust Co., 49 Cal.App.2d 633, 637-638 [122 P.2d 301].)
In Grigsby v. Hagler (1938) 25 Cal.App.2d 714 [78 P.2d 444], an employee overcharged his employer's customer by means of fraudulently marked sales slips and kept the extra money. The employer knew nothing of the practice but was held liable to the customer for the amount of the overcharges on the ground that the employee's fraud was committed in the scope of his employment.
In Blackburn v. Witter (1962) 201 Cal.App.2d 518 [19 Cal.Rptr. 842], a judgment for plaintiff against defendant stock brokerage firms in an action for damages for fraud was affirmed. The evidence showed that an employee of defendants acted within his ostensible authority in persuading plaintiff to buy stock in a nonexistent company and then fraudulently misused the money so obtained from plaintiff.
[3] We are satisfied that there is substantial evidence to support the trial court's finding that all of the acts of Scannell, as related above, were done in the course of his employment by appellant and that appellant is therefore responsible to respondent for such acts.
Appellant also asserts that there is no evidence to support the trial court's finding that it, as well as Scannell, acted as an agent of the plaintiff in connection with the Sastex transaction. We do not agree. The acts and conduct of appellant, as related above, sufficiently establish this relationship. In the findings, the only acts directly attributed to appellant are those which were done after Scannell had placed the "buy order" with General American. But from there on, starting with the payment for the stock and the holding of it in *457 respondent's margin account, appellant was acting as respondent's agent.
Dual agency. Appellant states this contention as follows: "The conduct of Scannell in acting as agent for Respondent and as agent for Hooker & Fay, at the same time, without the knowledge or consent of either, was a fraud on each of them, and neither was bound thereby." (Emphasis ours.)
The fallacy of this contention is that both principals knew of such dual agency. Respondent certainly knew that Scannell was so acting. While appellant did not know of the Sastex purchase order at the time it was placed with General American, it certainly had learned all about it at the time it paid the purchase price to the latter, adjusted the error of $100, added the Sastex stock to respondent's portfolio, and charged plaintiff interest on the balance owed to it because of such purchase. Appellant had assigned Scannell to handle the respondent's account and knew that Scannell had run the Sastex transaction through that account as a part of his duties under said assignment.
Appellant cites and relies upon Vice v. Thacker, 30 Cal.2d 84 [180 P.2d 4], wherein the court said, at page 90: "It is the general rule that where an agent has assumed to act in a double capacity, a principal who has no knowledge of such dual representation--as the court found the fact to be with respect to plaintiff herein--may avoid the transaction." (Emphasis ours.) Such lack of knowledge is not present herein.
Appellant claims that it did "avoid" the transaction, citing the following allegation in its answer to the complaint: "that plaintiff requested this defendant to repurchase the stock from him; and that this defendant refused to accept said stock or pay the purchase price to plaintiff." This apparently refers to a letter written on February 5, 1958, by respondent to one of the partners of Hooker and Fay. The stock was then worth only $240. Respondent asked in the letter that appellant "sell the stock for what can be gotten out of it and make an adjustment on the remaining sum." Appellant did nothing.
Assuming that this inaction amounted to an avoidance or repudiation of the transaction, it comes too late to be effective. If appellant ever had the right to so avoid or repudiate, it should have acted at the time it learned of the transaction and not waited until over one year later. *458
[4] Moreover, and what is really decisive of the issue, the "dual agency" rule does not apply where the two principals of the fraudulent agent do not stand in that relationship to each other. As between these two parties, appellant was the agent and respondent was the principal. Also, as pointed out above, the acts of Scannell became in law the acts of appellant, under the doctrine of respondeat superior.
Measure of damages. The issue is whether the trial court was required to apply section 3343 of the Civil Code, thus limiting damages to $80. This section was enacted in 1935. Sections 1709 and 3333 of the Civil Code were enacted in 1872.
Our consideration of the issue is confined to decisions rendered after section 3343 became effective, in order to determine whether a trial court is permitted to continue to apply the earlier sections to factual situations such as is involved herein.
Section 1709 provides: "One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers." (Emphasis ours.) Section 3333 provides: "For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not." (Emphasis ours.)
[5] The rule is now well established that, in the typical case involving a fraudulent vendor and a defrauded vendee, section 3343 provides the exclusive measure of damages. (Bagdasarian v. Gragnon (1948) 31 Cal.2d 744 [192 P.2d 935]; Garrett v. Perry (1959) 53 Cal.2d 178 [346 P.2d 758]; Lawson v. Town & Country Shops, Inc. (1958) 159 Cal.App.2d 196 [323 P.2d 843]; Clar v. Board of Trade (1958) 164 Cal.App.2d 636 [331 P.2d 89]; McNeill v. Bredberg (1961) 192 Cal.App.2d 458 [13 Cal.Rptr. 580]; Peskin v. Phinney (1960) 182 Cal.App.2d 632 [6 Cal.Rptr. 389].)
An exception to the foregoing rule is recognized where a fiduciary relationship exists between the fraudulent and the defrauded parties. In Simone v. McKee (1956) 142 Cal.App.2d 307 [298 P.2d 667], the court stated at page 315: "He [appellant-broker] contends that the 'out of pocket rule' codified in section 3343 of the Civil Code is here applicable. All of the cases cited in support of this rule are cases between a vendor and vendee. None of them involve fraud *459 by a fiduciary. As to such cases the much broader provisions of sections 3333 and 1709 of the Civil Code are applicable." (Emphasis ours.)
In Ward v. Taggart (1959) 51 Cal.2d 736 [336 P.2d 534], Mr. Justice Traynor, after citing a number of recent decisions holding that section 3343 did not apply, stated, at page 741: "These cases all involved situations in which the defendant was the agent of the defrauded person or in which a confidential or fiduciary relationship existed between the parties."
In Savage v. Mayer (1949) 33 Cal.2d 548 [203 P.2d 9], the defendant-agent bought stock for plaintiff- principal at $17 a share and fraudulently represented to the latter that the purchase was made at $20 a share. Defendant contended that plaintiff's recovery was limited by section 3343 to the difference between the market value of the stock and the price paid by him, and that since no showing was made of the value of the stock at the time it was purchased, plaintiff was not entitled to recover anything. The court rejected this contention, stating that the principal's right to recover is based upon the breach of the agent's duties incident to the agency relationship and that section 3343 does not operate to limit a principal's recovery to the damages prescribed therein. In other words, if section 3343 had been held to provide the exclusive measure of damages in such a situation, the plaintiff- principal could only recover from the defendant-agent the difference between what he paid for the stock and its actual value at the time he received it. There being no proof as to such value, the plaintiff would therefore not have been allowed any recovery. Instead, he was allowed to recover a money judgment against his agent for the difference between the true cost of the stock and what the agent charged him.
Appellant contends that the exception to the rule established by section 3343 applies only when the agent or fiduciary has made a "secret profit" out of the transaction and that a recovery is limited to the amount of such secret profit.
However, there was no "secret profit" involved in Nathanson v. Murphy, 132 Cal.App.2d 363 [282 P.2d 174]. There the defendants owned a 763-acre ranch which they represented to the plaintiff as containing 960 acres. Plaintiff formed a corporation for the purpose of buying it. He put up $5,000 of his own money to make the down payment on behalf of the corporation. Plaintiff's plan was to sell stock in the corporation in order to finance the transaction. The ranch was *460 deeded to the corporation, which gave back to defendants a note and deed of trust on the property to secure the balance of the purchase price. Two months later the misrepresentation as to the acreage was discovered. All solicitations to buy stock were thereupon discontinued. The deed of trust was foreclosed and the corporation was unable to reimburse plaintiff. In an action for deceit and false representation plaintiff recovered a judgment of $5,000 against defendants.
Defendants contended that the amount of plaintiff's damages should have been limited to the difference between the $5,000 which he parted with and the value of what he received at that time, i.e., his investment in the corporation. Citing and quoting from Sutter v. General Petroleum Corp., 28 Cal.2d 525, 533 [170 P.2d 898, 167 A.L.R.2d 271], a case which assumed that section 3343 applied, the court said: "In our case, if the stock had any value at the time of the formation of the corporation, the consequences of defendants' fraud did not arise until the discovery of the true acreage. It was then that the stock, if it had any value, became valueless and the injury to Nathanson occurred." (P. 372.)
In affirming the judgment in Nathanson, the court did not decide whether the measure of damages should be determined by sections 1709 and 3333 or by section 3343. It stated that, at page 372, "under either section 3333 or 1709, or both, plaintiff was entitled at least to $5,000." It also holds that a recovery of this amount is allowable under section 3343.
The chief significance of Nathanson is that "the actual value of that which he received," as used in section 3343, is fixed as of the date of the discovery of the fraud. In other words, the court did not deduct from the $5,000 the value of his investment as determined at the time when he parted with his money.
Prince v. Harting (1960) 177 Cal.App.2d 720 [2 Cal.Rptr. 545], was an action brought by two partners against the third partner, alleging that the latter had violated his fiduciary duties to them by diverting profits which should have belonged to the partnership. The defendant contended that he could be held liable only for the amount of secret profits which he realized. The court rejected this contention and awarded a money judgment against him for $54,855.89, which was more than the amount of his "secret profits."
The court said, at pages 729 and 730: "His second contention is that this is not an action for fraud and deceit, but for secret profits, so that defendant can be held liable only for the *461 amount of the partnership's money actually traced into his pockets. He seems to concede that over $44,000 was so traced. We agree that this is not an ordinary action between vendor and purchaser for fraud and deceit. But the conclusion for which appellant contends does not follow. Neither is this an ordinary action for unjust enrichment, based upon the theory of money had and received, even though the complaint speaks of 'secret profits.' It is an action by partners against a partner, for fraudulent breach of the fiduciary duty owed by him to them. We think that such a fraudulent breach is a tort long recognized by the courts of this state, and one to which Civil Code, section 3343, does not apply. The books are full of decisions involving breaches of fiduciary duties of various sorts, and we will not here attempt to review even a small part of them. Through them all runs one common thread--a determination that the faithless fiduciary shall make good the full amount of the loss of which his breach of faith is a cause. The theories announced are as various as the remedies available, but the result is always the same, except in those cases where the plaintiff has himself failed to seek the maximum relief that he would be entitled to obtain." (Emphasis ours.)
Scannell testified that he had sold Sastex to "more than fifteen" customers. It is true that the commissions on these "buys" went to General American. However, Scannell planned for a quick "sell out" if the anticipated rise in price occurred. On such sales, Scannell and appellant would receive a commission. The net proceeds would, of course, go into the customer's account and be available for further trading. The only flaw in the plan was that the stock dropped to almost zero.
To hold to the measure of damage rule contended for by appellant would work a manifest injustice. Where a stock is traded on an established stock exchange or is actively traded in "over the counter" transactions, its value at any particular time is ordinarily determined by the price at which it is then being bought and sold.
Such a rule would allow a stock broker to fraudulently induce his clients to buy a certain stock and escape liability in damages, except for the amount of the commission, by simply showing that, at the time of the purchase, "the actual value of that which he received" was equal to "that with *462 which the defrauded person parted." We do not think that this should be the law.
The cross-complaint. Hooker and Fay filed a cross-complaint against Scannell, seeking indemnity for the amount of any judgment obtained by plaintiff against it based upon Scannell's conduct.
In its findings of fact and conclusions of law the trial court made the following conclusion: "That cross-complainant, Hooker and Fay, may recoup and recover its loss, if any, by virtue of the judgment rendered pursuant to these findings in favor of plaintiff, against cross-defendant, Joseph Scannell, by way of indemnity, but without recovery of attorney's fees." However, the judgment failed to mention or make any disposition of the cross- complaint. It would appear to be an inadvertence.
[6] The law is well settled that when a judgment has been rendered against an employer or principal for damages occasioned by the unauthorized tortious act of his employee or agent, the former may recoup his loss in an action against the latter. (Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 Cal.2d 423, 428-429 [296 P.2d 801, 57 A.L.R.2d 914]; Popejoy v. Hannon, 37 Cal.2d 159, 173 [231 P.2d 484]; Warshauer v. Bauer Construction Co. (1960) 179 Cal.App.2d 44, 49-50 [3 Cal.Rptr. 570]; 1 Witkin, Summary of California Law 411, Agency and Employment 32; Mechem, Outlines of the Law of Agency, 4th ed., 1952, p. 365.)
[7] As to the question of attorney fees, the cross-complaint alleges that in the event Hooker and Fay becomes entitled to indemnity from Scannell, such indemnity should include "attorneys' fees expended by it in the defense of the above-entitled action." (Emphasis ours.) This allegation was placed in issue by Scannell's answer to the cross-complaint but was completely ignored at the trial. There is nothing upon which to base a finding as to what amount, if any, was "expended" by Hooker and Fay for its attorney fees. Cases involving the fixing by the trial court of the amount of "reasonable" attorneys' fees without any expert testimony thereon are not in point because the issue was not presented. It is true that Scannell could not be held liable for such fees in any amount greater than was reasonable. However, if this amount was more than Hooker and Fay had expended, his liability would be for the lesser amount. Without any testimony as to what was expended, the trial court would be unable to determine the issue. *463
On January 9, 1961, the trial court filed its "Announcement of Decision," which was confined to the issues raised by the complaint and the answers thereto. On January 26, 1961, the court filed a "Modification of Announcement of Decision," which covered the issues raised by the cross- complaint and Scannell's answer thereto. We agree with the following conclusion as stated therein: "There being no evidence offered at the trial concerning the costs and attorney fees expended by Hooker and Fay in the defense of plaintiff's action, we find against Hooker and Fay on that issue."
Moreover, Hooker and Fay never urged this issue in the lower court and, in fact, appears to have abandoned it. After plaintiff had presented his proposed findings and conclusions, Hooker and Fay filed numerous exceptions thereto but made no mention of or complaint as to the following proposed conclusion: "2. That HOOKER AND FAY may recover its loss, if any, by virtue of the judgment rendered herein in favor of plaintiff by way of indemnity against JOSEPH SCANNELL, but without recovery of attorney's fees from JOSEPH SCANNELL." (Emphasis ours.)
Neither did Hooker and Fay move for a new trial, which would thereby have given the trial court the opportunity to "vacate and set aside the findings and judgment and reopen the case for further proceedings and the introduction of additional evidence with the same effect as if the case had been reopened after the submission thereof and before findings had been filed or judgment rendered." (Code Civ. Proc., 662.)
The judgment in favor of plaintiff is affirmed and the cause is remanded to the trial court with directions to render judgment on the cross- complaint in conformance with this decision.
Kaufman, P. J., and Shoemaker, J., concurred.
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220 Or. 84 (1959)
348 P.2d 1
LILLY
v.
GLADDEN
Supreme Court of Oregon.
Argued December 16, 1959.
Reversed December 30, 1959.
Petition for rehearing denied January 26, 1960.
*86 Robert G. Danielson, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief was Robert Y. Thornton, Attorney General, Salem.
Duane R. Ertsgaard, Salem, argued the cause and filed a brief for respondent.
REVERSED AND REMANDED.
O'CONNELL, J.
This is a proceeding for post-conviction relief under the Oregon Post-Conviction Hearing Act initiated in Marion county by the petition of plaintiff, who seeks release from the state penitentiary on the ground that he is unlawfully confined. The defendant demurred to the plaintiff's petition on the ground that it failed to state facts sufficient to constitute grounds for release. The trial court overruled the demurrer, decreed that the sentence entered by the circuit court for Lane county committing plaintiff to the state penitentiary was void, and ordered plaintiff discharged from the custody of the defendant and the Oregon state penitentiary. The defendant appeals from this judgment order of the Marion county circuit court.
On December 16, 1958, plaintiff was charged in an information filed by the district attorney for Lane county with the crime of Attempted Obtaining Money *87 and Property under False Pretenses. The material parts of the information were as follows:
"That said RAYMOND D. LILLY on the 19th day of November A.D., 1958 in the said County of Lane, State of Oregon, then and there being, did then and there wilfully and unlawfully, with intent to injure and defraud, falsely pretend to John W. Sweeney of Sweeney's Shell Service Station, 129 South A Street, Springfield, Oregon, that he, the said Raymond D. Lilly, had on deposit with the Springfield Main Branch of The First National Bank of Oregon, subject to check, the sum of $5.00 and that a certain bank check drawn on said bank for said sum of money, dated November 19, 1958, signed by the said Raymond D. Lilly and then and there delivered by him to John W. Sweeney of Sweeney's Shell Service Station, was a good and valid check for said sum of money, by means of which false token, false pretenses and fraudulent check the said defendant did then and there unlawfully and wilfully attempt to obtain from the said John W. Sweeney of Sweeney's Shell Service Station merchandise, to-wit: two gallons of gasoline, and the balance in lawful money of the United States of America; whereas, in truth and in fact, he, the said defendant did not then and there have on deposit in said bank, subject to check, the sum of $5.00 nor any sum whatsoever subject to check, and the said bank check was neither good nor valid, but was void and worthless, all of which the said defendant then and there well knew; contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon."
The information bears the notation indicating that the crime intended to be charged is defined in ORS 165.205.
On January 8, 1959, plaintiff was placed on probation with the Oregon State Parole Board for a period of two years. The probation was revoked on June 25th, 1959 and plaintiff was on that date sentenced to serve a term not to exceed two years in the penitentiary.
*88 Plaintiff contends that the judgment of conviction and his imprisonment based thereon are void because the Oregon statutes relating to the conduct for which he was prosecuted and convicted permit the district attorney, the magistrate, or the grand jury to decide whether the crime charged will be a felony or misdemeanor, and that consequently there is a violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution and of Article I, § 20 of the Oregon Constitution.
Specifically, plaintiff argues that under the statutes as they existed when he was prosecuted if a person obtained property not exceeding $75 in value the district attorney could, at his discretion, elect to prosecute either under ORS 165.205 which would permit punishment by imprisonment up to five years in the penitentiary, or under ORS 164.310 which limits imprisonment to not more than one year in the county jail for such an offense. The principle relied upon is stated in State v. Powell, 212 Or 684, 321 P2d 333 (1958) where the court said:
"It is established law that if there can be found no rational basis for distinguishing the acts committed by one person from the acts committed by another, the acts of one cannot be treated solely as a felony and the acts of the other solely as a misdemeanor. The equal protection clause of the Fourteenth Amendment prohibits such legislation. * * * [T]he same acts without distinguishing criteria must be as to all persons treated either as a felony or as a misdemeanor. They cannot constitute both. State of Oregon v. Pirkey, 203 Or 697, 281 P2d 698. This is not to be construed as prohibiting the right of a legislature to permit a trial court in its discretion to pass different sentences upon different offenders for the same crime." 212 Or at page 691.
*89 See also State v. Pirkey, 203 Or 697, 281 P2d 698 (1955); State v. Buck, 200 Or 87, 262 P2d 495 (1953).
If, as plaintiff contends, the same act may be prosecuted either under ORS 165.205 or under ORS 164.310 the objection raised by him is well taken. We must determine, then, whether the statutes have this effect. The pertinent parts of ORS 164.310 read as follows:
"164.310. (1) Any person who steals the property of another, or who wilfully takes, carries, leads or drives away the property of another with the intent to deprive such other of such property permanently, or who knowingly and designedly, by any false or fraudulent oral, written or other representation or pretense, defrauds another of property, is guilty of larceny; and
"(a) If such property exceeds $75 in value, shall be punished upon conviction by imprisonment in the penitentiary for not more than 10 years.
"(b) If such property does not exceed $75 in value, shall be punished upon conviction by imprisonment in the county jail for not more than one year, or by a fine of not more than $500, or both." (Italics supplied)
The part of the statute shown in italics was added with other material by amendment in 1957 (Oregon Laws 1957, ch 653) and the same language was deleted by amendment in 1959 (Oregon Laws 1959, ch 302).
ORS 165.205 reads in part as follows:
"165.205. Obtaining property by false pretenses. (1) Any person who, by any false pretenses or any privity or false token, and with intent to defraud, obtains or attempts to obtain from any other person, any money or property, or who obtains or attempts to obtain with like intent the signature of any person to any writing, the false making of which would be punishable as forgery, shall be punished upon conviction by imprisonment in the penitentiary for *90 not more than five years, or by imprisonment in the county jail for not more than one year, or by a fine of not more than $500, or by both such fine and imprisonment."
Prior to the 1957 amendment of the larceny statute (ORS 164.310) there was no statutory provision expressly covering the case in which possession alone was obtained by false pretense. ORS 165.205 in making unlawful the obtaining of any money or property could perhaps be construed to include the obtaining of possession alone as well as title or title and possession, but such an interpretation would run counter to the well established distinction between the crimes of larceny and false pretenses, the latter crime arising only if the victim is induced to part with his ownership and not if possession alone is intended to pass. This distinction was recognized in State v. Germain, 54 Or 395, 103 P 521 (1909); Beckwith v. Galice Mines Co., 50 Or 542, 93 P2d 453, 16 LRA NS 723 (1908); State v. Ryan, 47 Or 338, 82 P 703, 1 LRA NS 862 (1905). In the first case cited above the crime charged was obtaining property under false pretense. The court said:
"The first objection is to the sufficiency of the indictment. It is contended that the receipt shows on its face that the prosecutor, Clinesmith, did not part with the title to his money, but only with the possession of it, and that, as the crime of obtaining money under false pretenses is committed only when the injured party is induced to part with the title to his property, the indictment does not state facts sufficient to constitute a crime. The courts have held with practical unanimity that the crime for which the defendant was convicted is not committed unless the party defrauded is induced by the false pretense to part with the title to his property, and that the mere parting with the possession is not sufficient. State v. Anderson, 47 Iowa, 142; Grunson *91 v. State, 89 Ind. 533 (46 Am. Rep. 178); Miller v. Commonwealth, 78 Ky. 15 (39 Am. Rep. 194); People v. Rae, 66 Cal. 423 (6 Pac. 1: 56 Am. Rep. 102). In these and in many other cases the courts hold that when by means of fraud, trick, or artifice, the possession of property is obtained with felonious intent, and the title still remains in the owner, the crime is larceny; but if the title, as well as the possession, is parted with, the offense is that of obtaining money under false pretenses. The distinction is a very fine and technical one, and does not seem to be very substantial, but is very tenaciously adhered to by the courts." State v. Germain, 54 Or at page 399.
Since this court had recognized in the foregoing cases that the obtaining of the possession of goods but not the title to goods is within the crime of larceny, the 1957 amendment of ORS 164.310 was not necessary to include such a case within the statutory definition of larceny. However, by another section of our statutes the scope of the crime of false pretenses was limited and in doubt prior to the amendment in 1957.
Prior to the 1957 amendment last referred to ORS 136.560 provided as follows:
"136.560. False pretenses; proof of oral representation; personation of another. (1) Upon a trial for having by any false pretense obtained the signature of any person to any written instrument or obtained from any person any valuable thing, no evidence can be admitted of a false pretense expressed orally and unaccompanied by a false token or writing; but such pretense, or some note or memorandum thereof, must be in writing and either subscribed by or in the handwriting of the defendant.
"(2) This section does not apply to an action for falsely representing or personating another and in such assumed character receiving any such valuable thing."
*92 By excluding evidence of oral false pretenses in obtaining from "any person any valuable thing," ORS 136.560 in practical effect limited the substantive crimes of false pretenses and larceny by trick to those cases which involved written representations or false tokens. This deficiency in the criminal law was dealt with in the 1957 session of the legislature by adding an amendment to subsection (2) of ORS 136.560 although, as we shall see later, the amendment was effective to obviate only a part of that deficiency. As amended by chapter 551, Oregon Laws 1957 this subsection read as follows (the italicized portion being the part added by the amendment):
"(2) This section does not apply to an action for falsely representing or personating another and in such assumed character receiving any such valuable thing, or to an action brought under ORS 164.310 for defrauding any person of money or real or personal property by any false or fraudulent oral representation or pretense."
The part added by amendment was deleted by chapter 302, Oregon Laws 1959. As indicated above, the larceny amendment of 1957 was also deleted at the 1959 session.
It will be noted that the 1957 amendment to ORS 136.560, in stating the added exception to the proscription against admitting evidence of an oral pretense did not refer to ORS 165.205, the false pretense statute, but specifically limited the exception to cases under ORS 164.310, the larceny statute. We have no knowledge of anything in the legislative records or of the circumstances attendant upon the enactment of these amendments which would explain why subsection (2) of ORS 136.560 was not made applicable to ORS 165.205, a statute which was so closely related to the subject of oral pretenses dealt with in the amendment.
*93 It is possible that the legislature regarded the language of the amendment to ORS 164.310 as sufficiently broad to embrace all cases involving false pretenses previously covered in ORS 165.205, but had this been the understanding it would be reasonable to expect ORS 165.205 to be amended so that the superseded portion of that statute would have been deleted. If the amendment of ORS 164.310 is regarded as embracing all cases of false pretenses, it would be possible, of course, to construe it as constituting an implied repeal of the provisions of ORS 165.205 covering the same subject matter. But we shall not adopt this construction.
1. In the first place, repeal by implication is not favored. Noble v. Noble, 164 Or 538, 103 P2d 293 (1940); Webber v. Bailey, 151 Or 488, 51 P2d 832 (1935); State ex rel Pierce v. Slusher, 119 Or 141, 248 P 358 (1926); Crawford, Statutory Construction, § 310; 1 Sutherland, Statutory Construction (3d ed) § 2014.
If we should treat ORS 165.205 as repealed in whole or in part by the amendment to ORS 164.310, the consequence would be that after the deletion in 1959 of the provisions relating to the crime of false pretenses from ORS 164.310 we would have no crime of false pretenses in this state after the effective date of the 1959 amendment because ORS 165.205, once repealed, would not be revived. ORS 174.080 provides that if a statute is repealed, either expressly or by implication, the repeal of the repealing statute will not revive the former statute. Consequently, if we should treat ORS 165.205 as partially repealed, the 1959 amendment removing the false pretenses provisions from ORS 164.310 would result in eliminating the crime of false pretenses from our law after the effective date of the 1959 amendment.
It is possible to construe ORS 174.080 to be inapplicable *94 to the legislative action to which we have just referred. There is authority which would support the position that ORS 174.080 is not applicable where the effect of an act is not to abrogate entirely a former act but to simply make it partially inoperative in the instances covered by the subsequent act. Taylor v. State Compensation Commissioner, 140 W Va 572, 86 SE2d 114 (1955); People v. Mitchell, 27 Cal2d 678, 166 P2d 10 (1946); Peoria & E. Ry. Co. v. Wright, 377 Ill 626, 37 NE2d 322 (1941); People v. Sweitzer, 266 Ill 459, 107 NE 902 (1915). By this interpretation of the statute, although the subsequent act would operate to vitiate a part of the former act and could, therefore, be deemed a partial repeal, it would nevertheless be regarded as an amendment rather than as a partial repeal and thus would fall outside of the purview of the statute which precludes automatic revival only in cases of repeal. 1 Sutherland, Statutory Construction (3d ed 1943) §§ 1901, 1913, 1922.
If we should construe ORS 174.080 to have this restricted operation, the 1959 deletion of the false pretenses provisions from the larceny statute would revive the provisions on false pretenses in ORS 165.205 and yet in the meantime ORS 164.310 would be regarded as embodying the definition of the crime of false pretenses previously covered by ORS 165.205.
But even though we should regard the provisions of ORS 165.205 relating to false pretenses as revived upon repeal of the 1957 amendment to ORS 164.310, there would still be obstacles to the construction that an implied repeal was effected. We would have to assume that the legislature, presented with the problem of amending the law relating to false pretenses, repealed the very section of our statutory law which specifically dealt with that crime, namely ORS 165.205 *95 and placed the entire law of false pretenses in the larceny statute, which covers a crime traditionally contrasted with the crime of false pretenses. If the legislature had intended to merge the two crimes, (which has been done in some states, see Perkins on Criminal Law, p 272) certainly it would not have described the combined crimes in the language of ORS 164.310, and it is not likely that it would have left ORS 165.205 unamended as it did in making the 1957 amendments.
2. Finally, in exploring the possibility of finding that an implied repeal was effected, we must be guided by the well established rule of construction that such an implication will not be indulged in if the statutes involved can be harmonized. Ulrich v. Lincoln Realty Co., 180 Or 380, 168 P2d 582, 175 P2d 149 (1946); Webber v. Bailey, supra; State ex rel Harth v. Phipps, 136 Or 454, 299 P 1009 (1931); 1 Sutherland, Statutory Construction (3d ed 1943) § 2014. The harmony sought for here is not necessarily a perfect symmetry of the statutes dealt with; it is sufficient if we arrive at a construction representing a reasonable consistency between the affected parts. We are somewhat in the same position as a surgeon dealing with a patient with a shattered leg; if he is presented with a choice between amputation or the preservation of the leg by shortening it he will choose the latter course of action, although his choice leaves the patient with serious difficulties. The idea of accepting the lesser of two evils in applying the rule of implied repeal is implicit in the following statement of the principle taken from 1 Sutherland, Statutory Construction (3d ed 1943) § 2014, pp 468-470:
"* * * The bent of the rules of interpretation and construction is to give harmonious operation and effect to all of the acts upon a subject, where *96 such a construction is reasonably possible, even to the extent of superimposing a construction of consistency upon the apparent legislative intent to repeal, where two acts can, in fact, stand together and be given a coterminous operation. Where the repealing effect of a statute is doubtful, the statute is to be strictly construed to effectuate its consistent operation with previous legislation."
3. The question remains as to whether a reasonable consistency short of perfection can be found if we give effect to both ORS 164.310 as amended in 1957 and ORS 165.205 in dealing with the crime of false pretenses. We think that such consistency can be found by regarding the amendment to the larceny statute as an amendment germane only to the crime of larceny and leaving the crime of false pretenses covered in ORS 165.205 unaffected by the amendment. In terms of the conduct necessary to constitute a crime under the respective sections, ORS 165.205 would be violated only if the victim parted with ownership as a result of the false pretense, whereas ORS 164.310 would be violated if possession only not title was acquired by false pretense. Thus, if an owner were induced by trick to bail his automobile to the accused, the latter would be guilty of larceny by trick under ORS 164.310; on the other hand, if an owner were induced to give the defrauder a bill of sale to the automobile, the crime would be defined in ORS 165.205. This is the distinction already recognized by this court in the cases referred to above. See, e.g., State v. Germain, 54 Or 395, 103 P 521 (1909). The fact that larceny by trick was recognized in these early cases without the aid of statute may be pointed to as a reason for explaining the amendment to ORS 164.310 on some other basis. But that argument loses much of its force when it is realized that in other states where larceny by trick was *97 recognized as within the definition of larceny without the aid of legislation, statutes have been passed expressly defining larceny in terms of obtaining possession of goods by false pretenses. In those and other states the distinction between obtaining title and obtaining possession only is recognized as the dividing line between larceny and false pretenses.
In construing our statutes to express this distinction between larceny by trick and the crime of false pretenses we realize that the statutory law relating to the crimes based upon false pretenses is left imperfect. Thus, it will be noted that by applying ORS 136.560 only to ORS 164.310 as we interpret the latter section, one who obtains possession only not title by an oral representation or pretense commits the crime of larceny by trick; but one who obtains title by an oral representation or pretense is not punishable under either ORS 164.310 or ORS 165.205, because the act is not larceny under the former statute, and the pretense being oral it cannot be admitted into evidence because of the proscription in ORS 136.560, the exception in subsection (2) of that statute relating only to the crime of larceny and not to the crime of false pretenses.
The construction we have placed upon the statutes in question is predicated upon the distinction between unlawfully obtaining the title to property and obtaining possession only. We do not propose to discuss the validity of the logic which treats as larceny the act of obtaining possession of a chattel by false pretenses, and on the other hand treats as a separate crime of false pretenses the act of obtaining title or title and possession. Tenuous as it may be, the distinction existed at the time legislative action was taken in amending ORS 164.310 and ORS 136.560 in 1957, and we *98 may assume that the legislature recognized the distinction at the time it took such action.
There is some evidence to support this conclusion. Apparently, the changes made in 1957 were the result of a recommendation of the Oregon state bar committee on criminal law and procedure. The report of that committee, published in the 1956 Oregon State Bar Committee Reports, page 8 contains the following recommendation of the committee:
"4. That ORS 136.560 be amended so as not to require proof in writing of a false and fraudulent oral representation by means of which the crime of larceny is perpetrated. See Exhibit D.
* * * * *
"EXHIBIT D
"Be It Enacted By The People of the State of Oregon.
"Section 1. That ORS 136.560 is amended to read as follows:
"136.560 (2) This section does not apply to an action brought under ORS 164.310 for defrauding any person of money or real or personal property by any false or fraudulent oral representation or pretense, or for falsely representing or personating another, and in such assumed character receiving any such valuable thing."
It will be noted that the committee does not recommend that the law of false pretenses be amended, but limits its recommendation to cases where there is an oral representation "by means of which the crime of larceny is perpetrated." (Emphasis supplied)
The suggested bill prepared by the committee also called for the amendment of the larceny statute and made no mention of ORS 165.205. It is possible that the failure of the committee to make reference to the *99 crime of false pretenses was an inadvertence, but we have no knowledge, judicially or otherwise, that such was the case. In the circumstances under which the proposal was made by the bar and considering the manner in which the legislature dealt with the statutes in making the amendments, it does not appear unreasonable to assume, as we have, that the 1957 amendments were intended to modify the law of larceny only and to leave unaffected the provisions of ORS 165.205.
4. We hold, therefore, that it was proper to prosecute and convict and sentence the plaintiff under ORS 165.205 for obtaining property under false pretense, even though the value of the property obtained did not exceed $75 in value.
5-10. It is plaintiff's contention that the similarity in language in ORS 164.310 and 165.205 relating to the act of obtaining goods by false pretenses renders the two sections vague and uncertain in that men of ordinary intelligence, upon reading the two sections, would conclude that they both prohibit the same offense. State of Oregon v. Pirkey, 203 Or 697, 281 P2d 698 (1955); State v. Buck, 200 Or 87, 135, 262 P2d 495 (1953) (concurring opinion); State v. Anthony, 179 Or 282, 169 P2d 587 (1946), cert. den., Anthony v. Oregon, 330 US 826, 67 S Ct 865, 91 L Ed 1276 (1947). It is pointed out that both statutes purport to make unlawful the act of obtaining property by false pretenses. This is true, but the language of each statute must be read in the whole context in which it is used and with reference to accepted legal categories which are familiar to those trained in the law. When the statutes are read in this manner it is apparent that ORS 164.310 is designed to cover the crime of larceny and ORS 165.205 the crime of false pretenses. ORS 164.310 clearly states that if certain acts are done, *100 including the act of defrauding another of property, the actor "is guilty of larceny." Since it is well established that larceny is not committed when false pretenses induce the victim to pass title to the defrauder, it is obvious that the word "property" in the statute must be interpreted to mean "possession." By the same token, since we know that the crime of false pretenses is not committed where possession only is obtained, we must interpret the word property in that section to mean "the title to property." Our interpretation of the larceny statute is aided by the rule that where the name of an offense known to the common law is referred to in a statute, the statute may be construed in light of the common law definition of the crime so named. See State v. Anthony, supra.
11, 12. If, through the use of the word "property" in the information the plaintiff was unable to determine whether a crime was charged under ORS 164.310 or under ORS 165.205, he had the opportunity to demur to the information on that ground. State v. Du Bois, 175 Or 341, 153 P2d 521 (1944); State v. Estabrook, 162 Or 476, 91 P2d 838 (1939); State v. Briggen, 112 Or 681, 231 P 125 (1924). The failure to demur to the information under such circumstances constitutes a waiver of the defect. State v. Du Bois, supra; State v. Estabrook, supra; State v. Goodall, 82 Or 329, 160 P 595 (1916); State v. Taylor, 65 Or 266, 132 P 713 (1913); State v. Kline, 50 Or 426, 93 P 237 (1907). This method of procedure by which the accused can attack an indefinite information or indictment satisfies the constitutional requirement that he be informed of the charge against him. In State v. Smith, 182 Or 497, 507, 508, 188 P2d 998 (1948) the court said:
"Section 11 of the bill of rights (Art. I, section 11, Oregon Constitution) provides that, in all criminal *101 prosecutions, the accused shall have the right to demand the nature and cause of the accusation against him. The opportunity which the statute gives an accused to question the sufficiency of an indictment as to definiteness and certainty, by demurrer on the ground that it does not conform to the provisions of chapter 7 of Title 26 of the Code (sections 26-701 to 26-722 inclusive, O.C.L.A.), meets the requirements of the bill of rights in this respect. If he fails to avail himself of that opportunity, he cannot complain afterwards. People v. Bogdanoff, * * * (254 N.Y. 16, 171 N.E. 890, 69 A.L.R. 1378). The failure of the indictment to set forth the particular acts constituting the offense charged is waived by not making timely objection thereto, as, for example, by failing to demur upon that ground before pleading to the merits. 42 C.J.S., Indictments and Informations, section 307; Case v. United States (C.C.A. Or.) 6 F. (2d) 530."
It is our opinion that the plaintiff was lawfully convicted and that his sentence was lawfully imposed. Therefore, the demurrer interposed by the defendant should have been sustained. The judgment of the lower court in overruling the defendant's demurrer is reversed. The cause is remanded with directions to sustain the demurrer and to return plaintiff to the custody of defendant.
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15-1234
S.M. v. Oxford Health Plans
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 25th day of March, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 PETER W. HALL,
8 Circuit Judges.
9 JANE A. RESTANI,*
10 Judge.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 S.M.,
14 Plaintiff-Appellant,
15
16 -v.- 15-1234
17
18 Oxford Health Plans (NY),
19 Incorporated, a/k/a Oxford Health
20 Insurance, Inc., Oxford Health Plans
21 LLC, United Healthcare Services, Inc.,
22 United Health Group Incorporated,
23 Defendants-Appellees.
24 - - - - - - - - - - - - - - - - - - - -X
*
The Honorable Jane A. Restani, Judge for the
United States Court of International Trade, sitting by
designation.
1
1 FOR APPELLANT: GABRIEL BERG, Kennedy Berg LLP,
2 New York New York (Charles
3 Matays, Matays Law Group PLLC,
4 New York, New York on the
5 brief).
6
7 FOR APPELLEES: JOHN F. KAPACINSKAS (Richard A.
8 Ross & Pari I. McGarraugh on the
9 brief) Fredrikson & Byron, P.A.,
10 Minneapolis, Minnesota.
11
12 Appeal from a judgment of the United States District
13 Court for the Southern District of New York (Ramos, J.).
14
15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16 AND DECREED that the judgment of the district court be
17 AFFIRMED.
18
19 Plaintiff S.M. appeals from the judgment of the United
20 States District Court for the Southern District of New York
21 (Ramos, J.), granting summary judgment in favor of
22 defendants Oxford Health Plans (NY), Inc., a/k/a Oxford
23 Health Insurance, Inc. (“Oxford”), Oxford Health Plans LLC,
24 United Healthcare Services, Inc., and United Health Group
25 Incorporated. Plaintiff argues (1) the district court
26 improperly weighed Oxford’s structural conflict of interest;
27 (2) the district court abused its discretion by declining to
28 expand the administrative record; (3) the district court
29 erred in finding Oxford’s decision supported by substantial
30 evidence and not arbitrary and capricious; (4) the district
31 court erred by not granting relief on the basis that Oxford
32 withheld information from the external reviewer; (5) the
33 district court erred by dismissing Oxford's corporate
34 parents as defendants; and (6) the district court erred in
35 declining to award damages or attorney's fees to S.M.
36
37 This Court reviews the grant of summary judgment in an
38 ERISA action de novo and generally applies the same legal
39 standard of review employed by the district court. McCauley
40 v. First Unum Life Ins. Co., 551 F.3d 126, 130 (2d Cir.
41 2008). An administrator’s decision to deny benefits is
42 ordinarily reviewed de novo; but if, as here, “written plan
43 documents confer upon a plan administrator the discretionary
44 authority to determine eligibility, we will not disturb the
45 administrator’s ultimate conclusion unless it is ‘arbitrary
46 and capricious.’” Pagan v. NYNEX Pension Plan, 52 F.3d 438,
47 441 (2d Cir. 1995). Thus, we may upset Oxford’s
2
1 determination only if it was “without reason, unsupported by
2 substantial evidence or erroneous as a matter of law.”
3 Miles v. Principal Life Ins. Co., 720 F.3d 472, 486 (2d Cir.
4 2013) (internal quotation marks omitted). In our review, we
5 assume the parties’ familiarity with the facts and the
6 record of prior proceedings, which we reference only as
7 necessary to explain our decision to affirm.
8
9 1. Conflict of interest is a factor in the arbitrary
10 and capricious standard of review. Once a conflict has been
11 identified, “the court goes on to determine how heavily to
12 weight the conflict of interest thus identified, considering
13 such circumstances as whether procedural safeguards are in
14 place that abate the risk, ‘perhaps to the vanishing
15 point.’” Durakovic v. Bldg. Serv. 32 BJ Pension Fund, 609
16 F.3d 133, 138 (2d Cir. 2010) (quoting Metro. Life Ins. Co.
17 v. Glenn, 554 U.S. 105, 117 (2008)). Courts decline to
18 “assign any weight to a conflict of interest ‘in the absence
19 of any evidence that the conflict actually affected the
20 administrator’s decision.’” Roganti v. Metro. Life Ins.
21 Co., 786 F.3d 201, 218 (2d Cir. 2015) (quoting Durakovic,
22 609 F.3d at 140).
23
24 As the district court ruled, Oxford took affirmative
25 steps to reduce the risk of bias, including consulting with
26 the plaintiff and her treating physician and assigning
27 separate individuals to process plaintiff’s appeal.
28 Plaintiff argues that Oxford has a history of biased claims.
29 The district court’s rejection of that argument was properly
30 supported by citation to prior decisions in which Oxford’s
31 conflict of interest was given little weight. See Fay v.
32 Oxford Health Plan, 287 F.3d 96, 109 (2d Cir. 2002).
33
34 In any event, there was no indication in the record
35 that the conflict affected the outcome in the plaintiff’s
36 case. Oxford’s initial agreement to pay for three months of
37 IVIG treatment makes it unlikely that the decision not to
38 extend that coverage was driven by financial interest. See
39 Durakovic, 609 F.3d at 140 (“No weight is given to a
40 conflict in the absence of any evidence that the conflict
41 actually affected the administrator’s decision.”).
42
43 2. The district court’s refusal to expand the
44 administrative record was not an abuse of discretion. In
45 ERISA cases applying the arbitrary and capricious standard
46 of review, we have “repeatedly said that a district court’s
47 decision to admit evidence outside the administrative record
3
1 is discretionary, ‘but which discretion ought not to be
2 exercised in the absence of good cause.’” Krauss v. Oxford
3 Health Plans, Inc., 517 F.3d 614, 631 (2d Cir. 2008)
4 (quoting Juliano v. Health Maint. Org. of N.J., Inc., 221
5 F.3d 279, 289 (2d Cir. 2000)).
6
7 As to the deposition of Dr. Lundblad, the district
8 court correctly reasoned that it shed no additional light on
9 the merits because it revealed no bias in the coverage
10 determination. Similarly, the report for S.M.’s treatment
11 in 2013 was relevant in that it tended to show the 2011
12 denial was not impacted by a structural conflict, but did
13 not bear on whether the 2011 denial of coverage was
14 arbitrary and capricious. Finally, the district court
15 determined that because S.M. had not challenged the IVIG
16 Policy itself, there was not good cause to admit the medical
17 journal articles demonstrating the reasonableness of the
18 Policy.
19
20 3. A medical necessity determination is arbitrary and
21 capricious only if the decision is "without reason,
22 unsupported by substantial evidence or erroneous as a matter
23 of law." Fay, 287 F.3d at 104 (citation omitted). It is
24 undisputed that the plaintiff's plan only covers medically
25 necessary services and that medical necessity for
26 continuation of IVIG coverage is governed by the terms of
27 the IVIG Policy. Defendant’s doctor concluded that S.M.’s
28 undisputed condition did not meet the standard for coverage
29 contained in the policy because: (1) there was no evidence
30 that S.M. had a confirmed diagnosis of any approved
31 condition; (2) there was no documentation of impaired
32 production of antibodies to specific antigens; and (3) there
33 was no documentation that the medical condition under
34 treatment had not fully resolved. The reasonableness of
35 this decision is further confirmed by the external review
36 sought by S.M., which agreed with Oxford's denial of
37 coverage. The district court did not err in determining
38 that defendant did not act arbitrarily or capriciously and
39 that defendant’s decision was supported by substantial
40 evidence.
41
42 4. The plaintiff contends that Oxford withheld from
43 the external reviewer an internal Oxford report. However,
44 the report was merely a collection of the information
45 submitted by S.M. The same clinical information that Oxford
46 considered when it initially denied the coverage request was
47 provided to the external reviewer. Compare Joint App’x A-
4
1 831-841, 843-854 (materials submitted to Oxford by S.M.)
2 with Joint App’x 777-817 (S.M.’s external appeal
3 applications). The district court properly declined to
4 grant relief because Oxford withheld no clinical information
5 from the external reviewer.
6
7 5. The plaintiff argues that other defendants were
8 improperly dismissed. As a general matter, “a parent
9 corporation and its subsidiary are regarded as legally
10 distinct entities and a contract under the corporate name of
11 one is not treated as that of both.” Carte Blanche (Sing.)
12 Pte., Ltd. v. Diners Club Int’l, Inc., 2 F.3d 24, 26 (2d
13 Cir. 1993). The district court properly relied on corporate
14 disclosure statements to determine that Oxford, Oxford
15 Health Plans LLC, and United Healthcare Services, Inc., are
16 all wholly owned subsidiaries of United Health Group
17 Incorporated. The plaintiff alleges no wrongdoing by the
18 other defendants, was not in privity with them, and has
19 offered no reason to pierce the corporate veil and attribute
20 any conduct by Oxford to them.
21
22 6. To get an award of attorney’s fees in an ERISA
23 action, a plaintiff “must show ‘some degree of success on
24 the merits.’” Hardt v. Reliance Standard Life Ins. Co., 560
25 U.S. 242, 255 (2010) (quoting Ruckelshaus v. Sierra Club,
26 463 U.S. 680, 694 (1983)). This plaintiff achieved no
27 success, and is therefore not entitled to fees or costs.
28
29
30 For the foregoing reasons, and finding no merit in
31 plaintiff’s other arguments, we hereby AFFIRM the judgment
32 of the district court.
33
34
35 FOR THE COURT:
36 CATHERINE O’HAGAN WOLFE, CLERK
37
5
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1 So.3d 1092 (2009)
Lee DONTON, Appellant,
v.
STATE of Florida, Appellee.
No. 1D07-3629.
District Court of Appeal of Florida, First District.
January 8, 2009.
*1093 Daren L. Shippy, of Rose Sundstrom & Bentley, LLP, Tallahassee, for Appellant.
Bill McCollum, Attorney General; and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
BROWNING, J.
A jury found Lee Donton (Appellant) guilty of one count of sexual battery upon a victim with a mental defect, a violation of section 794.011(4)(e), Florida Statutes (2005). In pertinent part, the second amended information charged Appellant with the commission of this crime upon a person (with a mental defect) 12 years of age or older, by penile union with, or penetration of, the victim's anus, sometime between May 24, 2005, and June 23, 2005, in the shower area of the Leon County Juvenile Detention Center. We affirm the judgment and sentence.
The Admission of Williams Rule Evidence
A trial court's ruling on the admissibility of evidence is reviewed for an abuse of discretion. See Ray v. State, 755 So.2d 604, 610 (Fla.2000). "The same standard applies to rulings ... admitting collateral act evidence," subject to the rules of evidence. Zerbe v. State, 944 So.2d 1189, 1193 (Fla. 4th DCA 2006); Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001). The first issue on appeal is whether the trial court abused its discretion in admitting certain so-called Williams Rule collateral-crime evidence. See § 90.404(2)(a), Fla. Stat. (2005); Williams v. State, 110 So.2d 654 (Fla. 1959). The State filed timely notice of intent to use evidence of Appellant's prior acts, and in a pretrial motion in limine, Appellant sought to exclude this Williams Rule evidence.
At the May 2006 hearing on the motion, the trial court heard testimony from a mother (C.D.) that, in June 2004, Appellant's grandmother had babysat for the witness' young son (L.S.) and young daughter (P.K.). On June 23, 2004, the mother left her children at the babysitter's residence around 4:00 a.m. The mother testified that after she picked up the children after returning from work that afternoon, her daughter complained (while climbing the stairs to the family residence) that her "cuckoo" (which was her name for her vagina) was hurting. The daughter told her mother than "Lee-Lee" (her nickname for Appellant) had hurt her by licking her "cuckoo" and touching it with his hand. When the mother reported this information to the babysitter and to Appellant, he denied it. At some point, the mother's son disclosed that he had observed Appellant committing the sexual misconduct upon the little girl, his sister. Before that incident, Appellant had been like a big brother to these two children, who had known Appellant all their lives. So far as their mother knew, this was the first time Appellant had been alone in his grandmother's residence with the children, while she left the children sleeping during her errand into town. This incident involving Appellant and P.K. was handled in juvenile court, where Appellant entered a plea.
At the evidentiary hearing, 5-year-old P.K. testified that she understood the difference between the truth and a lie. She described the 2004 incident in the babysitter's home when she and her brother were asleep in the bed. The babysitter left the house and did not want to disturb P.K. and *1094 her brother. As L.S. slept, P.K. woke up and saw Appellant in the bedroom. Because she had wetted herself, P.K. asked Appellant to leave the room so that she could change into other panties, but Appellant refused to do so. After P.K. got under the covers to change her panties, Appellant pulled down her panties and licked her "cuckoo," her private area. When the children returned home, P.K.'s "cuckoo" hurt "real bad" as she climbed the steps, and she told her mother what Appellant had done.
P.K.'s brother, L.S., testified at the hearing that he knew the difference between the truth and a lie. He recalled the 2004 incident when he and his sister were sleeping in the babysitter's bedroom while the babysitter took another child somewhere else. As L.S. returned to the bedroom after using the bathroom, he saw "Lee-Lee" going into the bedroom. He observed Appellant using his fingers to "open" P.K. and lick her private area. During the incident, P.K. sat on the bed as Appellant kneeled on the floor. Because he had seen what happened, L.S. ran back to the bathroom. He did not know whether Appellant saw him. Later, L.S. told his mother what he had observed.
Jo Ellen Brown, an FDLE crime lab analyst, testified at the hearing that she had received a sexual assault kit that containing vaginal swabs and a vaginal smear, a red T-shirt, and red shorts, as well as buccal swabs from Appellant. Amylase, a component of saliva, was found on the vaginal swabs and on the panties. The DNA profile showed the amylase was not the victim's. Some of the DNA came from a male, and some came from the female victim. Brown was able to develop a profile of a foreign allele or gene at four of the thirteen loci (markers) tested, and of these, Appellant was a possible donor. Appellant is African-American. Brown testified that the frequency of the occurrence of that profile in unrelated individuals is 1 in 3,500 for Caucasians; 1 in 740 for African-Americans; and 1 in 1,700 for Southeastern Hispanics. Brown testified that the foreign alleles at four of the loci matched Appellant and could not exclude him.
Arguing against the admission of this "prior act" evidence, defense counsel focused on the dissimilarities between the 2004 female child molestation (where the victim was three years old) and the charged 2005 crime involving penile union with, or penetration of, the anus of a male teenager, R.M. Defense counsel asserted that even if the court found this "other crime" evidence relevant, it should be excluded because the danger of unfair prejudice substantially outweighed its probative value, and the challenged evidence could become a feature of the trial. The defense contended that, because the mentally defective victim of the charged offense would not be able to testify, the admission of the Williams Rule evidence would prompt the jury to substitute the prior victim for the current victim. Counsel argued that any involvement Appellant had with the mentally defective victim in the charged offense arose because the juvenile detention staff had ordered Appellant to assist in the unpleasant aspects of the 300-pound-victim's care and personal hygiene, contrary to the formal policies at the juvenile detention facility.
On the other hand, the State argued that the Williams Rule evidence is relevant to prove opportunity, motive, and intent, in that Appellant showed a pattern of insinuating himself into the role of caretaker and then seizing the opportunity to molest the victim sexually because the victim would be unable or unlikely to report the inappropriate sexual conduct. See § 90.404(2)(a), Fla. Stat. (2005). Appellant *1095 was left alone with two very young children at his grandmother's residence in 2004 while she ran errands. A year later, at the juvenile detention center, Appellant repeatedly volunteered to change R.M.'s diapers and to bathe him. The court heard argument that the State could select and schedule its witnesses in such a way that the evidence of the prior child molestation would not become an inflammatory feature of the trial. The court delayed the ultimate ruling on admissibility and ordered the attorneys not to mention the Williams Rule evidence during jury selection and opening statements without a showing of good cause.
Section 90.404(2)(a), Florida Statutes (2005), states:
(2) OTHER CRIMES, WRONGS, OR ACTS.
(a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.
Section 90.404(2)(b)1., Florida Statutes (2005), states:
In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.
In Williams, the Supreme Court of Florida set forth the general rule of admissibility of evidence of a collateral crime, stating that "relevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime. The test of admissibility is relevance. The test of inadmissibility is lack of relevancy." 110 So.2d at 659-60. These principles are memorialized in the Florida Evidence Code. In the aftermath of Williams, the Supreme Court of Florida has stated that "the relevance of collateral crime evidence is often a function of similarity." McLean v. State, 934 So.2d 1248, 1255 (Fla.2006); see Bryan v. State, 533 So.2d 744, 746 (Fla.1988). Before Williams Rule evidence is admitted, the trial court must find that the State has presented clear and convincing evidence that the defendant committed the collateral acts. See McLean, 934 So.2d at 1256, 1262. The record supports the trial court's conclusion that the State's evidence presented at the hearing met this requirement.
It is evident that where the collateral evidence involves a sexual battery committed upon a child, and the perpetrator is a family member or close family friend or someone else in a "familial relationship" or setting with the victim, "a relaxed standard of admissibility" of the collateral-crime evidence applies. See McLean, 934 So.2d at 1257; Heuring v. State, 513 So.2d 122, 124 (Fla.1987); Triplett v. State, 947 So.2d 702, 703 (Fla. 5th DCA 2007). In such instances, as in the case at bar, the victim often knows the perpetrator, and identity is not an issue. The determination of whether to admit collateral-crime evidence involves the defendant's constitutional right to due process. Specifically, "[c]ollateral crime evidence violates a defendant's right to due process if it is so prejudicial that it denies the defendant a fair trial." McLean, 934 So.2d at 1261. Accordingly, section 90.403, Florida Statutes (2005), states in pertinent part:
Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, *1096 confusion of issues, misleading the jury, or needless presentation of cumulative evidence.
This statute delegates a "gatekeeping function" to the trial court, which must conduct a weighing and balancing analysis of the Williams Rule evidence. See McLean, 934 So.2d at 1261-62. To assist the trial courts in determining whether or not to admit collateral evidence involving child molestation when such evidence is offered to corroborate the victim's testimony, the McLean court required the threshold finding that the State proved the prior act(s) by clear and convincing evidence. See 934 So.2d at 1262. Next, the court in McLean set forth the following guidelines:
In assessing whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the trial court should evaluate: (1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charge; (3) the frequency of the prior act; and (4) the presence or lack of intervening circumstances. This list is not exclusive. The trial courts should also consider other factors unique to the case.
Id. Additionally, trial courts must decide whether the prior act evidence "will confuse or mislead jurors by distracting them from the central issues of the trial"; must assess "whether the evidence is needlessly cumulative of other evidence bearing on the victim's credibility, the purpose for which this evidence may be introduced"; and "must guard against allowing the collateral-crime testimony to become a feature of the trial." Id. In Appellant's case, because the victim of the charged crime is essentially incapable of communicating in an effective, meaningful manner, the collateral-crime evidence was used to corroborate the eyewitness' testimony about the charged crime.
The guilt phase of Appellant's trial commenced. Judy O'Neil, a behavior analyst at a center school for children with developmental disabilities, testified that she would assess children with behavioral issues to determine the function of their behavior and then would prepare written behavior plans for the staff to follow. She knew the victim, R.M., who was a student at her school from 2000 until 2006. R.M., a teenager, was diagnosed as autistic and severely retarded. He was unable to recall accurately and explain events in a way that a normal 15-year-old would be expected to do. He communicated mostly with one-word answers or very short phrases. R.M. had very little concept of the differences between right and wrong behavior. O'Neil testified that R.M. lacked the capacity to understand the concept of sex or sexual intercourse. R.M. required staff assistance to perform bathroom functions. The witness described as fair and accurate the videotaped interview of R.M. by the Child Protection Team, in terms of its depiction of R.M.'s typical manner of speaking and acting. Over an objection, the videotape was admitted into evidence and shown to the jury as a demonstration from which the jury could infer the victim's capacity or lack thereof. R.M. was described as a large male who, at one point, weighed about 300 pounds.
Various witnesses who had been fellow detainees at the juvenile facility with Appellant and R.M. testified that R.M. had difficulty talking, was unable to take of himself, and regularly wore diapers. He required assistance with bathroom functions and bathing. Some evidence indicated that the staff had asked Appellant to assist with some of these caretaking functions, *1097 while other testimony indicated he had volunteered to help Appellant. Although the detainees usually showered between 4:00 and 7:00, Appellant would bathe or shower R.M. after everyone else finished.
Kenneth Meyer, Jr., the State's key witness on the charge relating to the shower area, testified that he had been a juvenile detainee with Appellant and R.M. in June 2005 and knew them both. Meyer identified Appellant in court. The witness described R.M. as about six feet in height, weighing around 300 pounds and having a "mind set" of a two- or three-year-old. Meyer described an incident that occurred shortly after the normal shower time. As Meyer walked into the bathroom area, he observed Appellant, with his pants down, standing behind R.M., who was naked. In sexually explicit vernacular, Meyer testified regarding what sexual act he saw Appellant performing upon R.M., namely, anal intercourse. Upon seeing Meyer, Appellant had "pulled out" and pulled up his pants, telling Meyer: "You didn't see anything." Appellant said something else indicating to Meyer that Meyer would be punished if he reported what he had seen. Despite the threat, Meyer immediately reported the incident to a guard and was interviewed by detectives. Meyer testified that he was "absolutely sure" of what he had observed in the shower area.
After Meyer's testimony, the trial court reiterated its finding that the State's evidence of Appellant's prior sexual molestation was clear and convincing. Defense counsel argued that, because Appellant was not denying that he had been present with R.M. in the shower area, the State had no reason to introduce "other act" evidence to prove opportunity.
The State responded that the Williams Rule evidence was relevant to prove Appellant's pattern of targeting a known, vulnerable child or child-like victim and serving as a purported caretaker in a role akin to familial authority, in which role he would sexually molest the victim. The State argued that the gender difference between P.K. (the prior victim) and R.M. was simply a matter of Appellant's having easy access to the young girl at his grandmother's residence, whereas the only "easy," vulnerable victims at the juvenile facility are male detainees. Whereas the defense noted the obvious physical distinctions between a 3-year-old girl and a 300-pound male teenager, the State compared the victims' child-like characteristics and vulnerability when away from proper adult supervision.
The court assessed the similarity of the prior act to the charged act, in that Appellant engaged in non-consensual sex with one very young victim and another victim whose mental status rendered him child-like and unable to take care of and protect himself. The prior act occurred in a bedroom when the female victim was left without adequate adult supervision and Appellant apparently believed no one was watching him. The charged act occurred in the shower area of the juvenile facility at a time other than when the detainees usually bathed. According to Meyer's eyewitness testimony, Appellant was surprised by Meyer's presence in the shower area and warned him not to disclose what he had seen occurring between Appellant and R.M. It is reasonable to infer that in the 2004 incident at the babysitter's residence and in the charged 2005 incident at the juvenile detention facility, Appellant did not expect to be caught having sex with the victims. The trial court found that the prior act upon P.K. occurred once, in close temporal proximity to the charged offense. Acknowledging the obvious anatomical differences between the two victims, the court concluded that, in a *1098 broader sense, the prior act and the charged act are similar, in that Appellant acted with "an authoritative familiarity" over both victims, whom he already knew and exploited when given the opportunity to be alone with them. See Mendez v. State, 961 So.2d 1088, 1091 (Fla. 5th DCA 2007) (concluding that the probative value of collateral-crime evidence involving a prior incident of child molestation by the defendant outweighed the danger of unfair prejudice, in a trial for sexual battery on a victim less than 12 years old and lewd and lascivious molestation, where the defendant had a similar relationship with both victims, he gained employment that gave him access to young victims, he was a counselor to each and had custodial authority over them at the time of the offenses, the incidents occurred only two or three years apart, and the incidents both occurred in the victims' abodes).
Having considered these factors, which are enunciated in McLean, 934 So.2d at 1262, the court allowed the Williams Rule evidence to be admitted. To reduce the inflammatory impact of the collateral-crime evidence, the court arranged for other witnesses to precede and follow L.S., the brother of the prior victim. The jury did not hear P.K. testify. This configuration of the witnesses' testimony kept the Williams rule evidence from becoming a feature of the trial. Subject to the limiting instruction requested by defense counsel, L.S. and Ms. Brown, the FDLE crime lab analyst, testified as to substantially the same facts that were presented at the evidentiary hearing. The trial court did not allow into evidence any unnecessary or cumulative testimony.
In the Williams Rule proceedings, the trial court afforded counsel for the State and for Appellant generous opportunities to argue the facts and the law. The State presented ample reasons from which the court could conclude that the collateral-crime evidence was admissible under section 90.404(2)(b), Florida Statutes (2005), which is a general rule of admissibility, subject to certain exceptions, rather than a general exclusionary rule. See Williams, 110 So.2d at 658. Additionally, the State argued the applicability of the somewhat relaxed standard of admission enunciated in section 90.404(2)(b)1., Florida Statutes (2005), and fully discussed in McLean. Appellant concedes on appeal that the charged crime involved "child molestation," and the particular evidence adduced in the trial court certainly supports the conclusion that the victim is, for all intents and purposes, a "child," and that he was molested. Given the record, we conclude that the trial court correctly applied the law, and we find no abuse of discretion in the trial court's allowing into evidence the collateral-crime evidence.
Section 90.610(1), Florida Statutes (2005), allows a party to "attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, ..." However, statutory subsection (1)(b) states that "[e]vidence of juvenile adjudications are [sic] inadmissible under this subsection." See Martin v. State, 710 So.2d 58 (Fla. 4th DCA 1998) (stating that the adult defendant's alleged companion in a burglary could not be impeached during the adult defendant's burglary trial with the alleged companion's plea of no contest to a charge of trespass on the victim's property in a juvenile adjudication). Appellant elected not to testify in his own behalf. Responding to defense counsel's objection to the Williams Rule evidence because it involved a juvenile offense, the trial court noted that the collateral-crime evidence was admitted only as an "act," not as a *1099 "conviction" or adjudication of delinquency. The trial court is in the better position to determine whether testimony can be admitted pursuant to the McLean line of decisions, and we shall not second-guess the circuit judge on this record. See Fiore v. State, 967 So.2d 995, 999 (Fla. 5th DCA 2007). Given these detailed findings made by the trial court pursuant to McLean, and the ample precautions taken to avoid emphasizing the collateral-crime evidence, we find no abuse of discretion in the trial court's overruling the defense's objections and in denying the motion for mistrial. The trial court took steps to avoid the danger of undue prejudice in accordance with section 90.403, Florida Statutes (2005). Appellant was afforded the due process required by law.
Denial of the Motion for Judgment of Acquittal as to Count Two
Count One of the second amended information charged Appellant with a sexual battery upon R.M., a person 12 years of age or older, with a mental defect. This charge referred to an alleged incident in R.M.'s room in the juvenile detention center sometime between May 24, 2005, and June 23, 2005. The trial court correctly granted the motion for judgment of acquittal on Count One.
Appellant argues that the court erred as a matter of law in denying his motion for judgment of acquittal on Count Two, which charged the sexual battery of R.M. that occurred in the shower area of the detention facility. We have de novo review of the denial of a motion for judgment of acquittal. See Fitzpatrick v. State, 900 So.2d 495, 507 (Fla.2005). To make a prima facie case for the charged crime in Count Two, the State had to prove the following beyond a reasonable doubt: 1) that R.M. was 12 years of age or older at the time of the incident and was "mentally defective" (defined by statute as having "a mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct"), a fact of which Appellant had actual knowledge or reason to believe; 2) that Appellant committed an act upon R.M. in which Appellant's penis had union with, or penetrated, the victim's anus; and 3) that the act was committed without R.M.'s consent. See § 794.011(1)(b), (1)(h) & (4)(e), Fla. Stat. (2005). Scott Beck, a police investigator, testified that R.M.'s birth date is October 26, 1989. From the witnesses' testimony and other events reported to have occurred around the same time, Investigator Beck testified that the shower incident probably occurred on June 8, 2005.
On appeal, Appellant's only argument regarding the sufficiency of the evidence relates to whether Appellant's penis had union with, or penetrated, the victim's anus. Appellant asserts that the evidence is entirely circumstantial, that the State failed to present evidence inconsistent with any reasonable hypothesis of innocence, and that the only way eyewitness Meyer's testimony can be deemed sufficient to prove this element is through the impermissible pyramiding of inferences. See Floyd v. State, 913 So.2d 564, 571 (Fla. 2005); Kennedy v. State, 781 So.2d 421, 423 (Fla. 4th DCA 2001). "An impermissible pyramiding of inferences occurs where at least two inferences in regard to the existence of a criminal act must be drawn from the evidence and then stacked to prove the crime charged; in that scenario, it is said that the evidence lacks the conclusive nature to support a conviction." Graham v. State, 748 So.2d 1071, 1072 (Fla. 4th DCA 1999). Appellant contends that the paucity of evidence is even more striking, given the examining pediatrician's testimony that no signs of anal injury were found.
Appellant's arguments fail for two reasons. First, the State presented *1100 direct evidence of the sexual battery by an eyewitness, Mr. Meyer. "Direct evidence is that to which the witness testifies of his own knowledge as to the facts at issue. Circumstantial evidence is proof of certain facts and circumstances from which the trier of fact may infer that the ultimate facts in dispute existed or did not exist." Davis v. State, 90 So.2d 629, 631 (Fla. 1956). Meyer testified that he walked in on Appellant and R.M. in the shower room engaging in anal intercourse. Meyer's sexually graphic testimony depicting what he had observed first-hand was based on his own knowledge of the facts. Appellant misplaces his reliance on J.W.C. v. State, 573 So.2d 1064 (Fla. 5th DCA 1991), in which the child, an alleged victim of sexual battery involving the defendant's finger and the child's vagina, merely stated that the defendant had "played with [her] privates." Without some corroboration, the child's statement was not sufficient to support a finding of actual penetration. See id. at 1064-65. In contrast, viewed appropriately in a light most favorable to the State, see Lynch v. State, 293 So.2d 44, 45 (Fla.1974), Meyer's testimony supports the trial court's denial of the motion for judgment of acquittal on Count Two.
For the first time on appeal, Appellant argues that the State failed to prove that eyewitness Meyer had a vantage point from which he could testify from personal knowledge that Appellant's penis actually had union with, or penetrated, R.M.'s anus. Conceding that the evidence supports a conviction for battery, Appellant contends that Meyer could not have observed whether Appellant's penis was merely rubbing the victim's buttocks. Because this specific argument was not made and thereby preserved in the trial court, it is inappropriate for judicial review. See Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982). Appellant does not argue that fundamental error resulted.
Second, pediatrician Dr. Samuel Moorer testified that he had examined R.M. on June 28, 2005, in response to the alleged sexual assault. The physician testified that, because R.M. is profoundly retarded and essentially non-verbal, no meaningful communication with him was possible. The head-to-toe examination for lacerations or other signs of trauma disclosed nothing more than old injuries, apparently self-inflicted during periods of anxiety. Dr. Moorer opined that the absence of any sign of anal injury is unsurprising, in that it would be very unlikely for substantial evidence of that type to exist approximately 20 days after the shower incident. The doctor testified that the absence of anal injury would not rule out a recent sexual assault.
In moving for a judgment of acquittal on Count Two, defense counsel relied on certain inconsistencies within Meyer's accounts to the authorities regarding the shower incident. Trial defense counsel (who is not the attorney representing Appellant in this direct appeal) acknowledged that "a credibility issue" was raised as to what the eyewitness saw, which, "in all fairness, ... [created] a question for the jury." We agree that Count Two was correctly sent to the jury. Because the State made a prima facie case for the charged crime, the trial court correctly denied the motion for judgment of acquittal as to Count Two.
Alleged Discrepancy Between Oral and Written Sentencing Pronouncements
Finally, Appellant contends that the written judgment imposing fines and costs differs from the oral pronouncement at sentencing. Appellant correctly notes that an oral pronouncement of a sentence controls over the written sentencing judgment. See Williams v. State, 957 So.2d 600, 603 (Fla.2007). As the State points out, the instant record contains no discrepancy. The written judgment of fines and *1101 costs lists the total amount as $2,988.00. At the sentencing hearing, the judge orally imposed costs and fines totaling $2,948.00 and then immediately added a $40.00 "public defender application fee imposed as a civil judgment" pursuant to section 27.52(1)(b), Florida Statutes (2005), which amount is specifically listed on the written judgment. The total amount of costs and fines is $2,988.00, and the oral and written sanctions are the same.
We AFFIRM Appellant's conviction and sentence.
WOLF, J., concurs; BENTON, J., dissents with opinion.
BENTON, J., dissenting.
The evidence concerning the other crime a year earlier was not, in my opinion, legally admissible to prove the crime charged in the present case. Identity was not an issue, nor was this a "familial" case. According to our supreme court, proper application of the Evidence Code "does not open the door to introduction of any and all propensity evidence in sexual molestation cases." McLean v. State, 934 So.2d 1248, 1251 (Fla.2006).
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00045-CR
Christopher Bradley Young, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 71001, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING
ORDER FOR CLERK TO PROVIDE
A P P E L L A T E R E C O R D TO A P P E L L A N T
PER CURIAM
Appellant Christopher Bradley Young appeals his conviction for evading detention
with a vehicle. See Tex. Penal Code § 38.04. Appellant’s court-appointed counsel has filed a
motion to withdraw supported by a brief concluding that the instant appeal is frivolous and without
merit. See Anders v. California, 386 U.S. 738, 744 (1967). Appellant’s counsel has represented to
the Court that she provided copies of the motion and brief to appellant, advised appellant of his right
to examine the appellate record and file a pro se response, and supplied appellant with a form motion
for pro se access to the appellate record. See Kelly v. State, — S.W.3d —, No. PD-0702-13,
2014 WL 2865901, at *4 (Tex. Crim. App. June 25, 2014). Appellant has timely filed the motion
requesting access to the appellate record with this Court.
We hereby direct the clerk of the trial court to provide a copy of the reporter’s
record and clerk’s record to appellant, and to provide written verification to this Court of the date
and manner in which the appellate record was provided, on or before July 25, 2014. See Kelly,
— S.W.3d —, 2014 WL 2865901, at *4.
It is so ordered on this the 15th day of July, 2014.
Before Chief Justice Jones, Justices Rose and Goodwin
Do Not Publish
2
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747 So.2d 489 (1999)
Traci Allen NETECKE, et al.
v.
STATE of Louisiana, Through DOTD, et al.
Nos. 98-C-1182, 98-C-1197.
Supreme Court of Louisiana.
October 19, 1999.
Rehearing Denied November 19, 1999.
*491 David Kelly Balfour, Lafayette, Richard P. Ieyoub, Atty. Gen., Timothy Alan Maragos, Lafayette, Counsel for Applicant in No. 99-C-1182.
Michael Joseph Juneau, Sue Nations, Lafayette, Charles William Roberts, Baton Rouge, Edward O. Taulbee, IV, Lafayette, Debra Keigh Basile, Opelousas, Counsel for Respondent in No. 99-C-1182.
Charles William Roberts, Baton Rouge, Edward O. Taulbee, IV, Lafayette, Counsel for Applicant in No. 98-C-1197.
David Kelly Balfour, Lafayette, Richard P. Ieyoub, Atty. Gen., Timothy Alan Maragos, Lafayette, Debra Keigh Basile, Michael Joseph Juneau, Sue Nations, Lafayette, Counsel for Respondent in No. 98-C-1197.
KNOLL, Justice.[*]
This case is before us on consolidated writ applications filed by the plaintiff, Traci Netecke ("Ms. Netecke"), who was severely injured in a two-vehicle, head-on collision, and one of the defendants, Department of Transportation and Development ("DOTD"), to review the correctness of the court of appeal's judgment. After a careful and thorough review of the record, the testimony, and the evidence presented, we conclude that the lower courts erred in finding DOTD negligent and/or strictly liable for a defective road condition that did not create an unreasonable risk of harm and reverse. We find that the record evidence clearly establishes that the sole legal cause of this accident was Mia Zebouni's ("Ms. Zebouni") negligent operation of her vehicle and assign one-hundred percent fault to her.[1]
FACTS
On April 18, 1994, Ms. Netecke was involved in a head-on collision on Louisiana Highway 182 ("La. Hwy. 182") near the St. Martin Parish/Iberia Parish border. La. Hwy. 182 is a two-lane rural highway with twelve-foot wide travel lanes and eight-foot wide paved shoulders. A railroad track runs parallel on the western side of the highway and sits atop an embankment. At approximately 1:05 p.m., Ms. Zebouni was traveling on La. Hwy. 182 at fifty-five miles per hour to work from Lafayette to New Iberia. It was a clear and sunny day, and the highway was dry. As Ms. Zebouni was driving, she claimed to notice a cat *492 crossing from the opposite lane of traffic toward her lane. In an effort to avoid hitting it, Ms. Zebouni intentionally steered her car to the right and onto the paved shoulder. While attempting this avoidance maneuver, Ms. Zebouni never used her brakes to stop or slow her vehicle. Instead, Ms. Zebouni testified that she lifted her foot off the accelerator to reduce her vehicle's speed. Once on the shoulder, she continued to steer the right side tires of her vehicle off the paved shoulder approximately eight to ten inches and onto an unpaved grassy area adjacent to the paved shoulder.
She continued traveling parallel to the highway in a straight line with her right tires in the grassy area for sixty-five feet at which point her right tires drove over a six-inch wide culvert headwall that abutted and was flush with the paved shoulder.[2] After driving over the headwall, Ms. Zebouni's vehicle traveled fourteen feet further. At some point while in the grassy area, she oversteered her vehicle sharply to the left causing it to yaw and reenter the paved shoulder at a sharp angle.[3] Her vehicle continued back into her travel lane, crossed the center line and collide into Ms. Netecke's vehicle. Expert testimony and physical evidence at the scene of the accident established that from the time Ms. Zebouni's right tires first left the paved shoulder until the point they reentered, her vehicle traveled a total distance of seventy-nine feet in about one second.
In her statement at the scene of the accident, Ms. Zebouni told State Trooper Thibodeaux, the investigating officer, that a cat came onto the road in front of her; that she intentionally drove onto the right shoulder to miss the cat; that she then realized she had traveled too far right as her vehicle went off the paved section of the shoulder; and that when she attempted to correct her error by steering left, her vehicle went out of control. Trooper Thibodeaux testified that Ms. Zebouni recited to him the same story at the scene of the accident and at the hospital. Eyewitnesses to the accident told state troopers that Ms. Zebouni was traveling east on La. Hwy. 182 when she swerved off the road and then cut across the center line, hitting Ms. Netecke. In her deposition and trial testimonies, Ms. Zebouni, for the first time, claimed to have suddenly observed a brown "embankment" coming parallel to her windshield while driving in the grassy area, and, fearing catastrophic injury, steered sharply left and lost control of her vehicle. It is undisputed that Ms. Zebouni's vehicle began moving back to the left only after it had passed over the headwall and that the headwall and drainage culvert played no physical role in causing the accident. Or stated another way, it was her perception of a brown "embankment" that caused her to oversteer her car and that the headwall and drainage culvert did not catapult her car back onto the roadway. Ms. Zebouni also admitted that she failed to see the vertical black and yellow striped warning delimitator that clearly marked the drainage culvert or the culvert itself.
Ms. Zebouni could not identify the "embankment" she claimed to be avoiding from pictures taken the day of the accident or afterwards, and she could not identify the "embankment" when she visited the accident site about a year later. Moreover, the detailed accident report, prepared by Trooper Thibodeaux the day of the accident from interviews with Ms. Zebouni and eyewitnesses and from the physical evidence, is silent as to any "embankment." She admitted that it was possible that she did not mention the "embankment" to the investigating state troopers.
She described the perceived "embankment" as brown in color and admitted *493 seeing other areas brown in color along the roadside. Ms. Zebouni also testified that as she was driving down the road she perceived the ditch in the area beyond the paved shoulder and the railroad sitting atop a real embankment. Ms. Zebouni was issued a citation for careless operation of her vehicle by failing to keep her car on the roadway, losing control of her vehicle, and colliding with another vehicle.
PROCEDURAL HISTORY
As a result of this accident, Ms. Netecke suffered severe and disabling injuries.[4] Ms. Netecke, a Texas resident, sued DOTD asserting it was negligent and/or strictly liable for placing the culvert at the edge of the paved shoulder and within the useable shoulder of La. Hwy. 182. Ms. Netecke also named as defendants Ms. Zebouni; National Union Fire Insurance Co., Ms. Zebouni's liability insurer; and Patterson Insurance Co., Ms. Netecke's uninsured motorist carrier.[5] Patterson Insurance and National Union paid their policy limits into the registry of the court and were dismissed from the suit. Mr. Netecke's employer's heath care insurers, Aetna Health Plans and Guardian Life Insurance Co., intervened in the suit to recover medical expenses paid for Ms. Netecke's care.
A jury trial resulted in a verdict in favor of Ms. Netecke and against DOTD finding it negligent and/or strictly liable and against Ms. Zebouni finding her negligent. The jury apportioned ninety-eight percent fault to DOTD and two percent fault to Ms. Zebouni. The jury awarded Ms. Netecke $644,200.34 in past medical expenses; $5,000,000 in future medical expenses; $400,000 in past, present, and future physical pain and suffering; $400,000 in past, present, and future mental pain and suffering; and $400,000 in loss of enjoyment of life. From the past medical expenses award, the court awarded Aetna $548,088.33 and Guardian Life $20,844.59.
DOTD moved for a judgment notwithstanding the verdict on the issues of liability, apportionment of fault, and the intervention claims. The trial court denied DOTD's motion regarding liability and fault; however, the court ruled in favor of DOTD on Aetna and Guardian Life's intervention claims finding that the insurers had failed to prove their right to recover under their respective insurance policies.
On appeal, the Third Circuit Court of Appeal affirmed the jury's verdict finding DOTD negligent and/or strictly liable, concluding that the culvert presented an unreasonable risk of harm and was a substantial factor in causing the accident. The appellate court also concluded that $5,000,000 for future medial expenses was not an abuse of the jury's discretion. However, the court of appeal concluded that the jury manifestly erred in apportioning Ms. Zebouni only two percent fault and raised her fault to fifty percent, finding that to be the lowest point reasonably within the jury's discretion. The appellate court also concluded that the jury abused its discretion in awarding Ms. Netecke $400,000 for loss of enjoyment of life, finding the award inadequate and increased it to $1,500,000, finding that to be the lowest amount reasonably within the jury's discretion. Netecke, 715 So.2d at 448. We granted Ms. Netecke and DOTD's writ applications to review the correctness of the lower courts' decisions. Netecke v. State, Through DOTD, 98-1182 c/w 98-1197 (La.6/26/98), 719 So.2d 485.
*494 Ms. Netecke's sole assignment of error is that the court of appeal erred in reallocating fault fifty-fifty, arguing that the jury's verdict was reasonable and supported by the record.[6] Ms. Netecke argues that the "embankment" presented an unreasonable risk of harm. She reasons that had the culvert been extended away from the shoulder during the 1987 overlay project, Ms. Zebouni would not have encountered it, perceived it as a hazard, oversteered her vehicle, and collided with Ms. Netecke. Plaintiff reasons that DOTD is liable for causing this accident when one balances the likelihood that drivers would encounter the culvert on the edge of the paved shoulder and that a paved shoulder would increase the frequency and speed of its use, against the magnitude that this open culvert presented in seriously harming a motorist if struck, the case at which DOTD could have moved the culvert at a minimal cost, the fact that Ms. Zebouni was using the shoulder in a reasonably anticipated manner, and the fact that DOTD expected drivers to use the roadway as Ms. Zebouni did.
DOTD contends that the court of appeal erred in finding the culvert presented an unreasonable risk of harm or played a significant role in causing this accident. DOTD argues that testimony at trial proved that nothing on the roadway, the shoulder, or the area adjacent to the shoulder in any way caused Ms. Zebouni to lose control of her vehicle. In support of this argument, DOTD points out that Ms. Zebouni's testimony was that she had a vague recollection of an "embankment" parallel to her windshield that she steered to avoid, but she could not identify the embankment" from photographs or when she visited the accident site. DOTD further argues that the court of appeal erred by concluding that its duty encompassed the risk that Ms. Zebouni would intentionally drive her vehicle out of her travel lane, over the paved shoulder and partially onto the adjacent grassy area without using her brakes while trying to avoid hitting a cat, and then oversteer to the left causing her vehicle to yaw in an effort to avoid what she perceived as an "embankment" parallel to her windshield, cross the centerline of traffic, and collide with Ms. Netecke.
LAW AND ANALYSIS
A plaintiff may proceed against the State through DOTD under either a theory of negligence, based on LA.CIV.CODE art. 2315, or a theory of strict liability, based on LA.CIV.CODE art. 2317 and LA.R.S. 9:2800. In order for DOTD to be held liable, the burden of proof is the same under either theory. That is, the plaintiff bears the burden of showing that:
(1) DOTD had custody of the thing that caused the plaintiff's injuries or damages;
(2) the thing was defective because it had a condition that created an unreasonable risk of harm;
(3) DOTD had actual or constructive knowledge of the defect and failed to take corrective measures within a reasonable time; and
(4) the defect in the thing was a causein-fact of the plaintiff's injuries.
Brown v. Louisiana Indem. Co., 97-1344 (La.3/4/98), 707 So.2d 1240, 1242; Lee v. State, Through Dep't of Transp. & Dev., 97-0350 (La.10/21/97), 701 So.2d 676, 677-78. To recover, plaintiff bears the burden of proving all these inquiries in the affirmative and failure on any one is fatal to the case.
DOTD's duty is to maintain the public roadways in a condition that is reasonably safe and does not present an *495 unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. La. R.S. 48:21(A); Campbell v. Department of Transp. & Dev., 94-1052 (La.1/17/95), 648 So.2d 898, 901-02; Oster v. Department of Transp. & Dev., 582 So.2d 1285, 1288 (La.1991). DOTD must maintain the shoulders and the area off the shoulders, within its right-of-way, in such a condition that they do not present an unreasonable risk of harm to motorists using the adjacent roadway and to others, such as pedestrians, who are using the area in a reasonably prudent manner. Brown, 707 So.2d at 1242; Oster, 582 So.2d at 1289-91. DOTD's duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons a motorist might find himself on, or partially on, the shoulder. Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566, 572; Rue v. State, Dep't of Highways, 372 So.2d 1197, 1199 (La.1979). This duty extends not only to prudent and attentive drivers, but also to motorists who are slightly exceeding the speed limit or momentarily inattentive. Ledbetter v. State, Through La. Dep't of Transp. & Dev., 502 So.2d 1383, 1387 (La.1987).
This duty, however, does not render DOTD the guarantor for the safety of all the motoring public. Graves, 703 So.2d at 572; Briggs v. Hartford Ins. Co., 532 So.2d 1154, 1156 (La.1988). Further, DOTD is not the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway or its appurtenances. Id. Moreover, not every imperfection or irregularity will give rise to liability, but only a condition that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Entrevia v. Hood, 427 So.2d 1146, 1149 (La.1983). The existence of an unreasonable risk of harm may not be inferred solely from the fact that an accident occurred. See, e.g., Simeon v. John Doe, d/b/a The Sweet Pepper Grill, 618 So.2d 848 (La.1993). Whether DOTD breached its duty to the public, by knowingly maintaining a defective or unreasonably dangerous roadway, depends on all the facts and circumstances determined on a case by case basis. Campbell, 648 So.2d at 901-02.
In the case sub judice, the jury only answered a single interrogatory affirmatively, holding DOTD negligent and/or strictly liable in causing plaintiff's damages. As such, we must presume that the jury concluded that the plaintiff carried her four-pronged burden of proof. It is undisputed that DOTD had custody of La. Hwy. 182 and the culvert in question. However, DOTD vigorously disputes whether the culvert was defective and whether the culvert was a cause-in-fact of the plaintiff's injuries. Accordingly, we will review the record regarding the culvert to determine if the jury's implicit finding of the culvert unreasonably dangerous was manifestly erroneous or clearly wrong. See Stobart v. State, Through Dep't of Transp. & Dev., 617 So.2d 880, 882 (La.1993).
The trial court accepted Mr. James Lock, a political scientist, as plaintiff's accident reconstruction expert. Mr. Lock testified that less than one second passed from the moment Ms. Zebouni's right tires left the paved shoulder until they reentered past the culvert. He stated that Ms. Zebouni traveled about sixty-five feet before driving over the headwall and then traveled an additional fifteen feet before reentering the shoulder. He concluded that what Ms. Zebouni perceived as the "embankment" was actually the brown grassy area around the culvert that DOTD had sprayed with herbicide. He stated the loss of control of her vehicle was caused by her perception of this "embankment" as a dangerous obstacle in her immediate path and her left steering input reaction to avoid this danger, which caused her car to yaw and reenter the highway at a sharp angle. He also expressed his belief that Ms. Zebouni felt no distinction in road conditions when she steered her vehicle off the paved shoulder and onto the grassy *496 area. He further stated that from the culvert to the point where Ms. Zebouni first perceived to input the left steering was less than a second and between twenty-five feet and forty feet after entering the grassy area. While Mr. Lock admitted typical perception/response times for drivers ranged from three quarters of a second to one and a half seconds, he concluded that Ms. Zebouni reacted so quickly because she was at a heightened state of awareness, i.e., she was a "cued" driver.
On cross-examination, Mr. Lock admitted that Ms. Zebouni's right tires rolled directly over the headwall and that the culvert played no physical role in causing the accident. He further admitted that Ms. Zebouni's car veered left because she steered it left and that an oversteer maneuver is a driver's mistake. He testified that had Ms. Zebouni not steered to the left her car would have safely passed the culvert and would not have impacted any "embankment." Finally, he estimated that given a speed of fifty miles per hour and a reaction time of three-quarters of a second, Ms. Zebouni would have perceived her left maneuver fifty-five feet from the culvert.
Plaintiff also presented the testimony of Maurice Bronstad, accepted by the trial court as an expert in highway and roadside safety. Mr. Bronstad testified that the grassy area adjacent to the paved shoulder on which Ms. Zebouni's right tires traversed was the "useable shoulder" as it fell within the crown of the highway and could be used for emergencies. He opined that the open culvert constituted a roadside hazard since it fell within the crown and the "useable shoulder," and therefore created an unreasonable risk of harm. He deduced that it was Ms. Zebouni's perception of the brown grassy area around the culvert that caused her to oversteer to the left. Accordingly, he reasoned that when this particular portion of La. Hwy. 182 was overlaid and the shoulders were paved pursuant to Project 4-03-08 in 1987, DOTD should have moved the drainage structure outside the useable shoulder as it had done with drainage structures in Project 4-04-20 in Iberia Parish. On cross-examination, Mr. Bronstad stated that the American Association of State Highway Traffic Officials ("AASHTO") and Federal Highway Administration literature he relied upon constitute recommendations, not requirements, in the context of rural state highway "3R" (resurfacing, restoration, and rehabilitation) projects. He conceded that the culvert itself did not physically cause the accident.
DOTD presented the testimony of Teddy Babin, the project and design engineer on Projects 4-03-08 and 4-04-20. The trial court accepted Mr. Babin as an expert in highway design, limited to DOTD standards. Mr. Babin stated in overlaying the highway and paving the shoulders, he followed DOTD rules to limit the work to maintain the existing crown, i.e., the relatively flat surface area before the ditch foreslope. He said that, although the edge of the crown is not necessarily the same point as the edge of the paved surface, with Project 4-03-08, the two points coincided. He explained that DOTD's design criteria for 3R projects required him to disregard any roadside safety issues beyond the highway crown, within reason. Mr. Babin said he extended six culverts four to five feet in Project 4-04-20 because they fell within the crown of the highway. However, the culvert in the case sub judice was located outside the highway's crown and within the ditch's foreslope and therefore was not moved. On cross-examination, Mr. Babin conceded that on 3R projects DOTD does do work outside the crown and that if bridge end rails, mailboxes, and non-breakaway signs were located outside the crown, in the same position as the culvert, then DOTD would move these obstacles.
Richard Savoie testified for DOTD as an expert in highway design. He noted that the purpose of the highway crown is to facilitate water runoff. He testified that the crown of the roadway at the culvert's *497 location extended out to the edges of the paved shoulder and then began the foreslope of the ditch. He estimated that the cost of constructing six and a half foot culvert extensions on both sides of the roadway would be about $2,789. However, he explained that it could not be moved back from its current location because DOTD's right-of-way directly adjoined the railroad's right-of-way. Thus, if it was moved, the culvert would encroach onto the railroad's right-of-way. Mr. Savoie also pointed out that the railroad does not sell its right-of-ways to DOTD. As such, for DOTD to achieve the result desired under plaintiff's theory, it would have had to move the entire highway left, which would entail surveying the area, designing the plans, and redesigning and rebuilding the highway. He estimated the cost, conservatively, at about $750,000 per mile just for construction. Adding in the acquisition of right-of-ways and relocation of utilities, the cost would approach $1,000,000 per mile. He also explained the culverts in Project 4-04-20 were moved because they were in the shoulder of the road and needed to be extended so to provide the motoring public an eight foot paved shoulder.
Mr. Jeff Milburn, a civil engineer accepted by the trial court as an expert in accident reconstruction, highway design, and traffic engineering, testified on behalf of DOTD. Mr. Milburn opined that the culvert was not a dangerous condition and did not cause the accident as it was located nine feet and five inches from the travel lane, its headwall was flush with the paved shoulder, and it was perpendicular to the roadway and virtually invisible. He also explained that the paved shoulder is intended for emergency use and not intended to be driven upon. He further stated that the roadway is not intended for motorists to travel beyond the paved shoulder and drive onto the grassy area. Mr. Milburn testified that Ms. Zebouni input the left oversteer at the culvert and perceived it somewhere between fifty and seventy feet before the culvert. He explained that normal human perception/reaction decisions took at least three-quarters of a second to one and a half seconds. He further testified that looking toward the culvert at about sixty-five feet one could not see the ditch or an "embankment" or anything else that would cause a driver to steer hard to the left. He further stated that Mr. Lock's opinion that one would not feel any sensation when driving off the paved shoulder and onto the grassy area was wrong based on personally performing the maneuver. Finally, Mr. Milburn stated that, given Ms. Zebouni was traveling at about fifty miles per hour, that her car started to move left at about the culvert, that the distance from where she exited the shoulder to the headwall was sixty-five feet, that a normal reaction time at best was three-quarters of a second, and that one would then have to had perceived something at about sixty or seventy feet before the culvert. He concluded that Ms. Zebouni actually perceived leaving the roadway onto the grassy area and reacted to her own error.
As stated above, plaintiff bears the burden of proving all four prongs of her case in order to recover. While neither party contests that DOTD had custody of the culvert, custody alone does not give rise to liability under either theory of recovery. In addition, the injured party must establish that the thing contained a defect which created an unreasonable risk of harm and that the defective condition caused the injury. If the culvert did not present an unreasonable risk of harm to Ms. Zebouni, this implies that DOTD did not owe the alleged legal duty and cannot be held liable for the damages plaintiff sustained. Oster, 582 So.2d at 1288.
Generally, the initial inquiry to determine if a party may be liable under the duty-risk analysis is cause-in-fact. Cay v. State, Dep't of Transp. & Dev., 93-0887 (La.1/14/94), 631 So.2d 393, 395. The plaintiff must prove that the alleged defect in the thing was a cause-in-fact of the plaintiffs harm. Brown, 707 So.2d at *498 1242; Campbell, 648 So.2d at 902. A party's conduct is a cause-in-fact of the harm if it was a substantial factor in bringing about the harm. Graves, 703 So.2d at 570 (citing FRANK L. MARAIST & THOMAS C. GALLIGAN, LOUISIANA TORT LAW, § 4-3, at 86-88 (1996)); Edwards v. Horstman, 96-1403 (La.2/25/97), 687 So.2d 1007. For example, the act is a cause-in-fact in bringing about the injury when the harm would not have occurred without it. While a party's conduct does not have to be the sole cause of the harm, it is a necessary antecedent essential to an assessment of liability. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305, 1310; Dixie Drive It Yourself Sys. v. American Bev. Co., 242 La. 471, 137 So.2d 298, 302 (1962). Whether an action is the cause-in-fact of the harm is essentially a factual determination that is usually left for the factfinder. Theriot, 640 So.2d at 1310. Although causation is generally the initial criterion, we believe a resolution of this case is best determined when considering whether plaintiff carried her burden of proving that this culvert posed an unreasonable risk of harm to Ms. Zebouni.
The unreasonable risk of harm criterion is not a simple rule of law. Rather, it is a criterion established by this Court to facilitate the judicial process required by our Code. Landry v. State, 495 So.2d 1284, 1287 (La.1986). As such, it becomes the decision maker's duty to decide which risks are encompassed by the codal obligations from the standpoint of justice and social utility. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La. 1990).
In attempting to define the test, we have described the unreasonable risk of harm criterion as serving as a guide utilized by the decision maker in balancing the likelihood and magnitude of harm against the social utility of the thing. We have cautioned, however, that such a balancing test does not lend itself well to neat, mathematical formulations. Oster, 582 So.2d at 1289. In addition, the decision maker must consider a broad range of social and economic factors, including the cost to the defendant of avoiding the harm, as well as the risk and the social utility of the party's conduct at the time of the accident. Id. In reaching an intelligent and responsible determination, the decision maker must carefully consider all the circumstances surrounding the particular accident under review to determine whether DOTD's legal duty encompassed the risk which caused the plaintiffs injuries and damages and was intended to protect this plaintiff from this type of harm arising in this manner. Oster, 582 So.2d at 1289; Landry, 495 So.2d at 1287; Entrevia, 427 So.2d at 1151 (Lemmon, J., concurring). The imperfection or irregularity must be of such a nature as to constitute a dangerous condition which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Deville v. State Farm Ins. Co., 617 So.2d 1255, 1257 (La.App. 3 Cir.1993); Bealer v. National Tea Co., 597 So.2d 1242, 1244 (La.App. 3 Cir.1992).
Clearly, the magnitude of the harm suffered by Ms. Netecke was great and tragic. She suffered severe and debilitating injuries causing cognitive deficits and an amputated leg. The likelihood of the harm in the present case, however, was minimal. Where a culvert is open, in full view, flushed with and abutting the paved shoulder, and clearly marked by a warning delimitator, the culvert itself serves as a warning of apparent and obvious risk to the motoring public exercising ordinary care and reasonable prudence. The record reveals that numerous motorists traveled La. Hwy. 182 and numerous brown grassy areas were present in the area adjacent to the paved shoulder, yet this is the only accident in the record in which a motorist perceived an "embankment." Indeed, Ms. Zebouni admitted seeing other areas along the highway that were brown in color. Also, the likelihood that a driver would intentionally steer her vehicle out of a *499 twelve foot wide travel lane, across an eight foot wide paved shoulder, and eight to ten inches onto the brown grassy area without stopping or significantly slowing her vehicle, and then perceive an "embankment" which was not there but fail to see the warning delimitator clearly marking the culvert all in an effort to avoid a cat in the opposite lane of travel is de minimis.
Balanced against this backdrop is the social utility of the culvert and the brown grassy area surrounding it. The purpose of the culvert is clear: it is designed and intended to keep water from draining onto the travel portion of the highway and causing a dangerous situation for motorists. Because the culvert helps make travel along the roads of this state safer by facilitating the drainage of water off the highway, it has great social utility, notwithstanding that it may pose some risk to the motoring public. Culverts are a common feature along the roads and highways. Spraying herbicide around culverts along the roads and highways is a common practice and facilitates their utility by preventing grass, weeds, and overgrowth from hampering their function and ensures that the culverts' warning delimitators and the culverts themselves are clearly visible to the motoring public. In sum, under the circumstances of this case, we find the culvert and the brown grassy area at issue in this case support a social utility that outweighed any perceived risk of harm by Ms. Zebouni.
Next, we must consider all the other social and economic factors pertinent to the case. Initially, we note that Ms. Netecke was lawfully driving on La. Hwy. 182 in a manner consistent with its intended use and purpose. Accordingly, the social utility of her conduct was meaningful. However, Ms. Zebouni's use of the highway at the time of the accident was not. The record indicates that in an attempt to avoid a cat in the opposite lane of travel, Ms. Zebouni executed her avoidance maneuver, traveled outside her travel lane and paved shoulder and onto the grassy area at a high rate of speed and without attempting to stop or significantly slow her vehicle. Further, she perceived an "embankment" that did not exist and failed to see the culvert's warning delimitator, which was clearly visible. We must also consider that a motorist, exercising ordinary case and reasonable prudence, should not attempt to reenter the highway at an excessively high rate of speed. Had Ms. Zebouni remained in her travel lane or the paved shoulder or even continued on her path in the grassy area, she would have traveled past the culvert without incident and would not have lost control of her vehicle. Under the circumstances of this case, we find no social utility in the reckless manner Ms. Zebouni negotiated her vehicle coupled with her perception of an "embankment."
Finally, the physical and financial inability of DOTD to maintain the State's roadways, shoulders, and right-of-ways in anything more than a reasonably safe condition has been considered by this Court in the past as a factor in determining whether a particular condition complained of presents an unreasonable risk of harm to the plaintiff. See, e.g., Hunter v. Dep't of Transp. & Dev., 620 So.2d 1149, 1153 (La.1993); Oster, 582 So.2d at 1291; Manasco v. Poplus, 530 So.2d 548, 550 (La. 1988); Myers v. State Farm Mut. Auto. Ins. Co., 493 So.2d 1170, 1173 (La.1986). Plaintiff argues that there were a number of economically feasible options available to DOTD regarding the culvert. Primarily, plaintiff contends that the accident could have been prevented if the culvert had been moved farther away from the paved shoulder at the cost of $2,789.[7] However, this figure takes into account only the construction cost of the culvert. *500 The true cost to the State to accomplish plaintiff's desired result would amount to a figure between $750,000 and $1,000,000 per mile. While the avoidance of all accidents on our State's highways is highly desirable, the question is whether it is reasonable to impose a rule of law which would require DOTD to reconstruct every highway within its control to provide such or face the prospect of tort liability. DOTD's jurisdiction extends over thousands of miles of roads in this State. Considering this, reconstructing all of the highways in this State would be fiscally impossible. Furthermore, the law does not require such an effort. DOTD clearly marked the culvert with a warning delimitator. DOTD also sprayed a herbicide around it to prevent its function from being diminished or from overgrowth preventing it from it being visible to the motoring public exercising ordinary care and reasonable prudence. The cost to DOTD to make its highways, shoulders, and adjacent areas safe from all misperceptions of the motoring public would be overwhelming and impossible. Furthermore, placing the burden on DOTD to reconstruct our State's highways and roadways to prevent such misperceptions and foresee such circumstances would create such an onerous burden that DOTD would essentially be rendered the guarantor for the safety of all the motoring public and the insurer of all risks. We decline to place such a burden.
DOTD cannot be held responsible for all injuries on the state's highways that result from careless driving. Based on the above analysis and having reviewed and considered the record, the testimony, and the evidence in its entirety, we conclude that the lower courts were clearly wrong in finding that DOTD's failure to move the culvert or its conditions rendered it defective and created an unreasonable risk of harm to Ms. Zebouni causing her to overcorrect her avoidance maneuver resulting in this tragic accident. To hold otherwise would place an unreasonable burden on the State and DOTD to foresee and prevent all misperceptions of the motoring public. DOTD's legal duty did not encompass the risk that a driver, in an effort to avoid a cat in the opposite lane of travel, will intentionally drive her vehicle out of her travel lane and paved shoulder and onto the adjacent grassy area without stopping or significantly slowing her vehicle, and then overcorrect her mistake when she perceives something that was not there.
It is obvious that it was Ms. Zebouni's own misjudgment and not any defective condition created by DOTD that caused Ms. Zebouni to negotiate her vehicle in such a negligent and dangerous manner. The record evidence clearly establishes that the accident was caused solely by driver error. We find that the plaintiff failed to prove any defect in the roadway that created an unreasonable risk of harm to the motoring public which ultimately caused plaintiff's harm under the facts of this case. Having failed in her burden of proof, plaintiff is not entitled to recover against DOTD under either theory of fault she advanced. The court of appeal erred in affirming the judgment against DOTD. We must reverse.
DECREE
For the foregoing reasons, the judgment of the court of appeal is reversed and judgment is hereby rendered in favor of the State of Louisiana, through the Department of Transportation and Development, and against Traci Allen Netecke. The lower courts' judgment allocating fault is recast finding Ms. Zebouni one-hundred percent at fault. All cost of these proceedings are cast to Traci Allen Netecke.
REVERSED AND RENDERED.
JOHNSON, J., dissents and assigns reasons.
*501
JOHNSON, Justice, dissenting
By finding that the negligent driver is 100% at fault, the majority has exempted the State from liability for failing to maintain its roads in a reasonably safe condition. The record is replete with evidence that supports the jury's conclusion that the roadway was defective and created an unreasonable risk of harm.
This case closely resembles Campbell v. La. Dep't of Transp. & Dev., 94-1052 (La.1/17/95), 648 So.2d 898. In Campbell, *502 a driver of a vehicle fell asleep at the wheel and struck a bridge abutment that lacked a guardrail. This court held that the driver's failure to maintain control of his vehicle did not relieve DOTD of its duty to maintain the highway in a safe condition. This court further held that, in apportioning fault, courts should look not only at where fault lies for the accident, but also where fault lies for the harm. DOTD was found to be seventy-five percent (75%) at fault in causing the plaintiffs injuries.
In addition to the duty to keep state highways in a reasonably safe condition, DOTD has a duty to keep the shoulders of its highways in a reasonably safe condition. LeBlanc v. State, 419 So.2d 853, 856 (La. 1982) (emphasis added). The DOTD also has a duty to keep the area off the highway shoulder in such a condition that it does not pose an unreasonable risk of harm to motorists using the travel lanes or shoulder. Oster v. Dep't of Transp. and Dev., 582 So.2d 1285, 1286 (La. 1991)(emphasis added). These duties encompass the foreseeable risk that, for any number of reasons, including simple inadvertence, a motorist might find himself traveling on, or partially on, the shoulder. Begnaud v. Dep't of Transp. and Dev., 93-639 (La.App. 5 Cir. 1/12/94), 631 So.2d 467, 470. A motorist has the right to assume that a highway shoulder is maintained in a reasonably safe condition. Rue v. Dep't of Highways, 372 So.2d 1197, 1199 (La.1979).
The Federal Highway Administration cited drainage culverts as among the top five causes of fatalities on the nation's highways in 1980. Additionally, American Association of State Highway Transportation Officials (hereinafter "AASHTO") standards require the removal of actual or potential hazards from the area adjacent to the highway shoulder. Clearly the presence of a three feet by six foot drain, located directly adjacent to the shoulder of a highway, is a potential hazard. Additionally, the AASHTO Traffic Safety Committee stated that a clear recovery area, free of obstructions, should be provided along the roadway thirty (30) feet or more from the highway. The Committee's summary of conclusions and recommendations about highway safety stated:
To increase safety when vehicles leave the pavement, a clear recovery area, free of physical obstruction, should be provided along the roadway thirty (30) feet or more from the edge of the traveled way in rural areas. Corrective programs should be undertaken at once to eliminate from the roadside or to relocate to protected positions, such hazardous fixed objects as trees, drainage structures, massive sign supports, utility poles, and other ground-mounted obstructions that are now exposed to traffic. (emphasis added)
Traffic Safety Committee, AASHTO, Highway Design and Operational Practices Related to Highway Safety 1-2 (1967). Failure to adhere to AASHTO standards may not by itself provide the basis for liability. Dill v. Dep't of Transp. and Dev., 545 So.2d 994, 996 (La.1989). However, whether or not the DOTD has conformed to those standards is a relevant factor in determining whether or not a roadway is unreasonably dangerous. Id.
In the instant case, the majority mistakenly relies on the fact that Ms. Zebouni swerved to avoid hitting a cat in the road and erred in holding that DOTD did not breach its duty to plaintiff. The court should have allocated fault to both DOTD and Ms. Zebouni. The record clearly supports the conclusion that the location of the drainage culvert in relation to the highway shoulder presented an unreasonable risk of harm. The drainage culvert was located directly adjacent to the paved shoulder. Any vehicle traveling along the shoulder could possibly encounter this drain. The only thing that kept Ms. Zebouni's right tires from falling into this hole was an eight inch wide concrete headwallthe same headwall that Ms. Zebouni's right tires crossed over before *503 she lost control of her car. The record establishes that Ms. Zebouni lost control of her car when she tried to steer clear of this six foot culvert.
I disagree with the majority's conclusion that the drainage culvert played no active role in the accident, since the location of the drainage culvert was obviously a substantial factor in causing Ms. Netecke's injuries. The accident occurred when Ms. Zebouni attempted to avoid hitting the drainage culvert by steering away from it. Had the drainage culvert not been located adjacent to the highway, Ms. Zebouni would not have encountered it when she was driving along the shoulder.
In support of its conclusion that the drainage culvert did not present an unreasonable risk of harm, the majority reasoned that the cost to relocate the drainage culvert at issue would place an unreasonable burden the State. However, the record shows that cost of moving the culvert further from the road was $2,789.00. In fact, in Iberia Parish, the parish directly adjacent to St. Martin Parish where the accident occurred, the drainage culverts located along Highway 182 were extended four to five feet away from the paved shoulder to enhance safety.
In this case, the accident occurred when Ms. Zebouni attempted to avoid hitting the drainage culvert by steering away from it. It is not unreasonable for the jury to have concluded that, had the culverts in St. Martin Parish been extended away from the shoulder as well, Ms. Zebouni would not have encountered the culvert, perceived it to be a hazard, and lost control of her car.
Despite our system of comparative fault which allows the courts to apportion fault among several negligent parties, in recent cases this court has indicated a reluctance to award any damages to negligent drivers. Philosophically, we may be returning to a time when a driver who is only 1% at fault will be denied recovery. In this case, we have an innocent victim. The driver's negligence should not defeat her recovery.
For the foregoing reasons, I respectfully dissent.
NOTES
[*] Lemmon, J., not on panel. See Rule IV, Part 2, § 3.
[1] Although DOTD and Ms. Netecke set forth several assignments of error regarding liability, quantum, and allocation of fault, because we conclude that the culvert was not defective because it did not have a condition creating an unreasonable risk of harm to Ms. Zebouni, these additional assignments are rendered moot.
[2] The headwall is part of a drainage culvert that runs under the highway and facilitates drainage.
[3] Attached to this opinion is a copy of defendant's exhibit # 11, which is a picture of the area at the culvert in question taken at the scene of the accident.
[4] For a complete description of Ms. Netecke's injuries, see Netecke v. State, Through the Dep't of Transp. & Dev., 97-974 (La.App. 3 Cir. 4/1/98), 715 So.2d 439, 442.
[5] Ms. Netecke's alleged common-law husband, Michael Netecke, filed suit against the defendants alleging loss of consortium. Before trial, the court granted an exception of no cause of action filed by Ms. Zebouni concluding that he had failed to prove that he and Ms. Netecke had contracted a valid common-law marriage under Texas state law. His appeal is not part of this record.
[6] Ms. Zebouni did not seek writs from the court of appeal's judgment and filed a brief only after we granted DOTD and Ms. Netecke's writs. She argues that the appellate court's reallocation of fault was wrong because the culvert's hazardous condition played a great role in causing this accident and therefore a corresponding percentage of fault must be allocated to DOTD.
[7] Plaintiff also argued that a guardrail or culvert cover would have prevented this accident. While the cost of these would not have been as great, we do not believe they are pertinent to the case as these would not have prevented Ms. Zebouni from perceiving a brown "embankment."
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331 S.W.3d 419 (2010)
EXXON CORPORATION and Exxon Texas, Inc., Petitioners,
v.
EMERALD OIL & GAS COMPANY, L.C., Respondent.
No. 05-0729.
Supreme Court of Texas.
Argued February 13, 2007.
Decided December 17, 2010.
Rehearing Granted November 20, 2009.
*420 Shannon H. Ratliff, Marla Diane Broaddus, Ratliff Law Firm, P.L.L.C., Karen L. Watkins, Patton G. Lochridge, William T. George, McGinnis Lochridge & Kilgore, L.L.P., Austin, S. Jack Balagia Jr., Exxon Mobil Corp., Byron C. Keeling, Keeling & Downes, P.C., Edward John "Jack" O'Neill Jr., Howrey, L.L.P., Houston, for Petitioner.
William J. Joseph Jr., Candace Beth Kaiser Eindorf, Howrey, L.L.P., Alice Oliver-Parrott, Alice Oliver-Parrott, P.C., Maria Teresa Arguindegui, Maria Teresa Arguindegui, P.C., Eileen O'Neill, Ware Jackson Lee & Chambers, LLP, Houston, Deborah G. Hankinson, Hankinson Levinger LLP, Dallas, Elana S. Einhorn, The University of Texas School of Law, Austin, for Respondent.
Zachary S. Brady, Zachary S. Brady, P.C., Lubbock, for Amicus Curiae.
Justice WAINWRIGHT delivered the opinion of the Court.
After issuing our opinion, we granted respondent's motion for rehearing on November 20, 2009 and obtained further briefing from the parties. Without further oral argument, we withdraw our opinion of March 27, 2009 and substitute the following opinion. Our judgment remains unchanged.[1]
In this oil and gas dispute, we determine whether section 85.321 of the Texas Natural Resources Code allows a subsequent mineral lessee to maintain a cause of action against a prior lessee for damages to the mineral interest that occurred prior to the time the subsequent lessee obtained its interest. We hold that section 85.321 creates a private cause of action that does not extend to subsequent lessees. Because the plaintiff in this case owned no interest in the mineral leases when the prior lessee allegedly damaged the interest, the plaintiff lacks standing to assert a cause of action under section 85.321.[2] Accordingly, we reverse the court of appeals' judgment. Today, we also issue our opinion in the rehearing of Exxon Corp. v. Miesch, the companion to this case. ___ S.W.3d ___ (Tex.2010) (reh'g op.).
I. FACTUAL AND PROCEDURAL BACKGROUND
In the 1950s, Humble Oil & Refining Company (Humble) held mineral leases with Mary Ellen and Thomas James O'Connor on several thousand acres in Refugio *421 County, Texas (O'Connor Field or Field). Exxon Texas, Inc. succeeded Humble's interest in the leases. Under the leases, Exxon paid a fifty percent royalty, which was higher than the royalty Exxon paid on an adjoining tract. In the 1970s and 1980s, Exxon unsuccessfully sought to renegotiate the royalty percentage with the royalty owners. Deciding that it was no longer sufficiently profitable to continue operating the O'Connor Field, Exxon systematically plugged and abandoned the wells, completing its abandonment of the Field in 1991.
In 1993, Emerald Oil & Gas Company, L.C. (Emerald) obtained leases for a portion of the O'Connor Field and attempted to re-enter the wells. Emerald encountered unexpected difficulties when it tried to re-enter the wells. Emerald alleges that Exxon caused these difficulties by improperly plugging and intentionally sabotaging the wells by putting considerable quantities of metal, unidentifiable refuse, and environmental contaminants into the wells, placing nondrillable material in the wells, and leaving cut casing in the plugged wells. In 1996, Emerald, on behalf of its working-interest owner, Saglio Partnership Ltd., sued Exxon on six claims: (1) breach of a statutory duty to properly plug a well, (2) breach of a statutory duty not to commit waste, (3) negligence per se, (4) tortious interference with economic opportunity, (5) fraud, and (6) negligent misrepresentation. The royalty owners[3] intervened, alleging similar claims.
Exxon moved for partial summary judgment against Emerald and the royalty owners on grounds that: (1) Exxon has no obligation to potential future lessees; (2) there is no private cause of action for breach of a statutory duty to plug a well in a particular way; (3) there is no private cause of action for breach of any statutory duty not to commit waste; and (4) the facts alleged do not give rise to a claim for tortious interference with economic opportunity; but (5) in the alternative, if the royalty owners have a claim against Exxon for failure to plug the wells properly, it sounds in contract only, not in tort.
The trial court granted portions of Exxon's motion for partial summary judgment, concluding that under sections 85.045, 85.046, 85.321, and 89.011 of the Texas Natural Resources Code and Title 16 section 3.14(c)(1) of the Texas Administrative Code, Exxon owed no statutory duty to potential future lessees, including Emerald. Accordingly, the trial court granted partial summary judgment in Exxon's favor on Emerald's three statutory claims of (1) negligence per se, (2) breach of a statutory duty to plug a well properly, and (3) breach of a statutory duty not to commit waste. The trial court then severed those claims and proceeded to trial on Emerald's three remaining claims against Exxon: fraud, negligent misrepresentation, and tortious interference. The court also denied Exxon's motion for summary judgment on the royalty owners' claims and tried those claims. This appeal arises from Emerald's challenge to the trial court's summary judgment on the statutory claims.
The court of appeals reversed and remanded Emerald's three statutory claims to the trial court, holding that section 85.321 imposes a duty on current lessees to *422 future lessees and thus provides a basis for a cause of action against Exxon. Exxon petitioned this Court for review. We now review the trial court's summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Our opinion on rehearing in Exxon v. Miesch, also issued today, decides the appeal of claims that were tried. ___ S.W.3d ___ (Tex.2010) (reh'g op.).
II. DISCUSSION
A. Private Cause of Action
Two of Emerald's claims against Exxon invoke statutory dutiesbreach of statutory duty to plug a well properly and breach of statutory duty not to commit waste. Emerald's pleadings cite section 85.321 of the Texas Natural Resources Code as the basis for its standing to bring the first claim and refers to other related provisions of the Code in support of standing to bring the second claim. Section 85.321, titled "Suit for Damages," reads:
A party who owns an interest in property or production that may be damaged by another party violating the provisions of this chapter that were formerly a part of Chapter 26, Acts of the 42nd Legislature, 1st Called Session, 1931, as amended, or another law of this state prohibiting waste or a valid rule or order of the commission may sue for and recover damages and have any other relief to which he may be entitled at law or in equity. Provided, however, that in any action brought under this section or otherwise, alleging waste to have been caused by an act or omission of a lease owner or operator, it shall be a defense that the lease owner or operator was acting as a reasonably prudent operator would act under the same or similar facts and circumstances.
TEX. NAT. RES.CODE § 85.321. The court of appeals held that section 85.321 creates a private cause of action for damages resulting from statutory violations. We agree.
In construing statutes, this Court starts with the plain language of the statute. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003). The language of section 85.321 clearly creates a private cause of action. A party whose interest in property is damaged by another party violating provisions of a conservation law of this state or a Texas Railroad Commission rule or order "may sue for and recover damages" and other relief to which the party may be entitled. TEX. NAT. RES.CODE § 85.321. Section 85.321 also expressly provides a defense to civil actions for lease owners and operators acting as a reasonably prudent operator would act under the same or similar circumstances, adding more credence to the conclusion that section 85.321 creates a private cause of action. Id.
This Court previously reached the same conclusion. In HECI Exploration Co. v. Neel, royalty owners sued their lessee for failing to notify them that the lessee sued the operator on an adjoining tract whose overproduction of oil, in violation of Railroad Commission rules, damaged the common reservoir. 982 S.W.2d 881, 884 (Tex. 1998). The court of appeals held that the lessee violated an implied covenant to notify the royalty owners of an intent to sue the offending operator. Id. at 884-85. This Court held no such implied covenant exists because the lessee's suit against the adjoining operator does not collaterally estop the royalty owners from suing separately under section 85.321. Id. at 890-91. "When a mineral or royalty interest owner is damaged by a violation of the conservation law of this state or a Railroad Commission rule or order, section 85.321 of the Texas Natural Resources Code also expressly provides for a damage suit against the offending operator." Id.
*423 Relying on Magnolia Petroleum Co. v. Blankenship, 85 F.2d 553, 556 (5th Cir. 1936) as persuasive authority, Exxon urges the Court to disregard HECI Exploration and hold that section 85.321's predecessor, article 6049c, did not create a private cause of action. Magnolia involved a dispute between two lessees producing from a common reservoir. Id. at 554. Magnolia produced oil from several wells on a tract of eighty-one acres while Blankenship had one well on half an acre. Blankenship had sunk his well without a permit. The Railroad Commission sued him, seeking a $1,000 penalty. Blankenship countered for a certificate authorizing him to operate the well. The trial court authorized the penalty and also ordered the certificate of operation. Magnolia appealed the decision, contending that the trial court did not have authority to order the certificate of operation and moved for an injunction against Blankenship under section 13 of article 6049c. Id. at 554, 556. Interpreting the statute, the Fifth Circuit held that while the first sentence of section 13 "purports to give no new cause of action," the second sentence gives a producer the right to sue for damages and appropriate equitable remedies, including an injunction. Id. at 556. However, the court determined that an injunction would have been inequitable in that case because Blankenship's single well did not produce as much oil as Magnolia's many wells. Id. at 554. Instead, Magnolia should have requested that the Railroad Commission regulate the distribution of oil to each operator. Id. at 556. Exxon argues that Magnolia stands for the proposition that the Railroad Commission has primary jurisdiction to regulate the allocation of oil between producers from a common reservoir and prohibits a private cause of action under what is now section 85.321. We agree Magnolia explains that, at the time, statutes gave the Railroad Commission primary jurisdiction to adjust correlative rights of oil and gas owners in a common reservoir, but we disagree on the latter assertion. Exxon's reading overstates Magnolia's holding. Magnolia reasons that, compared to the Commission's proration of production, allowing such allocation to be performed by the random institution and adjudication of private lawsuits would be problematic. Surely that is correct. But Magnolia does not hold that section 85.321's predecessor bars private lawsuits for a mineral owner's recovery of damages. Magnolia does not answer that question except to say that if section 85.321's predecessor created such a private cause of action, it did not provide a right to an injunction when the evidence fails to establish an equitable basis for doing so. Id. at 556.
Furthermore, the Fifth Circuit has held on more than one occasion, not inconsistent with Magnolia, that the language in section 85.321's predecessor (section 13 of article 6049c) does, in fact, create a private cause of action. Turnbow v. Lamb, 95 F.2d 29, 31 (5th Cir.1938) ("Article 6049c, section 13, Vernon's Civil Stat. Texas, expressly recognizes and preserves to an injured party his cause of action for damages `or other relief' against a violator of the oil production laws."); see Sun Oil Co. v. Martin, 330 F.2d 5, 5 (5th Cir.1964) (adopting the lower court's reasoning in Sun Oil Co. v. Martin, 218 F.Supp. 618, 621-22 (S.D.Tex.1963) (explaining that a violation under section 13 of article 6049c "may give rise to an action for damages")); see also Ivey v. Phillips Petroleum Co., 36 F.Supp. 811, 816 (S.D.Tex.1941) (holding, in accord with Fifth Circuit law, that a plaintiff does not have standing to sue pursuant to section 13 of article 6049c if no Railroad Commission regulation or state law violation occurred). Although section 85.321 and section 13 of article 6049c are not identical, the pertinent parts of the two *424 laws are the same. Act effective August 12, 1931, 42nd Leg., 1st C. S., ch. 26, § 13, 1931 Tex. Gen. Laws 46, 53, repealed by Act effective September 1, 1977, 65th Leg., R.S., ch. 871, § 1, 1977 Tex. Gen. Laws 2345, 2527. Thus, we do not agree that Magnolia interprets section 13 of article 6049c to prohibit a private cause of action.
B. Standing of Subsequent Lessees
Having concluded that section 85.321 creates a private cause of action, we examine whether Emerald's status as a subsequent lessee impacts its standing to bring a cause of action under section 85.321. The Legislature gave the right to a private cause of action to a person who "owns an interest . . . that may be damaged by another party violating the provisions of this chapter . . . ." TEX. NAT. RES. CODE § 85.321. Exxon argues that "violating" is a present tense term that indicates an injury concurrent with ownership, whereas Emerald maintains that "violating" would include any party that had violated the statute at some point in time. The plain language is unclear as to whether concurrent ownership is required or whether subsequent interest owners could also maintain a cause of action. The participle phrase "violating the provisions of this chapter" could indicate a continuous actiona party who has violated, continues to violate, or is violating the provision, which would open the cause of action to a wider range of interest owners. Id. The statute could also be interpreted as another party who is violating the provisions of this chapter, which suggests a temporal limitation on the private cause of action. Because the text itself is unclear, we look to section 85.321's statutory predecessor and the surrounding context for guidance. See Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651-52 (Tex. 2006).
Section 85.321's statutory predecessor, section 13 of article 6049c, preserved common law standards:
Nothing herein contained or authorized and no suit by or against the [Railroad] Commission shall impair or abridge or delay any cause of action for damages, or other relief, any owner of any land or any producer of crude petroleum oil or natural gas, or any other party at interest, may have . . . .
Act effective August 12, 1931, 42nd Leg., 1st C.S., ch. 26, § 13, 1931 Tex. Gen. Laws 46, 53, repealed by Act effective September 1, 1977, 65th Leg., R. S., ch. 871, § 1, 1977 Tex. Gen. Laws 2345, 2527. Thus, part of the stated purpose of Chapter 26 was to prevent the Railroad Commission from infringing on existing causes of action under the common law. The language in sections 85.321 and 85.322 comes directly from section 13 of article 6049c.
For more than 100 years, this Court has recognized that a cause of action for injury to real property accrues when the injury is committed. See Houston Water-Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36, 37 (1888). The right to sue is a personal right that belongs to the person who owns the property at the time of the injury, and the right to sue does not pass to a subsequent purchaser of the property unless there is an express assignment of the cause of action. Abbott v. City of Princeton, 721 S.W.2d 872, 875 (Tex.App.-Dallas 1986, writ ref'd n.r.e.). "Accordingly, a mere subsequent purchaser [of the property] cannot recover for an injury committed before his purchase." Lay v. Aetna Ins. Co., 599 S.W.2d 684, 686 (Tex. Civ.App.-Austin 1980, writ ref'd n.r.e.); see also Vann v. Bowie Sewerage Co., 127 Tex. 97, 90 S.W.2d 561, 562-63 (Tex.1936) (holding that a cause of action for damages to property resulting from a permanent nuisance accrues to the owner of the land at *425 the time the injury begins to affect the land, and mere transfer of the land by deed does not transfer the claim for damages). Therefore, under Texas common law, absent a conveyance of the cause of action, a subsequent owner cannot sue a prior owner for injury to realty before the subsequent owner acquired his interest. See Vann, 90 S.W.2d at 562-63; see also Haire v. Nathan Watson Co., 221 S.W.3d 293, 298 (Tex.App.-Fort Worth 2007, no pet.); Cook v. Exxon Corp., 145 S.W.3d 776, 781 (Tex.App.-Texarkana 2004, no pet.); Exxon Corp. v. Pluff, 94 S.W.3d 22, 27 (Tex.App.-Tyler 2002, pet. denied); Senn v. Texaco, Inc., 55 S.W.3d 222, 225 (Tex.App.-Eastland 2001, pet. denied). Similarly, a subsequent lessee, like Emerald, can stand in no better shoes than a subsequent owner. If the Legislature intended to change this common law principle, it could have done so in the statute.
Were we to interpret section 85.321 to allow Emerald to sue Exxon as a prior lessee, we would expand the class of potential claimants beyond that allowed by common law and subsumed in the statute. Without explicit direction from the Legislature, we hesitate to adopt an interpretation of section 85.321 that would make any party who holds a mineral interest indefinitely liable to all subsequent interest holders for prior alleged damage to the land. The consequences of such an interpretation run contrary to the legislative intent to protect and encourage the development of Texas natural resources. See TEX. CONST. art. XVI, § 59. We are mindful of the consequences of a particular construction. See TEX. GOV'T CODE § 311.023(5); McIntyre, 109 S.W.3d at 745. Absent a legislative enactment clearly abrogating the common law, we conclude that Emerald does not have standing as a subsequent lessee to pursue a claim under section 85.321 for Exxon's alleged wrongful actions as a prior lessee.[4]See, e.g., Tooke v. City of Mexia, 197 S.W.3d 325, 342-43 (Tex.2006) (holding that TEX. LOC. GOV'T CODE § 51.075 abrogated City of Texarkana v. City of New Boston, 141 S.W.3d 778 (Tex.App.-Texarkana 2004)).
C. Negligence Per Se
Because our holding that a subsequent lessee has no standing to bring a claim under section 85.321 stems from common law principles, Emerald lacks standing to bring a negligence per se claim for the same reasons.
III. CONCLUSION
Accordingly, we reverse the court of appeals' judgment and render judgment that Emerald take nothing.
Justice GUZMAN and Justice LEHRMANN did not participate in the decision.
NOTES
[1] The Texas Comptroller of Public Accounts; Jerry Patterson, Commissioner of the Texas General Land Office and Chairman of the School Land Board; and Texas Oil & Gas Association filed amicus briefs on rehearing in this case.
[2] The original lessee did not assign its claim for damages to the property to the subsequent lessee.
[3] The current royalty owners who are petitioners in this case are: Morgan Dunn O'Connor, T. Michael O'Connor, Brien O'Connor, Kelly Patricia Dunn Schaar, Nancy O'Connor, Bridey Dunn Greeson, individually and on behalf of the Dunn-O'Connor Family Trust, Laurie T. Miesch, Jack Miesch, Michael L. Miesch, Molly Miesch Allen, and Janie Miesch Robertson.
[4] Emerald and the Commissioner of the Texas General Land Office contend on rehearing that the opinion "effectively says that Exxon is the only party that can sue Exxon for damage resulting from violations of the Natural Resource Code and Railroad Commission regulations." On the contrary, the opinion and the opinion on rehearing explain that persons who had an interest in the realty at the time of the damage to the interest have standing to sue under section 85.321 for the violations listed. Thus, the royalty owners in this case have standing to sue, and they did sue, but too late for at least some of the causes of action. See Exxon v. Miesch, ___ S.W.3d ___ (Tex.2010) (reh'g op.). Also, an assignee of the realty interest (at the time of the alleged damages) would have standing to sue.
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(2008)
JUDICIAL WATCH, INC., Plaintiff,
v.
U.S. DEPARTMENT OF COMMERCE, and
Carlos Gutierrez, in his official capacity as Secretary of the U.S. Department of Commerce, Defendants.
Civil Action No. 07-1446 (RMU).
United States District Court, District of Columbia.
September 19, 2008.
MEMORANDUM OPINION
GRANTING THE DEFENDANTS' MOTION TO DISMISS
RICARDO M. URBINA, District Judge.
I. INTRODUCTION
The plaintiff asks that the court declare that the North American Competitiveness Council ("NACC") and its U.S. component subcommittees are advisory committees subject to and in violation of the Federal Advisory Committee Act ("FACA"), 5 U.S.C. app. §§ 1-16. The plaintiff also seeks a writ of mandamus compelling the defendants (collectively the "Commerce Department") to comply with the requirements of FACA in relation to the NACC. This matter is before the court on the defendants' motion to dismiss, which the court grants because the plaintiff fails to demonstrate that it has standing to bring its claims.
II. BACKGROUND
A. Factual History
The plaintiff, in its quest to promote government transparency and accountability, has investigated the activities of the Security and Prosperity Partnership of North America ("SPP") and the NACC since approximately July 2006. Compl. ¶¶ 3, 28. In March 2005, President George W. Bush, then-Mexican President Vincente Fox and then-Canadian Prime Minister Paul Martin created the SPP as part of a cooperative effort to address areas of mutual concern to their countries. Id. ¶ 9. In March 2006, the Commerce Department and representatives of the other two governments met with business leaders for input into the SPP's function and discussed the possible creation of the NACC, a council of "high level business leaders from each country" to meet annually with government representatives and "provide recommendations and priorities on promoting North American competitiveness globally." Id. ¶¶ 10, 14.
On June 15, 2006, the Commerce Department and representatives from the other governments met in Washington, D.C. to officially launch the NACC. Id. ¶¶ 11, 14. The NACC is a thirty-five member council from the three countries, and each country selects its members through its own membership selection process. Id. ¶ 15. The defendants designated the Council of Americas and the U.S. Chamber of Commerce to select the NACC's U.S. membership. Id. ¶ 20.
Because it believes that the NACC is governed by FACA, the plaintiff argues that the NACC's meetings must be public and its records and reports must be made available through Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, requests. Id. ¶¶ 36-37. The plaintiff has sought access to records regarding the NACC via multiple FOIA requests to various federal agencies, including the defendants. Id. ¶ 28. On March 23, 2007, the plaintiff submitted a request to the U.S. Chamber of Commerce to participate in NACC meetings. Id. ¶ 29. The Chamber of Commerce denied that request, stating that NACC meetings are only open to invited officials and members of the Executive Committee of the NACC. Id. ¶ 30. On July 26, 2007, the plaintiff submitted a request to the defendants asking that they acknowledge that the NACC and its U.S. component subcommittees are advisory committees under FACA and demanding that the defendants bring the NACC and its U.S. component subcommittees into compliance with all appropriate laws and regulations. Id. ¶ 31. As of August 10, 2007, the defendants had not responded to the plaintiffs request. Id. ¶ 32. The Department of Commerce allegedly released some responsive documents to the plaintiff on August 28, 2007, and is currently processing the request pursuant to the provisions of FOIA. Defs.' Mot. at 14-15.
B. Procedural History
Dissatisfied with the defendants' response and believing that the defendants' actions violated FACA, on August 10, 2007, the plaintiff brought this suit and a motion for a temporary restraining order ("TRO") or preliminary injunction compelling the Commerce Department to admit the plaintiff to a meeting held ten days later in Montebello, Canada. See generally Judicial Watch, Inc. v. Dep't of Commerce, 501 F.Supp.2d 83 (D.D.C.2007). Denying the plaintiffs motion for a TRO on August 16, 2007, the court concluded that the plaintiff had failed to establish either a likelihood of success on the merits or irreparable injury. Id. at 87.
In the complaint, the plaintiff seeks (1) a declaratory judgment stating that the NACC, the 15 member companies that serve as the U.S. component of the NACC and the advisory council established by the U.S. NACC Secretariat are subject to FACA and that the defendants have violated FACA; (2) an injunction barring the defendants from continuing the alleged noncompliance with FACA; (3) mandamus relief ordering the defendants to perform "all nondiscretionary duties required by FACA with respect to the operation of the three groups"; and (4) a permanent injunction requiring the defendants to provide all records and other materials made available to or prepared by or for one of the three groups, including all records that would be exempt from disclosure under certain provisions of FOIA. Compl. ¶¶ 12-14. The defendants move to dismiss for lack of subject-matter jurisdiction on the belief that the plaintiffs allegations do not present a live case or controversy that can be resolved in a federal court. Defs.' Mot. at 1. The court now turns to resolve these issues.
III. ANALYSIS
A. Legal Standard for Standing
Article III of the Constitution limits the jurisdiction of federal courts to cases or controversies. U.S. CONST. art. III, § 2, cl. 1. These prerequisites reflect the "common understanding of what it takes to make a justiciable case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Consequently, "a showing of standing is an essential and unchanging predicate to any exercise of a court's jurisdiction." Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C.Cir.1996) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).
As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing standing. Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130; Steel Co., 523 U.S. at 104, 118 S.Ct. 1003; City of Waukesha v. Envtl. Prot. Agency, 320 F.3d 228, 233 (D.C.Cir.2003) (per curiam). The extent of the plaintiffs burden varies according to the procedural posture of the case. Sierra Club v. Envtl. Prot. Agency, 292 F.3d 895, 898-99 (D.C.Cir.2002). At the pleading stage, general factual allegations of injury resulting from the defendant's conduct will suffice. Id. On a motion for summary judgment, however, the "plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts which for purposes of the summary judgment motion will be taken to be true." Id. at 899 (citing FED.R.CIV.P. 56); accord Fl. Audubon, 94 F.3d at 666.
To demonstrate standing, a plaintiff must satisfy a three-pronged test. Sierra Club, 292 F.3d at 898 (citing Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130). First, the plaintiff must have suffered an injury in fact, defined as a harm that is concrete and actual or imminent, not conjectural or hypothetical. Byrd v. Envtl. Prot. Agency, 174 F.3d 239, 243 (D.C.Cir.1999) (citing Steel Co., 523 U.S. at 103, 118 S.Ct. 1003). Second, the injury must be fairly traceable to the governmental conduct alleged. Id. Finally, it must be likely that the requested relief will redress the alleged injury. Id. Our court of appeals has made clear that no standing exists if the plaintiffs allegations are "purely speculative[, which is] the ultimate label for injuries too implausible to support standing." Tozzi v. Dep't of Health & Human Servs., 271 F.3d 301, 307 (D.C.Cir. 2001). Nor is there standing where the court "would have to accept a number of very speculative inferences and assumptions in any endeavor to connect the alleged injury with [the challenged conduct]." Winpisinger v. Watson, 628 F.2d 133, 139 (D.C.Cir.1980).
The test for standing shifts focus when a plaintiff challenges an agency's failure to comply with a procedural requirement. Fl. Audubon, 94 F.3d at 664 (citing Defenders of Wildlife, 504 U.S. at 572 n. 7, 112 S.Ct. 2130). In such cases, as long as the procedural requirement is designed to protect a threatened, concrete interest of the plaintiff, the violation is sufficient to grant the plaintiff standing. City of Waukesha, 320 F.3d at 234. To ensure that the plaintiffs interest is more than a general interest common to all members of the public, however, the procedural-rights plaintiff must show "that it is substantially probable that the procedural breach will cause the essential injury to the plaintiffs own interest." Id. (citing Fl. Audubon, 94 F.3d at 664).
If the plaintiff is an association, it may demonstrate standing as long as "its members would have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires members' participation in the lawsuit." Consumer Fed'n of Am. v. Fed. Commc'ns Comm'n, 348 F.3d 1009, 1011 (D.C.Cir.2003) (quoting Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).
B. The Court Grants the Defendants' Motion to Dismiss Because the Plaintiff Fails to Demonstrate Standing
The plaintiff claims that the defendants established and utilized the NACC as an advisory committee and that the defendants' alleged use of the NACC violates FACA. Compl. ¶¶ 36-37. The defendants deny this characterization of the NACC and argue that the plaintiff does not have standing to raise these alleged violations of FACA. Defs.' Mot. at 10, 19. For the reasons that follow, the court holds that the plaintiff lacks standing to bring the FACA claims.
1. The Plaintiff Has Sufficiently Established an Injury in Fact
The plaintiff claims that it suffered "informational injury" when it was denied access to the meetings and records of the NACC and its U.S. component subgroups. Pl.'s Opp'n at 10; Compl. ¶¶ 31-33. The defendants assert that the plaintiff has failed to identify any specific requests for information about the NACC that they have denied. Defs.' Mot. at 1. Thus, according to the defendants, the plaintiff cannot demonstrate an injury in fact.
The defendants correctly note that for the plaintiff to establish an injury in a FACA case[1] it must demonstrate that it "sought and was denied specific agency records." Defs.' Mot. at 11 (citing Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 445-46, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989)). The plaintiff must similarly demonstrate that it sought and was denied access to agency meetings. See Pub. Citizen, 491 U.S. at 445-46, 109 S.Ct. 2558. The request for records described in the complaint is a letter addressed to the Secretary of Commerce dated July 26, 2007. Compl. ¶ 9. In this letter the plaintiff specifically requested that the defendants make available "all records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agendas, or other documents made available to or prepared by the NACC and its U.S. component subcommittees." Id. ¶ 31. The plaintiff also alleges that it submitted a request to the Chamber of Commerce to "be allowed to `participate in all future meetings of the NACC.'" Pl.'s Opp'n at 8.
Both the Supreme Court and the D.C. Circuit have recognized that a refusal to permit a requestor to scrutinize a committee's activities to the extent FACA allows constitutes a sufficiently distinct injury to provide standing to sue. See Pub. Citizen, 491 U.S. at 449, 109 S.Ct. 2558; see also Byrd v. U.S. Envtl. Protection Agency, 174 F.3d 239, 243 (D.C.Cir.1999). FACA requires that "whenever practicable, all [Federal Advisory Committee] materials must be available for public inspection and copying before or on the date of the advisory committee meeting to which they apply." Food Chem. News v. Dept. of Health & Human Servs., 980 F.2d 1468, 1469 (D.C.Cir.1992). The statute also requires advisory committees to provide advanced notice of their meetings and to open their meetings to the public, subject to exceptions not relevant here. Pub. Citizen, 491 U.S. at 446, 109 S.Ct. 2558. Therefore, because the plaintiff specifically requested and has not received access to meetings or records of the NACC, it has established an injury in fact sufficient to support standing.
2. The Alleged Injury is Not Fairly Traceable to the Defendants or Redressable by a Court Order
Although the plaintiff has established an injury in fact, to establish standing it still must prove that its injury is fairly traceable to the defendants' actions and that the relief sought will redress its injury. Byrd, 174 F.3d at 243 (citing Steel Co., 523 U.S. at 103, 118 S.Ct. 1003). The plaintiff suggests that a declaratory judgment, an order directing the defendants "to comply with FACA" in making all records and reports available to the public, or an order directing the defendants "to take all steps within their power [to] ensure" that the plaintiff may attend future NACC meetings will likely redress its injury. Pl.'s Opp'n at 11-12. But, the plaintiff has yet to explain how its injurybeing denied access to the meetings and records of the NACC and its U.S. component subgroupsis fairly traceable to the defendants' conduct.
For the plaintiff to satisfy the "fairly traceable" element of standing, it must show that the defendants have prevented the plaintiff from having access to NACC meetings and records. Steel Co., 523 U.S. at 103, 118 S.Ct. 1003 (stating that standing requires "causationa fairly traceable connection between the plaintiff's injury and the complained-of conduct of the defendant"). The NACC is a multinational entity composed of business leaders from Mexico, Canada and the United States, with each country determining its own membership selection process. Compl. ¶¶ 14-15. The Commerce Department allegedly worked with the Council of the Americas, the Chamber of Commerce and other parties to formalize the NACC by facilitating interaction between representatives from the three governments and the private sector. Id. ¶ 13. The plaintiff offers no evidence, or argument, that the defendants have control over the NACC such that they could force disclosure of all documents and records, or authority over the NACC to ensure the plaintiff's attendance at all future NACC meetings. See generally Compl. Indeed, the plaintiff merely assumes such control in disregard of the involvement of two other governments and multiple non-governmental organization in the NACC. Therefore, the plaintiff has still not "bridge[d] the uncertain ground found in any causal path that rests on the independent acts of third parties." Mem. Op. (Aug. 16, 2007) at 9.
Similarly, the plaintiff faces an obstacle in demonstrating that its injury is redressable by a favorable order of this court. See DynaLantic Corp. v. Dep't of Def., 115 F.3d 1012, 1017 (D.C.Cir.1997) (stating that "[t]ypically, redressability and traceability overlap as two sides of a causation coin"). As noted in the court's Memorandum Opinion dated August 16, 2007, the plaintiff's failure to demonstrate that the defendants exercise any control over the NACC undermines the redressability argument just as it does the causation argument. Mem. Op. (Aug. 16, 2007) at 9. Further, the Supreme Court has emphasized that there is no redressability when the plaintiff's injury requires the action of a third party who is not a party to the suit. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976).
The court, therefore, cannot conclude that the plaintiffs injuries would be redressed by a favorable decision of this court. Without this necessary showing, the plaintiff has failed to demonstrate standing. Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 939 (D.C.Cir.2004) (concluding that the appellants lacked standing because they had offered nothing to substantiate their allegations that a favorable court ruling would redress their injury). Because the plaintiff fails to demonstrate that it has constitutional standing, the court need not linger to analyze its prudential standing. See Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (explaining that the requirement for prudential standing exists "[i]n addition to the immutable [standing] requirements [of] Article III").
IV. CONCLUSION
For the foregoing reasons, the court grants the defendants' motion to dismiss. An order consistent with this Memorandum Opinion is separately and contemporaneously issued this 19th day of September, 2008.
NOTES
[1] The court need not decide whether FACA applies to the NACC, but it assumes the fact for purposes of analyzing standing. The court remains in doubt as to FACA's applicability. See Mem. Op. (Aug. 16, 2007).
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22 F.Supp.2d 751 (1998)
UNITED STATES of America, Plaintiff,
v.
Chris WRIGHT, Defendant.
No. 97-20179-D.
United States District Court, W.D. Tennessee, Western Division.
September 22, 1998.
*752 Doris A. Randle-Holt, Regina Stephenson, Federal Public Defender's Office, Memphis, TN, for Defendant.
Chris Wright, Memphis, TN, pro se.
Jennifer Lawrence Webber, U.S. Attorney's Office, Memphis, TN, for U.S.
ORDER EXCLUDING POLYGRAPH EVIDENCE
DONALD, District Judge.
Before this court is the motion of Defendant Chris Wright to exclude the results of a polygraph test administered to the Defendant by the United States Attorney's Office for the Western District of Tennessee. Defendant contends that the results of the polygraph examination are unreliable and that he did not knowingly, intelligently and voluntarily waive his right to contest the admissibility of the results. On August 12, 1998, the United States Attorney's Office timely filed a response to Defendant's motion to exclude polygraph evidence. The government's response argues that Sixth Circuit legal precedent grants this court discretion to admit the results of the polygraph test and urges the court to exercise that discretion to allow admission of these results at trial. For the following reasons, the court grants Defendant's motion to exclude the polygraph evidence.
FACTS
On October 6, 1993, the Wal-Mart Department Store, located at 3915 Austin Peay Highway in Memphis, Tennessee was destroyed by fire. (Indictment Count One). *753 Shortly after this fire, the Department of Alcohol, Tobacco and Firearms ("ATF") initiated an investigation of the circumstances surrounding the burning of the Wal-Mart store. (Govt.'s Resp. to Motion to Exclude ¶ 2). After Defendant Chris Wright became a suspect in the ATF's arson investigation, he retained Craig Morton ("Attorney Morton") as legal counsel for the duration of the investigation. (Govt.'s Resp. to Motion to Exclude ¶ 2)
Attorney Morton informed the United States Attorney's Office that Defendant was willing to submit to a polygraph examination as an attempt to demonstrate that Defendant was not involved in the burning of the Wal-Mart store. (Govt.'s Response to Motion to Exclude ¶ 3) In response to this offer, the United States Attorney agreed to coordinate and conduct a polygraph examination of Defendant on the condition that the results of the test would be admissible if the Defendant were indicted and the case proceeded to trial. (Govt.'s Response to Motion to Exclude ¶ 4). Both the United States and the Defendant agreed not to object to the admissibility of the polygraph examination provided the test complied with standards identified in a written agreement. (Stipulation at ¶¶ 4, 6).
The polygraph examination results indicated that Defendant had "lied in his responses to questions about the fire which destroyed the Wal-Mart store." (Govt.'s Response to Motion to Exclude ¶ 6). The United States now seeks to use the examination results to attack Defendant's credibility and as substantive evidence of the Defendant's guilt in burning the Wal-Mart store. (Govt.'s Motion to Exclude ¶ 6).
DISCUSSION
Generally, the results of polygraph examinations are inadmissible at trial. Wolfel v. Holbrook, 823 F.2d 970, 973 (6th Cir. 1987), cert. denied, 484 U.S. 1069, 108 S.Ct. 1035, 98 L.Ed.2d 999(1988); United States v. Barger, 931 F.2d 359, 370 (6th Cir.1991); United States v. Weiner, 988 F.2d 629 (6th Cir.1993), cert. denied, 510 U.S. 848, 114 S.Ct. 142, 126 L.Ed.2d 105 (1993). Prior to Wolfel, the Sixth Circuit adhered to a per se rule prohibiting the introduction of any polygraph evidence at trial. United States v. Fife, 573 F.2d 369 (6th Cir.1976) cert. denied, 430 U.S. 933, 97 S.Ct. 1555, 51 L.Ed.2d 777 (1977); United States v. Murray, 784 F.2d 188 (6th Cir.1986). The Sixth Circuit considered all polygraph evidence to be incompetent and therefore not admissible at trial. Fife at 373. In Wolfel, the Court relaxed the per se rule to allow the admissibility of polygraph related evidence in those limited circumstances where "it is relevant to the proof developed by the probative evidence." Wolfel at 972; See also United States v. Blakeney 942 F.2d 1001, 1014 (6th Cir.1991). The Court proposed a two-step analysis to govern the admissibility of polygraph related evidence: 1) the trial court must determine the relevance of the proffered evidence, and 2) the court must balance the probative value of the evidence against the danger of unfair prejudice. Wolfel at 972.
Although trial courts have discretion to admit some polygraph related evidence, the general rule against the admission of polygraph examination results is ordinarily followed in cases where there has been no prior agreement and/or stipulation between the parties waiving all objections to the admissibility of the results. Wolfel at 972; Conti v. C.I.R., 39 F.3d 658, 663 (6th Cir. 1994), cert. denied, 514 U.S. 1082, 115 S.Ct. 1793, 131 L.Ed.2d 722 (1995) (stating "unilaterally obtained polygraph evidence is almost never admissible under Evidence Rule 403."). Without such agreements, the person who submits to a polygraph examination does not have a sufficiently adverse interest in the examination to insure the probative value of the test results. Id. at 974-75. See also United States v. Harris, 9 F.3d 493, 502 (6th Cir.1993) (affirming the trial court's refusal to admit the results of a polygraph examination where the defendant had not entered into a prior agreement to allow the results to be admitted at trial). Where there are no safeguards to insure the reliability of a polygraph examination, the probative value of the examination is minimal and will be outweighed by the prejudicial effect of the results. Conti at 663. Accordingly, unilateral polygraph examinations are not generally used to prove the truth or falsity of a disputed *754 fact or even to bolster a witness's credibility. Id.; United States v. Sherlin, 67 F.3d 1208, 1216-17 (6th Cir.1995), cert. denied 516 U.S. 1082, 116 S.Ct. 795, 133 L.Ed.2d 744 (1996) and cert. denied 517 U.S. 1158, 116 S.Ct. 1548, 134 L.Ed.2d 650 (1996).
The United States acknowledges that evidence of polygraph examinations is not generally admissible, but argues that this case falls within the exception carved out by the Sixth Circuit for those cases in which both parties agree before the examination not to contest the admissibility of the results at trial. In the present case, the Defendant was the first party to propose that he submit to a polygraph examination. Moreover, the United States and the Defendant entered into a written stipulation that neither party would contest the admissibility of the examination's results at trial. Because the Defendant had an adverse interest in the polygraph examination, he had sufficient incentive to assure the reliability of the testing methods and procedures. Accordingly, the circumstances surrounding the Defendant's polygraph examination fall squarely within the exception to the general rule against the admission of polygraph evidence.
Nevertheless, whether a prior agreement concerning admissibility existed is not dispositive of whether Defendant's polygraph examination should be excluded from evidence. The exception recognized by the Sixth Circuit in Wolfel did not create a right to have polygraph evidence admitted whenever the United States and a defendant have entered into a pre-examination agreement waiving any objection to such evidence. See also United States v. Scheffer, 523 U.S. 303, ___, 118 S.Ct. 1261, 1267, 140 L.Ed.2d 413 (1998) (rejecting the proposition that the defendant had a constitutional right to introduce polygraph evidence). On the contrary, the exception created in Wolfel was merely a tool to relax the former per se rule barring the admission of polygraph evidence and allow the use of polygraph evidence in limited circumstances. Notwithstanding the existence of a pre-examination agreement, the trial court retains the discretion to exclude the results of polygraph examination under Federal Rule of Evidence 403.[1] The trial court is the final arbiter of the evidence which the jury will consider. The parties cannot pre-empt the court's gate keeping role through pretrial agreement. Accordingly, this court has the responsibility to make its own determination of whether the probative value of the polygraph examination results is outweighed by its prejudicial effect.
Because of the lack of consensus on the reliability of polygraphy in the scientific community, the court finds the probative value of polygraph examinations to be questionable and unreliable. Although some courts have become less reluctant to use the results of polygraph examinations due to advances in polygraph instrumentation and technique, questions continue to abound about the reliability of polygraphy. Scheffer at 1265. Again, the scientific community is divided over the reliability of polygraph examinations. Id. While some studies indicate that polygraphy is reliable and accurate, others have found that the accuracy rate of polygraph tests is only slightly over fifty percent. Id. Moreover, there is evidence that polygraph examinees can deliberately provoke certain physiological responses which can obscure accurate polygraph readings. Id. n. 6. These doubts and uncertainties about polygraphy led the Supreme Court to conclude that "there is simply no way to know in a particular case whether a polygraph examiner's conclusion is accurate." Id. at 1266.
Federal and state courts are also divided over the reliability of polygraph evidence. Id. at 1265. Although most federal circuits give the trial courts discretion to admit polygraph related evidence, the Fourth Circuit continues to adhere to the per se rule prohibiting the introduction of any polygraph evidence. United States v. Sanchez, 118 F.3d 192, 197 (4th Cir.1997). Most state courts also continue to follow the per se rule. Scheffer at 1266. The Second Circuit recently *755 announced that it has not "decided whether polygraphy has reached a sufficient state of reliability to be admissible under Rule 702 of the Federal Rules of Evidence." United States v. Messina, 131 F.3d 36, 42 (2nd Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1546, 140 L.Ed.2d 694 (1998). Even those circuits which are more liberal in their acceptance of polygraph related evidence have expressed reservations about its reliability. The Eleventh Circuit continues to consider polygraphy as "a developing and inexact science" and has noted that polygraph evidence should not be used in all situations where "more proven types of expert testimony are allowed." United States v. Piccinonna, 885 F.2d 1529, 1535 (11th Cir.1989).
In addition to doubts about the reliability of polygraph examinations, the court finds that the admission of Defendant's polygraph evidence would likely create a high risk of misleading the jury and thereby unfairly prejudice the Defendant. The admission of the polygraph evidence in this case would cause an over reliance on one item of evidence and supplant the fact-finding function of the jury. Other federal circuits have recognized that juries sometimes grant too much credibility to polygraph examinations. See Brown v. Darcy, 783 F.2d 1389, 1391 (9th Cir.1986) overruled on other grounds by United States v. Cordoba, 104 F.3d 225 (9th Cir.1997); United States v. Alexander, 526 F.2d 161, 168 (8th Cir.1975). The procedures and methods employed in the administration of polygraph tests can give an unwarranted aura of authority to the results of these examinations. Scheffer at 1267 (Thomas, J., plurality opinion).[2] In the present case, allowing the introduction of the Defendant's polygraph examination results could mislead the jury to find the Defendant guilty without sufficient independent evidence to support that conviction.
Although this court's concerns about the reliability and potential prejudicial effect of polygraph examination results do not justify the adoption of a per se rule against the admission of polygraph evidence, they are sufficient to uphold this court's exercise of discretion to exclude the results of Defendant's polygraph test. The Sixth Circuit has given this court broad discretion to make determinations concerning the admissibility of evidence based on considerations of relevance and materiality. United States v. Carter, 969 F.2d 197, 200 (6th Cir.1992). More specifically, the decision of whether to admit polygraph evidence where the Wolfel standards have been met lies within the sound discretion of this court. Blakeney at 1014. When a trial court has concerns about the reliability and prejudicial effect of polygraph evidence, it is not an abuse of discretion for that court to exclude that evidence. Poole v. Perini, 659 F.2d 730, 735 (1981), cert. denied, 455 U.S. 910, 102 S.Ct. 1259, 71 L.Ed.2d 450 (1982).
This court does have reasonable concerns about the reliability of Defendant's polygraph examination and the potential prejudicial effect such test results might have on the jury. Although the Defendant's pre-examination agreement with the government does satisfy Wolfel's test for admissibility, it failed to alleviate the concerns of this court. The unreliability concerns, coupled with the fact that the Defendant is young and inexperienced, and was represented at the time by an attorney with very limited experience in criminal law, is cause for the court to exclude the results of the examination. Accordingly, the court chooses to exercise its discretion to exclude the results of Defendant's polygraph examination.
This court has determined that the probative value of the results of Defendant's polygraph examination is minimal and is outweighed by the prejudicial effect that the results would have on the jury. Therefore, the court grants Defendant's motion to exclude the results of his polygraph examination. Accordingly, it is not necessary to address the Defendant's argument that he did not knowingly, intelligently and voluntarily *756 waive his right to object to the polygraph evidence at trial.
NOTES
[1] Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Fed. R.Evid. 403.
[2] Although Justice Stevens dissented from the Court's holding in Scheffer upholding the Military's categorical rule against the admission of polygraph evidence, he did concede that the introduction of such evidence does create "some risk that `juries will give excessive weight to the opinion of a polygrapher, clothed as they are in scientific expertise.'" Scheffer at 1278 (Stevens, J. dissenting).
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385 F.2d 221
Andrew NICHOLSON, Appellant,v.C. D. CALBECK, Deputy Commissioner, et al., Appellees.
No. 24342.
United States Court of Appeals Fifth Circuit.
October 31, 1967.
Certiorari Denied January 15, 1968.
See 88 S.Ct. 790.
Herman Wright, Mandell & Wright, Houston, Tex., for appellant.
Ed Bluestein, Jr., S. G. Kolius, Houston, Tex., David L. Rose, Leavenworth Colby, Attys., Dept. of Justice, Washington, D. C., James R. Gough, Asst. U. S. Atty., Houston, Tex., Barefoot Sanders, Asst. Atty. Gen., Carl Eardley, Acting Asst. Atty. Gen., John C. Eldridge, Leavenworth Colby, Attys., Dept. of Justice, Washington, D. C., Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Tex., of counsel, for appellees.
Before WISDOM and GOLDBERG, Circuit Judges, and SEALS, District Judge.
PER CURIAM:
1
This appeal is from a judgment dismissing the complaint brought by an injured employee, the appellant, under 33 U.S.C. § 921(b) and 5 U.S.C. § 701 et seq., to review and set aside the determination of the Deputy Commissioner that the claimant was not entitled to benefits under the Longshoremen's and Harbor Workers' Act, 33 U.S.C. § 903(a).
2
On May 26, 1960, Andrew Nicholson, claimant-appellant, was injured while performing service as a longshoreman for his employer. He performed his work upon a pier erected on pilings and concrete blocks resting on the bed of navigable waters of the United States. The inshore edge of the pier is attached to the outboard edge of the employer's warehouse, a portion of which is also over water so that the inshore edge of the pier is not attached to or supported by land. In preparing to load the SS "Mary Sophia", some "tween deck beams" were placed on the pier. During the loading it became necessary to move the vessel. Rather than place the beams back on the vessel, forklifts were used to move the beams to the vessel's new position. As Nicholson was assisting in this moving, the beams slid from their resting place on the forklifts, striking him on the back of his legs. The Commissioner and the district court held that the accident did not come within the provisions of the Longshoremen's Act because the claimant was not injured "upon the navigable waters of the United States."
3
The disposition of this case is controlled by the recent decision of this Court in Travelers Insurance Company v. Shea, Deputy Commissioner (McCollough) 382 F.2d 344, decided August 9, 1967. In McCollough this Court held that the waters under a floating pier permanently attached to the shore were no longer "navigable waters". The Court distinguished between waters under a pier and waters under a vessel. See Michigan Mutual Liability Co. v. Arrien, 2 Cir., 1965, 344 F.2d 640.
4
In the present case, the Deputy Commissioner found as a fact that the waters underneath the pier continued to be freely navigable by small crafts. Photographs demonstrate that no small craft larger than a canoe could navigate under the pier. The limited navigability of the waters under the pier is characteristic of piers generally and as a matter of law is not navigability within the meaning of the term "navigable waters".
5
The judgment is affirmed.
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JERRY WELDON REGISTER, JR., NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-2060
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed November 7, 2016.
An appeal from an order of the Circuit Court for Bay County.
Brantley S. Clark, Judge.
Nancy A. Daniels, Public Defender, and Lori A. Willner, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
PER CURIAM.
AFFIRMED.
ROBERTS, C.J., JAY and WINSOR, JJ., CONCUR.
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364 So.2d 923 (1978)
STATE of Louisiana
v.
James A. HAYES.
No. 62255.
Supreme Court of Louisiana.
November 13, 1978.
Rehearing Denied December 14, 1978.
Robert Glass, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., G. Michael Grosz, Abbott J. Reeves, Asst. Dist. Attys., Gretna, for plaintiff-appellee.
DIXON, Justice.
On February 3, 1977 Clyde McCoy, an undercover narcotics officer for the Louisiana State Police, went to the apartment of Lionel Webb in Kenner, Louisiana. Agent McCoy carried with him three amber colored bottles containing 435 grams of quinine and 13 ounces of lactose, substances frequently used to dilute the strength of heroin. At Webb's apartment the officer met with a black man alleged to be James A. Hayes who tested the substances and then offered McCoy heroin in exchange for them. After Lionel Webb tested the offered heroin's quality and found it satisfactory, Hayes allegedly used a business card to separate the heroin into smaller units and gave twenty-one papers inside a prescription bottle to McCoy. He then is alleged to have given McCoy the business card and to have told him to get in touch for any future transactions.
Defendant was charged by grand jury indictment with distribution of heroin in contravention of R.S. 40:966. On October 19, 1977 a jury convicted him as charged and eight days later Hayes was sentenced to life imprisonment, the mandatory term under the statute. The defendant now appeals his conviction and sentence in reliance on three assignments of error filed in the court below.
Defense counsel argues, in Assignment of Error No. 1, that the trial court *924 improperly restricted the voir dire of prospective jurors. Counsel attempted to explore the jurors' attitudes toward a defendant who remained silent at trial. The State quickly objected:
"MR. USPRICH:
As the Judge has explained to you already, the defendant is not required under our law to take the witness stand. However, I know that there is a tendency among people, and I know quite a few members of my family and friends feel that they want to hear both sides of the story. But, the defendant is not required to take the witness stand in his own behalf and we will tell you and the Judge will tell you in the charge to you, that you can't hold this against him. However, do any of you feel that you want to hear his side of the story?
MR. GROSZ:
Objection.
THE COURT:
The Court is going to sustain the objection. The question is: Would you take the law as this Court gives it and not hold it against this defendant because the law does not require him to take witness stand? Would you give me that commitment?
MR. USPRICH:
Do each of you feel that you can give the State and the defendant a fair trial?
Thank you very much."
In response to the court's ruling, the defense then adopted a broad line of inquiry and did not return to the issue. The voir dire record otherwise includes two general statements made earlier by the trial judge acknowledging the defendant's right to remain silent at trial; defendant did testify in his own defense.
The Louisiana Constitution of 1974 assures a criminal defendant "the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily." Art. 1, § 17. In the past we have recognized that the purpose of voir dire is to discover bases for challenges for cause and to secure information for the intelligent exercise of peremptory challenges. State v. Drew, 360 So.2d 500 (La.1978); State v. Jackson, 358 So.2d 1263 (La.1978). The defendant must be given wide latitude in the exercise of this substantial right, State v. Holmes, 347 So.2d 221 (La.1977); State v. Hills, 241 La. 345, 129 So.2d 12 (1961) (on rehearing), and pertinent inquiries should be allowed if they can possibly show grounds for a challenge for cause, or if they will enable counsel to make intelligent use of peremptory challenges. State v. Williams, 346 So.2d 181 (La.1977).
Before the objection, defense counsel had begun to probe the jurors' attitudes toward a defendant who remained silent at trial. The defense brief argues that the defendant's right to silence is a difficult one for the jurors to understand because it goes against a natural desire to hear all sides of a story, and that some jurors might have difficulty according the presumption of innocence to the silent defendant. Such attitudes are better discovered through informal questioning keyed to common experience than formal recitations of legal requirements. A juror's response to less imposing questions may well reveal attitudes and biases not disclosed by superficially correct answers.
In State v. Monroe, 329 So.2d 193 (La. 1976), we specifically rejected the State's contention that unjustified restrictions on voir dire concerning the presumption of innocence were cured by a general instruction that the jurors must follow the law as given to them by the court. In the instant case, the trial judge's rephrasing of the question may have given rise to a cause challenge, but the bases for peremptory challenges often arise from less evident considerations. As this court noted in State v. Hills, supra: ". . . the scope of inquiry is best governed by a liberal discretion on the part of the Court so that if there is any likelihood that some prejudice is in the juror's mind which will even subconsciously affect his decision, this may be uncovered. It is by examination into the attitudes and inclinations of jurors before they are sworn to try a case that litigants are enabled to reject those persons, by *925 use of peremptory challenges where necessary, who are deemed to be unlikely to approach a decision in a detached and objective manner. . . ." 241 La. at 396, 129 So.2d at 31.
It is often said that the scope of voir dire falls within the sound discretion of the trial court (C.Cr.P. 786; State v. Dominick, 354 So.2d 1316 (La.1978); State v. Crochet, 354 So.2d 1288 (La. 1976)). However, the trial judge is required, particularly since the adoption of the Louisiana Constitution of 1974, to temper the exercise of this discretion by giving wide latitude to the defendant in his examination of prospective jurors so that he may intelligently exercise challenges for cause and peremptory challenges. State v. Boen, 362 So.2d 519 (La.1978). We therefore conclude that the trial judge was in error to restrict the voir dire.
Assignment of Error No. 2, while not presenting reversible error for reasons following, will be discussed to prevent the recurrence of error in a new trial.
By this assignment the defendant urges that the trial judge did not take appropriate action to quell improper and prejudicial remarks made by the State during closing argument. At various points in argument, the prosecutor made appeals to the jury beyond the evidence admitted in the case. At one point he made a statement concerning his personal views of the defendant's innocence:
"He starts off that this man wasn't there and he tries to make this whole thing look like a big frame-up and then about five minutes after that, when he gets down to the end of his closing arguments, he admits that probably there was a narcotics transaction that took place, but the police couldn't get the right guy and they went out and grabbed poor Mr. James Hayes. Well, if you believe that, I'm in the wrong profession and these men are in the wrong profession (indicating), because these things are very closely scrutinized to make certain that we don't have the wrong man."
Following closely upon the last remark came this appeal to the jury:
"I can tell you that it's worth plenty to a drug peddler, because it's easier to get ahold of heroin than it is to get ahold of the cutting agents. I don't like to be repetitious, but I'll tell you this, and it's what I say in every narcotics case that I try: If you turn this heroin peddler loose, you are turning a cancer loose on this society, because it's going to be your kids or the police's kids or my kids who will be the next ones that are going to get ahold of this stuff. I can tell you that we are making headway with the heroin traffic, because we are putting them away. They don't want to stay around here any more and they have been leaving the New Orleans area and they have been leaving Jefferson Parish, because the life sentences and that's why we have life sentences, for that reason. We have life sentences for this so that we don't have armed robberies and burglaries and other crimes like that. I suggest to you, ladies and gentlemen, that it would be a travesty of justice to turn this man loose. Every person in this community would be effected (sic) if you people turn him loose. You've got a pusher, a big pusher, and you have an opportunity to do something about if and I pray that you do. Thank you very much."
Article 774 of the Code of Criminal Procedure provides that the argument must be confined to "evidence admitted, to lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and the law applicable to the case." In State v. Kaufman, 304 So.2d 300 (La.1974), this court reversed a conviction because, among other errors, the prosecutor argued that he personally believed the defendant to be guilty and that he would not be in court if he did not because he had discretion to institute prosecutions as he saw fit. In this case, the prosecutor's argument is cut from the same cloth the jury should believe the defendant guilty because the energies of law enforcement personnel would not be squandered on a weak case.
Article 774 also prohibits an appeal to prejudice in argument in Kaufman, supra, *926 we cited with approval the American Bar Association Standards relative to the prosecutorial function, Standard 5.8(d): "The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict." By reference to this standard, it becomes clear that the prosecutor's arguments were improper since they attempted to turn the verdict into a plebiscite on heroin and heroin dealers and predicted dire consequences for society as a whole if Hayes were set free.
Defense counsel, however, failed to object to either comment, to ask the court for an admonition, or to move for a mistrial at any time. Therefore, in the ordinary course of matters, we would consider foreclosed any objection raised for the first time on appeal, since any irregularity or error must be objected to at the time of its occurrence. C.Cr.P. 841. The defendant therefore raises the proposition that the trial court, having been alerted by earlier objections to the prosecutor's arguments, should have monitored the rest of the argument for fairness and should have admonished the prosecutor for his remarks on its own motion. Furthermore, the argument continues, the trial judge's failure to take such action so taints the verdict as to compel a retrial.
Our jurisprudence recognizes certain limited exceptions to the contemporaneous objection rule embodied in Article 841. In State v. Lee, 346 So.2d 682 (La.1977), we reversed a trial court ruling which in effect would have allowed the prosecution to repeat prejudicial remarks if the defense did not object to them the first time they were uttered. In State v. Ervin, 340 So.2d 1379 (La.1976), we reviewed a defendant's assignment of error relating to the introduction of other crimes evidence despite his failure to move for a mistrial. There we held that a defendant who had made every reasonable effort to prevent the statement's introduction in evidence was not required to move for a mistrial or admonition from the same judge who had permitted the evidence to be introduced, as to do so would be a vain and useless thing. We have also recognized the practicalities of criminal litigation in State v. Gaines, 354 So.2d 548 (La.1978), wherein we held that the defense counsel, who may wish to avoid prejudice to his client arising from interrupting the prosecutor too frequently, may timely move for a mistrial at the conclusion of the opening or closing statement.
However, the defendant's position is not supported by the judicially created exceptions to Article 841. Defense counsel made no motion for mistrial at the close of the State's rebuttal and therefore can find no relief in State v. Gaines. Moreover, in this case the trial judge sustained several other defense objections during closing argument; requiring a contemporaneous objection cannot now be construed to be a vain and useless action within the Ervin exception to Article 841. Finally, the facts of the Lee case are clearly inapposite to those of the instant case, for in Lee we dealt with objections asserted after an initial silence; here the objections were followed by silence at the most egregious remarks.
Nevertheless, State v. Lee, supra, contains some support for the defendant's position because we therein noted "that a prosecutor's prejudicial comments in closing argument may be considered by a federal court to violate federal due process guarantees even in the absence of a defense challenge or objection at trial. United States v. Briggs, supra (457 F.2d 908 (2d Cir. 1972)); United States v. Grunberger, 431 F.2d 1062 (2d Cir. 1970); United States v. Sawyer, 347 F.2d 372 (4th Cir. 1965)." 346 So.2d at 685.
In Briggs, the Second Circuit observed that improper argument will require reversal by the appellate court even in the absence of defense objection "if the summation was `so extremely inflammatory and prejudicial' . . . that allowing the verdict to stand would `seriously affect the fairness, integrity or public reputation of judicial proceedings'", Supra at 912. The *927 rationale of Grunberger and Sawyer turns on different considerations, the reticence of the defense attorney to object to improper statements for "fear that an objection would only focus attention on an aspect of the case unfairly prejudicial to his client. If the presiding judge perceives that trial counsel has been placed in this dilemma, it is the judge's duty, on his own initiative, to interrupt, admonish the offender and instruct the jury to disregard the improper argument." United States v. Sawyer, 347 F.2d at 374.
Upon examining the State's closing argument, we are unable to agree with defense counsel that due process was offended when the trial judge failed to admonish the prosecutor on his own initiative. First, it is clear that the defense counsel did not refrain from objecting out of concern for stressing prejudicial arguments in the jurors' minds. Second, substantial evidence against defendant in the record prevents the errors in the prosecutor's argument from becoming such violations of due process rights that would require a reversal in the absence of defense objections.
Therefore, Assignment No. 2 does not present reversible error, but should not be repeated in a new trial.
Because we reverse defendant's conviction on Assignment No. 1, we do not treat Assignment No. 3, an attack on the constitutionality of the mandatory life sentence.
For the reasons assigned, the conviction and sentence are reversed and the case is remanded to the district court for further proceedings consistent with the views expressed herein.
SUMMERS, J., dissents.
SANDERS, C. J., dissents and assigns reasons.
MARCUS, J., dissents and assigns reasons.
SANDERS, Chief Justice (dissenting).
The majority reverses the conviction, because the trial judge sustained the State's objection to the following defense question directed to prospective jurors on voir dire examination:
"As the Judge has explained to you already, the defendant is not required under our law to take the witness stand. However, I know that there is a tendency among people, and I know quite a few members of my family and friends feel that they want to hear both sides of the story. But, the defendant is not required to take the witness stand in his own behalf and we will tell you and the Judge will tell you in the charge to you, that you can't hold this against him. However, do any of you feel that you want to hear his side of the story ?" [Emphasis added.]
In sustaining the objection, the trial judge ruled that the form of the question was objectionable, stating that the proper form was: "Would you take the law as this Court gives it and not hold it against the defendant because the law does not require him to take the witness stand?"
In my opinion, the ruling of the trial judge was correct. The proper formulation is not whether an individual juror would like to hear defendant's "side of the story," but whether he would penalize the defendant for exercising his right not to testify. The trial judge did not bar examination on the subject. Rather, he indicated that the question required rephrasing.
For the reasons assigned, I respectfully dissent.
MARCUS, Justice (dissenting).
The scope of voir dire examination is within the sound discretion of the trial judge and his rulings should not be disturbed on appeal absent a clear abuse of that discretion. Moreover, to determine whether a trial judge has in fact afforded a sufficiently wide latitude to a defendant in examining prospective jurors, a review of the trial judge's rulings should be undertaken only on the record of the voir dire examination as a whole. Applying these principles to the facts of the case, I am unable to say that the trial judge clearly abused his discretion. Accordingly, I respectfully dissent.
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Opinion issued May 26, 2011
In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00551-CV
———————————
in
re j. d. l.
On
Appeal from the 317th District Court
Jefferson
County, Texas
Trial
Court Cause No. C207214
MEMORANDUM OPINION
Appellant, J. D. L., has neither established
indigence, nor paid all the required fees.
See Tex. R. App. P.
5 (requiring payment of fees in civil cases unless indigent), 20.1 (listing
requirements for establishing indigence); see also Tex. Gov’t Code Ann. §§ 51.207,
51.941(a) (Vernon 2005), § 101.041 (Vernon Supp. 2010) (listing
fees in court of appeals); Order Regarding Fees Charged in Civil Cases in the
Supreme Court and the Courts of Appeals and Before the Judicial Panel on
Multidistrict Litigation, Misc. Docket No. 07-9138 (Tex. Aug. 28, 2007), reprinted in Tex. R. App. P. app. A § B(1) (listing fees in court of appeals). After being notified that this appeal was
subject to dismissal, appellant did not adequately respond. See Tex.
R. App. P. 5 (allowing enforcement of rule); 42.3(c) (allowing
involuntary dismissal of case).
We dismiss the appeal for nonpayment
of all required fees.
We dismiss any pending motions as
moot.
PER CURIAM
Panel
consists of Chief Justice Radack and Justices Keyes and Higley.
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218 B.R. 908 (1998)
In re Richard Keith TURPEN and Marcia Ann Turpen, Debtors.
Bankruptcy No. 97-02407M.
United States Bankruptcy Court, N.D. Iowa.
January 21, 1998.
*909 *910 Jerrold Wanek, David A. Morse, Des Moines, IA, for Debtors.
Donna K. Webb, Asst. U.S. Atty., Sioux City, IA, for U.S.
James F. Kalkhoff, Waterloo, IA, for Comprehensive Systems, Inc.
Habbo G. Fokkena, Clarksville, IA, for First Security Bank & Trust.
William M. Frye, Charles City, IA, for First Citizens National Bank.
Carol F. Dunbar, Waterloo, IA, Chapter 13 Trustee.
DECISION RE: CONFIRMATION OF PROPOSED PLAN
WILLIAM L. EDMONDS, Chief Judge.
The matter before the court is the proposed confirmation of debtors' Amended Chapter 13 Plan (docket no. 48). Objections to confirmation were filed by standing trustee Carol F. Dunbar, Comprehensive Systems, Inc., the United States of America and First Citizens National Bank.
Hearing was held December 16, 1997 in Mason City. Jerrold Wanek and David A. Morse appeared for debtors Richard and Marcia Turpen. Donna K. Webb, assistant United States attorney, appeared for the United States. James F. Kalkhoff appeared for Comprehensive. Habbo G. Fokkena appeared for First Security Bank and Trust. William M. Frye appeared for First Citizens National Bank. First Citizens did not prosecute its filed objections. At the hearing, it did not oppose confirmation of the proposed plan.
Carol F. Dunbar, the standing trustee, did not attend the confirmation hearing. Her office contacted me by telephone immediately prior to the hearing to say that she would not be present because of mechanical problems with her automobile. I so informed counsel at the outset of the hearing. Contrary to footnote 1 in the memorandum filed by debtors' attorneys, Dunbar did not call the court to say "that she chose not to pursue her objections." (docket no. 63, Debtors' Memorandum, page 1, fn. 1). I will consider the objections of the trustee which are supported by the evidence and any objection which may be considered as a matter of law.
The objections filed by the United States, the trustee and Comprehensive have common elements. A distillation of the numerous grounds of objection yields the following challenges to the plan:
(1) the plan has not been proposed in good faith. 11 U.S.C. § 1325(a)(3) [trustee and Comprehensive];
(2) the plan is not feasible as the debtors will not be able to make all payments under the plan and comply with the plan. 11 U.S.C. § 1325(a)(6) [United States, trustee and Comprehensive];
(3) the plan does not provide that all of the debtors' projected disposable income to be received in the three-year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan. 11 U.S.C. § 1325(b)(1)(B) [United States, trustee and Comprehensive];
(4) the timing and details of asset liquidation are vague. [trustee and Comprehensive];
(5) the plan fails to provide for the curing of defaults. [trustee];
*911 (6) the plan does not meet the best interest of creditors test. 11 U.S.C. § 1325(a)(4) [United States]; and
(7) the plan discriminates unfairly among unsecured creditors. 11 U.S.C. §§ 1322(b)(1), 1325(a)(1) [trustee].
Standing
At the close of the hearing, debtors' counsel argued that the United States did not have standing as a creditor to object to the plan as the United States had not filed a proof of claim.
The United States may file a timely claim during the 180 days after the order for relief. 11 U.S.C. § 502(b)(9); Fed.R.Bankr.P. 3002(c)(1). The government's time to file will not expire until February 1998. Although the United States has not yet filed a formal claim, it asserts in its objection to confirmation that it "holds an unliquidated unsecured claim in excess of $500,000 for damages and penalties under the False Claims Act" (United States objection, docket no. 56, ¶ 2). The United States argues that its objection to confirmation constitutes an informal proof of claim and that it therefore has standing to object to confirmation of the plan.
Section 1324 of the Bankruptcy Code provides that "[a] party in interest may object to confirmation of the plan." The term "party in interest" is not defined by the Code. Section 1109 of the Code, although not applicable in Chapter 13, provides helpful guidance in determining who is a party in interest. It indicates that a "party in interest" includes a creditor. 11 U.S.C. § 1109(b). A creditor is an entity that has a claim against the debtor or the estate. 11 U.S.C. § 101(10). A "claim" is defined as a "right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured. . . ." 11 U.S.C. § 101(5).
The Code does not require the allowance of a claim before the claimant may object to the plan. In providing who might object to plans, Congress used the broad term "party in interest." It did not restrict the filing of objections to creditors who hold allowed claims. Contra In re Stewart, 46 B.R. 73, 75 (Bankr.D.Or.1985). Nor does the status of creditor appear to hinge on the entity having filed a proof of claim. If it had so desired, Congress could have defined "creditor" in § 101(10) as "an entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor, proof of which has been filed." It did not. I find no requirement in the Code that status as a creditor depends on the filing of a claim. If it were otherwise, creditors in Chapter 7 cases could not meaningfully participate in no-asset cases without filing claims, even though the notice of bankruptcy advises that it is as yet unnecessary to file claims. See Fed.R.Bankr.P.2002(e). For example, creditors in no-asset cases could not file objections to exemptions without filing proofs of claim. Fed.R.Bankr.P. 4003(b).
From my reading of the Code and Rules, I conclude that when, as in this district, a confirmation hearing is held prior to a claims deadline, the filing of a claim is not required for a creditor to object to a Chapter 13 plan. I need not decide in this proceeding whether creditors who have filed untimely claims or creditors who can no longer file timely claims may still pursue confirmation objections.
Ruling that the United States need not have an allowed claim to object to confirmation of the plan does not answer the question of whether the United States was required to prove its status as creditor at the confirmation hearing.
United States' filings in this case include a request for notices, objections to exemptions and objections to confirmation. Debtors scheduled the Internal Revenue Service as a creditor for an unpaid tax debt. The appropriate party was the United States, not the Internal Revenue Service. United States v. Laughlin (In re Laughlin), 210 B.R. 659, 660 (1st Cir. BAP 1997). In its objection to the plan, the United States alleges it is the holder of an unliquidated, unsecured claim for damages and penalties under the False Claims Act, 31 U.S.C. § 3729. It expects its *912 claim will be liquidated in an amount in excess of $500,000. It is the appropriate party to have a claim under the Act. 31 U.S.C. § 3729(a).
As has been stated, the Bankruptcy Code permits parties, including creditors, to object to Chapter 13 plans. In the context of civil litigation in the United States District Court, it has been said that a plaintiff must "demonstrate" standing, and that "[n]ormally, mere allegation will suffice, but, if controverted by the defendant, the plaintiff must demonstrate facts supporting his allegations." Public Citizen v. Lockheed Aircraft Corp., 565 F.2d 708, 714 n. 22 (D.C.Cir.1977).
In bankruptcy, it may not be as clear as in other civil litigation how standing issues are raised by the pleadings. In the case before the court, the debtors filed a proposed plan. The United States objected, alleging in its objection its status as a creditor. It was not until debtors' closing argument at the confirmation hearing that the challenge to the government's standing was clearly articulated. I think it comes too late. A creditor in a case should have standing to object to a Chapter 13 plan based on allegations in its objection or based on the filing of a formal or informal proof of claim. If the debtor desires to raise the standing issue, the debtor must do so prior to the hearing on confirmation so that the creditor is prepared to put on some evidence of its status. It is not necessary in this decision to determine how much evidence is necessary to prove standing at the confirmation stage. It certainly would be less than what is necessary to prove one's claim.
In the pending case, the debtors did not timely controvert the government's standing. The United States' allegations as to its claim were sufficient. The United States has standing to object to the debtors' plan.
There is an apparent exception to this ruling on standing. The United States and Comprehensive have filed objections to the plan intended to trigger the disposable income or "best efforts" requirement of 11 U.S.C. § 1325(b)(1). The statute provides that
[i]f the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan
. . .
(B) the plan provides that all of the debtor's projected disposable income to be received in the three-year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan.
11 U.S.C. § 1325(b)(1).
Although Comprehensive and the United States are creditors, neither yet has an allowed unsecured claim. Comprehensive's claim, proof of which has been filed, is not deemed allowed because of the debtors' objection. 11 U.S.C. § 502(a). The claim of Comprehensive has not yet been allowed under 11 U.S.C. § 502(b). The United States has not yet filed a proof of claim. Its claim is neither allowed nor deemed allowed. Moreover, neither Comprehensive nor the United States has asked the court to estimate its claim for the purpose of any confirmation issue. 28 U.S.C. § 157(b)(2)(B). Neither Comprehensive nor the United States is the holder of an allowed unsecured claim whose objection to the plan triggers the disposable income requirement of 11 U.S.C. § 1325(b)(1)(B). Nonetheless, the disposable income issue is before the court in considering debtors' plan, as the objection was made by the standing trustee.
The Plan
Debtors' amended plan proposes to liquidate so many of the debtors' non-exempt assets as is necessary to pay allowed unsecured claims in full. If liquidation of all of debtors' non-exempt assets provides insufficient proceeds to pay all allowed unsecured claims in full, then the creditors holding allowed unsecured claims will share pro-rata in the distribution of the proceeds. If debtors must liquidate assets which are collateral for allowed secured claims, the secured creditors will be paid the proceeds until each is paid in full from its collateral. Debtors estimate that all creditors having secured claims are fully secured. The secured claims would be *913 paid by the debtors. Creditors holding allowed unsecured claims would be paid through the trustee.
The debtors own several real properties, most of which they lease out. According to exhibits I and J, the monthly income from these properties is $7,200, and the monthly expenses associated with the rental units, including mortgage payments and taxes are $6,714. Under the plan, the debtors would retain all of their income-producing properties which they do not need to liquidate to pay unsecured claims. The income stream would be used in part to make periodic payments to the lienholders under the terms of the loans. Debtors have sold two of their properties and intend to sell a third. They contend that the proceeds of these sales will be sufficient to pay all administrative claims, priority claims and allowed unsecured claims, not including the claims of Comprehensive and the claim of the United States under the False Claims Act. Comprehensive has filed an unsecured claim in the amount of $515,169.92 allegedly based on fraud, misappropriation, conversion, misuse of funds and nepotism. The United States alleges a claim in excess of $500,000 under the False Claims Act (31 U.S.C. § 3729). The debtors concede that if either of these claims is allowed to the extent claimed, the liquidation of non-exempt assets will be insufficient to pay all allowed unsecured claims in full. The creditors agree with this contention.
Although the plan proposes to liquidate, if necessary, all non-exempt property of the debtors, it does not propose to make any payments to the trustee other than from liquidation. Despite the trustee's objection with regard to the disposable income requirement (11 U.S.C. § 1325(b)(1)(B)), the debtors argue that they have no disposable income to pay to the trustee. The debtors' schedules (exhibits I and J) show total income of $8,605 per month. Of this, $7,200 is from rental income; $1,405 is from social security benefits. Mr. Turpen receives these benefits because of total disability resulting from a motor vehicle accident. He is a paraplegic. The debtors' total expenses, as shown on exhibit J, are $11,681. Debtors' schedules show a monthly deficit of $3,076. If one removes the rental income and the rental expenses from exhibits I and J, total monthly income would be $1,405, and monthly expenses would be $4,967. Without rental properties, the monthly deficit would increase to $3,562.
The debtors' monthly expenses unrelated to their rental properties are these:
rent $ 600
utilities 180
telephone 160
cable tv 70
home maintenance 150
food 400
clothing 75
cleaning 25
medical expense 200
transportation 450
recreation 125
renters' insurance 50
life insurance 200
health insurance 487
auto insurance 400
taxes 125
student loan payments 350
daughter's college 670
legal fees 250
_______
total $4,967
=======
There was no explanation at trial as to how debtors were financing this monthly deficit.
Debtors have valuable non-exempt assets. They have 13 parcels of real property, valuable household goods and antiques, and nine vehicles, including a boat, golf cart and a Mercedes Benz. Also, Richard Turpen has a "pension fund" valued at approximately $100,000 which he has failed to schedule. There is no way to determine from the evidence whether this fund is property of the estate, or if it is, whether it might be exempt. Mrs. Turpen also has a pension fund. There was no evidence on the amount or nature of her fund.
Good Faith
To be confirmed, a plan must be proposed in good faith. 11 U.S.C. § 1325(a)(3). The trustee and Comprehensive contend that Turpens' plan was not proposed in good faith. I agree. The plan will not be confirmed.
A proper inquiry into good faith "should [analyze] whether the plan constitutes an abuse of the provisions, purpose or *914 spirit of Chapter 13." Noreen v. Slattengren, 974 F.2d 75, 76 (8th Cir.1992), citing United States v. Estus (In re Estus), 695 F.2d 311, 316 (8th Cir.1982). Each case is to be judged on its own facts considering the totality of the circumstances. In re Estus, 695 F.2d at 316. The court in Estus provided a list of 11 non-exclusive factors, which in addition to the percentage payment to unsecured creditors, should guide the court in its good faith determination. Id. at 317. Many of these factors were "subsumed" into the disposable income test which was added to the Code by amendment in 1984. Noreen v. Slattengren, 974 F.2d at 76; Education Assistance Corp. v. Zellner, 827 F.2d 1222, 1227 (8th Cir.1987).
In determining the good faith issue, the court must examine "factors such as whether the debtor has stated his debts and expenses accurately; whether he has made any fraudulent misrepresentation to mislead the bankruptcy court; or whether he has unfairly manipulated the Bankruptcy Code." Education Assistance Corp. v. Zellner, 827 F.2d at 1227. Certain of the Estus factors are still relevant, particularly in this case: (1) the accuracy of the debtors' disclosure of debts, expenses and percentage repayment of unsecured debt and whether any inaccuracies are intended to mislead the court; (2) the extent of preferential treatment among creditor classes; (3) the debtors' motivation and sincerity in seeking Chapter 13 relief; and (4) the type of debt debtors seek to discharge and whether any of it is nondischargeable in Chapter 7. In re Estus, 695 F.2d at 317.
Turpens have not filed accurate schedules. Richard Turpen admits he has a fund of money which he describes as a retirement fund. He values it at $100,000. It is not disclosed in the schedules. Mrs. Turpen also has a pension fund. It also is not shown in the schedules. Debtors had an obligation to schedule all of their property interests. This is so regardless of whether they might claim an asset is not property of the estate or whether it might be claimed as exempt.
If the claim of either Comprehensive or the United States is allowed, debtors' plan would have treated unsecured creditors differently. An examination of the debtors' budget shows that debtors pay $350 per month on debt for which they became obligated on account of educational loans for their two sons. They have scheduled the debt at $12,000. It appears that debtors plan to pay the student loans regardless of the outcome of the claims disputes with Comprehensive and the United States. In short, they appear to plan to pay the student loans in full, even if they are not able to pay all of the unsecured loans in full. It may be that the student loans are not dischargeable, but this is not a satisfactory reason for treating them more favorably than other unsecured claims. The plan unfairly discriminates among unsecured creditors.
The claims of the United States and Comprehensive, if allowed, appear to be debts that would not be dischargeable in a Chapter 7 case. I realize that the nature of each claim has not been determined by trial. However, from the face of the claims, it can be said that if Comprehensive has a claim at all, it would be nondischargeable. See 11 U.S.C. §§ 523(a)(2), (4) and (6). If the United States has a claim at all under the False Claims Act, it would be nondischargeable. United States v. Cassidy (In re Cassidy), 213 B.R. 673, 679 (Bankr.W.D.Ky.1997)(claim for treble damages under False Claims Act nondischargeable under § 523(a)(7)); United States v. Spicer (In re Spicer), 155 B.R. 795, 802 (Bankr.D.D.C.1993)(elements of False Claims Act and § 523(a)(2) are coextensive), aff'd, 57 F.3d 1152 (D.C.Cir.1995), cert. denied, 516 U.S. 1043, 116 S.Ct. 701, 133 L.Ed.2d 658 (1996); see also United States v. Commonwealth Companies, Inc. (In re Commonwealth Companies, Inc.), 913 F.2d 518, 525 (8th Cir.1990) (False Claims Act is a fraud law within the government's police powers for purposes of § 362(b)(4)). It appears that either creditor will have a nondischargeable claim or no allowed claim at all. So debtors seek in this Chapter 13 to discharge debts, which if allowed, would not be discharged in Chapter 7. They propose to do this by paying the creditors nothing more than they would receive in a Chapter 7 case. They propose payment of a pro rata share of the proceeds of only non-exempt assets. *915 They do not propose to pay additional monies from a future income stream or from the liquidation of exempt assets.
Their plan is in effect a Chapter 7 liquidation because they propose to pay unsecured creditors no more than they would receive in a Chapter 7 case. Matter of Strauss, 184 B.R. 349, 351 (Bankr.D.Neb. 1995). Use of such a plan to obtain a discharge of otherwise nondischargeable debt is not in good faith. See Matter of Strauss, id. at 351-52 (plan determined not to be in good faith where debtors were not eligible for Chapter 7 discharge and their Chapter 13 plan was no more than a Chapter 7 liquidation); see also In re Baker, 736 F.2d 481, 482 (8th Cir.1984) (court should not confirm disguised liquidation plan that contravenes purposes of Chapter 13).
Last, debtors have failed to provide the court with a reasonable budget. They are spending more money each month than they bring in. They do not explain how they are financing this deficit. Nor do they provide an estimate of their cash flow if they must liquidate all non-exempt assets under the plan. This lack of full disclosure as to their financial situation militates against a finding of good faith.
I find that the plan was not proposed in good faith. For this reason, the plan cannot be confirmed. 11 U.S.C. § 1325(a)(3).
Discrimination Among Classes of Creditors
Besides being an element of good faith, the debtors' attempt to treat student loans differently from other unsecured debt prevents confirmation of the plan. A plan may create different classes of unsecured claims, but it cannot discriminate unfairly against any class. 11 U.S.C. § 1322(b)(1). Because this plan unfairly discriminates in the treatment of unsecured claims, it cannot be confirmed. 11 U.S.C. § 1325(a)(1).
Disposable Income
The trustee has objected to the plan's failure to provide payment of disposable income. Because of such objection, the plan cannot be confirmed unless "the plan provides that all of the debtor[s'] projected disposable income to be received in the three-year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan." 11 U.S.C. § 1325(b)(1)(B).
Debtors contend that they have no disposable income and that "lifestyle issues" concerning the way they spend money are irrelevant. They say that even if one removes all seemingly objectionable expenditures, they still have no disposable income.
I have already mentioned the debtors' failure to provide an estimate of projected disposable income in the circumstances of full liquidation of non-exempt assets. We are "in the dark" as to how the debtors will survive financially if all their non-exempt property is liquidated. Particularly relevant is how debtors propose to finance the monthly deficit they say will exist. It seems reasonable to conclude that a monthly deficit would be financed in one of two ways by borrowing or by selling assets. The plan does not state that they will borrow. The plan does appear to require payment in full of post-petition claims (Plan, I(4)). The possible borrowing calls the feasibility of the plan into question. If debtors finance their deficit now or in the future by selling assets, confirmation issues are implicated. If the debtors are financing or plan to finance the deficit through the sale of non-exempt assets, the plan would violate the "best interest test." The plan cannot be confirmed unless creditors holding allowed unsecured claims receive under the plan what they would receive under a Chapter 7 liquidation. 11 U.S.C. § 1325(a)(4). Any personal use by debtors of the proceeds of liquidation of non-exempt assets violates this test.
It may be that the deficit would be financed by liquidation of exempt assets. Although such assets are not considered in evaluating the plan under the best interests test, the income from liquidating exempt assets would be considered in evaluating the plan under the disposable income test. Stuart v. Koch (In re Koch), 109 F.3d 1285, 1289 (8th Cir.1997). "[T]here is no `exception' to the disposable income test for `exempt income' or income that is protected from execution by other state or federal law." *916 2 Lundin, Chapter 13 Bankruptcy, § 5.35 at 5-96 (2d ed.1994). If debtors are financing their deficit each month through the sale of exempt assets, or if they plan to, this should have been disclosed and made part of their budget.
The debtors' failure to provide answers to these questions prevents the court from determining that the plan meets the disposable income test. The test is not met for one more reason. It is likely in this circuit that upon a triggering objection by the trustee or an unsecured creditor, a Chapter 13 plan is not confirmable unless the debtors include in the plan a provision "that promises payment of net disposable income received during the plan period to unsecured creditors." Rowley v. Yarnall, 22 F.3d 190, 193 (8th Cir.1994). The case of Rowley v. Yarnall involved § 1225(b)(1)(B), the Chapter 12 disposable income provision nearly identical to § 1325(b)(1)(B). The court held that the provision requires a plan to promise to pay the disposable income that is received, not merely what is predicted to be received. 22 F.3d at 193.
Debtors' plan projects no disposable income during the three-year period. Debtors propose, therefore, that no disposable income, in the form of future income, will be paid to the plan. In view of the trustee's objection, the debtors' plan cannot be confirmed. In re Markman, 5 B.R. 196 (Bankr. E.D.N.Y.1980), cited by debtors, does not require a contrary result. Debtors provide it as support for their proposal to make payments of a fixed amount over less than three years. Markman does not aid debtors because it was decided before the disposable income requirement was added to Chapter 13 in 1984.
Vagueness and Feasibility
I agree with the trustee and Comprehensive that the plan is vague as to the timing and means for carrying out the plan. Also, because of the monthly deficits and lack of showing as to how they will be financed, I find the plan is not feasible.
IT IS ORDERED that confirmation of debtors' proposed plan is denied.
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831 A.2d 40 (2003)
376 Md. 606
Gail Lynn HELINSKI and Mark P. Mueller
v.
HARFORD MEMORIAL HOSPITAL, INC.
No. 133, Sept. Term, 2002.
Court of Appeals of Maryland.
August 27, 2003.
*42 Stanley A. Snyder, Randolph C. Baker (Margolis, Pritzker & Epstein, P.A., on brief), Towson, for petitioners.
Kevin T. Olszewski, Bel Air, for respondent.
Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.
*41 HARRELL, J.
On 2 October 2001, Harford Memorial Hospital, Inc. ("Respondent") obtained a judgment in the District Court of Maryland, sitting in Harford County, against Constance Helinski ("Judgment Debtor") for a personal debt in the amount of $4,727.53, plus costs and attorneys' fees. On 8 November 2001, Respondent filed a Notice of Lien in the Circuit Court for Harford County and, on 13 November 2001, filed a Request for Writ of Execution with respect to certain improved real property in Harford County owned as joint tenants by the Judgment Debtor and the Petitioners, Gail Helinski and Mark P. Mueller. The writ was issued by the Clerk's office on 20 November 2001, but the Judgment Debtor died in late December before the Sheriff executed on the writ. Contending that the property was transferred to them by operation of law at the decedent's death free and clear of the judgment lien against Constance Helinski, Petitioners filed in the District Court a Motion to Release the Property from Levy, which was denied. Petitioners then appealed the judgment to the Circuit Court for Harford County, which affirmed the denial by the District Court of Petitioners' motion. We granted certiorari on Petitioners' initiative to determine, because Maryland law requires a joint tenancy with rights of survivorship to be severed before the interest of one joint tenant can be levied upon, whether such a severance occurred on the facts of this case. 373 Md. 406, 818 A.2d 1105 (2003). We conclude that a severance did not occur here prior to the Judgment Debtor's demise. Thus, we shall reverse the judgment of the Circuit Court.
I.
The facts are undisputed. Prior to the Judgment Debtor's death, Petitioners and the Judgment Debtor owned improved property in Forest Hill, Maryland (the "Property") as joint tenants, with rights of survivorship. Respondent's judgment against Constance Helinski, obtained on 2 October 2001, was for a personal debt in the amount of $4,727.53 plus costs and attorneys' fees. A Notice of Lien as to the judgment was recorded in the Circuit Court. Next, Respondent filed a Request for Writ of Execution with respect to the Property on 13 November 2001, which was issued and delivered to the Sheriff on 20 November 2001.
A little over a month later, on 27 December 2001, Constance Helinski died. Three weeks later, on 17 January 2002, the Sheriff went to the Property and served a copy of the Writ of Execution upon Gail Helinski and Mark P. Mueller, the Petitioners in the present case, and learned for the first time of Constance Helinski's passing. The sheriff wrote on his return "mortuus est" as to the Judgment Debtor.
It is undisputed that the Sheriff failed on 17 January 2002 to post "a copy of the writ and the schedule in a prominent place on the property," as required by Rule 3-642(a).[1]*43 The record also indicates that he failed to furnish a copy of the schedule to the surviving Ms. Helinski or Mr. Mueller, who were in possession of the Property, as required by Maryland Rule 3-642(a).[2]
Petitioners filed a Motion to Release the Property from Levy, together with a Request for Hearing, in the District Court, contending that, because the Judgment Debtor died before the Sheriff executed the writ against the Property, her individual interest in the Property died with her. Consequently, they argued, as surviving joint tenants, that they owned the Property free and clear of any judgment lien against the late Ms. Helinski. The District Court disagreed and ruled in favor of the Respondent, finding that the date of execution of the writ related back to the date that the Sheriff received the writ. As that date, 20 November 2001, preceded the Judgment Debtor's demise on 27 December 2001, the court determined the writ reached her interest in the property.
Petitioners appealed to the Circuit Court, which affirmed the District Court's ruling that the date of execution relates back to the date that the Sheriff received the writ. The Circuit Court, in addition to agreeing with the relation back reasoning of the District Court, also looked to the language of Maryland Rule 3-641(c),[3], requiring the Sheriff to "endorse on the writ the exact hour and date of its receipt and maintain a record of actions taken pursuant to it." From this the court discerned that the moment of receipt is key in determining at what point a writ is executed.
II.
A.
Petitioners first note the fundamental premise that a joint tenancy must be severed in order for a judgment creditor to attach the interest of an individual joint tenant. Petitioners maintain that an individual judgment debtor's interest is severed when a judgment creditor executes against the judgment debtor's interest in real property while he or she is living. Once the judgment debtor has died, however, there is no longer an interest in the real property upon which to levy.
On the facts of the present case, Petitioners contend that the mere delivery of the Writ of Execution to the Sheriff did not sever the joint tenancy or create a lien on the Property. Because the Sheriff did not attempt to execute the writ until after *44 the death of the Judgment Debtor, they claim that there was no pre-mortem severance of the joint tenancy and thus no property interest to which the lien could attach when ultimately executed. As the interest of one joint tenant passes to the other joint tenant or tenants at his or her death as a matter of law, Petitioners ultimately posit that they acquired the Judgment Debtor's interest in the Property at her death and that, from that moment forward, the Judgment Debtor held no interest to which Respondent's lien later could attach.
Petitioners support their argument by citing, inter alia, Eder v. Rothamel, holding that "a judgment lien, without levy or execution on the judgment, does not sever a joint tenancy or prevent the interest of the judgment debtor from passing to or ripening in the surviving co-tenants, free of lien." 202 Md. 189, 193, 95 A.2d 860, 862 (1953). Petitioners also direct our attention to various cases of our sister states purporting to hold that something more than a judgment lien is necessary to sever a joint tenancy. Recognizing that these cases are not binding on this Court, Petitioners argue that these cases nonetheless merit our favorable consideration. See, e.g., Grothe v. Cortlandt Corp., 11 Cal. App.4th 1313, 15 Cal.Rptr.2d 38 (1992) (lien does not sever joint tenancy); People's Trust & Savings Bank v. Haas, 328 Ill. 468, 160 N.E. 85 (1927) (judgment alone does not sever joint tenancy); Van Antwerp v. Horan, 390 Ill. 449, 61 N.E.2d 358 (1945) (levy does not transfer possession of real property to the sheriff and therefore does not sever a joint tenancy); Knibb v. Security Ins. Co., 121 R.I. 406, 399 A.2d 1214 (1979) (judicial sale of real property is necessary to sever joint tenancy).
B.
Respondent concedes, as it must, that a joint tenancy first must be severed in order to levy upon one joint tenant's interest in the Property; however, it contends in the present case that a severance occurred at the moment the Sheriff received the Writ of Execution from the Clerk's office. Accordingly, Respondent claims that the Property was levied upon properly when the Sheriff received the writ nearly a month before the Judgment Debtor died. Respondent argues that an inchoate lien was created when the Sheriff received the writ, and that the date of execution of the writ "relates back" to 20 November 2001, provided that the Sheriff perfected the writ within the statutory period by executing it. Respondent urges us to adopt the following policy rationale for implementing such a "writ in the mitt" rule: The effective execution of a writ is not dependent on actual delivery to that person or posting on the property because the "modern" sheriff plays only a ministerial role in transmitting the writ to the owner of the interest in the property. Adoption of his policy, Respondent contends, would eliminate the harm befalling a creditor who files first, but whose interest is levied last by the Sheriff. Such a policy also would reduce the incentive for a creditor to offer inducements and cajolery to sheriffs to execute its writs first.
Respondent directs our attention to American Security & Trust Co. v. New Amsterdam Casualty Co. to support its argument that the date of the levy relates back to the date the writ was delivered to the Sheriff. 246 Md. 36, 40, 227 A.2d 214, 215 (1967). In American Security, the sheriff took possession of an automobile in execution of a writ he received a month before. In upholding the sheriff's sale of the automobile to satisfy a judgment debt, despite the fact that it had been used to secure a loan to its owner during the period between delivery and execution of the *45 writ, this Court held that "the lien of an execution has as its effective date, not the day on which the levy was actually made, but the day on which the writ ... was delivered to the sheriff." Id. In this manner, the Court explained, the claims of competing creditors could be prioritized according to the date the sheriff received the writ. Id.
C.
In response, Petitioners attempt to distinguish a levy on personal property from a levy on real property as a means to discredit Respondent's "relation back" argument. Petitioners assert that American Security is not analogous to the instant case because real property is treated differently than personal property for such purposes in Maryland. Petitioner notes that our precedents hold that, for real property, the delivery of the writ to the sheriff, without any further action to execute it, is insufficient to levy on real property. Rothamel, 202 Md. at 195, 95 A.2d at 863. Petitioners also assert that the "relation back" concept exists, if at all, to prioritize claims among competing creditors, and thus is inapposite to the case of a single creditor, as here.
III.
On appellate review, the Court of Appeals may set aside the judgment of the lower court based on the factual findings of the lower court only when those findings are clearly erroneous. Maryland Rule 8-131(c).[4] The legal analysis of the lower court, however, enjoys no deferential appellate review. The Court of Appeals must apply the law as it discerns it to be. Heat & Power Corp. v. Air Products & Chemicals, Inc., 320 Md. 584, 591, 578 A.2d 1202, 1205 (1990). The issue before the Court in the present case falls under the latter standard of review.
A.
Although many states have abolished it entirely, Maryland continues to recognize by statute the joint tenancy form of real property ownership. Maryland Code (1974, 2003 Repl.Vol.), Real Property Article, § 2-117.[5] A joint tenancy is distinguished by the "four unities." In order for a joint tenancy to exist, the owners of the property must share unity of time, title, interest, and possession. Rothamel, 202 Md. at 192, 95 A.2d at 862. The unities must exist concurrently; if any one is missing, the estate cannot be one of joint tenancy. Id. We will consider the requirements of the four unities at greater length infra.
1.
In Eastern Shore Bldg. and Loan Corp. v. Bank of Somerset, we addressed the question of whether a joint tenancy must be severed in order for a lien to attach to the interest of an individual joint tenant. 253 Md. 525, 253 A.2d 367 (1969). In Eastern Shore, a judgment was entered *46 against one joint tenant's interest in real property to satisfy a judgment against him for defaulting on a bank loan. The joint tenants then sold the property. The bank subsequently obtained a writ of fieri facias to direct the sheriff to levy on the property in order to collect on the debt the joint tenant owed. In finding that there was no time at which the debtor-joint tenant's interest in the property was severed from that of the other joint tenant, we held that his interest could not have been levied upon. 253 Md. at 531, 253 A.2d at 371. We held further that joint tenants hold per my et per tout,[6] and that "the nature of the tenancy is such that the judgment lien cannot attach to the estate in joint tenancy until after the severance and the creation of a separate estate in title and possession to which the judgment lien can then attach." Id. (citing Alexander v. Boyer, 253 Md. 511, 253 A.2d 359 (1969) (emphasis in original)). We concluded that
there was no execution by the judgment creditor prior to the conveyance by the joint tenants, nor was there any contract of sale or lease by one joint tenant or other action ... which might possibly result in a severance of the joint tenancy prior to the conveyance. That conveyance, it is true, terminated the joint tenancy, but simultaneously with the conveyance, title to the subject property vested in the grantees in fee simple. There was never a time, therefore, that Otho and William [the joint tenants] ever held title to the subject property as tenants in common so that there was no estate in the land which Otho [the debtor-joint tenant], alone, held in severalty to which the lien of a judgment against him alone could attach.
253 Md. at 531, 253 A.2d at 370-71 (emphasis added). Without severance of the joint tenancy, there is no individual interest of a joint tenant to which a judgment lien may attach. Severance of a joint tenancy therefore is required in order for a judgment creditor to levy on the interest of an individual joint tenant.
2.
Severance of a joint tenancy occurs when one of the four unities of time, title, interest, and possession ceases to exist. Rothamel, 202 Md. at 192, 95 A.2d at 862. This may happen voluntarily (e.g., through conveyance by one of the joint tenants) or involuntarily (e.g., by court partition). Id. When a joint tenancy is severed, the co-tenants become tenants in common. Id.
Recognition of the moment at which one of the unities is destroyed, thereby severing a joint tenancy, varies by jurisdiction. As we recognized in Rothamel, however, "[t]here is complete agreement... in all jurisdictions that (a) the levy and completed sale in execution does sever the joint tenancy, and (b) the mere obtention or docketing of a judgment lien does not operate to sever the joint tenancy." 202 Md. at 193, 95 A.2d at 862. We observed that "the general rule that a judgment lien will not sever the tenancy is consistent with the common law theory that the mere creation of a lien or charge upon the property would not diminish or affect any unity or a joint tenancy." 202 Md. at 195, 95 A.2d at 863. We also noted that "[i]n every reported case, it has been held that a judgment lien, without levy or execution on the judgment, does not sever a joint tenancy or prevent the interest of the judgment debtor from passing to or ripening in the surviving co-tenants, free of lien." Id.
In Rothamel, the plaintiff-creditor obtained a judgment against a debtor-joint *47 tenant, who then died before execution of the judgment. 202 Md. at 190, 95 A.2d at 861. The surviving joint tenants then conveyed the property to a third party, and the plaintiff sued both the estate of the late joint tenant and the new owners of the property to recover the judgment debt. Id. In holding that a judgment lien alone does not sever a joint tenancy because it does not interfere with any of the four unities, we opined that the lien must be executed within the lifetime of the judgment debtor in order for the judgment creditor to levy on the property. 202 Md. at 195, 95 A.2d at 863. Because the lien had not been so executed, the unities remained intact, and the joint tenancy was not severed. The surviving joint tenants thus rightly conveyed their interest in the property to the third party free of the lien. Id. Applying that reasoning to the present case, the writ at least must be executed actually in order to sever a joint tenancy; mere delivery of the writ to the sheriff, unless the date of execution relates back to the date of delivery, is not sufficient to sever the joint tenancy.
3.
We are of the view that the mere delivery of the Writ of Execution to the Sheriff did not interfere with any of the four unities and thus did not sever the joint tenancy in the present case. There is nothing in the record which indicates that the unities of time and title were affected by delivery of the writ to the Sheriff. By definition, the unity of time means that the joint tenants held title to the Property at the same moment. Delivery of the writ to the Sheriff would have had no effect on that unity. Likewise, as the unity of title requires that joint tenants acquire and hold title to the property by the same conveyance, delivery of the writ to the Sheriff would not have altered the fact that the Petitioners and the Judgment Debtor acquired and held title to the Property by the same instrument.
Delivery of the writ to the Sheriff also did not interfere with the unity of interest. As Petitioners point out, the Supreme Court of Rhode Island held that even a levy on real property is not enough to sever a joint tenancy, and that an actual sale must occur in order to destroy the unity of interest. Knibb v. Security Insurance Co. of New Haven, 121 R.I. 406, 411, 399 A.2d 1214, 1217 (1979). There, the Supreme Court of Rhode Island concluded that an estate held in joint tenancy was not severed by a levy of execution against one tenant's undivided half interest in the property to satisfy a judgment against that tenant, and that, after that joint tenant's death, the property passed to the surviving joint tenant free of the judgment. Id. Because no judicial sale had occurred prior to the death of the decedent, the court found that the defendant-judgment creditor's lien on the property constituted a mere "expectation of title" and that this expectation did nothing to alter the interest of either the decedent or the surviving joint tenant. 121 R.I. at 411-12, 399 A.2d at 1217. Finding that none of the unities was destroyed prior to the death of one joint tenant, the court held that the joint tenancy was not severed by the levy alone, and that a judicial sale was necessary to destroy the unity of interest and sever the joint tenancy. Id.
We agree with the logic of the Supreme Court of Rhode Island (though in the present case we need not go as far as that court did in application), and hold that the delivery of the writ to the Sheriff did not interfere with the interest of the Petitioners and the Judgment Debtor in the Property. In the case of real property, a writ of execution functions as an instruction to the sheriff to go to the property in question and inform its inhabitants that it *48 will be sold to satisfy a judgment owed. By going to the property and delivering such notice, the sheriff executes the writ and levies on the property, formally attaching it for sale at a later date. It is difficult to see how simply instructing the sheriff to tell the owners of a piece of real property that their land will be sold to satisfy a judgment against one of the owners interferes with the interest the owners currently have in the property. Until the property is actually sold, the landowners interest in the property does not change. Due to the fact that, in the present case, the Sheriff received the writ but did not execute it before the death of the Judgment Debtor, we conclude that certainly there was no interference with the interest of either the Judgment Debtor or the Petitioners in the Property. We are not called upon to decide today whether a different result would obtain had the Sheriff executed the writ before the Judgment Debtor's death.
We also conclude that delivery of the writ to the Sheriff had no effect on the Judgment Debtor's possession of the Property. This Court repeatedly has held that, for personal property, delivery of a writ of execution to the sheriff constitutes a levy and is sufficient to place the goods in question in the virtual custody of the law. American Security and Trust Co. v. New Amsterdam Casualty Co., 246 Md. 36, 39, 227 A.2d 214, 216 (1967). Likewise, we have held that, for personal property, "the time of the levy ... is not controlling, but the time of the delivery of the writ to the Constable is crucial." Harris v. Max Kohner, Inc., 230 Md. 349, 354, 187 A.2d 97, 100 (1963).
We believe, however, that the nature of real property is distinguishable from that of personalty in this regard, and that the mere delivery of the writ to the sheriff does not interfere with a joint tenant's possession of real property. As the California Court of Appeal observed, the levy of personal property constitutes a physical seizure of the goods. Grothe v. Cortlandt Corporation, 11 Cal.App.4th 1313, 1321, 15 Cal.Rptr.2d 38 (1992). In Grothe, the court held that where the judgment debtor-joint tenant died after a judgment creditor's levy on his real property, but before a judicial sale occurred, none of the four unities was destroyed and the joint tenancy was not severed. The court distinguished a levy of personal property, which involves actual seizure, noting that an actual seizure clearly interferes with the owner's possession of the property. 11 Cal.App.4th at 1321, 15 Cal. Rptr.2d 38. By contrast, a levy of real property denotes the setting aside of property to be taken or sold at a later date and does nothing to interfere with the owner's current possession. 11 Cal.App.4th at 1320, 15 Cal.Rptr.2d 38. Consequently, the court decided that "the `levy,' as opposed to the ultimate sale of the property, does not destroy the unities any more than any other kind of lien against a specific property." 11 Cal.App.4th at 1321, 15 Cal. Rptr.2d 38.
We agree with the Grothe court's analysis and hold that the delivery of the writ does not destroy the unity of possession. During the period between 20 November 2001, when the Sheriff received the writ, and 17 January 2002, when he went to the Property and attempted to execute on the writ, there was no interference with either the Judgment Debtor's or the Petitioners' possession of the Property. Both the Judgment Debtor and the Petitioners remained in actual possession of the land and retained all of the rights with respect to the Property that land ownership implies. When the Judgment Debtor died, her interest in the Property passed to the surviving joint tenants, with whose possession *49 of the Property the sheriff did not attempt to interfere until he arrived on 17 January 2002 to attempt to levy on the Property. We conclude that the unity of possession was not destroyed by the delivery of the writ to the Sheriff.
IV.
Ultimately, we hold that upon the death of the Judgment Debtor, her estate passed to the Petitioners, the surviving joint tenants, free of Respondent's lien. At least one of the four unities must be destroyed in order to sever a joint tenancy, but no such destruction occurred here until the Judgment Debtor died. Mere delivery of the Writ of Execution to the Sheriff did not interfere with the unities of time, title, interest, or possession, and thus may not be said to have severed the joint tenancy.
JUDGMENT OF THE CIRCUIT COURT FOR HARFORD COUNTY REVERSED; CASE REMANDED TO THAT COURT WITH DIRECTIONS THAT IT REVERSE THE JUDGMENT OF THE DISTRICT COURT OF MARYLAND, SITTING IN HARFORD COUNTY, AND REMAND THE CASE TO THAT COURT WITH DIRECTIONS TO GRANT PETITIONERS' MOTION TO RELEASE PROPERTY FROM LEVY; COSTS TO BE PAID BY RESPONDENT.
NOTES
[1] Maryland Rule 3-642(a) provides:
Levy upon real property. Except as otherwise provided by law, the sheriff shall levy upon a judgment debtor's interest in real property pursuant to a writ of execution by entering a description of the property upon a schedule and by posting a copy of the writ and the schedule in a prominent place on the property.
[2] Maryland Rule 3-642(d) provides:
Notice of Levy. The sheriff shall furnish a copy of the writ of execution and schedule to any person found by the sheriff to be in possession of the property, and, if that person is not the judgment debtor, the sheriff shall promptly mail a copy of the writ and schedule to the judgment debtor's last known address.
[3] Maryland Rule 3-641(c) provides:
Transmittal to sheriff; bond. Upon issuing a writ of execution or receiving one from the clerk of another county, the clerk shall deliver the writ and instructions to the sheriff. The sheriff shall endorse on the writ the exact hour and date of its receipt and shall maintain a record of actions taken pursuant to it. If the instructions direct the sheriff to remove the property from the premises where found or to exclude others from access to or use of the property, the sheriff may require the judgment creditor to file with the sheriff a bond with security approved by the sheriff for the payment of any expenses that may be incurred by the sheriff in complying with the writ.
[4] Maryland Rule 8-131(c) provides:
Action tried without a jury. When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.
[5] Maryland Code (1974, 2003 Repl.Vol.), Real Property Article, 2-117 provides:
Presumption against joint tenancy. No deed, will, or other written instrument which affects land or personal property, creates an estate in joint tenancy, unless the deed, will, or other written instrument expressly provides that the property granted is to be held in joint tenancy.
[6] "by the half and by the whole".
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23 N.J. 71 (1956)
127 A.2d 566
GUNDAKER CENTRAL MOTORS, INC., PLAINTIFF-RESPONDENT,
v.
FREDERICK J. GASSERT, JR., DIRECTOR OF DIVISION OF MOTOR VEHICLES, ETC., DEFENDANT-APPELLANT, AND BOROUGH OF BELMAR, ETC., DEFENDANT. (Monmouth County action). JEROME D. HABER, TRADING AS AJAX MOTORS, AND JOHN SLAMAN, TRADING AS CAPITOL AUTO SALES, PLAINTIFFS-RESPONDENTS,
v.
FREDERICK J. GASSERT, JR., INDIVIDUALLY AND AS DIRECTOR, DIVISION OF MOTOR VEHICLES, ETC., DEFENDANT-APPELLANT, AND ANGELO DE ROSE, ETC., ET ALS., DEFENDANTS. (Bergen County action).
The Supreme Court of New Jersey.
Argued November 13, 1956.
November 19, 1956.
December 10, 1956.
Decided December 17, 1956.
*73 Mr. John F. Crane, Deputy Attorney-General, argued the cause for the appellant Frederick J. Gassert, Jr., Director of Division of Motor Vehicles (Mr. Grover C. Richman, Jr., Attorney-General of New Jersey, attorney).
Mr. Albert S. Gross argued the cause for the respondents Jerome Haber and John Slaman (Mr. Nelson G. Gross, on the brief).
Mr. Ward Kremer argued the cause for the respondent Gundaker Central Motors, Inc.
Messrs. Gilhooly, Yauch & Fagan filed a brief as counsel for New Jersey Automotive Trade Association amicus curiae (James E. Fagan, of counsel; Daniel A. Degnan and Martin Kesselhaut, on the brief).
*74 The opinion of the court was delivered by VANDERBILT, C.J.
This is a consolidated appeal from judgments of the Law and Chancery Divisions of the Superior Court holding unconstitutional statutes that require car dealers to close on Sunday and providing penalties for failure to do so. We certified the matter on our own motion pursuant to R.R. 1:10-1(a) because it is concerned with the constitutionality of statutes dealing with an important matter of public policy and further because it indicates some serious misconceptions as to the effect of our decision in State v. Fair Lawn Service Center, 20 N.J. 468 (1956).
The question here raised is whether a law which singles out automobile dealers and prohibits their business operations on Sunday is a constitutional exercise of power by the State.
The action in the Gundaker case was by suit in lieu of the prerogative writ of certiorari in the Law Division, Monmouth County, attacking the constitutionality of chapter 254 of the Laws of 1955 (approved December 28, 1955). The action in the Haber case was commenced in the Chancery Division, Bergen County, seeking a declaration of the unconstitutionality of not only chapter 254 of the Laws of 1955, but all of chapter 253 as well.
Chapter 254 of the Laws of 1955 (N.J.S. 2A:171-1.1 et seq.) in essence prohibits dealing in new or used cars on Sunday and holds that persons who do so in violation of the act are disorderly persons and subject to a fine or imprisonment or both. It also provides for an additional penalty by way of suspension or revocation of the car dealer's license to engage in that business required by chapter 10 of Title 39 of the Revised Statutes. This statute was enacted as an entirely new provision and a supplement to chapter 171 of Title 2A of the New Jersey Statutes.
R.S. 39:10-20, prior to its amendment by chapter 253 of the Laws of 1955, provided for the suspension and revocation of a car dealer's license after hearing for certain violations of the law and misconduct. The new act merely amended the statute by including in the causes for suspension or revocation "final conviction of the licensee for violating *75 any provisions of Chapter 171 of Title 2A or of any supplement thereof (Observance of Sabbath Days)."
The facts in both cases are not substantially in dispute.
The plaintiff in the Gundaker case is engaged in the operation of a new and used automobile business in Belmar, Monmouth County. It had been its practice for many years to keep open on Sunday and to conduct business on that day just as on any other day in the week. Sunday was its biggest business day; the plaintiff claims that it sold more cars on that day than it sold on any other single day of the week and will now be caused to lose substantial revenues. In keeping open on Sunday, it was no different than many other businesses in the communities surrounding Belmar. Real estate offices, 5 and 10 cent stores, antique shops and motor boat agencies all keep their doors open for "business as usual" on Sunday.
Just prior to the enactment of the statutes in question here, competitive conditions in the automobile sales business were causing many dealers to remain open on Sundays as a matter of self-preservation to obtain a share of the available trade. These places of business were generally open 12 to 13 hours a day during the week and 8 to 9 hours a day on weekends. Hours of work of the sales personnel engaged by these dealers ranged from 60 to 77 hours per week, and the prevalence of a commission system of compensation for these salesmen tended to cause them to work long hours without adequate time off for recreational purposes.
It also appears that of the approximate 1,100 automobile dealers selling new and used cars in this State, about 900 of them are members of the New Jersey State Automotive Trade Association. In the fall of 1954, evidently for the purpose of alleviating existing conditions in the industry, this group caused a poll to be taken of its members on the subject of Sunday closing. The ballots received from 80.3% of the members showed overwhelmingly that the group were in favor of Sunday closing; 77.4% of those voicing their opinion voted in favor of it. Based upon this expression by its members, the Association had its counsel draft a bill *76 providing for closing of automobile agencies on Sunday. Whether this bill was enacted in the form suggested, without amendment, does not definitely appear, but the court below found that the bill was enacted into law.
After the enactment of the statutes here in issue, the plaintiff received a notice from the Belmar Police Department that it would have to close on Sunday according to the direction of the law. Gundaker has complied with the law ever since and brought this action to test the constitutional propriety of the main enactment, L. 1955, c. 254.
After trial, the court below was of the opinion that the statute, L. 1955, c. 254, was unconstitutional, that it
"was not enacted to protect a basic interest of society such as general health, safety, morals or welfare of the people, but rather * * * had as its predominant purpose a measure of control of competition in the sale of new and second-hand automobiles in this State."
and as such it said: "It constitutes a perversion of the police power and violates both the State and Federal Constitutions." The trial court saw nothing connected with the keeping open of automobile agencies on Sunday that could fairly be said to constitute a danger or hazard to public health, morals, safety or welfare sufficient to justify a separate classification for this type of endeavor, and found the classification illusory and unreasonable and that the statute denied to the plaintiff and other automobile dealers equal protection of the laws guaranteed by our Constitutions.
In the Haber case the plaintiffs are automobile dealers in South Hackensack and Little Ferry, Bergen County. Their complaint in substance is similar to that in the Gundaker suit, except that in this suit the attack was levied at "all portions" of both laws. But unlike the other case it was disposed of on cross-motions for summary judgment. In this case the Director of Motor Vehicles took the position that the traffic on state highways on Sundays, and here particularly Route 46 as it runs through Little Ferry and South Hackensack, N.J. between the hours of 12:00 noon and 10:00 P.M. was unusually heavy and that the activity *77 of motorists driving off the highway to the places of business of these car dealers and then back on to the road again constituted a constant and serious traffic hazard and increased the risk of collision during this period.
The trial court, without opinion, undertook to declare unconstitutional in its entirety not only L. 1955, c. 254 but also L. 1955, c. 253, without considering whether the latter enactment might have had any validity and effect apart from any dependence upon the other act.
On this appeal the New Jersey Automotive Trade Association has been permitted to intervene as amicus curiae and has filed a brief supporting the position of the Director of the Division of Motor Vehicles and the other appellants here.
The Director of Motor Vehicles contends that these statutes represent a valid exercise of the prerogatives of the Legislature in the fields of public health, welfare and safety; that the long hours of work forced by the competitive conditions furnish a basis for regulation of this particular field of endeavor; that the traffic hazard created by these businesses being open during the heavy traffic on Sunday afternoons presents a reasonable basis for regulation; that the trial court attributed to the Legislature a motive in the enactment of these laws which was not apparent from the enactment and was based on elements that were in no way binding or conclusive in their indication of the true purpose of the Legislature; and that notwithstanding our decision in State v. Fair Lawn Service Center, Inc., 20 N.J. 468 (1956), the statute remained effective as a declaration of the public policy of the State with regard to Sunday closing. He also urges that the statutes are not unconstitutional in a discriminatory sense because there is reasonable basis for legislating against the Sunday operations of these car dealers and no car dealers have been excluded from the operation of the statute; that by forcing the closing on Sunday of all persons engaged in the sale of new and used cars no person in that business in this State has been adversely affected from an economic standpoint; that no harm has been caused *78 to the plaintiffs; and that, therefore, they have not been deprived of equal protection of the laws.
The principal position of the plaintiffs is that the mere fact that these statutes ban the sale of motor vehicles on Sunday without similarly banning the sale of all other goods, makes them discriminatory, unreasonable and violative of the Federal and our State Constitutions. They also assert that there is nothing in the activity here involved so affected with the public interest as to render it susceptible to the exercise of the State's police power. It is further argued that the statute was economic in nature and born of an "unholy alliance" between the Trade Association and the Legislature.
These are in no way novel contentions, nor is the applicable law unfamiliar.
The State has the power, in the interests of the common good, to enact all manner of laws reasonably designed for the protection of the public health, welfare, safety and morals. The exercise of the power may cause individual hardship or even limit the freedom of individual action; but so long as there is some degree of reasonable necessity to protect the legitimate interests of the public, and the regulation resulting from the use of the power is not arbitrary or oppressive, the greater good for the greater number must prevail and individual inconveniences must be suffered as the price to be paid for living in a well-ordered society, Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513, 10 A.L.R.2d 608 (1949), rehearing denied 336 U.S. 921, 69 S.Ct. 638, 93 L.Ed. 1083 (1949); New Jersey Good Humor, Inc., v. Board of Commissioners of Borough of Bradley Beach, 124 N.J.L. 162 (E. & A. 1939); Reingold v. Harper, 6 N.J. 182 (1951); Schmidt v. Board of Adjustment of City of Newark, 9 N.J. 405 (1952); cf. Stillman, "Police Power in New Jersey," 50 N.J.L.J. 205 (1927). Mr. Justice Holmes, in Noble State Bank v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 188, 55 L.Ed. 112, 32 L.R.A., N.S., 1062 (1911) mentions that this power
*79 "* * * may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare."
In Kovacs v. Cooper, supra, the Supreme Court of the United States (in affirming our former Court of Errors and Appeals which in turn affirmed our former Supreme Court, see 135 N.J.L. 64 and 135 N.J.L. 584) said:
"The police power of a state extends beyond health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquillity of a community. A state or city may prohibit acts or things reasonably thought to bring evil or harm to its people." 336 U.S., at page 83, 69 S.Ct., at page 451.
But the police power may not be exercised so as to be repugnant to the fundamental constitutional rights guaranteed to all citizens, Schmidt v. Board of Adjustment of City of Newark, supra, 9 N.J. 405, 414 (1952). Significantly, Mr. Justice Harlan said in Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 558, 22 S.Ct. 431, 439, 46 L.Ed. 679, 689 (1902):
"But as the Constitution of the United States is the supreme law of the land, anything in the Constitution or statutes of the states to the contrary notwithstanding, a statute of a state, even when avowedly enacted in the exercise of its police powers, must yield to that law."
And again in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 26, 25 S.Ct. 358, 361, 49 L.Ed. 643, 649 (1904) that:
"According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety. * * * no rule prescribed by a state * * * shall contravene the Constitution of the United States nor infringe any right granted or secured by that instrument."
Accordingly, the constitutional guarantees of due process and equal protection are elements to be accounted for in the exercise of the State's police power; they are not elements that in any way limit the subjects over which the State may exercise its power, but elements which condition *80 the exertion of that power by their fundamental demands. In Schmidt v. Board of Adjustment of City of Newark, supra, 9 N.J. 405, 414 (1952), we pointed out that:
"* * * the guaranty of due process requires `only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.' Nebbia v. [People of State of] New York, 291 U.S. 502, 54 S.Ct. 505, 510, 78 L.Ed. 940 (1934)."
Moreover, "equal protection of the laws," which demands that all persons similarly situated be dealt with alike, is accomplished by the avoidance of "arbitrary discrimination between persons similarly circumstanced," Id., 9 N.J., at page 418. Thus, legislation that treats all persons within a class reasonably selected for regulation in a like or even merely in a similar manner, satisfies the mandates of the State and Federal Constitutions, Raymond v. Township Council of Teaneck, 118 N.J.L. 109 (E. & A. 1937); General Public Loan Corp. v. Director of Division of Taxation, 13 N.J. 393 (1953); Guill v. Mayor and Council of City of Hoboken, 21 N.J. 574 (1956). In the Guill case, Mr. Justice Heher took the occasion to hold for a unanimous court that:
"* * * the classification cannot be arbitrary or illusory, but must bear some just and reasonable connection with the primary object of the legislation; a particular classification is not repugnant to the Fourteenth Amendment merely because `inequality actually results'; every classification of persons and things for regulation by law produces inequality in some degree; to vitiate the regulation the inequality must be `actually and palpably unreasonable and arbitrary.' Jamouneau v. Harner, 16 N.J. 500, 520 (1954). See also Van Riper v. Parsons, 40 N.J.L. 1 (Sup. Ct. 1878); State v. Guida, 119 N.J.L. 464 (E. & A. 1938). It suffices if the classification have a rational and just relation either to the fulfillment of the essential legislative design or to some substantial consideration of policy or convenience bearing upon the common welfare. * * *
"* * * Classification must itself be fair and impartial and not arbitrary or illusory, grounded in material distinctions and differences concerned with the central legislative policy; and it satisfies the constitutional standard if there be any conceivable state of facts affording a just ground for the action taken, a difference of degree having material relevancy to the police policy in view." (21 N.J., at page 583)
*81 While a measure grounded in the exercise of the police power must tend to accomplish the basic purpose of its enactment, a large measure of discretion is vested in the Legislature to determine not only what regulations are necessary to protect the public good and welfare but also the appropriate means of accomplishing these ends. Its wisdom or the means selected are not subject to review or interference by the courts except in the protection of fundamental constitutional rights, 2 Cooley, Constitutional Limitations (8th ed.), 1228-1231; Amodio v. Board of Commissioners of Town of West New York, 133 N.J.L. 220, 225 (Sup. Ct. 1945).
Consequently, it is the duty of this court to uphold legislation unless there is no room for doubt as to its violation of constitutional provisions, Reingold v. Harper, supra, 6 N.J. 182, 194 (1951); Schmidt v. Board of Adjustment of City of Newark, supra, 9 N.J. 405, 416 (1952); Russo v. Governor of State of New Jersey, 22 N.J. 156, 170 (1956).
The statutes in question here apply to all automobile dealers within the State, without distinction as to class, type, location or otherwise. All are required to close. Fundamentally then, they satisfy the initial inquiry as to equal protection. No economic advantage can be gained by any one within this State by reason of the Sunday regulation because no persons other than those covered by the enactments can engage in the business of selling motor vehicles, R.S. 39:10-19. Thus, all motor vehicle dealers are protected in their businesses and no substantial loss of revenues can result where the product they deal in is unobtainable elsewhere within the State. The cars that would be sold on Sunday will now be sold on the other days in the week and probably to the same prospective purchasers.
The fact that the sale of motor vehicles is singled out for legislative treatment is no ground for complaint if there is any reasonable basis for such action, Washington National Insurance Co. v. Board of Review, 1 N.J. 545 (1949); Jamouneau v. Harner, 16 N.J. 500 (1954), certiorari denied 349 U.S. 904, 75 S.Ct. 580, 99 L.Ed. *82 1241 (1955); Guill v. Mayor and Council of City of Hoboken, supra, 21 N.J. 583 (1956). And there is reasonable basis if the buying and selling of motor vehicles on Sunday has effects inimical to the public good and welfare. Under the police power "the State may protect its citizens from physical and moral debasement which comes from uninterrupted labor"; see State v. Fair Lawn Service Center, Inc., supra, 20 N.J. 468, 474, 483 (1956).
In the present state of Sunday activity in this automotive age, there are sections of our highways stretching for miles almost exclusively devoted to the sale of new and used cars, where the owners and employees, forced by the unreasonable and competitive lust of some of their neighbors in the trade, are compelled to maintain their business vigil every day of the week and for long hours; who can say that this is not inimical to the public good? Moreover, common human experience has shown to all who have had the occasion to drive on the highways of this State that even a single business enterprise can constitute an insidious accident hazard when the highway on which it is situated is full with super-powered automobiles. Multiply this one instance by the number of dealers that are found, let us say, in the Little Ferry-South Hackensack area and see what the potential havoc is, to say nothing of the peace and tranquillity that is incidentally disturbed.
The State has an absolute right to enter here and force on all and every one so engaged regulations for the benefit of the public, and it is not for the court to say that its action in doing so is contrary to the constitutional provisions against discrimination merely because there are classes similarly situated with respect to public or social evils requiring similar legislation that are yet unregulated, Raymond v. Township Council of Teaneck, supra, 118 N.J.L. 109 (E. & A. 1937); Hertz Washmobile System v. Village of South Orange, 41 N.J. Super. 110 (Law Div. 1956). As we have already indicated, the Legislature has a wide range of discretion in the choice of the means and methods by which it shall enhance the public good and welfare, Amodio *83 v. Board of Commissioners of Town of West New York, supra, 133 N.J.L. 220, 225 (Sup. Ct. 1945).
While it is true that if the dominant purpose of the legislation be to serve private interests under the cloak of the general public good, the resulting legislation is a perversion and abuse of power and therefore unlawful, Reingold v. Harper, 6 N.J. 182, 192 (1951), the only real basis for the assertion of such a motive here is in the sponsorship of the legislation in question. But the motives of the sponsors cannot be imputed to the Legislature unless there is basis for it in its statutory expression, Keyport & M.P. Steamboat Co. v. Farmers Transportation Co., 18 N.J. Eq. 13 (Ch. 1866), affirmed 18 N.J. Eq. 511 (E. & A. 1866); Soon Hing v. Crowley, 113 U.S. 703, 710, 5 S.Ct. 730, 28 L.Ed. 1145 (1885); 2 Sutherland, Statutory Construction (3rd ed.), sec. 5014. We find no legal basis for attributing any desire on the part of the Legislature to act other than in the general public interest.
The plaintiff, Gundaker, urges that our decision in State v. Fair Lawn Service Center, Inc., supra, 20 N.J. 468 (1956), is dispositive of the present case. It contends that since we held N.J.S. 2A:171-1 was "of no force and effect" without a penalty clause, id. 473, that statute has been "swept away by the decision in the Fair Lawn case"; and that since the present chapter 254, Laws of 1955 is expressly nothing more than a supplement to the statute there involved it can have no more vitality than the original chapter 171. Its argument on this score avoids recognition of the fact that in the Fair Lawn case we held the Sunday Law only unenforceable in a criminal sense for the violation there charged because of its lack of expression of a penalty. This decision was never intended to strip the statute of its effectiveness in prohibiting Sunday operations that are not works of charity or necessity. On the contrary, while that statute, N.J.S. 2A:171-1, was incapable of furnishing a basis for the prosecution of violations such as that charged in the Fair Lawn case, it remains declarative of the general public policy of the State with respect to Sunday closing. *84 Moreover, the present statute, L. 1955, c. 254, furnishes, at least with respect to car dealers, what N.J.S. 2A:171-1 lacked to make it effective in the Fair Lawn case a penalty provision.
The public policy of this State is against all worldly employment on Sunday, except works of charity and necessity, N.J.S. 2A:171-1. The means selected for accomplishing and maintaining that policy is not for us to question as long as there is any reasonable basis for the enactment, Amodio v. Board of Commissioners of Town of West New York, supra, 133 N.J.L. 220 (Sup. Ct. 1945); see also the following statutes prohibiting Sunday activity: R.S. 45:4-26 barbering; R.S. 45:22-31 pawnbrokering; R.S. 23:4-24 hunting; R.S. 50:2-11 and 50:3-15 taking of clams and oysters; N.J.S.A. 23:5-24.4 fishing with nets; N.J.S.A. 5:5-38 and 5:5-47 horseracing; N.J.S.A. 5:8-31 and 5:8-58 bingo games and raffles; and N.J.S. 2A:171-3 service of process.
The judgments below are reversed and the complaints are dismissed.
For reversal Chief Justice VANDERBILT, and Justices HEHER, OLIPHANT, WACHENFELD, BURLING and JACOBS 6.
For affirmance None.
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Motion Granted and Abatement Order filed January 8, 2013
In The
Fourteenth Court of Appeals
____________
NO. 14-10-00772-CR
NO. 14-10-00771-CR
____________
THE STATE OF TEXAS, Appellant
V.
MARK STEVEN BELL, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause Nos. 1238939 and 1238940
ABATEMENT ORDER
On December 13, 2012, the parties filed a joint agreed motion to abate these
appeals pending finalization of an agreement they anticipate will lead to dismissal of
these appeals. The motion is granted. Accordingly, we issue the following order.
The appeals are abated, treated as closed cases, and removed from this court’s
active docket for a period of 60 days from the date of this order. The appeals will be
reinstated on this court’s active docket at that time, or when the parties file a motion to
dismiss these appeals. The court will also consider an appropriate motion to reinstate the
appeals filed by either party, or the court may reinstate the appeals on its own motion.
PER CURIAM
2
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74 Cal.Rptr.3d 590 (2008)
43 Cal.4th 228
180 P.3d 338
The PEOPLE, Plaintiff and Respondent,
v.
Michael Christopher PITTO, Defendant and Appellant.
No. S139609.
Supreme Court of California.
April 7, 2008.
*591 Dennis P. Riordan, under appointment by the Supreme Court; Riordan & Horgan and Donald M. Horgan, San Francisco, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Catherine A. Rivlin, Christina Vom Saal and Gregg Zywicke, Deputy Attorneys General, for Plaintiff and Respondent.
BAXTER, J.
Penal Code section 12022[1] provides various sentence enhancements for those who are "armed" (id., subd. (a)), or in some cases, "personally armed" (id., subd. (c)), with a firearm "in the commission of specified offenses. In People v. Bland (1995) 10 Cal.4th 991, 43 Cal.Rptr.2d 77, 898 P.2d 391 (Bland), which involved the arming enhancement for assault weapons (§ 12022, subd. (a)(2)), we set forth the circumstances in which the trier of fact could infer that the defendant was "armed" with a gun "in the commission of a drug crime, and the finding could thus be upheld as supported by sufficient evidence on appeal. Such circumstances exist where, during a drug offense, (1) the defendant knew of a gun's presence and location nearby, (2) the gun's proximity to the drugs was "not accidental or coincidental," and (3) the gun was available for his offensive or defensive use in committing the underlying offense. (Bland, supra, 10 Cal.4th at pp. 995, 1003, 43 Cal.Rptr.2d 77, 898 P.2d 391.)
*592 Here, defendant Michael Christopher Pitto, a convicted drug offender on bail at the time, was within arm's reach of both a gun and a saleable amount of methamphetamine in his vehicle when he encountered police. He knew the gun's location because, as he admitted at trial, he had purposefully placed it there. For the same reason, the proximity of the gun to the drugs was not merely "accidental or coincidental." (Bland, supra, 10 Cal.4th at pp. 995, 1003, 43 Cal.Rptr.2d 77, 898 P.2d 391.) There was no dispute that, because of its location, the firearm was available for his offensive or defensive use with respect to the drug transportation and possession crimes of which he was convicted. He was therefore "armed" with the gun "in the commission" of these offenses. (§ 12022.)
Defendant nonetheless claims that, in order to defeat the arming allegation as construed in Bland, supra, 10 Cal.4th 991, 43 Cal.Rptr.2d 77, 898 P.2d 391, he was entitled to a sua sponte instruction highlighting defense evidence that he placed the gun in its position near the drugs for a reason unrelated to the drug crimes. He is mistaken. The particular reason why he purposefully placed a gun in close proximity to drugs, where it was available for his use in perpetrating his drug offenses, is irrelevant. The defendant's deliberate placement of the weapon negates any claim that the proximity of the gun and the drugs was the result of mere accident or coincidence.
This conclusion is not inconsistent with Bland. On the contrary, it fulfills the public safety purpose of the arming enhancement as stated in Bland. Regardless of defendant's motive at the time he placed the firearm, its consequent availability during the drug offenses raised the risk that he would resort to its use to facilitate the crimes. That is the very danger the arming statutes seek to deter.
Accordingly, defendant was not entitled to the sua sponte instruction he now asserts. We will reverse the Court of Appeal insofar as it found the opposite was true.
FACTS
The record discloses that around midnight on May 23, 2003, officers from the Lake County Narcotics Task Force saw defendant drive his Dodge minivan into the Twin Pines Casino parking lot. The officers knew that methamphetamine sales commonly occurred there. They also knew that defendant had sustained prior drug convictions and was subject to a probation search condition. When defendant exited the van and began walking his dog, the officers detained him. He showed signs of being under the influence of a stimulant. His van was searched.
In an open floorboard area in the middle of the van, between the back of the driver's seat and the front of a* rear, bench seat, officers found a black garbage bag. The bag contained clothing and a cigarette package. Protruding from the cigarette package was a baggie holding a crystalline substance. The substance was later determined to be 12.09 grams of methamphetamine, or a little less than one-half of an ounce. Through expert testimony, the prosecution established that this quantity represented 120 individual doses of the drug with a retail value of at least $2,000.
Behind the driver's seat, one foot from the bag containing the drugs, officers found a cardboard box. The box contained a .357-caliber Ruger revolver in a zippered pouch. The gun was unloaded, but six rounds of ammunition were tucked into a pocket of the pouch.
*593 The officer who discovered the black garbage bag and the cardboard box testified that the gun was closer to the driver's seat than the drugs, and that the gun was "within arm's reach" of defendant. In opining that defendant likely possessed the drugs for sale, the officer cited such factors as the amount of drugs in the van and the presence of the gun nearby. According to the witness, "persons who possess firearms while in the possession of controlled substances typically possess that firearm to protect the product itself and/or to protect proceeds, which would be the result of selling the product." He opined that it would take 10 to 15 seconds to unzipper the pouch, extract the gun and the bullets, and load the chamber. Another expert confirmed the likely drug-related purpose of the gun in the van.
Other prosecution evidence, such as defendant's statements to his probation officer, showed that he kept title to his speedboat and his Harley Davidson motorcycle in friends' names so they could not be seized by the state. An expert testified that sawy drug dealers followed this practice to reduce the risk of asset forfeiture in the event they were accused of methamphetamine trafficking.
Defendant testified on his own behalf that he was arrested near the start of the Memorial Day weekend while driving to Clear Lake, where one of his parents' homes was located. A painter and handyman, he had finished work few hours earlier at his sister and brother-in-law's home in the San Francisco Bay Area. Defendant admitted that he bought almost one-half ounce of methamphetamine before leaving the Bay Area. He put most of it in his minivan, but left one gram at his sister's house "to make sure [he would] have some when [he] got back." He used a gram of the drug daily, and had been dependent on it for several years.
Defendant testified that he bought the Ruger pistol from a friend four months earlier, while on probation for prior convictions. The night of his arrest, he took the gun from a work vehicle parked near his sister's house, and placed it in the back of the minivan near the drugs before driving to the lake. He denied using the gun in any drug offense. He also denied planning to sell drugs in Lake County (though he acknowledged having done so in the past). Defendant intended to consume the drugs while "party[ing]" with friends at the lake.
Defendant, along with his mother and brother, testified that he disliked guns, had been depressed in the year before the crimes, and had expressed suicidal thoughts. Defendant claimed he bought the gun to kill himself. He admitted, however, that he had no plan to commit suicide over the holiday weekend or at any other specific time.[2] A defense investigator opined that the drugs and gun were not possessed for commercial purposes because no measuring or packaging items were found in the van, and because the gun was unloaded.
Outside the presence of the jury, the trial court indicated that it planned to give CALJIC No. 17.15, the standard instruction concerning the section 12022 arming enhancement. Defense counsel did not object. *594 His sole request was that the court state that the firearm must be "readily" available for offensive or defensive use in the charged crimea change the court declined to make.[3]
During deliberations, the jury sent the court a note seeking the definition of "armed" in section 12022. When the court reread key language from CALJIC No. 17.15, one juror asked about the meaning of "availability" in the instruction. The court replied that such factual questions were solely for the jury to decide.
Defendant was convicted of transporting methamphetamine (Health & Saf.Code, § 11379, subd. (a)), a felony. The jury found true a related allegation that defendant was personally armed with a firearm under section 12022, subdivision (c) (section 12022(c)). As to the charge of possessing methamphetamine for sale (Health & Saf.Code, § 11378), the jury convicted defendant of the lesser included felony offense of possessing methamphetamine. (Id., § 11377, subd. (a).) An arming allegation was sustained as to that count as well. (§ 12022, subd. (a)(1) (section 12022(a)(1).)) The jury found against defendant on all other charges and allegations set forth in the information.[4]
At sentencing, the court consolidated this case with three other proceedings in which defendant was convicted of possessing and transporting controlled substances, receiving stolen property, and evading a peace officer. He received a total combined sentence of about 18 years in prison. It included a four-year arming enhancement under section 12022(c) for transporting methamphetamine in this case.[5] No additional term was imposed under section 12022(a)(1) for the present finding that defendant was armed while possessing methamphetamine.[6]
*595 The Court of Appeal agreed with defendant that CALJIC No. 17.15 failed to explain the necessary "nexus or link" between firearm and drug crime under section 12022 and Bland, supra, 10 Cal.4th 991, 43 Cal.Rptr.2d 77, 898 P.2d 391. Such omission, the court said, barred consideration of the defense theory that the gun was placed in the van to commit suicide, that its presence near the drugs was thus coincidental and unrelated to the drug crimes, and that defendant therefore was not armed in committing any such crime. The Court of Appeal further determined that the instructional error amounted to a federal constitutional violation, and was not harmless beyond a reasonable doubt. The judgment was reversed insofar as defendant was found to have been armed under section 12022(c) while transporting methamphetamine.[7]
The Attorney General asked this court to depublish the Court of Appeal's opinion. We ordered review on our own motion to decide whether any instructional error occurred.
DISCUSSION
The parties dispute the substance of the arming enhancement in section 12022, as set forth in Bland, supra, 10 Cal.4th 991, 43 Cal.Rptr.2d 77, 898 P.2d 391. As below, defendant insists a sua sponte instruction was required to allow the jury to find, based on evidence suggesting he placed the gun in the van for a non-drug-related purpose (but see fn. 2, ante), that the prosecution failed to prove the gun's presence was not merely accidental or coincidental with respect to the drug crimes. (See People v. Breverman (1998) 19 Cal.4th 142, 154, 77 Cal.Rptr.2d 870, 960 P.2d 1094 [instruction required on all legal principles closely and openly connected to the case, even in the absence of a defense request].) However, the Attorney General disagrees that, under the statute and Bland evidence of defendant's purpose for placing the gun near the drugs could tend to negate the arming allegation and warrant a special instruction to that effect. The Attorney General holds the correct view.
Preliminarily, we observe here, as in Bland that section 12022 is part of the Dangerous Weapons Control Law, which regulates a wide range of unlawful activities involving firearms and other deadly weapons. (§ 12000 et seq.) Unlike section 12022.5, which imposes enhanced penalties for personal use of a firearm in the commission of a felony, section 12022 "does not require that a defendant utilize a firearm or even carry one on the body." (Bland, supra, 10 Cal.4th 991, 997, 43 Cal.Rptr.2d 77, 898 P.2d 391; see In re Tameka C. (2000) 22 Cal.4th 190, 196-198, 91 Cal. Rptr.2d 730, 990 P.2d 603 [describing firearm-use enhancement].) A defendant is armed under section 12022 as long as the gun is "available for use, either offensively or defensively." (Bland, supra, 10 Cal.4th at p. 997, 43 Cal.Rptr.2d 77, 898 P.2d 391.) As Bland explained, the mere presence and potential for use of a firearm at a crime scene increases the risk of injury and death. The arming provisions in section 12022, like the use provisions in section 12022.5, deter and punish persons who create such dangerous situations in the course of committing crimes.
*596 In Bland itself, the defendant sat in a police car outside his house while officers searched inside, investigating the theft of auto parts. The search uncovered a large amount of rock cocaine in a plastic baggie in the defendant's bedroom closet. Several unloaded firearms, including an assault weapon, were found under his bed in the same room. A nearby duffel bag contained items commonly used in the sale and manufacture of cocaine basea gram scale, baggies, and glass containerssome bearing cocaine residue. A photo in the bedroom showed the defendant holding an assault rifle. (See Bland, supra, 10 Cal.4th 991, 995, 43 Cal.Rptr.2d 77, 898 P.2d 391.)
A jury convicted the defendant in Bland of felony possession of cocaine base for sale. (See Health & Saf.Code, § 11351.5.) The jury also found that he was armed with an assault weapon in committing the crime under section 12022, subdivision (a)(2), triggering an additional three years in prison. To assist the jury in making the latter determination, the trial court read a slightly modified version of CALJIC No. 17.15. (See Bland, supra, 10 Cal.4th 991, 995-996, 1005, 43 Cal.Rptr.2d 77, 898 P.2d 391.)
The Court of Appeal in Bland found insufficient evidence to support the section 12022 finding, and struck the three-year enhancement. Based on the relevant statute and instructions, the court concluded that the defendant was not armed with the assault rifle because it was not `"`available' " for his use in protecting either himself or the cocaine he planned to sell. (Bland, supra, 10 Cal.4th 991, 996, 43 Cal. Rptr.2d 77, 898 P.2d 391.) The reason cited by the court was the defendant's presence outside the house when police found the drugs and guns together in his bedroom. None of the guns, including the assault weapon, posed any danger under these circumstances, in the Court of Appeal's view.
This court rejected such reasoning on review, and effectively reinstated the section 12022 enhancement. Bland started from the premise that drug possession is a continuing offense that extends through the entire time that the defendant asserts dominion and control over illegal drugs. Thus, Bland's liability for the underlying felony, and his commission of the offense for purposes of section 12022, were not determined solely by whether he was present when police discovered the firearm and drugs in close proximity of one another. Rather, section 12022's application depended on whether the defendant had the gun available for use in furthering the drug offense "at any time during his possession of the drugs." (Bland, supra, 10 Cal.4th 991, 1000, 43 Cal.Rptr.2d 77, 898 P.2d 391, fn. omitted.)
On this issue, which the Court of Appeal had overlooked, Bland noted that the defendant kept his cache of guns, including the assault weapon, in his bedroom near the cocaine. From this evidence, the jury could infer that at some point during the felonious drug possession, he was physically present with both the drugs and the guns. Bland equated such proximity with the requisite availability for use of the assault weapon in the drug crime. (See Bland, supra, 10 Cal.4th 991, 1000, 43 Cal.Rptr.2d 77, 898 P.2d 391.)
Bland summarized these principles as follows: "[W]hen the prosecution has proved a charge of felony drug possession, and the evidence at trial shows that a firearm was found in close proximity to the illegal drugs in a place frequented by the defendant, a jury may reasonably infer (1) that the defendant knew of the firearm's presence, (2) that its presence together with the drugs was not accidental or coincidental, and (3) that, at some point during *597 the period of illegal drug possession, the defendant was present with both the drugs and the firearm and thus that the firearm was available for the defendant to put to immediate use to aid in the drug possession. These reasonable inferences, if not refuted by defense evidence, are sufficient to warrant a determination that the defendant was `armed with a firearm in the commission' of a felony within the meaning of section 12022." (Bland, supra, 10 Cal.4th 991, 1002-1003, 43 Cal.Rptr.2d 77, 898 P.2d 391.)
Bland observed that this construction of section 12022 furthered the purpose of the penalty enhancements contained therein. We explained that, in drug cases, the crime scene is the place where the defendant keeps his stash of drugs, and that a firearm stored nearby creates an enhanced risk of harm. (Bland, supra, 10 Cal.4th 991, 1001-1002, 43 Cal.Rptr.2d 77, 898 P.2d 391.) Bland emphasized that "[d]rug dealers are known to keep guns to protect not only themselves, but also their drugs and drug proceeds; ready access to a gun is often crucial to a drug dealer's commercial success." (Id. at p. 1005, 43 Cal. Rptr.2d 77, 898 P.2d 391.) We declined to hold that a defendant who created such access by his knowing placement and design was not armed simply because he was not present continuously during an extended period of drug possession. Such an approach would reward drug traffickers and defeat the public safety purpose behind the statute, according to Bland. (Id. at p. 1002, 43 Cal.Rptr.2d 77, 898 P.2d 391.)
Applying the foregoing principles here, this was a classic case for finding that the defendant was armed while possessing and transporting a controlled substance. According to the evidence on both sides, defendant's Ruger pistol and his 12 grams of methamphetamine sat almost side by side inside his minivan as he drove to the lake and stopped at the casino. By his own admission, such close proximity did not occur through ignorance or happenstance. Rather, defendant placed the gun and drugs there together, on purpose, while preparing for a long holiday weekend. Prosecution evidence indicated that he could reach both the gun and the bullets from the driver's seat, and that the gun could be loaded quickly. Thus, a rational jury could have concluded beyond a reasonable doubt that the gun was available "to protect the defendant during a drug sale, to guard against theft of the drugs, or to ward off police." (Bland, supra, 10 Cal.4th 991, 1002, 43 Cal.Rptr.2d 77, 898 P.2d 391.)
Defendant does not seriously dispute that he knowingly placed the gun in the van and that it was available for his use in committing the drug crimes of which he was convicted. He claims, however, that under Bland, he was entitled to refute any further inference that the presence of the gun near the drugs "was not accidental or coincidental." (Bland, supra, 10 Cal.4th 991, 1003, 43 Cal.Rptr.2d 77, 898 P.2d 391.) Specifically, he urges, the court should have given, sua sponte, an instruction allowing the jury to find from defense evidence and argument that there was no "facilitative nexus" between the gun and the drugs, because he possessed the gun for a reason unrelated to the drug crimessuicide. The Attorney General responds that if Bland can be read to support defendant's view, it is wrong under section 12022 and should be overruled to that extent.
Neither approach is correct. We disagree that instructional error occurred. We also decline to overrule Bland.
The "`facilitative nexus'" debate between the parties stems from a single passage in Bland, supra, 10 Cal.4th 991, 1002, *598 43 Cal.Rptr.2d 77, 898 P.2d 391. There, the Bland court found support in its construction and application of section 12022 by consulting a firearm enhancement under federal law. The federal statute enhanced the punishment of any person who "uses or carries" a firearm "during and in relation to" drug trafficking. (18 U.S.C. § 924(c)(1).)[8] Citing one intermediate federal appellate decision, Bland noted that the federal statute required a "`facilitative nexus'" between the drugs and the gun. (Bland, supra, 10 Cal.4th at p. 1002, 43 Cal.Rptr.2d 77, 898 P.2d 391, citing United States v. Paulino (1st Cir.1994) 13 F.3d 20, 26.) Next, Bland quoted from Smith v. United States (1993) 508 U.S. 223, 238, 113 S.Ct. 2050, 124 L.Ed.2d 138, concerning the same federal law: "`[T]he firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence.'" (Bland, supra, 10 Cal.4th at p. 1002, 43 Cal.Rptr.2d 77, 898 P.2d 391, italics in original.)
Thus, as defendant suggests, Bland appears to have adopted a "facilitative nexus" test and embraced a "purpose and effect" standard. However, such principles are not at odds with anything we have said today about section 12022 and Bland, supra, 10 Cal.4th 991, 43 Cal.Rptr.2d 77, 898 P.2d 391. Nor does the discussion of federal law in Bland compel us to accept the state law claim of instructional error presented here.
Bland made clear that it did not impose an "intent requirement" under section 12022, or provide that the purpose with which the gun was placed near the drugs negates the "facilitative nexus" that arming requires. (Bland, supra, 10 Cal.4th 991, 1003, fn. 5, 43 Cal.Rptr.2d 77, 898 P.2d 391.) We adhere to this view. When (1) a defendant, while perpetrating a drug offense, knows of the presence and location of a firearm near the drugs, (2) the proximity of the gun to the drugs is not the result of mere accident or happenstance, and (3) the defendant is in a position to use the gun offensively or defensively to aid in the commission of the offense, the gun facilitates that crime and has the requisite purpose or effect with respect to its commission.
Here, defendant knew of the handgun's presence and location because, as he conceded, he himself had placed the weapon there. By his own testimony, he also knew of the nearby presence and location of the methamphetamine, and its proximity to the gun. Nor was this proximity "accidental or coincidental," for, as already noted, defendant had consciously put the drugs and the gun in those positions. Without doubt, the weapon was readily at hand should he choose to use it to facilitate his perpetration of the drug crimes. The effect of such action is to make the firearm available for use in the possession and transportation of drugs.
Under these circumstances, defendant was "armed" with the gun in the commission *599 of these offenses under section 12022. It does not matter whether, at the particular moment he knowingly placed the gun where it was available for such criminal use, he did so for reasons unrelated to drug possession or trafficking. Regardless of his original motive, the opportunity and incentive to later resort to using the gun in perpetrating the crime is the same. And his deliberate placement of the gun and drugs in juxtaposition to each other negates any claim of accident or coincidence under Bland, supra, 10 Cal.4th 991, 43 Cal.Rptr.2d 77, 898 P.2d 391.
The Court of Appeal therefore erred in determining the trial court violated a sua sponte duty to instruct, beyond the provisions of CALJIC No. 17.15, that there must be a facilitative nexus between the possession of illegal drugs and a firearm, or that, if defendant's testimony was credited, the proximity of the gun to the drugs was accidental and coincidental and had no purpose or effect as to the drug offenses. The jury was adequately apprised of the requirements for finding that defendant was "armed with a firearm in the commission of the charged crimes under section 12022, subdivisions (a)(1) and (c). As noted, such requirements were met here.
CONCLUSION
The judgment of the Court of Appeal is reversed insofar as that court vacated the finding and enhancement under section 12022(c). In all other respects, the judgment is affirmed.
WE CONCUR: GEORGE, C.J., WERDEGAR, CHIN, MORENO and CORRIGAN, JJ.
Dissenting Opinion by KENNARD, J.
Penal Code section 12022 is a sentence enhancement provision, which states in subdivision (a)(1): "[A]ny person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment...."[1] (Italics added.) In People v. Bland (1995) 10 Cal.4th 991, 43 Cal.Rptr.2d 77, 898 P.2d 391 (Bland), this court construed the italicized statutory phrase this way: The arming must occur "during the commission of the underlying felony" (id. at p. 1001, 43 Cal. Rptr.2d 77, 898 P.2d 391) and there must be some "nexus or link" between the firearm and that crime (id. at p. 1002, 43 Cal.Rptr.2d 77, 898 P.2d 391).
In this case, police found methamphetamine and a firearm in defendant's van. The prosecution charged him with the felonies of possessing and transporting the drug, and it alleged an arming enhancement with respect to both crimes. Defendant denied any relationship between the methamphetamine and the firearm, claiming he had the latter because he was contemplating suicide. The trial court failed to instruct on Bland's requirement there that be a nexus or link between the firearm and the underlying drug crime. Therefore, in finding the arming enhancement allegations to be true, the jury was precluded from considering the defense argument that the gun had no connection to the methamphetamine.
Contrary to the Court of Appeal, which set aside the enhancements, the majority here upholds the trial court's failure to instruct, on its own initiative, on the nexus or link aspect of the Bland test. I disagree. The Court of Appeal got it right, and I would affirm the judgment of that court.
I
As relevant here, defendant was charged with the felonies of possessing methamphetamine *600 for sale (Health & Saf.Code, § 11378) and transporting it (id., § 11379, subd. (a)), and it was alleged that "in the commission" of those offenses defendant was personally "armed with a firearm" (Pen.Code, § 12022, subd. (c)).[2]
At trial, the prosecution presented this evidence: Northern California's Lake County has a Narcotic Task Force consisting of law enforcement officers from various agencies, including the Lake County Sheriffs Department and the City of Clearlake Police Department. In the early morning hours of May 23, 2003, task force members saw defendant drive a van into the parking lot of the Twin Pines Casino, located in Middletown, Lake County. The casino parking lot was known to task force members as a "hot spot" for methamphetamine dealing. When defendant got out of his van with a dog on a leash, task force members stopped him and, knowing him to be on probation and thus subject to warrantless search, they entered the van. On the floor in the back of the van was a plastic garbage bag filled with clothing and other personal items. Protruding from a cigarette package in the garbage bag was a clear plastic baggie containing a substance later determined to be 12.09 grams of crystal methamphetamine. About a foot away from the garbage bag, behind the driver's seat, was a cardboard box containing, among other things, a zippered pouch. Inside the pouch was an unloaded .357 Ruger revolver; in a separate compartment of the pouch were six rounds of ammunition.
The defense presented this evidence: Defendant was on his way from Contra Costa County to his family's Lake County vacation house, where he planned to spend the May 2003 Memorial Day weekend, when he stopped at the casino parking lot, so his dog could relieve itself. To counter the prosecution's drug charges, defendant; his brother, and his mother testified to defendant's long-time methamphetamine addiction, explaining that he possessed the 12.09 grams of methamphetamine in the plastic baggie not for the purpose of sale but for his personal use.
And to counter the prosecution's theory that defendant was armed with a firearm "in the commission" of the two drug felonies, the defense presented testimony from defendant's brother and mother that defendant disliked firearms, that he had recently been depressed, and that he talked about killing himself. Defendant testified that he had considered committing suicide, but that he had no immediate plan to do so when he drove into the casino parking lot where task force members encountered him. He explained that the revolver and six rounds of ammunition found in his van were for this purpose.
The trial court's instruction to the jury on section 12022's arming enhancement was based on the standard jury instruction, CALJIC No. 17.15.[3] In closing argument, *601 the prosecutor drew the jury's attention to that instruction. Under that instruction, the prosecutor said, defendant's reason for having the gun was not an issue, and the jury need only decide whether the gun was "available for [defendant] to use if he chose to do so."
During deliberations, the jury sent a note to the trial court asking for the "[definition of Penal Code section 12022 with the [sic] regards to the term `armed.'" When the trial court called the jury back into the courtroom to respond to the question, one juror said: "I think the question was availability, what constitutes availability?" The court replied: "That would be a question for you to decide. It's a question of fact as to whether or not this shows that firearm was available for offensive or defensive use. That would be within your purview alone, so I couldn't answer that question for you."
The jury acquitted defendant of the charge of possessing methamphetamine for sale, but it convicted him of the lesser included felony offense of unauthorized possession of methamphetamine (Health & Saf.Code, § 11377), and it also convicted him of transporting methamphetamine. With respect to both felonies, the jury found that defendant was "armed with a firearm in the commission" of the offense.[4] The trial court sentenced defendant to a state prison term that included four years for the section. 12022 arming enhancements. Defendant appealed.
Relying on Bland, supra, 10 Cal.4th 991, 43 Cal.Rptr.2d 77, 898 P.2d 391, the Court of Appeal concluded that the trial court's instruction on the section 12022 arming enhancement was defective in omitting the requirement of a nexus or link between the firearm found in the van and defendant's illegal possession and transportation of the methamphetamine. Determining the omission to be prejudicial to defendant, the Court of Appeal struck the jury's findings on the enhancements. The Attorney General asked this court to depublish the Court of Appeal's decision. We granted review on our own initiative.
II
Central to defendant's claim of instructional error is this court's 1995 decision in Bland, supra, 10 Cal.4th 991, 43 Cal. Rptr.2d 77, 898 P.2d 391, which is summarized below.
In Bland, the defendant was in a police car outside his house when police searched the house and found in the defendant's bedroom closet 17.95 grams of rock cocaine; nearby was a duffel bag containing a gram scale, plastic baggies, and other items typically associated with the manufacture and sale of cocaine base. Also in the bedroom were several unloaded firearms, including a Colt AR-15 semiautomatic assault rifle and a photograph of the defendant with the assault rifle. (Bland, supra, 10 Cal.4th at p. 995, 43 Cal.Rptr.2d 77, 898 P.2d 391.)
*602 The jury in Bland found the defendant guilty of two felony counts of possession of cocaine base for sale (Health & Saf.Code, § 11351.5), and as to one of those counts found that he was armed with an assault weapon in the commission of that offense (Pen.Code, § 12022, subd. (a)(2)). The Court of Appeal set aside the section 12022 arming enhancement for insufficient evidence. It reasoned that the defendant could not have been armed with the assault weapon in committing the felony at issue because the unloaded assault rifle retrieved by the officers was not accessible to the defendant who was outside the house during the police search. This court disagreed. It reasoned that evidence of the defendant's possession of drugs and drug paraphernalia near the assault rifle was sufficient to establish that he was armed in the commission of the felony drug possession, within the meaning of section 12022. (Bland supra, 10 Cal.4th at pp. 995-997, 43 Cal.Rptr.2d 77, 898 P.2d 391.)
In construing section 12022's phrase, "armed with a firearm," Bland explained that a defendant need not "utilize a firearm or even carry one on the body." (Bland, supra, 10 Cal.4th at p. 997, 43 Cal.Rptr.2d 77, 898 P.2d 391.) Rather, "[a] defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively." (Ibid.)
Next, Bland discussed the nature of drug possession, describing it as a "`continuing' offense," that is, one that "extends through time." (Bland, supra, 10 Cal.4th at p. 999, 43 Cal.Rptr.2d 77, 898 P.2d 391.) "Thus, throughout the entire time the defendant asserts dominion and control over illegal drugs, the defendant is criminally liable for the drug possession." (Ibid.)
Bland held that, for purposes of section 12022's arming enhancement, a defendant could be armed in the commission of a possessory drug offense even though not near the firearm and the drugs when arrested. The important circumstance, Bland said, was whether the defendant "had the firearm available for use in furtherance of the drug offense at any time during his possession of the drugs." (Bland, supra, 10 Cal.4th at p. 1000, 43 Cal.Rptr.2d 77, 898 P.2d 391, italics added.)
Of particular relevance here is this observation in Bland: "Of course, contemporaneous possession of illegal drugs and a firearm will satisfy the statutory requirement of being `armed with a firearm in the commission' of felony drug possession only if the evidence shows a nexus or link between the firearm and the drugs. The federal courts, in interpreting the federal counterpart to California's weapons enhancement law (18 U.S.C. § 924(c)(1)), have described this link as a `facilitative nexus,' between the drugs and the gun. (See United States v. Paulino (1st Cir. 1994) 13 F.3d 20, 26.) Under federal law, which imposes specified prison terms for using or carrying a firearm, `"during and in relation to"' a crime of drug trafficking, `the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence.' (Smith v. United States (1993) 508 U.S. 223, 238, 113 S.Ct. 2050, 124 L.Ed.2d 138, italics added.)" (Bland, supra, 10 Cal.4th at p. 1002, 43 Cal.Rptr.2d 77, 898 P.2d 391, first and second italics added.)
Section 12022's arming enhancement, Bland observed, "implicitly requires" a similar "`facilitative nexus'" in light of the statute's requirement that the arming occur "in the commission" of the charged felony. (Bland supra, 10 Cal.4th at p. 1002, 43 Cal.Rptr.2d 77, 898 P.2d 391.) Thus, the arming under section 12022 must occur "during the commission of the *603 underlying felony" (Bland, supra, at p. 1001, 43 Cal.Rptr.2d 77, 898 P.2d 391) and it must have "some 'facilitative nexus' to that offense" (id. at p. 1002, 43 Cal.Rptr.2d 77, 898 P.2d 391, italics added). Bland went on to hold: "[From evidence] that a firearm was found in close proximity to ... illegal drugs in a place frequented by the defendant, a jury may reasonably infer (1) that the defendant knew of the firearm's presence, (2) that its presence together with the drugs was not accidental or coincidental, and (3) that, at some point during the period of illegal drug possession, the defendant was present with both the drugs and the firearm and thus that the firearm was available for the defendant to put to immediate use to aid in the drug possession." (Id. at pp. 1002-1003, 43 Cal. Rptr.2d 77, 898 P.2d 391.) Bland cautioned, however, that these reasonable inferences could support a jury determination that the defendant was armed with a firearm "in the commission" of the charged felony so long as the inferences were "not refuted by defense evidence." (Id. at p. 1003, 43 Cal.Rptr.2d 77, 898 P.2d 391, italics added.)
Relying on this statement in Bland, the Court of Appeal here set aside the jury's findings on the section 12022 arming enhancements. The court pointed to the defense evidence that defendant had the gun in his van not to aid in the felonies of possessing and transporting methamphetamine but because he was contemplating suicide. In light of that evidence, the Court of Appeal concluded, the trial court had a sua sponte obligation to instruct the jury that for defendant to be armed with a firearm in the commission of a felony, there had to be some "facilitative nexus" between the firearm and the felony. I agree. Below, I explain why.
III
Section 12022's subdivision (a)(1) states: "[A]ny person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment ...." (Italics added.) As discussed in part II, ante, this court's decision in Bland construed the phrase "armed ... in the commission" of a felony offense as meaning that the arming must occur "during the commission of the underlying felony" (Bland, supra, 10 Cal.4th at p. 1001, 43 Cal.Rptr.2d 77, 898 P.2d 391) and must have some link or nexus to that offense (id. at p. 1002, 43 Cal.Rptr.2d 77, 898 P.2d 391). A jury may reasonably infer from a firearm's close proximity to illegal drugs that the firearm's "presence together with the drugs was not accidental or coincidental." (Bland, supra, at p. 1003, 43 Cal. Rptr.2d 77, 898 P.2d 391.) But this inference can be "refuted by defense evidence" to the contrary. (Ibid.) That is what occurred in this case.
Defendant presented evidence that he had the .357 Ruger revolver in his van because he had been contemplating suicide, which supported the theory that the gun's presence was unrelated to his possession and transportation of methamphetamine. The trial court's instruction to the jury, however, precluded consideration of this theory.
In the language of CALJIC No. 17.15, the trial court instructed the jury that if it found defendant guilty of either one of the two felonies, it must then decide whether defendant "was armed with a firearm at the time of the commission or attempted commission" of that felony. (CALJIC No. 17.15, italics added; see 74 Cal.Rptr.3d p. 600, fn. 3, 180 P.3d p. 341, fn. 3, ante.) Thus, this instruction properly included the temporal requirement set forth in Bland, supra, 10 Cal.4th 991, 43 Cal. Rptr.2d 77, 898 P.2d 391, that the arming *604 must take place during the underlying felony. But the jury was not instructed on Bland's additional requirement that to be armed in the commission of a felony, the arming must have some link or nexus to that felony. A trial court must, on its own initiative, instruct the jury on those general legal principles that are relevant to the defense theory of the case and supported by the evidence. (People v. San Nicolas (2004) 34 Cal.4th 614, 669, 21 Cal.Rptr.3d 612, 101 P.3d 509; People v. Breverman (1998) 19 Cal.4th 142, 157, 77 Cal.Rptr.2d 870, 960 P.2d 1094.)
In giving the jury an incomplete description of the "in the commission" element of section 12022's arming enhancement, the trial court erred. This instructional error is harmless only if beyond a reasonable doubt it did not affect the jury's verdict. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324-326, 109 Cal.Rptr.2d 851, 27 P.3d 739; see also Neder v. United States (1999) 527 U.S. 1, 10, 119 S.Ct. 1827, 144 L.Ed.2d 35 [With both "misdescriptions and omissionsthe erroneous instruction precludes the jury from making a finding on the actual element"]; California v. Roy (1996) 519 U.S. 2, 5, 117 S.Ct. 337, 136 L.Ed.2d 266.)
Here, the instructional error precluded the jury from considering defendant's claim that the gun's presence in the van had no connection to the nearby methamphetamine that was concealed in a cigarette package inside a plastic garbage bag together with defendant's clothing and other personal items. Whether a majority of this court disbelieves the defense evidence that defendant had the gun to commit suicide is beside the point. It was for the jury, as the trier of fact, to consider that defense evidence, and to either accept or reject it.
Compounding the instructional error was the prosecutor's erroneous comment in closing argument to the jury that defendant's reason for having the gun in the van was irrelevant; the pertinent issue for the jury, the prosecutor said, was whether the gun was "available" to defendant. The jury's apparent confusion on this very point is evident from its inquiry of the trial court on the meanings of the terms "armed" and "availability" for purposes of the section 12022 arming enhancement. The trial court provided no answers. (See 74 Cal.Rptr.3d p. 601, 180 P.3d p. 347, ante.)
Under these circumstances, I cannot conclude that beyond a reasonable doubt the instructional error had no effect on the jury's verdict, and I would affirm the Court of Appeal in setting aside the arming enhancement.
IV
The majority insists that in this case there was no need to instruct the jury on the necessity of finding a link or nexus between the gun and the nearby drugs in defendant's van. It reasons that defendant did not sufficiently refute the inference of arming arising from the prosecution's case because he admitted knowing that the pistol was in the van near the methamphetamine when he testified to deliberately placing the gun and the drugs in his van. (Maj. opn., ante, 74 Cal.Rptr.3d at p. 597, 180 P.3d at p. 344.) According to the majority, the "close proximity [of the drugs and the gun] did not occur through ignorance or happenstance." (Ibid.)
I disagree with the majority that a defendant who knows that a firearm is near illegal drugs in his possession can never refute an inference of being armed within the meaning of section 12022. The majority acknowledges that this court's decision in Bland established a purpose and effect *605 test. (Maj. opn., ante, 74 Cal.Rptr.3d at p. 598, 180 P.3d at p. 345.) As Bland put it, "`the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence.'" (Bland, supra, 10 Cal.4th at p. 1002, 43 Cal.Rptr.2d 77, 898 P.2d 391, first italics added.) As the majority sees it, a firearm found near illegal drugs always meets the Bland test so long as the defendant knows of the gun's presence and can retrieve it to further any unlawful purposes in connection with the drugs. I do not share that view.
When a defendant has knowingly placed a firearm nearby illegal drugs, the gun's mere presence cannot, under Bland, supra, 10 Cal.4th 991, 43 Cal.Rptr.2d 77, 898 P.2d 391, be considered an "`accident.'" (Id. at p. 1002, 43 Cal.Rptr.2d 77, 898 P.2d 391, italics omitted.) But the location of the gun near the drugs may well be a "`coincidence.'" (Ibid.) As discussed earlier, that was the essence of the defense here. The jury, as trier of fact, may not have accepted that defense, but defendant was entitled to have the jury at least consider it. The jury was precluded from doing so, however, because of the trial court's failure to instruct on the necessity of finding a link or nexus between the gun and the underlying felonies of possessing and transporting methamphetamine.
I would affirm the Court of Appeal.
NOTES
[1] All unspecified statutory references are to the Penal Code except as otherwise stated.
[2] Contrary to what the dissent suggests, there was no evidence that defendant placed the gun in the van to commit suicide. (See dis. opn. of Kennard, J., infra, 74 Cal.Rptr.3d at p. 600, 180 P.3d at p. 347.) Defendant testified that he bought the gun four months earlier for that purpose, and that he did not intend to use it for anything else, including drug possession. While he described in detail the steps he took to place the gun near the drugs in the van before driving to the lake the night of his arrest, he acknowledged that he had no plans to kill himself at the time.
[3] As read to the jury, CALJIC No. 17.15 stated: "It is alleged in Counts 1, 2, and the violation of Health & Safety Code § 11377(a) which is a lesser crime to Count 2 that in the commission of the felony therein described, a principal was armed with a firearm, namely a .357 Ruger pistol. [¶] If you find a defendant guilty of the crimes thus charged, you must determine whether a principal in that crime was armed with a firearm at the time of the commission or attempted commission of the crimes. [¶] A principal in the commission of a felony is one who either directly and actively commits or attempts to commit the crime or one who aids and abets the commission or attempted commission of the crime. [¶] The term `armed with a firearm' means knowingly to carry a firearm or have it available for offensive or defensive use. [¶] The word `firearm' includes a pistol, revolver, shotgun, or rifle. [¶] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true." (Italics added; see Judicial Council of Cal.Crim. Jury Instns. (2007) CAL-CRIM Nos. 3115, 3131.)
[4] Such convictions included one felony count of being a felon in possession of a firearm (§ 12021, subd. (a)(1)), and two misdemeanor counts of being under the influence of methamphetamine (Health & Saf.Code, § 11550, subd. (a)) and carrying a concealed firearm in a vehicle. (Pen.Code, § 12025, subd. (a)(1).) In addition, the jury found that defendant suffered a prior conviction for transporting drugs in 2002. (Health & Saf.Code, §§ 11370.2, subd. (c), 11379.) The trial court found he was released on bail when the present crimes occurred. (Pen.Code, § 12022.1.)
[5] Section 12022(c) reads in part now, as it did at the time of defendant's crimes, as follows: "[A]ny person who is personally armed with a firearm in the commission of a violation ... of Section ... 11379 ... of the Health and Safety Code, shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years."
[6] Section 12022(a)(1) reads in part now, as it did at the time of defendant's crimes, as follows: "[A]ny person who is armed with a firearm in the commission of a felony ... shall be punished by an additional and consecutive term of imprisonment in the state prison for one year." Subdivision (a)(2) of section 12022 imposes an additional and consecutive three-year term where "the firearm is an assault weapon."
[7] The Court of Appeal never mentioned the similar arming allegation sustained under section 12022(a)(1) as to defendant's conviction of possessing methamphetamine. The court did not reverse or otherwise disturb this finding in disposing of the case on appeal.
[8] After Bland, supra, 10 Cal.4th 991, 43 Cal. Rptr.2d 77, 898 P.2d 391, the United States Supreme Court held in Bailey v. United States (1995) 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472, that firearm use under the federal statute required "active employment" of the weapon (id. at p. 144, 116 S.Ct. 501), and that this definition excluded mere possession of a firearm (i.e., in the trunk of a vehicle) while transporting drugs (i.e., in the vehicle's passenger compartment). Congress subsequently amended the statute to cover any defendant who, "in furtherance of" the crime of drug trafficking, "possesses a firearm." (18 U.S.C. § 924(c)(1)(A), as amended by Pub.L. 105-386 § 1(a) (Nov. 13, 1998) 112 Stat. 3469; see Watson v. U.S. (2007) ___ U.S. ___, ___ & fn. 3, 128 S.Ct. 579, 581-582 & fn. 3, 169 L.Ed.2d 472.)
[1] Further undesignated statutory references are to the Penal Code.
[2] Section 12022, subdivision (c) provides for additional terms of imprisonment of three, four, or five years for certain, specified drug-related felonies. The increased prison term under section 12022, subdivision (a)(1), the basic arming enhancement provision, is one year.
[3] The jury instruction read: "It is alleged in Counts 1, 2, and the violation of Health & Safety Code § 11377(a) which is a lesser crime to count 2 that in the commission of the felony therein described, a principal was armed with a firearm, namely a .357 Ruger pistol. [¶] If you find a defendant guilty of the crimes thus charged, you must determine whether a principal in that crime was armed with a firearm at the time of the commission or attempted commission of the crimes. [¶] A principal in the commission of a felony is one who either directly and actively commits or attempts to commit the crime or one who aids and abets the commission or attempted commission of the crime. [¶] The term `armed with a firearm' means knowingly to carry a firearm or have it available for offensive or defensive use. [¶] The word `firearm' includes a pistol, revolver, shotgun, or rifle. [¶] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true." (Italics added.)
[4] With respect to the conviction for possessing methamphetamine under Health and Safety Code section 11377, the arming enhancement was governed by Penal Code section 12022, subdivision (a)(1) (setting out a one-year enhancement) and not its subdivision (c) (setting out additional terms of imprisonment of three, four, or five years for arming in the commission of specified drug offenses), because simple possession is not one of the offenses covered by Penal Code section 12022, subdivision (c).
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273 F.Supp.2d 119 (2003)
Robert WILBUR, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, Defendant.
No. CIV.A.01-0458 RMC.
United States District Court, District of Columbia.
April 8, 2003.
*120 *121 Robert Wilbur, Ringoes, NJ, pro se.
Wyneva Johnson, U.S. Attorney's Office, Washington, DC, for C.I.A.
MEMORANDUM OPINION
COLLYER, District Judge.
Robert Wilbur has been trying, since at least 1994, to use official government channels to obtain copies of records concerning himself that he is confident are held by the Central Intelligence Agency ("CIA"). The CIA has searched its records and identified only one document concerning Mr. Wilbur. Because he is dissatisfied with this result, Mr. Wilbur has brought suit here, pro se, to force a broader search. Pending before the Court is the CIA's Motion to Dismiss or, Alternatively, for Summary Judgment based on the adequacy of its search for records. For the reasons set forth below, the Court will grant the CIA's Motion for Summary Judgment.
I. BACKGROUND
Mr. Wilbur served in the United States Navy during World War II and until December 1, 1945.[1] Upon his release, he enrolled at the University of Chicago and remained there from January 1946 until May 1947, when he transferred to Lafayette College. He asserts that several of his classmates at the University of Chicago were actively recruiting for the Office of Strategic Services, a predecessor to the CIA, and that "[a]n adversarial report was turned in in retaliation for [his] refusal" to join. Compl. at 1. While he had been assured that his admittance to Lafayette College would be easy, in fact there was resistance when he interviewed with the Lafayette Admissions Committee. Just prior to his graduation, one of the members of that committee explained that the problem had been due to the fact that "there was something derogatory on my record with which he did not agree because it was not supported by anything concrete." Id. at 2.
Mr. Wilbur began his quest by asking the CIA for information in 1976 or 1977. In response, the Information and Privacy Coordinator for the CIA sent "the only document which we have pertaining to [Mr. Wilbur, which] is a photocopy of an envelope and letter, date 11 July 1961, from Robert O. Wilbur to Nikita S. Khrushchev, Chairman of the Council of Ministers, The Kremlin, Moscow, USSR." Exhibit to Compl. In his Complaint, Mr. Wilbur asserts that this letter was "stolen out of the United States Mails under the illegal government programs designated by acronyms `HT-LINGUAL' and `HUNTER[.]'" Compl. at 2.
More recently, in February 1994, Mr. Wilbur sought to submit a request for documents to the CIA under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). Once it received the appropriate privacy waiver forms and certification of identity, the CIA accepted the request by letter dated May 13, 1994. The search for records concerning Mr. Wilbur focused on two CIA Directorates that were determined to be most likely to have responsive records, the Directorate of Operations *122 ("DO") and the Directorate of Administration ("DA"). "The DO is the CIA component responsible for the clandestine collection of foreign intelligence information from human sources" and its records "contain[] information on persons who are of foreign intelligence or counterintelligence interest to the CIA ...." Declaration of Kathryn I. Dyer ¶ 12 ("Dyer Decl."). The search used Mr. Wilbur's first and last names and included a cross-reference to his date of birth. No responsive records were located. The DA is responsible for the CIA's administrative matters and "maintains records on all current and former employees of the CIA, whether employed in a contract or staff capacity, as well as other individuals for whom security processing or evaluation was required." Id. ¶ 13. Using Mr. Wilbur's first and last names and birth date, the DA located no responsive records. Id. The CIA advised Mr. Wilbur on June 28, 1994, that it was unable to identify any information or records filed under his name. Its letter advised Mr. Wilbur of his appeal rights.
Mr. Wilbur did not submit an appeal until January 4, 1999. Nonetheless, the CIA advised him that his request for an appeal had been received and accepted for consideration. By letter dated September 14, 2000, the CIA responded to the appeal with the information that the appropriate members of the Agency Release Panel, the Information Review Officers for the Director of Central Intelligence area, the DO, and the DA had advised that no documents were located despite their searches. The Agency Release Panel thus affirmed the earlier determination that there were no responsive documents and advised Mr. Wilbur of his right to seek judicial review.
Mr. Wilbur filed the instant Complaint on February 28, 2001. He seeks to know the accusation and accuser against him at Lafayette College, why his name was allegedly placed on a watch list, and the bases for CIA review of his mail. The CIA filed its Motion to Dismiss or, Alternatively, for Summary Judgment on April 13, 2001. Mr. Wilbur filed his Opposition on May 2, 2001, and the CIA filed its Reply on May 7, 2001. Thereafter, on May 31, 2001, Mr. Wilbur filed an Answer to the CIA's Reply, to which the CIA filed an Opposition on July 23, 2001. Being fully briefed on the issues, the Court is ready to decide this matter.
II. LEGAL STANDARDS
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff bears the burden of proving by a preponderance of the evidence that a court has subject matter jurisdiction to hear a case. See Jones v. Exec. Office of President, 167 F.Supp.2d 10, 13 (D.D.C.2001). In reviewing a motion to dismiss for lack of jurisdiction, a court must accept as true all of the factual allegations set forth in the complaint; however, such allegations "`will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge of the Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13-14 (D.D.C.2001) (quoting 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1350). The Court may consider matters outside the pleadings. See Lipsman v. Sec'y of the Army, 257 F.Supp.2d 3, 6 (D.D.C.2003).
A court may grant a motion for summary judgment when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). Summary judgment will not lie "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although the moving *123 party bears the burden of showing the absence of any genuine issue of material fact, "a party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.'" Id. (quoting First Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)) (set of internal quotation marks omitted).
III. ANALYSIS
A. Dismissal Under Rule 12(b)(1)
The CIA makes two connected arguments in its motion to dismiss for lack of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure: (1) Mr. Wilbur failed to file his Complaint before the applicable statute of limitations expired, and (2) he failed to exhaust his administrative remedies properly. Taking the last point first, it is clear that exhaustion of administrative remedies is a mandatory prerequisite to a lawsuit under FOIA. See Oglesby v. Dep't of the Army, 920 F.2d 57, 61-64 (D.C.Cir.1990). This means that a requester under FOIA must file an administrative appeal within the time limit specified in an agency's FOIA regulations or face dismissal of any lawsuit complaining about the agency's response. See id. at 65 n. 9. If the requester did not timely appeal through the agency's internal processes, a court is deprived of subject-matter jurisdiction to review any lawsuit and must dismiss. See Kessler v. United States, 899 F.Supp. 644, 645 (D.D.C.1995).
The FOIA regulations of the CIA require an administrative appeal within forty-five days of the agency's initial decision on a FOIA request. See 32 C.F.R. § 1900. The CIA's initial determination here was dated June 28, 1994, and Mr. Wilbur's administrative appeal was dated January 4, 1999, more than four years later. Thus, his appeal was late as if it were never filed at all and he can be deemed to have failed to exhaust his administrative appeal rights.
The CIA also argues that the applicable statute of limitations for FOIA actions is six years under 28 U.S.C. § 2401(a). See Spannaus v. Dep't of Justice, 824 F.2d 52 (D.C.Cir.1987). Measuring the time since its June 1994 final response to Mr. Wilbur's FOIA request, and even granting additional time for the administrative process, the CIA argues that this lawsuit, filed on February 28, 2001, was untimely.
Mr. Wilbur explains that he sought legal counsel for many years prior to 1976 and, between 1976 and 1998, that he had been represented by four different attorneys, each of whom withdrew from the representation for unstated reasons. He argues that he "has no power of control over other attorneys, and thus over TIMELINESS." Opposition to Defendant's Motion to Dismiss and/or Summary Judgment at 3 ("Opposition") (emphasis in original).
The Court finds that Mr. Wilbur's explanation is insufficient to make this Complaint timely under the applicable regulations and case law. Recognizing that he is now proceeding pro se without the benefit of counsel, and therefore is entitled to a certain leeway with court rules and procedures, it is nonetheless clear that he had counsel at various times at least up until 1998. His administrative appeal of the CIA's June 1994 letter was due in 1994. Assuming there were a gap in Mr. Wilbur's representation that might have tolled the 45-day period for such an appeal, it was up to him or his counsel to make that argument on a more timely basis rather than over six years later. Although Mr. Wilbur is now without a lawyer, he is still required to follow the basic rules of court procedure. See generally *124 Ueding v. Dep't of Defense, No. 97-2668, 1998 U.S. Dist. LEXIS 6095, at *2 (D.D.C. Apr. 29, 1998) ("Even pro se litigants ... must comply with the Federal Rules of Civil Procedure.").
For these reasons, the Court has sufficient grounds to grant the CIA's motion to dismiss under Rule 12(b)(1).
B. Summary Judgment under Rule 56
Despite finding in favor of the CIA's Rule 12(b)(1) motion, the Court addresses the CIA's alternative motion pursuant to Rule 56 of the Federal Rules of Civil Procedure due to the fact that the CIA accepted Mr. Wilbur's very late-filed appeal and treated it as if it were timely. Even if this action constituted a waiver of Mr. Wilbur's failure to exhaust his administrative remedies in a timely fashion which, in turn, might somehow also toll the statute of limitations this case is subject to summary judgment because there are no genuine issues of material fact and the CIA is entitled to a judgment as a matter of law.
Summary judgment is available to a FOIA defendant when the agency demonstrates that it has fully discharged its obligations under FOIA by showing "that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Nat'l Cable Television Ass'n, Inc. v. Fed. Communications Comm'n, 479 F.2d 183, 186 (D.C.Cir.1973). When, as here, a plaintiff challenges the adequacy of an agency's search, the agency's burden is to establish beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant records. See Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984). The issue is not whether there might possibly exist other records that are responsive to the request, but whether the search was adequate, judged by a reasonableness standard. See id. Summary judgment is appropriate when the agency submits a "`reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched'" unless "a review of the record raises substantial doubt" about the adequacy of the search. Valencia-Lucena v. Coast Guard, 180 F.3d 321, 326 (D.C.Cir.1999) (quoting Oglesby v. Dep't of the Army, 920 F.2d at 68). "The agency is not required to speculate about potential leads." Kowalczyk v. Dep't of Justice, 73 F.3d 386, 389 (D.C.Cir.1996). It is, however, required "to follow through on obvious leads to discover requested documents." Valencia-Lucena, 180 F.3d at 325.
The CIA has described a search focused on the two CIA Directorates determined by it to be the most likely to have responsive records. Upon Mr. Wilbur's appeal, the initial searches were re-examined and the Director of Central Intelligence area was directed to conduct a search of its records. See Dyer Decl. ¶ 16. No responsive documents were located.
Mr. Wilbur protests that his name was on the agency Lingual Watch List maintained by the Office of Security until September 1975, as demonstrated by its production of a photocopy of his letter to Mr. Khrushchev. He asserts that this provides proof that the CIA maintained a secret file on him. In his Answer to the CIA's Reply to Plaintiff's Opposition, Mr. Wilbur further asserts that individuals placed on the secret Lingual Watch List "had been placed there by the Agency's own determination that such persons were counter-intelligence risk ..., establishing of necessity that CIA possessed other, additional, and persuasive information ratifying the need of additional evidence to confirm its belief that the individual was a danger to the United States." Answer at *125 2. He alleges that there is "a bonanza of search locations available" by identifying recipients of various internal CIA memos.[2]Id. at 4.
The CIA opposed Mr. Wilbur's unauthorized filing of the Answer, but also provided a second affidavit responding to his allegations. All of the components identified by Mr. Wilbur and noted below "are or were components of the Directorate of Operations and the Directorate of Administration," which were previously searched for responsive documents. Opposition to Plaintiff's "Answer" at 3; 2nd Dyer Decl. ¶ 6. It further explains that "[o]n April 8, 1994, all HT/LINGUAL files and indexes held by the Office of Security, a component of the Directorate of Administration, were destroyed in accordance with guidelines set forth in National Archives and Records Administration-approved records control schedules." Opposition to Plaintiff's "Answer" at 3; 2nd Dyer Decl. ¶ 5.
Although Mr. Wilbur has identified specific offices and files that might be searched for responsive documents, the CIA has fully explained the nature of its search and the unavailability of the specific offices and files that were named. Whatever additional documents might have existed that referenced or concerned Mr. Wilbur, it appears that they have been destroyed.[3]
IV. CONCLUSION
The Court concludes that the CIA has conducted a thorough, reasonable, good-faith search of the CIA components that were reasonably likely to maintain records of the type sought by Mr. Wilbur. The mere fact that no records were located is not the measure of an adequate search. Accordingly, the Court will grant the CIA's Motion for Summary Judgment. An Order accompanies this Memorandum Opinion.
ORDER
For the reasons stated in the Memorandum Opinion that accompanies this Order, it is hereby
ORDERED that Defendant's Motion for Summary Judgment is GRANTED. It is
FURTHER ORDERED that all other pending motions are DENIED as moot. It is
FURTHER ORDERED that this Order shall constitute a FINAL JUDGMENT in this case. This is a final appealable Order. See FED. R. APP. P. 4(a).
SO ORDERED.
NOTES
[1] The facts concerning Mr. Wilbur's background are taken from his Complaint and other pleadings. The facts concerning the CIA's search are taken from its affidavits, neither of which is contested by Mr. Wilbur.
[2] Mr. Wilbur identifies the following: SR/CE/P/IEL; RI/RI; SR/RISB/A; CI/SIG; SR/PA; RID/ANS; SR/CE; SR6 SUP; RI/Files; SR/2; CI/Staff; SR/9; CI/ICG; RID/AN; SR4/FE; RI/MIS; CI/OPS; SR/CI, without further explanation.
[3] Mr. Wilbur also complains that the CIA did not search its records to locate documents that reference other persons he names as having been involved in the University of Chicago/Lafayette College matter. His request for documents did not cover anyone other than himself and the Court cannot fault the CIA for dealing only with the specifics of his request.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-2045
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
Fred Neal, Jr., individually and as *
Trustee Fred Neal, Jr. Revocable Trust, * [UNPUBLISHED]
*
Appellant, *
*
Doris Neal, individually and as Trustee *
Doris Neal Revocable Trust; John H. *
Sinclair, Trustee Deep Water Designs; *
Davis Munck, P.C., *
*
Defendants. *
___________
Submitted: August 30, 2010
Filed: September 2, 2010
___________
Before BYE, BOWMAN, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
Fred Neal appeals the district court’s1 adverse grant of summary judgment in
this civil case involving certain tax assessments and the foreclosure of federal tax
liens. He argues among other things that he did not owe any taxes, that the statute of
limitations had expired, and that the district court should have allowed him to file
certain additional documents.
After careful de novo review, viewing the evidence and all fair inferences from
it in the light most favorable to Neal, see Johnson v. Blaukat, 453 F.3d 1108, 1112
(8th Cir. 2006), we conclude that the grant of summary judgment was proper for the
reasons stated by the district court. We further conclude that Neal waived his statute-
of-limitations argument, see United States v. Big D. Enter., Inc., 184 F.3d 924, 935
(8th Cir. 1999) (defense based upon statute of limitations is generally waived if not
raised in responsive pleading), and, in any event, the argument is meritless, see 26
U.S.C. § 6502(a)(1) (where assessment of any tax imposed by this title has been made
within period of limitation properly applicable thereto, such tax may be collected by
levy or by proceeding in court, but only if levy is made or proceeding begun within
10 years after assessment of tax). We also find no reversible error in the court’s
handling of the record.
Accordingly, we affirm the district court’s judgment. See 8th Cir. R. 47B.
______________________________
1
The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.
-2-
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RODNEY WINFIELD,
Plaintiff-Appellee,
v.
G. L. BASS; KELVIN CARLYLE;
ANTHONY CLATTERBUCK; JAMES
HICKS; GALVIN SIZEMORE; RONALD
No. 94-7346
WILLIAMS, or Walter Williams;
DONALD WILMOUTH, Lieutenant,
Defendants-Appellants,
and
UNKNOWN PRISON GUARDS,
Defendants.
RODNEY WINFIELD,
Plaintiff-Appellee,
v.
G. L. BASS; KELVIN CARLYLE;
ANTHONY CLATTERBUCK; JAMES
HICKS; GALVIN SIZEMORE; RONALD
No. 95-6422
WILLIAMS, or Walter Williams;
DONALD WILMOUTH, Lieutenant,
Defendants-Appellants,
and
UNKNOWN PRISON GUARDS,
Defendants.
Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-94-217)
Argued: April 2, 1996
Decided: January 31, 1997
Before WILKINSON, Chief Judge, RUSSELL, WIDENER, HALL,
MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON,
LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Reversed by published opinion. Judge Wilkins wrote the majority
opinion, in which Chief Judge Wilkinson and Judges Russell, Wid-
ener, Niemeyer, Hamilton, Luttig, Williams, and Motz joined. Chief
Judge Wilkinson wrote a concurring opinion, in which Judges Rus-
sell, Widener, and Hamilton joined. Judge Motz wrote a concurring
opinion. Senior Judge Phillips wrote a dissenting opinion, in which
Judges Hall, Murnaghan, Ervin, and Michael joined.
_________________________________________________________________
COUNSEL
ARGUED: Lance Bradford Leggitt, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellants. Sa'ad El-Amin, EL-AMIN & CRAWFORD, P.C., Rich-
mond, Virginia, for Appellee. ON BRIEF: James S. Gilmore, III,
Attorney General, Pamela A. Sargent, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellants. Beverly D. Crawford, EL-AMIN & CRAWFORD, P.C.,
Richmond, Virginia, for Appellee.
_________________________________________________________________
OPINION
WILKINS, Circuit Judge:
Rodney Winfield, an inmate at a Virginia state correctional facility,
brought this action pursuant to 42 U.S.C.A. § 1983 (West 1994),
alleging that prison officials violated his constitutional rights under
2
the Fifth, Eighth, and Fourteenth Amendments by failing to protect
him from another inmate, T. Gibson, who attacked Winfield with a
metal shank. Specifically, Winfield claimed that the prison officials
exhibited deliberate indifference to his safety by failing to restrain
Gibson prior to the attack and by declining to intervene after the
attack began. Appellants--Warden G. L. Bass and Correctional Offi-
cers Kelvin Carlyle, Anthony Clatterbuck, James Hicks, Galvin
Sizemore, Ronald Williams, and Donald Wilmouth--appeal the
denial by the district court of their claim that they are entitled to sum-
mary judgment on the basis of qualified immunity. Because we con-
clude that the district court erred in refusing to grant summary
judgment in favor of Appellants, we reverse.
I.
The evidence presented by Appellants in support of their motion
for summary judgment set forth the following facts. Winfield and
Gibson were confined at the Greensville Correctional Center. Late on
the evening of February 3, 1993, Winfield, Gibson, and a third inmate
were conversing in a cell when a dispute developed between Winfield
and Gibson. A scuffle ensued that spilled out of the cell and onto the
second-floor tier of the prison. Responding to this disturbance, at least
six officers proceeded to the second floor. The fray had ended by the
time they arrived, however, because the inmates immediately dis-
persed when they saw the officers advancing. When the supervising
officer, Lt. Hicks, directed that Gibson be removed from the tier, the
other prisoners protested, insisting that Gibson had done nothing
wrong. Fearing that an attempt to move Gibson under these circum-
stances might result in a major disturbance, Lt. Hicks ordered all
except two of the officers to withdraw from the tier to prevent the
confrontation from escalating. Only Officers Williams and Walker
remained outside Gibson's cell; neither officer was armed.
At this point, events began to unfold swiftly. Gibson suddenly and
without warning emerged from his cell wielding a homemade knife,
striking Officer Williams in the face with his fist, knocking him back
against the second-tier railing. Gibson then bolted into Winfield's cell
three doors away. Officer Walker immediately radioed for assistance.
After Officer Clatterbuck, who was now on the first floor, observed
Gibson running from his cell, he instantly yelled out a warning that
3
Gibson had a knife. Officer Clatterbuck and the other correctional
officers present then hurried to the nearby control booth to obtain
batons and returned to the second tier.
In the meantime, once inside Winfield's cell, Gibson began swing-
ing the shank, striking Winfield. Before the prison staff responded,
another inmate, John Scott, entered Winfield's cell and, although
stabbed by Gibson, was able to wrestle the shank away from him. The
entire incident happened very quickly; only ten seconds were esti-
mated to have elapsed between the assault on Officer Williams and
Scott's successful effort to disarm Gibson. Order was restored, and
Warden Bass was advised of the disturbance.
In response to the prison officials' motion for summary judgment,
Winfield presented his affidavit and documentation from his inmate
grievance proceedings. These materials did not take issue with the
substance of the factual assertions set forth in the prison officials'
affidavits. They, however, did provide three additional allegations
concerning these events that had not been included in the officers'
submission and that, for purposes of summary judgment, should be
taken as true.
First, Winfield asserted that approximately one hour before the
attack, Gibson, Winfield, and two other inmates had been drinking
homemade wine. Moreover, he maintained that Lt. Sizemore and
Officer Clatterbuck observed this behavior during their rounds. Gib-
son had a brief conversation with these officers at that time and appar-
ently convinced them not to confiscate the wine.
Second, Winfield contended that when the inmates dispersed fol-
lowing his initial altercation with Gibson, he returned to his cell and
pressed a buzzer that sent an electronic signal to a central location to
indicate that he wished to have the door to his cell closed and locked.
Despite several attempts by Winfield to have the door secured, the
officers controlling the mechanism did not respond.
Third, and most importantly for our purposes, Winfield claimed
that in order to enter the cell to extricate the shank from Gibson, Scott
found it necessary to push past two officers who stood looking on
throughout the attack. Further, Winfield asserted that neither of the
4
officers attempted to provide assistance to Scott while he struggled
with Gibson for the shank.
Based on this record, the district court denied the prison officials'
motion for summary judgment. With respect to their claim that there
were no genuine issues of material fact necessitating a trial and that
they were entitled to judgment as a matter of law, the district court
reasoned:
After reviewing defendants' summary judgment motion and
plaintiff's brief and affidavit opposing the motion, the Court
finds that there are genuine issues of material fact in this
case. Indeed, the Court finds that this case is peculiarly fact-
specific and should thus proceed to trial on the merits.
J.A. 80. Turning to Appellants' argument that they were entitled to
qualified immunity, the district court opined:
It is axiomatic that individuals incarcerated in correctional
facilities are entitled to be kept secure, and that this right is
protected by the Eighth Amendment, the Due Process
Clause of the Fifth Amendment, and the Equal Protection
Clause of the Fourteenth Amendment to the United States
Constitution. Moreover, this fundamental right to security
certainly was "clearly established" at the time of the assault
on plaintiff. Furthermore, where it appears from the factual
allegations that prison inmates are allowed liberal access to
alcoholic beverages and dangerous weapons, corrections
officers are bound to know that the safety of other inmates
is at risk. . . . Thus, reasonable people in defendants' posi-
tion[s] would have known that their permissive attitude[s]
toward[ ] spirits and shanks would violate the inmates' right
to continued safety and security. Accordingly, the Court
rejects defendants' qualified immunity defense.
J.A. 81-82.
The prison officials filed an appeal from the portion of this deci-
sion denying their motion for summary judgment based on qualified
5
immunity. In addition, the district court certified for immediate inter-
locutory appeal the remainder of its summary judgment decision. See
28 U.S.C.A. § 1292(b) (West 1993). And, this court subsequently
entered an order permitting the permissive interlocutory appeal.
While the appeals were pending, the Supreme Court decided
Johnson v. Jones, 115 S. Ct. 2151 (1995), addressing the jurisdiction
of a federal appellate court to entertain an immediate appeal from a
refusal of a district court to grant summary judgment based upon
qualified immunity. Thereafter, relying on Johnson, a panel of this
court issued an opinion concluding that we lacked jurisdiction over
the appeal from the decision of the district court denying qualified
immunity to Appellants and that permission for the interlocutory
appeal of the remainder of the summary judgment order was granted
improvidently. Winfield v. Bass, 67 F.3d 529 (4th Cir. 1995). A
majority of the court subsequently voted to hear these appeals en
banc. Winfield v. Bass, Nos. 94-7346, 95-6422 (4th Cir. Jan. 5, 1996).
We first address our jurisdiction to entertain appeal number 94-
7346, which challenges the decision of the district court denying
Appellants' claim that they are entitled to qualified immunity. And,
concluding that we possess jurisdiction to do so, we turn to consider
whether the prison officials were entitled to qualified immunity.
Because our determination that the district court erred in refusing to
grant summary judgment to Appellants on the basis of qualified
immunity is dispositive of the questions presented to us, we need not
address appeal number 95-6422.
II.
Federal courts of appeals are granted jurisdiction to hear final deci-
sions of district courts pursuant to 28 U.S.C.A.§ 1291 (West 1993).
To the extent that an order of a district court rejecting a governmental
official's qualified immunity defense turns on a question of law, it is
a final decision within the meaning of § 1291 under the collateral
order doctrine recognized in Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. 541 (1949), and therefore is subject to immediate
appeal. See Behrens v. Pelletier, 116 S. Ct. 834, 836 (1996); Johnson,
115 S. Ct. at 2155-56; Mitchell v. Forsyth , 472 U.S. 511, 524-30
(1985).
6
Prior to the decision of the Supreme Court in Johnson, this court
had ruled that it was appropriate for a court of appeals to review a dis-
trict court order rejecting a defense of qualified immunity on either
of two conceptually distinct bases. Turner v. Dammon, 848 F.2d 440,
443-44 (4th Cir. 1988). We permitted officials who were denied sum-
mary judgment on the basis of qualified immunity to argue that the
district court had erroneously refused to enter judgment in their favor
because the evidence presented was insufficient to create a triable
issue of fact or because the right that the governmental official had
purportedly violated was not clearly established. Id. The Johnson
Court, however, rejected our prior practice. See Johnson, 115 S. Ct.
at 2154-59. Although the Court reiterated the position that the courts
of appeals possess jurisdiction to consider appeals from decisions
rejecting a proffered qualified immunity defense to the extent that the
district court ruled that the legal right the official purportedly violated
was clearly established at the time the action was taken, it held that
to the extent that the order of the district court rested upon a determi-
nation that the evidence presented was sufficient to raise a genuine
issue of material fact necessitating trial, the order is not a final one
from which an immediate appeal may be taken. Id.
An articulation of this distinction is rather straightforward, but an
application of it may prove to be more difficult. See Woolfolk v.
Smith, 81 F.3d 741, 743 (8th Cir. 1996) (per curiam). The Supreme
Court directed that in determining our jurisdiction in this area, we
should consider the order entered by the district court to assess the
basis for its decision. See Johnson, 115 S. Ct. at 2159. As the Court
recognized, however, a district court does not invariably provide a
clear basis for its decisions or set forth fully the facts on which its res-
olution is grounded. See id. And, even in those circumstances in
which a district court does supply both, difficulty in assessing the
threshold jurisdictional issue will remain because the determination of
whether the law was clearly established at the requisite level of partic-
ularity is an especially fact-bound legal inquiry. See Prosser v. Ross,
70 F.3d 1005, 1006 (8th Cir. 1995); Reece v. Groose, 60 F.3d 487,
490 (8th Cir. 1995). Moreover, all denials of summary judgment, by
definition, involve a determination that the evidence is disputed suffi-
ciently to raise a genuine issue of material fact for trial. See Behrens,
116 S. Ct. at 842; Fed. R. Civ. P. 56. And, inherent in every determi-
nation that a governmental official is not entitled to qualified immu-
7
nity is the legal determination that viewed in the light most favorable
to the nonmoving party, the official's conduct violated a clearly estab-
lished constitutional or statutory right. See Anderson v. Creighton,
483 U.S. 635, 638-41 (1987). Accordingly, each decision of a district
court denying a governmental official's request for summary judg-
ment based upon qualified immunity will encompass a determination
that the facts are sufficiently controverted to warrant a trial and that
the legal right purportedly violated was clearly established. Obvi-
ously, if a determination by a district court that genuine issues of
material fact warrant trial were sufficient to prevent us from exercis-
ing jurisdiction over an appeal from an order rejecting a qualified
immunity defense, we would never have jurisdiction over such
appeals--a result plainly at odds with Mitchell and its progeny. See
Behrens, 116 S. Ct. at 842.
Consequently, we conclude that we possess jurisdiction to consider
an appeal from a decision of a district court rejecting a government
official's claim of entitlement to qualified immunity to the extent that
the official maintains that the official's conduct did not violate clearly
established law. Alternatively, to the extent that the appealing official
seeks to argue the insufficiency of the evidence to raise a genuine
issue of material fact--for example, that the evidence presented was
insufficient to support a conclusion that the official engaged in the
particular conduct alleged--we do not possess jurisdiction under
§ 1291 to consider the claim and, therefore, may not do so absent
some independent jurisdictional base. See Johnson, 115 S. Ct. at
2156-58; see also Shinault v. Cleveland County Bd. of County
Comm'rs, 82 F.3d 367, 370 (10th Cir. 1996) (recognizing that juris-
diction is controlled by the portion of the order from which appeal is
taken and by argument on appeal); Sanders v. Brundage, 60 F.3d 484,
486 (8th Cir. 1995) (explaining that issues raised on appeal control
jurisdiction). In other words, we possess no jurisdiction over a claim
that a plaintiff has not presented enough evidence to prove that the
plaintiff's version of the events actually occurred, but we have juris-
diction over a claim that there was no violation of clearly established
law accepting the facts as the district court viewed them.
Here, Appellants did assert in part that the evidence presented by
Winfield was insufficient to raise a genuine issue of material fact
necessitating a trial (i.e., that the evidence was insufficient to support
8
his factual allegations),1 and to that extent, we lack jurisdiction pursu-
ant to § 1291 to consider it. Nevertheless, in denying the prison offi-
cials' motion for summary judgment, the district court plainly ruled
that Winfield's legal right to personal security was clearly established.
Moreover, Appellants made clear in supplemental briefing after
Johnson was decided, and in oral argument before this en banc court,
that they press the legal issue of whether the undisputed facts disclose
that reasonable officers would have understood that their conduct vio-
lated Winfield's clearly established legal rights. See Miller v.
Schoenen, 75 F.3d 1305, 1308-09 (8th Cir. 1996). We therefore pos-
sess jurisdiction under § 1291 to consider this latter question and turn
now to address it.
III.
Government officials performing discretionary functions are enti-
tled to qualified immunity from liability for civil damages to the
extent that "their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In analyz-
ing an appeal from the rejection of a qualified immunity defense, our
first task is to identify the specific right that the plaintiff asserts was
infringed by the challenged conduct, recognizing that the right must
be defined at the appropriate level of particularity. Taylor v. Waters,
81 F.3d 429, 433 (4th Cir. 1996). We then consider whether, at the
time of the claimed violation, this right was clearly established and
"`whether a reasonable person in the official's position would have
known that his conduct would violate that right.'" Id. (quoting
Gordon v. Kidd, 971 F.2d 1087, 1093 (4th Cir. 1992)).
Although Winfield made general allegations that his rights under
the Fifth, Eighth, and Fourteenth Amendments were violated, the gist
_________________________________________________________________
1 This is hardly surprising given that the initial briefing was completed
before the Supreme Court decided Johnson and that the prior decisions
of this court permitted Appellants to raise such a claim. In addition, in
this instance an independent jurisdictional basis existed to permit our
consideration of the claim because we had granted permission for an
interlocutory appeal after the district court entered an order certifying the
remainder of the summary judgment order for immediate appeal.
9
of his complaint is that the prison officials were deliberately indiffer-
ent to the serious and specific risk of physical harm posed to him by
Gibson; thus, the prohibition imposed by the Cruel and Unusual Pun-
ishments Clause of the Eighth Amendment and applied to the states
through the Due Process Clause of the Fourteenth Amendment is the
broad constitutional right that Appellants purportedly infringed. See
Wilson v. Seiter, 501 U.S. 294, 296-97 (1991). 2
The district court ruled that the right to personal security protected
by the Eighth Amendment was well established at the time the events
underlying this appeal transpired. But, it is axiomatic that defining the
applicable right at that degree of abstraction is inappropriate.
Anderson, 483 U.S. at 639-40. Rather,
the right the official is alleged to have violated must have
been "clearly established" in a more particularized, and
hence more relevant, sense: The contours of the right must
be sufficiently clear that a reasonable official would under-
stand that what he is doing violates that right. This is not to
say that an official action is protected by qualified immunity
unless the very action in question has previously been held
unlawful, but it is to say that in the light of pre-existing law
the unlawfulness must be apparent.
Id. at 640 (citation omitted); see Malley v. Briggs, 475 U.S. 335, 341
(1986) (Qualified immunity protects "all but the plainly incompetent
or those who knowingly violate the law."). Thus, we must inquire
whether the established contours of the Eighth Amendment were suf-
ficiently clear at the time of the attack to make it plain to reasonable
officers that their actions under these particular circumstances vio-
_________________________________________________________________
2 Because the specific constitutional standard applicable under the
Cruel and Unusual Punishments Clause of the Eighth Amendment sup-
plies an "explicit textual source of constitutional protection" for this
alleged infringement of Winfield's rights, we need not address a substan-
tive due process claim. Graham v. Connor, 490 U.S. 386, 395 & n.10
(1989). Further, because Appellants are not federal actors, our analysis
would be governed by the Fourteenth Amendment rather than the Due
Process Clause of the Fifth Amendment in any event. See U.S. Const.
amends. V, XIV.
10
lated Winfield's rights. In the context of this case, we ultimately are
called upon to decide whether it was clearly established in February
1993 that an unarmed prison official would be deliberately indifferent
to an inmate's need for safety if, during an attack by a prisoner armed
with a dangerous weapon upon another prisoner, the official instantly
mobilized to take control of the situation but failed to intervene
immediately. We conclude that it was not.
At the time these events occurred in 1993, it was clear that as a
component of their duty to provide inmates with humane conditions
of confinement, prison officials were required to"`take reasonable
measures to guarantee the safety of the inmates.'" Farmer v. Brennan,
114 S. Ct. 1970, 1976 (1994) (quoting Hudson v. Palmer, 468 U.S.
517, 526-27 (1984)). Further, it was well established that encom-
passed within that duty was a requirement that prison officials take
reasonable steps "`to protect prisoners from violence at the hands of
other prisoners.'" Id. (quoting Cortes-Quinones v. Jimenez-Nettleship,
842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823 (1988)); see
also Pressly v. Hutto, 816 F.2d 977, 979 (4th Cir. 1987). Knowledge
by prison officials of a sufficiently serious threat of physical harm
posed by other prisoners and deliberate indifference to such a risk
plainly amounted to a violation of the Eighth Amendment. See
Farmer, 114 S. Ct. at 1976-77 & n.2 (noting that Eighth Amendment
is violated by prison officials when two requirements met: (1) action
or inaction results in or creates a sufficiently serious risk of a depriva-
tion that objectively results in denial of the "minimal civilized mea-
sure of life's necessities" and (2) a "sufficiently culpable state of
mind"--here deliberate indifference) (internal quotation marks omit-
ted). Nevertheless, the Court has recognized:
[P]rison officials who actually knew of a substantial risk to
inmate health or safety may be found free from liability if
they responded reasonably to the risk, even if the harm ulti-
mately was not averted. A prison official's duty under the
Eighth Amendment is to ensure reasonable safety, a stan-
dard that incorporates due regard for prison officials' unen-
viable task of keeping dangerous men in safe custody under
humane conditions. Whether one puts it in terms of duty or
deliberate indifference, prison officials who act reasonably
11
cannot be found liable under the Cruel and Unusual Punish-
ments Clause.
Id. at 1982-83 (citations and internal quotation marks omitted).
We are unable to say that the contours of the Eighth Amendment
right, considered at the appropriate level of particularity, were estab-
lished sufficiently such that a reasonable official would have under-
stood, at that time or indeed today, that Appellants' response to
Gibson's attack on Winfield was unreasonable. Certainly, this court
had made clear that under some circumstances officials may be liable
for completely failing to take any action to avert an attack by one
prisoner on another when they knew that a substantial risk of harm
existed. See, e.g., Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir.),
cert. denied, 439 U.S. 970 (1978). However, the undisputed facts here
demonstrate3 that Appellants did not violate this clearly established
right of Winfield's. First, it is undisputed that none of the prison offi-
cials were aware that Gibson possessed a shank or posed a specific
risk to Winfield's safety prior to the moment Gibson emerged from
his cell.4 Thus, the correctional officers became aware of the risk of
_________________________________________________________________
3 Although summarily setting forth some of the facts, in judging
whether the officers' conduct violated clearly established law, the district
court apparently failed to recognize the materiality of other, undisputed
facts disclosed in the affidavits submitted by Appellants--particularly
those facts surrounding the actions taken by the various corrections offi-
cers in response to Gibson's attack on Winfield. Because the information
concerning the officers' actions that was revealed in Appellants' affida-
vits was not called into question by Winfield's opposing submission,
either directly or by an appropriate inference from the facts as asserted
by Winfield, we properly may consider these facts as undisputed for pur-
poses of addressing the legal issue presented. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986).
4 The district court concluded that reasonable officials in Appellants'
positions would have known that permissive attitudes toward alcohol and
dangerous weapons would violate Winfield's clearly established right to
physical safety. This reasoning is misdirected. In assessing whether
Appellants are entitled to qualified immunity, the court must inquire
whether reasonable officers in Appellants' positions would have recog-
nized that their conduct violated Winfield's rights. See Anderson, 483
12
harm, at the earliest, when Gibson emerged from his cell and
assaulted Officer Williams. See Farmer, 114 S. Ct. at 1982 (recogniz-
ing that lack of knowledge of the risk is a complete defense to charge
of deliberate indifference to a substantial risk of harm). Moreover, it
is undisputed that upon seeing Gibson emerge from his cell, the
prison officials immediately mobilized to take control of the situation.
Officer Walker radioed for assistance instantly. Officer Clatterbuck
called out a warning, and all of the officers who had returned to the
first floor immediately ran to obtain batons and then proceeded back
to the second tier to provide aid in ending the attack. Accepting the
undisputed fact that the officers began immediate preparations to
safely intervene in the attack as soon as they became aware of the
risk, the question becomes whether the two unarmed correctional offi-
cers who were present when the attack began violated a clearly estab-
lished right of Winfield's to have the officials immediately intervene.
Winfield is unable to point to any decisions establishing that an
unarmed prison official exhibits deliberate indifference to an inmate's
reasonable need for safety, or acts unreasonably, by failing to inter-
vene immediately in an attack by one prisoner armed with a danger-
ous weapon on another. Indeed, all of the authority of which we are
aware leads to the conclusion that such heroic measures are not con-
stitutionally required. See Prosser, 70 F.3d at 1008 ("[P]rison guards
have no constitutional duty to intervene in the armed assault of one
inmate upon another when intervention would place the guards in
danger of physical harm."); MacKay v. Farnsworth, 48 F.3d 491, 493
(10th Cir. 1995) (Failure to immediately intervene in physical attack
by one prisoner, who was wielding a shank, upon another held not to
_________________________________________________________________
U.S. at 640. Thus, the pertinent question is whether the law was clearly
established that a failure by prison officials to confiscate immediately
alcoholic beverages possessed by inmates (Winfield concedes that no
Appellant had any knowledge concerning possession of weapons) consti-
tuted an unreasonable response to a substantial risk to inmate safety.
Winfield points to no decisions even arguably supporting such a conclu-
sion, and our research has failed to disclose any. We hold that to the
extent that the district court based its decision on a failure to confiscate
the wine, Appellants were entitled to summary judgment on the basis of
qualified immunity.
13
amount to deliberate indifference in part because prison officials had
called for backup.); Arnold v. Jones, 891 F.2d 1370, 1372 (8th Cir.
1989) ("[U]narmed prison officials have no duty as a matter of law
to physically intervene in a prison fight which may cause them seri-
ous injury or worsen the situation . . . ."). The correctional officers
violated no clearly established right of Winfield's because they were
not required to risk serious bodily harm by entering, unarmed, into a
fray with an armed and violent assailant during the short period
before assistance arrived. The undisputed facts demonstrate that
Appellants' response to the risk to Winfield's safety was reasonable.
No clearly established law having been violated, the prison officials
were entitled to qualified immunity.5
IV.
It appears that the principal source of disagreement offered by the
dissent concerns our approach to determining the factual basis to
which we must look in resolving the legal question over which we
possess jurisdiction--perhaps the most difficult aspect of our review
of denials of qualified immunity in an interlocutory appeal and one
that has not yet been resolved conclusively by the Supreme Court. See
Johnson, 115 S. Ct. at 2159 (noting that question of how an appellate
court should determine "what set of facts to assume when it answers
the purely legal question about `clearly established' law" presents a
serious problem).
The Johnson Court recognized that it will often be possible for an
appellate court to utilize the facts that were assumed by the district
court in denying the motion for summary judgment. Id. But, the Court
also acknowledged that in some instances the district court will fail
fully to set forth the facts on which its decision is based. Id. In that
circumstance, the Court explained, "a court of appeals may have to
undertake a cumbersome review of the record to determine what facts
the district court, in the light most favorable to the nonmoving party,
_________________________________________________________________
5 Since the corrections officers who were alleged to have been directly
involved in the events cannot be found to have violated any clearly estab-
lished right of Winfield's, Warden Bass, who was not present and whose
only connection to the incident was his supervisory role over the officers,
cannot be held liable.
14
likely assumed." Id.; Behrens, 116 S. Ct. at 842. In our view, when
a district court fails fully to set forth the facts supporting its legal con-
clusion that a government official is not entitled to qualified immu-
nity, the court of appeals must review the materials submitted to the
district court to determine what the record, viewed in the light most
favorable to the nonmoving party, discloses in order to have a factual
basis upon which to base its legal conclusion.
The dissent, however, opines that in directing courts of appeals to
determine the facts that district courts "likely assumed," the Supreme
Court indicated that our task is not to attempt to divine what the evi-
dence viewed in the light most favorable to the plaintiff actually
showed. Rather, the dissent suggests that we should construct from
the record a set of facts that supports the legal conclusion reached by
the district court. See infra pp. 31-33. We cannot agree.
The rationale underlying the Johnson decision was that "precedent,
fidelity to statute, and underlying policies," namely "considerations of
delay, comparative expertise of trial and appellate courts, and wise
use of appellate resources, argue[d] in favor of limiting interlocutory
appeals of `qualified immunity' matters to cases presenting [neat]
abstract issues of law." Johnson, 115 S. Ct. at 2158. Essentially, the
Court concluded that there was little to be gained, incrementally, in
terms of providing additional protection to officials and much to be
lost in terms of appellate judicial resources by permitting interlocu-
tory appeals maintaining that a district court had erred in concluding
that the evidence presented was sufficient to raise a genuine issue of
material fact warranting trial. See id. at 2156-59. Accepting as the
Johnson Court did, however, that a "cumbersome review" of the
record must be undertaken when the district court fails fully to set
forth the facts upon which its decision was based, the concerns under-
lying the holding in Johnson do not counsel in favor of a conclusion
that our legal determination should be based upon some mythical set
of facts (i.e., a set of facts other than those shown by the evidence
actually viewed in the light most favorable to the nonmoving party)
that may or may not actually have been relied upon by the district
court. Instead, those concerns indicate that the legal decision should
be based upon a proper view of the evidence presented, taken in the
light most favorable to the nonmoving party. Indeed, the concerns of
avoiding unnecessary delay and wise use of judicial resources that led
15
the Johnson Court to its principal holding--that courts of appeals pos-
sess jurisdiction to decide only the abstract legal issues on interlocu-
tory review--persuade us that in determining what facts the district
court "likely assumed," we must determine what the evidence actually
shows when viewed in the light most favorable to the nonmoving
party.
Moreover, the Johnson Court indicated that this was the proper
course: In discussing the necessity of determining the factual basis
upon which our legal ruling will be premised when a district court
fails fully to set forth the factual basis for its legal conclusion, the
Johnson Court noted that "a rule that occasionally requires a detailed
evidence-based review of the record is still, from a practical point of
view, more manageable than" a rule requiring courts of appeals to
routinely conduct the same type of review. Id. at 2159. Thus, the
Court plainly envisioned that on those infrequent occasions when a
district court does not supply the factual basis for its decision, we
would be required to undertake the type of de novo review that gener-
ally would be prohibited.6
Furthermore, the dissent's suggestion that the correct view of the
factual record is not controlling in determining what the district court
"likely assumed," but that instead we should attempt to construct a set
of facts supporting the legal decision of the district court, presents an
absurd paradox. Employing the dissent's mode of analysis, we would
be required to affirm an obviously incorrect legal conclusion, based
on "assumed" and equally incorrect facts, simply because we would
be required to "assume" that the district court "likely" took an incor-
rect view of the facts in order to support the incorrect legal conclusion
it reached. And, this result, the dissent maintains, is compelled by the
Johnson decision--an opinion grounded in concerns of efficiency and
judicial economy. In our view, the position advocated by the dissent
surely cannot be the one the Supreme Court intended.
_________________________________________________________________
6 That is not to say that when the factual basis for the district court
decision denying qualified immunity is unclear, courts of appeals have
full jurisdiction to consider an appeal of a factual nature. Instead, consid-
eration of the factual record must be limited to determining the appropri-
ate factual basis for resolving the purely legal issue presented. We
recognize, of course, that in practice this distinction may be more theo-
retical than practical.
16
Finally, none of the other courts of appeals that have addressed
what the Supreme Court meant when it instructed that we must deter-
mine what the district court "likely assumed" have taken the approach
urged by the dissent. See Cottrell v. Caldwell , 85 F.3d 1480, 1491
(11th Cir. 1996) (reviewing record to determine whether genuine
issues of material fact existed when district court failed to set forth
the factual basis for its legal ruling); Heidemann v. Rother, 84 F.3d
1021, 1027 & n.4 (8th Cir. 1996) (concluding that a determination of
what district court "likely assumed" requires court of appeals to
undertake usual, de novo review of record to determine what evi-
dence, viewed in light most favorable to the nonmoving party,
showed).
Similarly, a question of the proper factual basis for our resolution
of the purely legal question over which we possess jurisdiction may
arise when a district court bases its decision on stated facts, but other,
undisputed, material facts are present that dictate the conclusion that
a governmental official is entitled to qualified immunity. For the same
reasons that support our conclusion that this court must look to the
actual evidence presented viewed in the light most favorable to the
nonmoving party when a district court fails to supply the factual basis
for its legal decision, we should not ignore other, undisputed, facts in
rendering our decision on the legal question. Taking account of an
undisputed fact in rendering a legal conclusion neither does violence
to "Cohen's conceptual theory of appealability" nor involves this
court in the type of weighing of the record that the Johnson Court
found unacceptable. Johnson, 115 S. Ct. at 2156-57. Further, a district
court does not possess any institutional advantage in the consideration
of an undisputed fact, and the acceptance of such a fact does not con-
sume significant appellate resources. See id. at 2157-58. On the other
hand, the failure to acknowledge an undisputed fact could result in
considerable delay and inefficiency--for example, if the failure to do
so results in the denial of qualified immunity in circumstances when
the consideration of the undisputed fact would result in an official's
entitlement to it.
In sum, we conclude that when a district court fails to set forth
fully the factual basis upon which its legal conclusion that a govern-
mental official is not entitled to summary judgment on the basis of
qualified immunity, this court reviews the evidence properly before
17
the district court for purposes of considering the summary judgment
question. It then determines what the evidence, viewed in the light
most favorable to the nonmoving party, demonstrated. This is the fac-
tual basis that the district court "likely assumed" in rendering its legal
conclusion and is the factual basis upon which this court must render
its decision on the purely legal issues presented in the appeal. Further-
more, when undisputed material facts are present that the district
court did not consider in ruling on the qualified immunity issue, this
court need not ignore those facts in rendering its legal decision.
REVERSED
WILKINSON, Chief Judge, concurring:
My dissenting colleagues believe they have found in Johnson v.
Jones, 115 S. Ct. 2151 (1995), a decision that will doom the defense
of qualified immunity once and for all. Hailing this development, they
do not let years of qualified immunity jurisprudence, the actual text
of Johnson, or the Supreme Court's explanation of Johnson in
Behrens v. Pelletier, 116 S. Ct. 834 (1996), stand in their way. Writ-
ing in this vein, the dissent reads Johnson to essentially destroy inter-
locutory appeals under Mitchell v. Forsyth, 472 U.S. 511 (1985). The
majority opinion rightly regards Johnson as an important but limited
decision which represents neither the termination of meaningful inter-
locutory review nor the demise of the qualified immunity defense.
The dissent, by contrast, would enfeeble the law enforcement function
specifically -- and public decision-making generally -- throughout
this circuit.
I.
The dissenting opinion has a technical tenor, but no one should
mistake its import. As the dissent would have it, Johnson virtually
abolished interlocutory appeals of denials of qualified immunity. In
actually applying Johnson, the dissent suggests that the only issue still
subject to interlocutory appeal is whether the legal right allegedly vio-
lated was "clearly established." Finding that Winfield had a "well-
settled" right as a prisoner to be "protected against physical harm at
the hands of fellow inmates resulting from the deliberate or callous
18
indifference of prison officials to specific known risks of such harm,"
the dissent concludes that our review under Johnson is complete.
This marks an ominous development for many public decision-
makers. Although the dissent is indefinite on the point, the only way
this judgment can be affirmed is on the belief that the mere allegation
of a clearly established abstract right suffices for a case to go to trial.
Whether the abstract legal right asserted by the plaintiff is "clearly
established" will rarely be the controversy in a denial of a qualified
immunity defense. The primary issue will almost always be whether
the given facts demonstrate that the right in question has been vio-
lated. The instant case illustrates the point. No one disputes the exis-
tence of the Eighth Amendment right alleged; the appeal turns instead
on whether undisputed facts disclose a violation of that right. If this
central question, whether given facts show a violation of established
law, is not subject to immediate appeal, a public official's right to
appeal denials of qualified immunity will be of less than little worth.
Even without regard to any other Supreme Court decision, Johnson
cannot be read as a rejection of interlocutory review and a reversal of
Mitchell v. Forsyth. Indeed, the Court's holding in Johnson was
premised on the fact that the "evidence sufficiency" question before
it was distinguishable from the qualified immunity issues subject to
interlocutory appeal under Mitchell. Johnson, 115 S. Ct. at 2156-58.
Furthermore, the plain language of Johnson does not support the
destruction of interlocutory review proposed by the dissent. The
Johnson Court reaffirmed Mitchell's ruling that an order denying a
defendant's motion for summary judgment is immediately appealable:
where (1) the defendant [is] a public official asserting a
defense of "qualified immunity," and (2) the issue appealed
concern[s], not which facts the parties might be able to
prove, but, rather, whether or not certain given facts show[ ]
a violation of "clearly established" law.
Johnson, 115 S. Ct. at 2155. The appellate review authorized under
Mitchell and Johnson thus involves two inquiries: (1) what constitutes
"clearly established" law, and (2) whether"given facts" demonstrate
a violation of such law. See McMillian v. Johnson, 88 F.3d 1554,
1562 (11th Cir. 1996); Shinault v. Cleveland County Board of County
19
Commissioners, 82 F.3d 367, 370 (10th Cir. 1996). And if this were
insufficiently clear, the Court repeated itself, stating that "the Mitchell
appeal involved the application of `clearly established' law to a given
(for appellate purposes undisputed) set of facts," and finding that a
district court's conclusion "that a given set of facts violates clearly
established law" is a "reviewable determination." Johnson, 115 S. Ct.
at 2156, 2159 (emphasis added).
The flaw in the dissent's interpretation of Johnson is evident from
its conclusion that the law has taken flight from the facts. The dissent
concludes that Winfield's Eighth Amendment right is"well-settled"
solely by examining Fourth Circuit precedent. But if the resolution of
Mitchell appeals requires no more than the incantation of abstract and
settled legal propositions, then Johnson's explanation as to how
appellate courts are to identify which facts are"given" for purposes
of review becomes meaningless. See Johnson, 115 S. Ct. at 2159. The
relevance of any legal proposition will not be clear until the facts to
which the proposition is applied become apparent. Inescapably, we
must say what the given facts are before we can determine "whether
or not certain given facts showed a violation of`clearly established'
law." Id. at 2155.
Despite finding the facts irrelevant to its own analysis of the instant
case, the dissent next discusses at great length how we are to identify
the "given" facts for purposes of interlocutory review under Johnson,
at least in those cases where the district court failed to set forth the
facts on which it relied.1 In such cases, Johnson contemplates that
appellate courts may be forced to engage in "a detailed evidence-
based review of the record." Id. at 2159. Acknowledging this, the dis-
sent insists that we may examine the record in such cases, but only
insofar as our review identifies facts which support the district court's
decision:
The best evidence, after all, of what a district court has
"likely assumed" as its predicate facts is not what the court
of appeals believes it should have assumed, but the district
_________________________________________________________________
1 The dissent thus finally addresses the facts of this case, but only after
conceding, solely for purposes of argument, that the court confronts a
reviewable issue.
20
court's legal determination that on the facts it did assume
(rightly or wrongly) a violation was shown.
Following the dissent's example, we apparently are to comb the
record for any scrap of evidence that could justify the trial court's
denial of immunity while deliberately ignoring undisputed facts
which suggest a contrary conclusion. This is not"review" but a com-
plete waste of time. District courts will simply cease explaining the
factual basis for their denials of qualified immunity, and appellate
courts will be left to rubber stamp their conclusions. We might as well
abolish Mitchell appeals altogether as they will become precisely the
"unwise use of appellate courts' time" that Johnson was trying to
avoid. Johnson, 115 S. Ct. at 2158.
The dissent thus stands the interlocutory review process on its
head. Instead of looking at the facts to determine whether clearly
established law was violated, we are to assume that the law was vio-
lated and construct a set of "given" facts to support that conclusion.
Again, the appellate role as envisioned by the dissent is not to review
district court decisions but to rationalize them. The Court in Johnson
said nothing of the sort. When a district court has not adequately set
out the factual basis for its decision, our review of the record of
necessity must be an independent one, and it is incredible to suggest
that we should do anything in undertaking it other than apply appro-
priate summary judgment standards.
II.
The infirmity of the dissent's analysis of Johnson is all the more
evident when considered in light of prior and subsequent precedent.
The dissent reads Johnson in a virtual time warp, completely disre-
garding the teaching of Anderson v. Creighton , 483 U.S. 635 (1987),
and relegating Behrens v. Pelletier, 116 S. Ct. 834 (1996), the
Supreme Court's single explanation of Johnson , to a footnote.
A.
The dissent's suggested resolution of this case is a veritable replica
of the Eighth Circuit decision rejected by the Supreme Court in
21
Anderson. The dissent states that the right to be "protected against
physical harm at the hands of fellow inmates resulting from the delib-
erate or callous indifference of prison officials to specific known risks
of such harm" was "well-settled" in this circuit at the time Winfield
was assaulted. Having made this observation, the dissent finds our
review to be complete, without considering whether the undisputed
facts entitle the defendants to qualified immunity. Similarly, the
Eighth Circuit in Anderson considered the generic right "to be free
from warrantless searches of one's home unless the searching officers
have probable cause and there are exigent circumstances." Anderson,
483 U.S. at 640. Concluding that this right was"clearly established,"
the Eighth Circuit refused to consider whether Anderson's specific
conduct violated that right and denied him qualified immunity. Id. at
640-41.
The Supreme Court, however, flatly rejected the notion that a court
can address the issue of qualified immunity without reference to the
given facts of a particular case. The Court held that the right the offi-
cial is alleged to have violated cannot be considered in the abstract
but "must have been `clearly established' in a more particularized,
and hence more relevant, sense: The contours of the right must be suf-
ficiently clear that a reasonable official would understand that what
he is doing violates that right." Id. at 640. The Court thus noted, "It
simply does not follow immediately from the conclusion that it was
fairly established that warrantless searches not supported by probable
cause and exigent circumstances violate the Fourth Amendment that
Anderson's search was objectively legally unreasonable." Id. at 641.
The Court recognized that if the question of qualified immunity could
be resolved without regard to given facts, "[p]laintiffs would be able
to convert the rule of qualified immunity that our cases plainly estab-
lish into a rule of virtually unqualified liability simply by alleging
violation of extremely abstract rights. Harlow [v. Fitzgerald, 457 U.S.
800 (1982),] would be transformed from a guarantee of immunity into
a rule of pleading." Id. at 639.
The dissent would hold that Johnson accomplished the very trans-
formation that Anderson forbade. Seeking to cut off interlocutory
review, the dissent phrases the right at issue in terms so general that
there will always be a sufficient allegation of a violation of clearly
established law. Every prisoner plaintiff can plead an Eighth Amend-
22
ment right to protection against fellow inmates. If such an abstract
iteration of the right suffices to conclude interlocutory review in favor
of the plaintiff, every district court denial of qualified immunity will
automatically lead to trial. The dissent thus precludes the possibility
that undisputed facts in the particular case will justify an award of
immunity.
B.
The dissent pays no more heed to Supreme Court caselaw subse-
quent to Johnson than it does to Supreme Court precedent prior to
Johnson. Behrens, the Supreme Court's single explication of Johnson
to date, is relegated to a footnote, perhaps because it represents an
apparently vain attempt on the part of the Supreme Court to foreclose
precisely the sort of over-reading of Johnson proposed by the dissent.
The main holding of Behrens, after all, is that public officers entitled
to claim qualified immunity may bring not one but two interlocutory
appeals on the question of immunity, 116 S. Ct. at 839, hardly the
action of a Court intent on what the dissent has termed a "dramatic
curtailment" of such appeals.
Even where contested facts exist, Behrens indicates that purely
legal issues remain which an appellate court can consider while
respecting the role reserved for trial courts by Johnson. "Denial of
summary judgment often includes a determination that there are con-
troverted issues of material fact, and Johnson surely does not mean
that every such denial of summary judgment is nonappealable."
Behrens, 116 S. Ct. at 842. When reviewing an interlocutory appeal
pursuant to Mitchell, Johnson instructs us not to reconsider a district
court's summary judgment order "insofar as that order determines
whether or not the pretrial record sets forth a`genuine' issue of fact
for trial." Johnson, 115 S. Ct. at 2159. We are not to second-guess a
trial court on questions of "evidence sufficiency." See id. at 2156. No
question of sufficiency is raised, however, when an appellate court
finds that the defendant is entitled to qualified immunity even on the
plaintiff's version of the facts. As the Seventh Circuit has noted, "If
there is no possible resolution of the [factual] disagreement that
would save the plaintiff's case from the defense of immunity, the
appellate court will not have to resolve any factual disagreements . . .
23
in order to determine whether the defense is good." Anderson v.
Romero, 72 F.3d 518, 520-21 (7th Cir. 1995).
Similarly, where the material facts are undisputed, an appellate
court's determination that the defendant officers are entitled to quali-
fied immunity does not require any reweighing of the evidence.
Appellate courts may determine whether genuinely disputed facts are
material without trespassing on the trial court's domain. Materiality
"is only a criterion for categorizing factual disputes . . . not a criterion
for evaluating the evidentiary underpinnings of those disputes."
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Unlike the
issue of genuineness, materiality therefore does not consider the suffi-
ciency of evidence supporting a fact but only a fact's legal relevance,
whether it "might affect the outcome of the suit under the governing
law." Id. Given undisputed material facts, the only remaining issue is
the "purely legal determination" whether the defendant's actions were
objectively reasonable, in which case "Johnson does not preclude
appellate jurisdiction." Lennon v. Miller, 66 F.3d 416, 422 (2d Cir.
1995).
In the instant case, the majority opinion thus appropriately finds
that the defendants were entitled to qualified immunity based on the
undisputed material facts. Most notably, the court finds that Gibson
had to get by the unarmed guard Williams in order to attack Winfield.
It is inconceivable that the defendants were deliberately indifferent to
a situation which placed one of themselves at risk, a risk that in fact
resulted in injury to Williams.2
Other circuits have declined to embrace the dissent's constriction
of the appellate role in enforcing qualified immunity. In Prosser v.
Ross, 70 F.3d 1005 (8th Cir. 1995), for example, the Eighth Circuit
reversed a denial of qualified immunity in a case that is the virtual
_________________________________________________________________
2 The dissenting opinion similarly misconstrues Gooden v. Howard
County, 954 F.2d 960 (4th Cir. 1992) (en banc), to the extent that it
implies that Gooden is inconsistent with Johnson and Behrens. As in this
case, the grant of summary judgment in Gooden rested on undisputed
facts regarding what the officers perceived at the time of the incident and
the objective reasonableness of their actions in light of those undisputed
perceptions. See id. at 964-66.
24
mirror image of this one. Prosser, an inmate, complained that Ross,
a prison guard, had failed to prevent or respond properly to an attack
on him by a fellow inmate. The district court stated, without explana-
tion, that there were issues of material fact which precluded granting
summary judgment. Forced to review the record itself, the Eighth Cir-
cuit held that it had jurisdiction under Johnson to consider Ross'
interlocutory appeal because "the facts required to determine whether
Ross is entitled to qualified immunity are not genuinely in dispute."
Id. at 1006-07. Based on the facts that the assailant was armed, that
the armed attack was unexpected, that Ross was alone, and that he
immediately sought help, the court found that Ross had responded
reasonably and could not have been expected to prevent the assault.
Other circuits have taken a similar approach to Mitchell appeals
and have not hesitated to correct the erroneous application of immu-
nity doctrine where the material facts were undisputed or where the
defendant was entitled to immunity even on the plaintiff's account of
events. See Foy v. Holston, 94 F.3d 1528, 1531 n.3 (11th Cir. 1996)
(awarding qualified immunity and finding that Johnson allows imme-
diate review to consider "whether, taking the facts in the light most
favorable to the plaintiffs, clearly established federal rights were vio-
lated"); Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996) (awarding
immunity and finding that Johnson allows immediate review when
the appeal concerns "whether certain given facts show a violation of
clearly established law"); Cantu v. Rocha, 77 F.3d 795, 802 (5th Cir.
1996) (awarding immunity and finding that Johnson allows immedi-
ate review when the appeal concerns only "whether an official's con-
duct was objectively reasonable in light of clearly established law" in
light of "a given . . . set of facts"); Anderson v. Romero, 72 F.3d 518,
520 (7th Cir. 1995) (partially awarding qualified immunity and find-
ing that Johnson allows immediate review"[i]f there is no possible
resolution of the [factual] disagreement that would save the plaintiff's
case from the defense of immunity"); Lennon v. Miller, 66 F.3d 416,
422 (2d Cir. 1995) (awarding immunity and finding that Johnson
allows immediate review where an appeal "poses only a legal ques-
tion about the objective reasonableness of the defendants' actions
under undisputed facts"); Sanderfer v. Nichols, 62 F.3d 151, 153 n.2
(6th Cir. 1995) (awarding immunity and finding that Johnson allows
immediate review because "the plaintiff's version of events, regard-
25
less of the sufficiency of the supporting evidence, does not state a
claim for [ ] a [constitutional] violation").
All of these circuit decisions followed Johnson . All of them
involved interlocutory appeals, and all resulted in reversal of a district
court's denial of qualified immunity. The dissent's report of the death
of interlocutory review would thus appear to be greatly exaggerated,
not to mention premature. As these cases illustrate, to adopt the dis-
sent's position would place the Fourth virtually alone among the cir-
cuits in refusing to consider whether given facts constitute a violation
of clearly established law.
III.
Only by ignoring the importance of interlocutory appeals to the
vitality of qualified immunity can the dissent read Johnson as a dra-
matic curtailment of Mitchell. The dissent tells us that although its
interpretation of Johnson "will sometimes force to trial public offi-
cials who, under a correct application of qualified immunity doctrine
should not be put to trial," this concern "simply must yield to `com-
peting considerations' of `delay, comparative expertise of trial and
appellate courts, and wise use of appellate resources.'" (Quoting
Johnson, 115 S. Ct. at 2158.) Application of legal doctrine to given
facts, however, is an appellate court's area of comparative expertise.
And Mitchell has already determined that interlocutory review to cor-
rect misapplication of immunity principles does constitute a "wise use
of appellate resources." Mitchell likewise indicated that any delay
caused by interlocutory review is necessary to give meaning to the
Supreme Court's constant admonition that "insubstantial claims
should not proceed to trial." Harlow, 457 U.S. at 816; see also
Behrens, 116 S. Ct. at 838; Hunter v. Bryant , 502 U.S. 224, 227
(1991); Burns v. Reed, 500 U.S. 478, 494 n.8 (1991); Anderson, 483
U.S. at 640 n.2; Malley v. Briggs, 475 U.S. 335, 341 (1986); Mitchell,
472 U.S. at 526; Davis v. Scherer, 468 U.S. 183, 195 (1984); Butz v.
Economou, 438 U.S. 478, 507-08 (1978).
Even the dissent acknowledges that there is a cost to permitting
trial of meritless suits against public officers, but it insists that such
costs must "simply be tolerated." The dissent trivializes the signifi-
cance of interlocutory appeals, assuring us, "When occasional error
26
does occur, its effect--of forcing unwarranted trial--is exhausted
there; the error is not immunized and may yet be corrected at trial or
on later appeal, with liability thereby avoided." Mitchell held the very
opposite: that qualified immunity "is an immunity from suit rather
than a mere defense to liability; and like an absolute immunity, it is
effectively lost if a case is erroneously permitted to go to trial."
Mitchell, 472 U.S. at 526 (emphasis added); accord Swint v. Cham-
bers County Commission, 115 S. Ct. 1203, 1208 (1995); Digital
Equipment Corp. v. Desktop Direct, Inc., 114 S. Ct. 1992, 1997
(1994); Puerto Rico Aqueduct and Sewer Authority v. Metcalf &
Eddy, Inc., 506 U.S. 139, 144 (1993); Wyatt v. Cole, 504 U.S. 158,
166 (1992); Hunter, 502 U.S. at 227; Siegert v. Gilley, 500 U.S. 226,
232-33 (1991); Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 499-500
(1989); Van Cauwenberghe v. Biard, 486 U.S. 517, 521 (1988). The
dissent assures us that post-trial appellate review can cure any defects,
but Mitchell authorized interlocutory appeals precisely because "[a]
district court's decision [to deny qualified immunity] is effectively
unreviewable on appeal from a final judgment." Mitchell, 472 U.S. at
526.
In thus construing Johnson to eviscerate interlocutory appeals, the
dissent engages in wholesale substitution of its own views for the
insistent teaching of Supreme Court precedent. The dissent simply
projects onto Johnson its own balance of the competing interests at
stake. Finding official accountability to the federal judiciary to be of
much greater importance than the societal costs of meritless lawsuits,
the dissent treats qualified immunity as nothing more than a "mere
defense to liability." Having done so, it places little significance on
interlocutory appeals and readily concludes that"competing consider-
ations" support the virtual elimination of such appeals. Seeking to
make rejections of immunity defenses unreviewable, the dissenting
opinion simply ignores the fact that the Supreme Court has long since
spoken on the balance between the relevant interests, and that we are
not free to revisit the question. The dissent's position might have been
appropriate for an advocate arguing Mitchell, but at this late date it
is only an argument for overruling Mitchell, which the Supreme Court
has not seen fit to do.
IV.
Interlocutory appeals of qualified immunity denials serve several
critical functions. They draw the line of demarcation between the
27
objectively reasonable exercise of official discretion on the one hand
and the violation of clearly established rights on the other. By requir-
ing review prior to trial, they also constitute a check on the reflexive
resort to trials that would eventually erode the exercise of official dis-
cretion and nullify the qualified immunity defense.
Discretion is thus at the core of what the interlocutory appeal pro-
tects. Not absolute discretion -- but limited, qualified latitude in mak-
ing judgments. If we are to have few interlocutory appeals and many
trials, the drastic expansion of litigation will mean the equally drastic
constriction of discretion. Yet every occupation-- be it teacher, par-
ent, corporate executive, or county clerk -- demands the exercise of
channeled discretion. Law enforcement is no exception. Officers
"routinely make close decisions in the exercise of the broad authority
that necessarily is delegated to them." Davis , 468 U.S. at 196. Deci-
sions involving public order "are more likely than not to arise in an
atmosphere of confusion, ambiguity, and swiftly moving events,"
Scheuer v. Rhodes, 416 U.S. 232, 246-47 (1974), and involve the
application of legal standards that are notoriously imprecise, such as
"probable cause" and "excessive force." Officers are not jurists; they
"must often act swiftly and firmly at the risk that action deferred will
be futile or constitute a virtual abdication of office." Id. at 246. Like
many executive officials, law enforcement officers thus are "called
upon to act under circumstances where judgments are tentative and an
unambiguously optimal course of action can be ascertained only in
retrospect." Butz, 438 U.S. at 500 n.28.
Under such conditions, even an official of the highest integrity and
competence will occasionally err. Without the protection of discretion
afforded by qualified immunity and interlocutory review, every mis-
take "`expos[es] such [officers] as have been honestly mistaken to suit
by anyone who has suffered from their errors.'" Barr v. Matteo, 360
U.S. 564, 571 (1959) (quoting Gregoire v. Biddle , 177 F.2d 579, 581
(2d Cir. 1949)). Public officers are irresistible targets for meritless
lawsuits. See Butz, 438 U.S. at 509-10; Imbler v. Pachtman, 424 U.S.
409, 425 (1976). From detention through incarceration, nearly every
type of law enforcement action is almost certain to invoke the ire of
its subject, providing a constant stream of potential plaintiffs with
recurring motives to sue. Onto this pyre of litigation, the dissent pours
28
yet more fuel, discarding one of the few deterrents to litigious action
that still exists.
The legal order that the dissent would construct risks rendering law
enforcement officers so fearful of lawsuits that they will simply cease
protecting the public. Cf. Wood v. Strickland , 420 U.S. 308, 319-20
(1975) (threat of liability will "undoubtedly deter even the most con-
scientious school decisionmaker from exercising his judgment . . . in
a manner best serving the long-term interest of the school and the stu-
dents"). After all, the safest course is not to exercise one's discretion,
but not to act at all. Doing nothing may not enforce the law or protect
the peace, but it most assuredly will minimize an officer's chances of
becoming a section 1983 defendant.3
If interlocutory review of immunity denials is no longer possible,
then extended discovery and trials of law enforcement actions will
become a way of life. Yet litigation is decidedly not what law
enforcement officers do for a living. Time in court is time off the
street. Whatever incentives may attract persons to the law enforce-
ment profession cannot include the prospect that every step one takes
may turn into a policeman's nightmare and a litigator's dream.
Perhaps fearing the arbitrary exercise of discretion, the dissent pur-
sues an ideal that will never exist, one where frequent trials of police-
citizen encounters will sustain every instance of proper official con-
duct, while excising with surgical precision every mistake. This
vision exists on an ever-receding horizon. The rule of law will not
flourish without the aid of law enforcement, and, until men become
angels, their discretionary actions will be accompanied by mistakes.
But authority in the position of continually having to justify itself will
not be able to assert itself. If the dissenting position becomes the law,
the search for the perfect will have become the lasting enemy of the
good.
Judges Russell, Widener, and Hamilton authorize me to say that
they join in this opinion.
_________________________________________________________________
3 As the circumstances of this case suggest, inaction is not an ironclad
defense against suit, but it will remain an official's most secure protec-
tion against constant trials in the absence of interlocutory review.
29
DIANA GRIBBON MOTZ, Circuit Judge, concurring:
I concur in the judgment and in Judge Wilkins' careful and narrow
opinion for the majority of the court. Of course, I recognize that the
court's holding is, as Judge Phillips' thoughtful dissent well demon-
strates, in some tension with the principles set forth in Behrens v.
Pelletier, 116 S. Ct. 834 (1936) and Johnson v. Jones, 115 S.Ct. 2151
(1995). However, I cannot conclude that when, as here, a district
court does not adequately set forth the facts it finds in dispute, the
Supreme Court intended that we determine the facts the district court
"likely assumed" other than by examining, in the light most favorable
to the plaintiff, the factual record before the district court and then
determining if those facts set forth a violation of clearly established
law.
I write separately simply to note that in this case we have no occa-
sion to reach the question of whether we are also at liberty to follow
this approach when the district court has adequately set forth the facts
it finds in dispute. That is, in this more usual case, do we have juris-
diction to go beyond the district court's holding and plumb the sum-
mary judgment record to make our own assessment as to what are the
material facts, taken in the best light for the plaintiff, or are we lim-
ited to the facts relied upon by the district court. Behrens and Johnson
would seem to hold that we must accept the facts as relied upon by
the district court. However, resolution of that question must await
another day.
PHILLIPS, Senior Circuit Judge, dissenting:
I differ fundamentally with the en banc majority's apparent under-
standing of what Johnson v. Jones, 115 S. Ct. 2151 (1995), has
instructed us on the scope of our jurisdiction to review interlocutory
orders denying motions by § 1983 defendants for summary judgment
on qualified immunity grounds. On my different understanding and
application of the jurisdictional principles of that decision, I would
hold that because this appeal seeks only to challenge a fact-related,
evidence-sufficiency determination it should be dismissed. Alterna-
tively, if it be considered that the appeal seeks also to challenge a
purely legal determination properly presented for our review--a
premise I believe not warranted--I would affirm the ruling.
30
I
To get at the difference in our understandings of Johnson, I start
by laying out my understanding of its holding and of its more impor-
tant implications for this case.
A.
Johnson was taken for review by the Supreme Court specifically
to clarify that which Mitchell v. Forsyth, 472 U.S. 511 (1985), had
held was immediately reviewable by interlocutory appeal from district
court orders denying summary judgment motions on qualified immu-
nity grounds. Clarification was required because some circuits--
including this one--had misunderstood Mitchell on this critical point.
See Johnson, 115 U.S. at 2154 (citing, inter alia, Turner v. Dammon,
848 F.2d 440, 444 (4th Cir. 1988), among cases reflecting erroneous
view of jurisdiction).
The basic point of clarification is clear. The only immediately
reviewable determination embodied in (or constituting the sole basis
for) such an order is the "purely legal one," see Johnson, 115 S. Ct.
at 2156, that if the facts were as the district court assumed them to
be for summary judgment purposes, defendant's conduct would have
violated a then clearly established constitutional (or statutory) right of
plaintiff of which a reasonable official in defendant's position would
have known. Id. at 2155-2156. Not immediately reviewable are "fact-
related," id. at 2153, determinations embodied in (or constituting the
sole basis for) the denial, that genuine issues of material fact respect-
ing the qualified immunity defense prevent the grant of summary
judgment. Id. at 2156-2158. The reasons for the reviewable/
not-reviewable distinction are found in the collateral order doctrine of
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), upon
which Mitchell is based, principally in Cohen's separability require-
ment: the "purely legal" issue is separable from the merits of the
§ 1983 claim; the "fact-related" issue inevitably will be intertwined
with the merits to some extent. Id. at 2156 (legal issue); 2157
("evidence-insufficiency" issue).1
_________________________________________________________________
1 A possible semantical problem in making the required conceptual dis-
tinction should be noted. Both of the issues that can be raised by motions
31
B.
How do these two different types of determination emerge in the
litigation process to provide the basis for this critical jurisdictional
distinction? The answer can best be found by keeping in mind the
substantive elements of the qualified immunity affirmative defense
and tracing out the adversarial processes of party presentation and
default by which those elements may be put in issue and withheld or
removed from issue at the trial and appellate levels. Recall first the
substantive anatomy of the qualified immunity defense. It is an affir-
mative defense--in the same confession-and-avoidance mode as
release, accord and satisfaction and the like--rather than a simple
denial of one or more of the essential elements of the § 1983 claim.
It invokes the immunity principle that even if the§ 1983 claim has
merit (which ordinarily will be denied) the defendant is not liable and
may not be put to trial because the right allegedly violated was not
one so clearly established at the time of the conduct charged to the
defendant that a reasonable official in his position would have known
_________________________________________________________________
for summary judgment on qualified immunity grounds--whether the
facts, as assumed, show a violation of a clearly-established right of
which a reasonable official in defendant's position would have known,
and whether there are genuine issues of material fact respecting a factual
basis for the defense--are issues of law whose resolutions require deter-
minations "as a matter of law." See Mitchell, 472 U.S. at 528 n.9
(whether violation shown); Anderson v. Creighton , 483 U.S. 635, 641
(1987) (whether genuine issues of material fact exist). The required dis-
tinction, therefore, is not between determinations"of fact" and determi-
nations "as a matter of law," but, as the Court put it, between "fact-
related" determinations (the genuine-issue determination), see Johnson,
115 U.S. at 2153, and "purely legal" determinations (that on facts
assumed, a violation is shown). See id. at 2156. That particular "legal
issues" may be so "fact-related" as not to be "pure" legal issues for par-
ticular procedural purposes is a general proposition that has been recog-
nized in other contexts. See, e.g. Griffin v. United States, 502 U.S. 46,
58-59 (1991) (insufficiency of evidence to convict on one of alternative
factual theories is not ground for vacatur of general verdict of guilt where
other ground is supported; though technically a"legal error," evidence
insufficiency involves a "mistake concerning the weight or the factual
import of evidence" that is not the kind of "legal error" concerning a
"mistake about the law" that would require vacatur).
32
that the conduct charged would violate that right. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). There are both legal and factual
elements in this defense-principle: purely legal issues respecting the
state of the law at a particular time and factual issues respecting the
circumstances under which the charged conduct occurred, such as
whether the defendant was involved at all or in the critical way
charged; whether there were exigencies affecting the objective rea-
sonableness of the conduct charged, etc. See Anderson, 483 U.S. at
641 (actual information possessed); Malley v. Briggs, 475 U.S. 335,
350 (1986) (Powell, J., concurring and dissenting) (exigencies of time
and circumstance).
A defendant invoking the defense in the district court by motion for
summary judgment may therefore base his motion on either purely
legal, or factual, or both grounds. See Johnson , 226 S. Ct. at 2158
(pointing out that motion's grounds serve to identify basis for its
denial). His motion may, for example, be rested solely on some vari-
ant of the following factual positions: (1) assuming (or conceding)
that the conduct charged to me would constitute a violation of clearly-
established constitutional right, etc., I didn't do it (the Johnson
defense); or (2) assuming (or conceding) that the conduct charged to
me did violate the right alleged, the factual circumstances were such
that I acted under reasonable misapprehension that it would not do so.
See Anderson, 483 U.S. at 646-47 n.6. Both of these positions present
only factual grounds for the immunity defense; no purely legal issue
has been raised in the district court, hence none is a potential issue
for appellate review. Whether summary judgment should be granted
depends entirely upon whether there are genuine issues of fact
respecting the ground of defense ("didn't do it," or "reasonably mis-
taken under the circumstances"), and a decision denying summary
judgment necessarily rests only on a determination that there are such
issues, i.e., that the non-movant's forecast of opposing evidence is
sufficient to hold the factual defense at issue. If the defendant then
attempts to appeal such a denial order, the appeal should be dis-
missed, as necessarily seeking review only of the"fact-related" deter-
mination which is the order's sole basis. This is the type of "simple"
case, for jurisdictional purposes, represented for example by Johnson
itself. See Johnson at 2153-2154, 2158.
On the other hand, a defendant's motion may be rested solely on
the "purely legal" issue. It would, for example, if it took the position
33
that (3) assuming (or conceding) that the conduct charged to me did
occur as charged, it did not constitute the violation of a then clearly
established constitutional right. See Mitchell , 472 U.S. 511, 535
(1985) (only issue would then be whether "question was open at the
time the officer acted"). This presents no "fact-related" issue, and a
denial of summary judgment by the district court would necessarily
rest only on a determination that as a matter of law the conduct
assumed or conceded did constitute violation of a well-established
right, etc. An appeal from this order thus lies for review of the "purely
legal" determination which necessarily is the sole basis for the denial.
This, too, is a "simple case" for making the jurisdictional distinction.
C.
But, as the Johnson Court recognized in responding to cogent argu-
ments that making the required jurisdictional distinction frequently
would be too conceptually difficult, or too subject to party manipula-
tion, or too subject to uninformative district court records, see id. at
2158-2159, things can get much more complicated for jurisdictional
purposes. This is most likely to occur where a defendant has rested
his motion on both purely legal and fact-related grounds in the district
court. For example, by contending in his motion both, or alternatively,
that (4) assuming the conduct charged to me did occur as charged, it
would not constitute violation of a clearly-established right, etc.
(purely legal) and, in any event, it did not occur in that way, but while
I was absent from the scene (fact-related). Whether or not cleanly
reflected in the record, every denial of such a two-pronged motion
must, as a conceptual matter, involve determinations both that the
conduct as charged did violate a clearly established right, etc. and that
genuine issues of material fact respecting the defendant's asserted
absence from the scene prevented granting summary judgment on that
ground. And, because it necessarily involves, whether or not
expressly stated, the purely legal determination, such an order, per
Johnson, is "appealable" (reviewable)"to [that] extent." Id. at 2156
(quoting Mitchell, 472 U.S. at 530). Which means that it is not "ap-
pealable" (reviewable) with respect to the fact-related, genuine issue
determination, either as a matter of primary or, except perhaps in
exceptional cases, pendent jurisdiction. See id. at 2159.2
_________________________________________________________________
2 Behrens v. Pelletier, 116 S. Ct. 834 (1996), provides an interesting
example of a case treated by the Supreme Court as involving such an
34
D.
Everything said to this point about the appealability (immediate
reviewability) of qualified immunity denials under Johnson has
assumed that the defendant will properly have invoked the court of
appeal's power to review that which Johnson says it may review. But
Johnson does not purport (nor does any other Supreme Court decision
of which I am aware) to alter for qualified immunity cases the normal
rules of party presentation and default of issues potentially subject to
appellate review. Therefore, notwithstanding the appealability under
Mitchell and Johnson of any purely legal determination embodied in
a qualified immunity/summary judgment denial, reviewability of such
an order in a particular case yet depends upon the defendant's having
properly raised it in the district court and preserved it for review
under the relevant trial and appellate procedural default rules. E.g.,
Fed. R. Civ. P. 46 (contemporaneous objection rule); Fed. R. App. P.
28(a)(2), 28(b) (issues for review must be identified in brief).
E.
This all means that when it appears from the record that a
defendant-appellant is seeking review of a determination that there
_________________________________________________________________
alternatively based motion and therefore a dually-based denial order.
Though principally concerned with whether under Mitchell public offi-
cials could successively appeal denials of 12(b)(6) motions to dismiss
and Rule 56 motions for summary judgment on qualified immunity
grounds, the Court had also to deal with the respondent's alternative con-
tention that the summary judgment denial order was not in any event
appealable under Johnson because it was expressly based on a determi-
nation that "[m]aterial issues of fact remain." Id. at 842 (internal quota-
tion marks omitted). Not so, said the Behrens Court: "denial of summary
judgment often includes a determination that there are controverted
issues of material fact . . .", id., but this does not mean that where, as in
the case at hand, the denial also "necessarily determined that certain con-
duct attributed to petitioner (which was controverted) constituted a viola-
tion of clearly established law," the latter determination also is not
appealable. Id. It is appealable under Johnson said the Court, which then
reversed the court of appeals' dismissal and remanded to that court to
undertake review of the purely legal determination. Id.
35
are genuine issues of material fact respecting a factual ground of his
qualified immunity defense ("didn't do it";"reasonably mistaken in
doing it") that require denial of his motion, the appellate court may
not address to any extent the correctness of that determination. Not
having jurisdiction to review it, the court may only dismiss the appeal
if, as in Johnson, the genuine-issue determination is the sole basis for
the denial, see Finelli v. Tabb, 67 F.3d 67 (4th Cir. 1995) (so hold-
ing), or decline to review it when the denial order is based upon both
a reviewable purely legal determination and the non-reviewable
genuine-issue determination. See Johnson, 115 S. Ct. at 2159 (no
jurisdiction to review an order "insofar as that order determines
whether or not the pretrial record sets forth a`genuine' issue of fact
for trial") (emphasis supplied).
Though, as the Johnson Court expressly noted, disallowing inter-
locutory review of erroneous genuine-issue determinations will some-
times deprive officials of the pre-trial and trial-avoidance benefits of
qualified immunity to which they are entitled, the jurisdictional limi-
tations on Cohen collateral order review power compel that result. See
id. at 2158.
F.
Assuming, however, that a purely legal determination is properly
presented for review, what exactly is reviewed? More specifically,
does the court of appeals accept the district court's identification of
the factual predicate for that court's legal determination and, accept-
ing it, review only the resulting "purely" legal determination? Or may
the court of appeals review for error in the district court's identifica-
tion of the factual predicate that it assumed for summary judgment
purposes? For example, suppose the district court expressly identifies
as the facts it assumed for summary judgment purposes that the
defendant, a prison guard, deliberately failed for twelve hours to
notify an available prison doctor that the plaintiff-inmate had suffered
a broken leg. May the court of appeals do more than consider
whether, on that factual predicate, there would have been a violation
of clearly established Eighth Amendment rights of which a reasonable
official in defendant's position would have known? Could it, for
example, reject the factual predicate, hence the legal determination,
on the basis that under summary judgment procedure rightly applied
36
it was undisputed that notice was given within three minutes of actual
knowledge?
Though the consequence may seem severe, Johnson 's answer is
plain. Review is confined to the "purely" legal issue whether, accept-
ing the district court's factual predicate, a violation of clearly estab-
lished law would have occurred. This appears in various ways in the
Court's explanation of why review must be confined, in faithfulness
to Cohen's jurisdictional limitations and to a proper allocation of trial
and appellate functions, to purely legal determinations rested upon
assumed factual predicates.
First off, the Court emphasized the jurisdictional compulsion to
confine review in this way. Interlocutory appeals of qualified
immunity/summary judgment denials, said the Court, best serve the
final judgment rule, "if they [are] limited to cases presenting neat
abstract issues of law." Id. at 2158 (quoting 15A Wright & Miller
§ 3914.10, at 664). As is evident, this legal issue can only be
addressed as an "abstract" one if its resolution does not involve
review by courts of appeals of the factual predicates upon which the
district court made its determination. This is borne out in Johnson's
discussion of how courts of appeal are to identify the factual predi-
cates for the district courts' purely legal determinations when those
courts "simply deny summary judgment without indicating their rea-
sons for doing so." Id. at 2159. Easily done, said the Johnson Court,
when the district court has expressly "stated" the facts it has assumed
in denying the motion. In that situation, said the Court, "the court of
appeals can simply take, as given, the facts that the district court
assumed," and assume the same "set of facts" "when it answers the
purely legal question about `clearly established' law." Id. And, where
the district court has not performed the helpful task of stating the facts
it has assumed so that this must be sought by the court of appeals in
"a cumbersome review of the record," the search still is only for
"what facts the district court, in the light most favorable to the non-
moving party likely assumed," id. (emphasis supplied), not for what
it should have assumed.3
_________________________________________________________________
3 Conceptually, abstraction into"pure" law occurs in the process of tak-
ing as a "given" or as "undisputed""for appellate purposes" the facts
37
Can the Court actually have intended interlocutory review to be
limited in this further way--that is, in addition to the genuine-issue
limitation? The consequence will be an inability of courts of appeals
to correct manifest district court error in identifying the facts properly
to be assumed for summary judgment purposes, and resulting error in
denying a defendant's entitlement to qualified immunity in advance
of trial. This is a serious consequence, but it is one no more inimical
to the purposes of qualified immunity than is the clear inability of
courts of appeals--under Johnson--even to address manifest district
court error in making "evidence-sufficiency" determinations.4 And, as
the Johnson Court pointed out, the fact that that flat jurisdictional lim-
itation will sometimes force to trial public officials who, under a cor-
rect application of qualified immunity doctrine should not be put to
trial, simply must yield to "competing considerations" of "delay, com-
parative expertise of trial and appellate courts, and wise use of appel-
late resources." Id. at 2158. In other words, occasional district court
error in denying summary judgment either on the grounds that there
_________________________________________________________________
assumed by the district court as predicates for its legal determination. See
Johnson, 115 S. Ct. at 2156, 2159; see also Behrens, 116 S. Ct. at 842
(public official may "claim on appeal that all of the conduct which the
District Court deemed sufficiently supported for purposes of summary
judgment met the Marlow standard of `objective legal reasonableness'")
(emphasis added).
4 As a moment's reflection will demonstrate, if de novo review of the
district court's identification of the factual predicates for its purely legal
determination is not precluded, courts of appeals can by that means
effectively engage in the very evidence-sufficiency review that Johnson
directly forbids. To ask the question what facts the district court should
have assumed in determining whether, applying the summary judgment
standard, they showed a violation of clearly established right of which a
reasonable official in defendant's position would have known, is indistin-
guishable in practical effect from the process of asking whether there
were, as determined by the district court, genuine issues of fact respect-
ing whether under the circumstances a reasonable official in defendant's
position would have known that his conduct would violate the claimed
right.
It is exactly by this back-door route that I believe the majority in this
case has effectively conducted the de novo genuine-issue review forbid-
den by Johnson. See Part II.B., post.
38
are genuine issues of fact respecting a factual ground of qualified
immunity defense ("didn't do it" or "reasonably mistaken") or in iden-
tifying the factual predicate for a purely legal ground of defense
("facts assumed don't constitute violation of well-established consti-
tutional right"), must, in deference to countervailing considerations,
simply be tolerated.
G.
In sum, I read Johnson as having confined interlocutory appellate
review of district court orders denying motions for summary judg-
ment on qualified immunity grounds to a narrow,"abstract" issue of
"pure" law: whether "tak[ing] as given" the facts assumed (rightly or
wrongly) by the district court, id. at 2159, those facts show a viola-
tion of clearly established law, etc. This means that interlocutory
review is not available with respect either to (1) determinations by
district courts that there are genuine issues of material fact respecting
a factual ground for the defense which require the denial or
(2) determinations by district courts of those facts that are to be
assumed, for summary judgment purposes, in deciding whether they
show a violation of clearly established right of which a reasonable
official in defendant's position would have known.
This involves a dramatic curtailment of the scope of interlocutory
review which was thought proper in this--and other--circuits before
Johnson's clarification of Mitchell. Our understanding, plainly
revealed in our cases, was that "fact-related," genuine issue determi-
nations as well as purely legal determinations were reviewable on
interlocutory appeals of right under Mitchell . See, e.g., Turner, 848
F.2d at 444 (4th Cir. 1988) (jurisdiction assumed to conduct de novo
record review of district court's determination that genuine issues of
fact respecting factual grounds of defense precluded grant of qualified
immunity motion; district court affirmed); Gooden v. Howard County,
954 F.2d 960, 965-966 (4th Cir. 1992) (en banc) (same; district court
reversed).
The more limited scope of review mandated by Johnson necessar-
ily will allow district court errors in these fact-related determinations
to go undetected at the summary judgment stage and so will deprive
some public official defendants of the trial avoidance benefits to
39
which qualified immunity entitled them. This, however, is a risk of
which the Johnson Court was expressly aware and which it thought
nevertheless compelled by jurisdictional constraints on collateral
order review and by considerations of prudent judicial administration.
See Johnson, 116 S. Ct. at 2158.
To put those risks in perspective, two points should be noted.
(1) The practical effect is not to abrogate but only to allocate to the
district courts final responsibility for two fact-related determinations
in pre-trial qualified immunity applications; errors in those determina-
tions will--as in all matters--be the rare exception rather than a fre-
quent occurrence in those courts. (2) When occasional error does
occur, its effect--of forcing unwarranted trial--is exhausted there;
the error is not immunized and may yet be corrected at trial or on later
appeal, with liability thereby avoided. In any event, as I understand
Johnson, its fundamental point is that the game--of laborious inter-
locutory evidence review--is simply not worth the candle--of identi-
fying and correcting the occasional district court error that will occur
both in identifying genuine issues of fact respecting factual grounds
of the defense and in identifying the factual predicates for denials of
summary judgment on purely legal grounds.
II
On this understanding of Johnson and its implications for this case,
I would dismiss this appeal on the basis that the appellants' appeal
only seeks review of the district court's unappealable fact-related
determination that there are genuine issues of material fact respecting
"what happened," hence of the objective reasonableness of their con-
duct.
Assuming, however, for purposes of this case that somehow--as
the majority has concluded--the appeal properly presents for our
review a district court determination of the purely legal issue--
whether on the facts assumed a violation of clearly-established law,
etc., was shown--I would affirm that determination.
I take these in order.
40
A.
On any fair reading of the record in this case, the only determina-
tion by the district court that appellants have sought to "appeal" is the
fact-related determination that there were genuine issues of material
fact respecting "what happened," hence whether what happened
involved their violation of a clearly established right, so that summary
judgment was inappropriate.
To demonstrate that, we should start with the appellants' motion
for summary judgment as made and supported in the district court.
See Part I.B. ante. In that motion, which sought dismissal both on the
merits and on qualified immunity grounds, the appellant-officers did
not, as I read the record, actually contend that as a matter of law Win-
field's complaint did not allege a violation of constitutional right, nor,
alternatively, that the right allegedly violated was not then clearly
established. Instead, as shown in their motion papers, they effectively
conceded that under such decisions of this court as Pressly v. Hutto,
816 F.2d 977, 979 (4th Cir. 1987), the right asserted by Winfield of
convicts to be "protected against physical harm at the hands of fellow
inmates resulting from the deliberate or callous indifference of prison
officials to specific known risks of such harm" was then well-settled
in this circuit. J.A. 14, 72. Their qualified immunity defense was
therefore not rested on the purely legal ground that assuming the con-
duct charged to them occurred, it would not have constituted a viola-
tion of that clearly established right. Instead, it was rested on the
purely factual ground that "the facts do not give us such a case here;"
that on the "actual" facts as asserted in their supporting affidavits,
their conduct could not have constituted violation of the acknowl-
edged right because it lacked the requisite deliberate indifference. See
id. This is a factual defense essentially indistinguishable from the
simple "weren't there, didn't do it" factual defense that was raised as
the sole basis for the officers' motion in Johnson.5 See Part I.B.ante.
_________________________________________________________________
5 Though a factual defense of this sort--"didn't do it," or "didn't have
the requisite intent"--goes as well to the merits of a § 1983 claim, its
assertion as the basis for qualified immunity dismissal is both conceptu-
ally sound and practically warranted. And it of course provides the most
complete example of an intertwining, hence inseparability for interlocu-
tory review purposes, of the claim on the merits and the qualified immu-
nity defense. See Johnson, 116 S. Ct. at 2157, 2158.
41
The district court's opinion denying the two-pronged motion,
though not as helpful for purposes of making the Johnson distinction
as we might wish,6 is plain enough for our purposes. The court's
memorandum opinion conflated its rulings on the merits and qualified
immunity grounds of the motion. As to the merits defense, which was
rested essentially on the same factual "no deliberate indifference"
grounds as was the qualified immunity defense, the court expressly
concluded that "there are genuine issues of material fact," that
"[i]ndeed . . . this case is peculiarly fact-specific and should proceed
to trial on the merits." J.A. 80.
Specifically addressing the qualified immunity defense, the court
then opined that the constitutional right asserted in Winfield's com-
plaint and responsive affidavit was--as appellants had effectively
conceded--well-settled at the time of the assault. 7 J.A. 81. Having
already determined, in ruling on the merits defense, that there were
_________________________________________________________________
6 Which is said with no implied criticism of the court. Under this
court's pre-Johnson precedents, neither litigants nor district courts were
on notice of any need for special precision in making and ruling on sum-
mary judgment motions on qualified immunity grounds. Under our unre-
stricted scope of review regime, we had no occasion to differentiate
between the fact-related and purely legal grounds of orders denying sum-
mary judgment, and litigants and district courts therefore properly felt no
compulsion to help us in that respect.
That we deal in this case--deemed by a majority of the court to be suf-
ficiently important for en banc consideration--with such an imprecise
record may well suggest the improvidence of that decision. Hard cases,
in the substantive sense, tempt courts to make bad law, and so may
poorly developed records, particularly those created under a procedural
regime which no longer controls on appeal. But--here we are.
7 Here is one of the anomalies that might be expected in a pre-Johnson
district court ruling in this circuit, and that probably will not recur under
the new regime. See note 6, ante. As indicated, the defendant officers did
not--certainly did not clearly--raise the "purely legal" issue in their
motion, instead apparently conceding or assuming it arguendo, in relying
solely on their factual defense. The district court's ensuing statement that
the right asserted was a well-settled one was therefore probably not tech-
nically a "determination" of a contested legal issue, but a passing com-
ment that could not have been thought in pre-Johnson days to have any
consequence for interlocutory review of the denial order.
42
genuine issues of material fact respecting "what happened," the court
did not expressly reiterate that conclusion with respect to the qualified
immunity defense. But it is manifest that the existence of genuine
issues respecting "what happened," hence whether the appellants'
conduct was as a matter of law objectively reasonable (not deliber-
ately indifferent), was the basis for the court's denial. For the court
specifically identified as controverted facts it considered material to
the defense Winfield's assertions in affidavit that some of the
appellant-officers were forewarned of the risk posed by Gibson to
other inmates' safety by their knowledge that he had a weapon and
had been consuming alcohol. Assuming that were true, the court
opined "the officers [were] bound to know that the safety of other
inmates was at risk" and that their "permissive attitude . . . would vio-
late the inmates' right to continued protection and security." Without
further elaboration on the factual issues, the court then denied the
qualified immunity motion.
It seems clear that at this point in the record the district court had
determined (rightly or wrongly) that there were genuine issues of
material fact respecting "what happened" that required denial of the
motion. It is less clear, but possible, that it had also made a "purely
legal" determination--thinking the issue had been raised--that on the
facts as it assumed them a violation of clearly established law of
which reasonable persons in the officers positions would have known
was shown. In any event, whatever the determinations actually made,
the officers could not under Johnson appeal the denial order insofar
as it rested on a genuine-issue determination, but only insofar as it
rested on any "purely legal" determination that was made. Further-
more, even if there was a purely legal determination that was appeal-
able, it is not entitled to review on this appeal--absent extraordinary
circumstances--unless properly presented for our review.
To take the next step in the jurisdictional inquiry we must then
determine from the record what issues the appellants have sought to
"appeal." How do we do this? The notice of appeal ordinarily will not
tell us; it is required only to identify the "order, or part thereof" from
which appeal is taken, and not the legal rulings on which it is based.
Fed. R. App. P. 3(c). So, the notice of appeal here does not perform
the required service. See J.A. 83. If the Federal Rules of Appellate
Procedure are properly observed, the appellants' brief should tell us,
43
for the "issues" section of the appellant's primary brief is required to
include "[a] statement of the issues presented for review." Fed. R.
App. P. 28(a)(3). The brief in this case regrettably does not do so.
With respect to the district court's denial of the motion for summary
judgment on qualified immunity grounds, the issue is stated in
unhelpful general terms simply as "whether the officers are entitled
to qualified immunity as to all of Winfield's claims." J.A. 8. We get
the answer here with sufficient precision, however, in the argument
section of the appellants' brief. There, in the portion devoted to their
qualified immunity defense, it is plain that the officers do not chal-
lenge (as they did not in the district court) the district court's observa-
tion (determination?) that the constitutional right alleged was "clearly
established" at the critical time, but only the court's essential determi-
nation that there were genuine issues of material fact respecting the
reasonableness of the officers' conduct. The entire burden of the
appellants' argument is that the evidence was insufficient to create a
triable issue of material fact on this element of their defense and that
on the undisputed evidence they had not violated Winfield's right by
their failure to intervene to protect him. J.A. 20-26. Their argument
on the point is summed up in the assertion that on the summary judg-
ment record, there was "[n]o dispute regarding the reasonableness of
. . . these officers' perceptions." J.A. 21-22.
The district court, however, determined that there was such a dis-
pute. And, because that fact-related determination is the only one
sought to be appealed by appellants and as such is not appealable
under Johnson, I would dismiss this appeal. 8
_________________________________________________________________
8 No one could suggest that this is one of those cases where, in an exer-
cise of our discretion, we should, because of special circumstances, con-
sider an issue not actually raised and determined by the district court. See
Singleton v. Wulff, 428 U.S. 106, 120-121 (1975) (general rule subject to
exception only in special circumstances such as the need to avoid "clear
injustice" or where "resolution is beyond any doubt"). This surely is no
such case. Indeed, the ambiguous record and novelty, for us, of the issues
presented strongly militate against using this case as a vehicle for defini-
tive exploration and application of Johnson's new (for us) appellate
review regime.
44
B.
The majority, however, has concluded that the appeal properly
seeks and properly presents for our review a purely legal determina-
tion that is appealable under Johnson. As indicated, I disagree with
that, believing (1) that no such issue was actually raised for determi-
nation by the district court and (2) that if it was, the district court's
determination has not been properly presented for our review on this
appeal.
Assuming, however, that such a determination was made and is
properly before us, I would affirm it. The question presented, if the
issue is before us, is whether the facts assumed by the district court
show a violation of clearly established right of which reasonable offi-
cials in appellants' position would have known.
The majority, extensively reviewing the summary judgment materi-
als before the district court, concludes that no such violation was
shown. But it is obvious that this conclusion is reached not on the
basis of the facts "likely assumed" by the district court, but on the
basis of facts the majority concludes should have been assumed by
that court on a right application of summary judgment principles.
Indeed, the majority says--in the course of directly responding in
Part IV of its opinion to the opposing position of this dissent--that
this is exactly what it has done. See ante at 16. And, it purports to find
authority for doing so in what it perceives as the course "plainly envi-
sioned" by the Johnson Court: that "on those infrequent occasions
when a district court does not supply the factual basis for its decision,
we would be required to undertake the type of de novo review that
generally would be prohibited." Id.
With all respect, this is not, as a simple matter of textual exegesis,
what the Johnson Court indicated that it"envisioned." Had it been
what was intended, the Court surely would have said a very simple
thing, such as: "When, however, the district court has failed (com-
pletely [?] or sufficiently [?]) to identify the predicate facts for its
purely legal determination, then, as a matter of necessity, the court of
appeals must make its own de novo determination, applying summary
judgment standards, of the predicate facts properly to be assumed."
The Court said no such thing, nor can such a reading be implied from
45
anything it did plainly say. Perhaps the majority--and the other courts
which it says agree with its reading of Johnson on this point--believe
that this is what the Court must have had in mind, or should have had
in mind, given the difficulty of divining from a summary judgment
record what another court "likely assumed." But that of course is not
our function in interpreting Supreme Court mandates. And, in any
event, as I believe can be demonstrated, the process is not that diffi-
cult for courts already required on occasion to divine the likely hold-
ings of highest state courts on matter of state law, or what "jurists of
reason" likely would think about the "newness" of a constitutional
rule, or whether four Justices of the Court likely would vote to grant
a petition for certiorari, etc.
Turning to that process here, the proper question for us is what
facts the district court "likely assumed" as that can be gleaned from
the admittedly unusual record search that Johnson recognized might
be forced by the district court's failure specifically to "state" them?
How do we find facts "likely assumed" without simply doing what the
majority has done here: simply impose on the district court the proper
factual assumption and review its legal determination for error on that
basis? Surely we must pay some attention--though we seek only what
was likely assumed rather than what should have been--to what sum-
mary judgment procedure properly applied would have identified as
the facts to be assumed in making the legal determination. That, after
all, must be taken as the process that guided the district court in iden-
tifying those predicate facts. But "likely" presumes the possibility of
error in that ultimate assumption, and error that must be tolerated in
order to confine interlocutory review within its"purely legal" bounds.
The best evidence, after all, of what a district court has "likely
assumed" as its predicate facts is not what the court of appeals
believes it should have assumed, but the district court's legal determi-
nation that on the facts it did assume (rightly or wrongly) a violation
was shown.
Seeking on that basis what facts the district court here "likely
assumed," as opposed to what it should have assumed on the sum-
mary judgment record, the answer seems plain to me. And, plainly to
support the court's determination that on those assumed facts, a viola-
tion was shown. My analysis would run as follows:
46
The district court's specific statement of the predicate facts it
assumed is meager: "it appears from the factual allegations that prison
inmates are allowed liberal access to alcoholic beverages and danger-
ous weapons"; corrections officers therefore were"bound to know
that the safety of other inmates was at risk." J.A. 81-82. Elsewhere,
however, as directly indicative of its reasoning, the court referred to
record materials that could show a number of material facts: that just
before the incident at issue, certain of the appellant-officers were
aware that Winfield and his eventual attacker, Gibson, had been
drinking wine with other inmates in Gibson's cell; that the plaintiff
and Gibson got into a fight but then went into their respective cells;
that the appellant-officers "could have locked the inmates in their
cells but failed to do so"; that "[s]hortly thereafter, Gibson apparently
ran out of his cell and struck [appellant] Williams with his homemade
shank" before entering Winfield's cell and stabbing him; that a third
inmate, Scott, intervened in the fight and subdued Gibson while "cer-
tain [appellants] watched Scott intercede but did nothing to assist
him"; and that the [appellants] assert that[appellant] Walker immedi-
ately signaled for help, but that the assault was over by the time other
officers arrived on the scene." J.A. 78-79.
Looking beyond these materials specifically identified by the court,
other portions of the record flesh out the court's apparent factual
assessment of the situation revealed. Winfield's affidavit asserted that
an officer Choice saw his original fight with Gibson but did nothing
until several other officers converged on the scene. J.A. 66-67. These
officers or at least some of them could be found to have known that
the inmates had been drinking, J.A. 69, and, according to the district
court, that they had easy access to weapons, J.A. 82. Following their
fight in the presence of some of the appellants, Gibson and Winfield
went to their cells, but the guards failed to take the obvious step that
would have put an end to any immediate danger; that is, close and
lock the cells. See J.A. 78 (District Court Op.). Even after Winfield,
by his own account, had several times pressed the buzzer that indi-
cated that he wanted his door closed and locked, the guards did noth-
ing and the door remained open. J.A. 67. Meanwhile, according to
Winfield, "Gibson was mouthing off to the officers as he went to his
cell making threats that he was going to `squash this now', referring
to me." J.A. 67. Some indeterminate but brief time after Gibson went
into his cell, he retrieved a shank and then reemerged from his cell.
47
Gibson then entered Winfield's cell and began to stab him as two
officers stood and watched. J.A. 68. At a later grievance meeting,
Williams stated that the reason he did not intervene was that a
Lt. Hicks had ordered the officers not to go into the cells. J.A. 68.
Neither the timing of nor the reason for that order, if it was given,
appear in the record. As two officers watched the stabbing in prog-
ress, a third inmate, one John Scott, pushed through the two officers
at the door to the cell and did intervene. Neither officer came to
Scott's aid, however. J.A. 68. According to this inmate, the officers
continued to stand by doing nothing even after Scott had gotten Gib-
son's weapon hand under control. J.A. 57. During this struggle with
Gibson, according to Scott, Scott asked for help from the guards, sev-
eral of whom were standing at the door "with enough man-power to
take control" if they had only been willing to respond to Scott's
request for help. But the guards were not willing to act. J.A. 57.
Of course, the appellants' summary judgment motion and support-
ing materials present an alternative factual scenario in which they are
completely blameless, certainly not deliberately indifferent to Win-
field's plight. The majority, accepting critical aspects of their account
as "undisputed" by any properly countering materials from Winfield
as non-movant, finds error in the district court's legal determination.9
But, as indicated, it is plain from the record that the facts as
asserted in the appellants' motion papers were not those "likely
assumed" by the district court. Instead, it is obvious that that court
assumed--and plausibly in this case assumed (though that is not
_________________________________________________________________
9 Incidentally, it bears noting that even if the court were properly con-
ducting a straight de novo review, it would not be justified in accepting
certain of the critical facts it relied on as "undisputed" because Winfield
as non-movant did not counter them head-on. Where, as was the case
here, a movant's forecast of critical evidence is undisputed for the obvi-
ous reason that it was in exclusive control of the movants (e.g. that no
guard knew that Gibson had a shank; that the guards followed proscribed
procedures when Gibson emerged from his cell), the nonmoving party
cannot be considered under obligation to deploy specific facts challeng-
ing the credibility of the movant's assertions. See 10A Wright, Miller &
Kane, Fed. Prac. & Proc.: Civil § 2726 at 120-21, § 2727 at 137-43
(1983). At the time these facts were said to have occurred, Winfield was
in his cell with no means of disputing them directly.
48
critical)--a quite different scenario adequately inferable from Win-
field's pleading and supporting materials. Under that "likely
assumed" scenario, prison guards who were aware that inmates in the
Winfield/Gibson cell-block area had access to alcoholic beverages
and that some possessed dangerous weapons, did nothing to put a stop
to conduct that they were bound to know posed a general risk of vio-
lence and harm to all inmates. Having witnessed a fight between Gib-
son and Winfield that occurred in that general atmosphere, some of
the appellant-guards deliberately chose not to lock the two in their
respective cells, either on their own initiative or in response to Win-
field's request for protection by sounding his alarm buzzer. When
Gibson then rushed out of his cell towards and into Winfield's where
he stabbed him repeatedly with a metal shank, none of the appellants
made any effort to intervene, though an opportunity was clearly pres-
ented to attempt prevention or interruption of the stabbing without
risk of any greater harm than is a normal incident to the official
responsibilities of the position occupied. In all this, the appellant-
guards involved, though aware of a serious risk that one prisoner
would harm another, adopted a stance of deliberate indifference to
that risk, choosing instead to leave the matter to be resolved by the
inmates rather than risk any harm to themselves.
If those "likely assumed" facts were established in proof--as they
might or might not be--the conduct involved would constitute viola-
tion of a clearly established right of which reasonable officials in
these appellants' positions would be aware. See Farmer v. Brennan,
114 S. Ct. 1970, 1976 (1994) (recognizing right as established in ear-
lier cases).
If this issue were properly before us, the district court's denial of
summary judgment on the basis of these assumed facts should, there-
fore, be affirmed.
III
Seeking to clarify that which, under collateral order doctrine, is
reviewable by appeal from interlocutory orders denying summary
judgment on qualified immunity grounds, the Supreme Court in
Johnson v. Jones recognized that making the distinction between
"fact-related" and "purely legal" determinations that the doctrine
49
required sometimes would pose conceptual and practical problems for
courts of appeals. Two of those problems (assuming the related issue
is before us for review) are presented in this appeal to a court for
which they are new issues under Johnson's new (for this court) appel-
late review regime. One is the problem of identifying the predicate
facts "likely assumed" by a district court in making its purely legal
determination that on those facts a violation of clearly-established
constitutional right has been shown when those facts have not been
expressly stated by the court. The other is the nature and scope of
review of that purely legal determination when it has properly been
appealed. In my view, the majority here has failed properly to apply
Johnson's teaching to either of these.
The first, fortunately, is not likely to recur too frequently. If this
case teaches anything, it is the special need for express statements by
district courts of the predicate facts they have assumed in ruling that
on those facts a violation of clearly-established constitutional right
has been shown. That lesson absorbed should spare us from more
cumbersome searches for facts "likely assumed."
The other problem--what it means when reviewing a district
court's purely legal determination to "take as given" the predicate
facts assumed by that court as the basis for its determination--will
persist. On that problem, the majority has now spoken but, with all
respect, wrongly in my view and with unfortunate consequences--
both for the courts and for § 1983 claimants, the deserving among
them as well as the undeserving.
Judges Hall, Murnaghan, Ervin, and Michael authorize me to say
that they join in this opinion.
50
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GO REALTY GROUP FL, LLC,
Appellant,
v.
PNC BANK NATIONAL ASSOCIATION,
Appellee.
No. 4D14-2726
[January 21, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Cynthia G. Imperato, Judge; L.T. Case No. 11-028599
(11).
David A. Strauss of The Strauss Law Firm, P.A., Fort Lauderdale, for
appellant.
Heidi J. Weinzetl of Robertson, Anschutz & Schneid, P.L., Boca Raton,
for appellee.
ON CONFESSION OF ERROR
PER CURIAM.
Upon appellee’s confession of error, we reverse the trial court’s order
dated June 19, 2014, denying appellant’s motion to quash service
of process. We remand the case to the trial court and instruct it to quash
the subject service of process. With respect to appellant’s motion for
attorney’s fees, we grant the motion contingent on appellant prevailing on
the merits of the case in the trial court. See Johnson v. Maroone Ford LLC,
944 So. 2d 1059, 1061 (Fla. 4th DCA 2006).
Reversed and remanded.
LEVINE, FORST and KLINGENSMITH JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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Filed 10/16/14 Bank of America v. Unit 73 Meadow Lane Partnership CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Mono)
----
BANK OF AMERICA, N.A., C072332
Plaintiff and Respondent, (Super. Ct. No. CV17200)
v.
UNIT 73 MEADOW LANE PARTNERSHIP et al.,
Defendants and Appellants.
In this skirmish of competing real property liens, we shall affirm the trial court’s
grant of judgment on the pleadings. Based on the plaintiff bank’s complaint and
judicially noticeable facts, we conclude that a homeowners association (and, hence, its
successor in interest, the defendants here), as a matter of law, had actual notice of
circumstances sufficient to put a prudent person on an inquiry that would have disclosed
that plaintiff bank had recorded its mortgage-based deed of trust before the homeowners
association recorded its assessment lien for unpaid homeowner fees. Consequently, the
homeowners association (and its successor, the defendants) had constructive notice as a
matter of law of plaintiff bank’s senior deed of trust. (Civ. Code, § 19.)
1
FACTUAL AND PROCEDURAL BACKGROUND
AND STANDARD OF REVIEW
Plaintiff Bank of America, N.A. (hereinafter Bank), filed this action (1) to reform
a deed of trust to correct an error in the legal description of the underlying real property
(the deed of trust erroneously describes the property as “Unit No. 72 of La Vista Blanc”
rather than the correct “Unit No. 73 of La Vista Blanc”); (2) to obtain declaratory relief
that the Bank’s deed of trust is senior to the security interest in the property claimed by
defendant La Vista Blanc Homeowners Association (hereinafter HOA); and (3) to
correspondingly quiet title to the property.
The trial court granted Bank’s motion for judgment on the pleadings against HOA.
After HOA appealed, it transferred its interest in the underlying real property—a
condominium unit in Mammoth Lakes (hereinafter Subject Property)—to
defendants/appellants Unit 73 Meadow Lane Partnership, 66 Meadow Lane Partnership,
and Unit 73 MLMM Partnership (hereinafter ML Partnerships).
In reviewing a plaintiff’s successful motion for judgment on the pleadings, we
review, like we do for a demurrer, the pleadings independently of the trial court, and
matters that may be judicially noticed, and determine whether plaintiff is entitled to
judgment. (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.)
Essentially, all allegations in HOA’s answer are deemed true, but not contentions,
deductions or conclusions of fact or law; and all disputed allegations in Bank’s complaint
are deemed untrue. (MacIsaac v. Pozzo (1945) 26 Cal.2d 809, 813; Kapsimallis v.
Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672.) We must reverse if the complaint
does not state facts sufficient to constitute a cause of action, or if the answer raises a
material issue or an affirmative matter constituting a defense. (MacIsaac, supra, at
pp. 812-813; Barasch v. Epstein (1957) 147 Cal.App.2d 439, 442-443 (Barasch).)
The operative complaint here is Bank’s first amended complaint. Given our
crimped standard of review and HOA’s denial, in its answer, of most of the material facts
2
alleged in Bank’s complaint, we are left—as HOA’s successor, ML Partnerships,
concedes—with only the following matters for our review: (1) the defense-admitted
factual allegation in the complaint that the proper legal description of the Subject
Property refers to “Unit No. 73,” not “Unit No. 72”; and (2) two documents of which we
can take judicial notice (and of which the trial court took judicial notice): (a) Bank’s
deed of trust, and (b) HOA’s assessment lien.
Bank’s deed of trust shows the following: On February 1, 2008, loan borrowers
Roland J. Proctor, Marianne Proctor, and Greg Proctor executed a $300,000 promissory
note to Bank, payable in full in regular periodic payments no later than March 1, 2038.
This loan was secured by a deed of trust on the underlying real property, recorded by
Bank on March 10, 2008. Besides specifying the borrower/property owners as named
above, the Bank’s deed of trust (1) set forth the address of the property (“122 Meadow Ln
#66, Mammoth Lakes, California 93546”); (2) next to this address, set forth the “Parcel
ID Number” of the property (“004001004007300”); and (3) in an attached exhibit A, set
forth the legal description of the property (consisting, as relevant, of a property
description of “Unit No. 72 of La Vista Blanc”; and a thrice-specified assessor’s parcel
number (APN) (“APN: 004001004007300”), which matched the Parcel ID Number and
which contained the correct unit number “73”).
As HOA admitted in its answer, the proper legal description for the Subject
Property is actually “Unit No. 73 of La Vista Blanc.”
HOA’s assessment lien shows the following: As of February 26, 2010, “owner[s]
Greg Proctor, Roland J. Proctor, [and] Marianne Proctor” had a total delinquent
homeowners assessment claimed by HOA of $3,271 (consisting of unpaid assessments of
$2,176, and additional late fees, attorney fees, and costs and interest of $1,095). HOA
recorded its notice of delinquent assessment lien (assessment lien or HOA’s assessment
lien) on March 9, 2010 (i.e., two years after Bank recorded its deed of trust). HOA’s
3
assessment lien specified (1) the property’s “[c]ommon address” as “122 Meadow Lane
Unit 73, Door 66, Mammoth Lakes, California 93546”; (2) the property’s APN as
“APN # 40-010-04-0073”; and (3) the property’s legal description, in an attached exhibit
A, in language matching the legal description in Bank’s deed of trust (including on what
pages of what books in the county’s recorder’s office the pertinent recorded maps could
be found), except HOA’s assessment lien described the property as “Unit No. 73 of La
Vista Blanc” while Bank’s deed of trust stated “Unit No. 72 of La Vista Blanc” (and the
assessment lien’s attached legal description, unlike that of the deed of trust, did not
restate the APN).
DISCUSSION
As noted, we must reverse this judgment on the pleadings if (1) Bank’s complaint
does not state facts sufficient to constitute a cause of action, or (2) HOA’s answer raises a
material issue or an affirmative matter constituting a defense. (Barasch, supra,
147 Cal.App.2d at pp. 442-443.)
I. Bank’s Complaint Sufficiently States a Cause of Action
Bank’s complaint alleges interrelated causes of action for reformation, declaratory
relief, and quiet title.
To succeed on its reformation action, Bank must show there is a mistake in the
deed of trust counter to what the parties to it intended, and the deed of trust can be
reformed (corrected) without prejudice to rights acquired by third persons, who have
acted in good faith, and for value, without actual or constructive notice. (Civ. Code,
§ 3399 [setting forth the requirements for reformation]; see 5 Miller & Starr, Cal. Real
Estate (3d ed. 2009) Recording and Priorities, § 11:50, p. 170.)
4
And, as relevant here, for Bank to obtain declaratory relief and to quiet title to the
Subject Property along these lines, it must show that its deed of trust is nonetheless valid
as well as senior to HOA’s assessment lien.
The issues, then, as to whether Bank has sufficiently established these three
interrelated causes of action (counts, actually) boil down to two issues (that must be
resolvable as a matter of law based on the pleadings and the matters judicially noticed):
(1) whether Bank has a valid deed of trust (the deed of trust’s seniority is not in dispute as
it was recorded two years before HOA’s assessment lien); and (2) whether HOA had
constructive notice of that deed of trust.
A. Bank Has a Valid Deed of Trust
The relevant parties to the deed of trust—Bank and the three borrowers, Roland,
Marianne and Greg Proctor—intended the deed of trust to apply to the Subject Property,
which is “Unit No. 73 of La Vista Blanc.” This is known, as a matter of law, because
Bank’s deed of trust and HOA’s assessment lien—a lien that indisputably applies to the
Subject Property—specify the same property owners (Roland J. Proctor, Marianne
Proctor, Greg Proctor), the same common address (down to the Subject Property’s door
number, “66,” which is the most common of common ways to identify a unit in this
condominium complex), and the same APN.
A deed of trust is considered valid, in terms of its property description, if it is
possible from the whole description of the property to ascertain and identify the property
at issue with reasonable certainty. (4 Miller & Starr, Cal. Real Estate (3d ed. 2013)
Deeds of Trust and Mortgages, § 10:19, pp. 103-104; 3 Miller & Starr, Cal. Real Estate
(3d ed. 2011) Deeds, § 8:61, pp. 164-165.) No particular form of description is required.
The property may be identified by an address or even by its descriptive name. (3 Miller
& Starr, supra, § 8:61, p. 165.)
5
Given the substantively identical property-identifying information as to owners,
common address, and APN that appears in both Bank’s deed of trust and HOA’s
assessment lien regarding the Subject Property, and further given that the correct APN
appears three times in the deed of trust’s mistaken legal description (unit “72”) of the
Subject Property and that the APN itself contains the correct unit number “73,” we find
that the deed of trust, as a matter of law, has an adequate property description and is
valid.1
B. HOA Had Constructive Notice of Bank’s Deed of Trust
Bank’s deed of trust, as the pleadings affirm, mistakenly describes the Subject
Property as “Unit No. 72 of La Vista Blanc” rather than “Unit No. 73 of La Vista Blanc.”
The question is whether Bank’s deed of trust can be reformed (corrected) in this respect
without prejudice to HOA’s assessment lien rights. (See Civ. Code, § 3399; 5 Miller &
Starr, supra, § 11:50, p. 170 [a written instrument can be reformed only if reformation
can be done without prejudice to rights acquired by third persons, who have acted in good
faith, and for value, without actual or constructive notice of a prior interest].) The
question of prejudice here involves whether HOA had constructive notice of Bank’s deed
of trust as a matter of law. We set forth the trio of legal principles that apply to this
question.
1 HOA’s successor, ML Partnerships, disagrees, relying on Revenue and Taxation Code
section 11911.1, which states in part, “The [APN] will be used only for administrative
and procedural purposes [as to local ordinances that require the number be stated on
documents for the documentary transfer tax] and will not be proof of title and in the event
of any conflicts, the stated legal description noted upon the document shall govern.” We
are not persuaded. While an APN alone is not the legal description or the proof of title of
a property for these documentary transfer tax purposes, an APN nevertheless can be
considered as part of an overall property description for deed validity purposes, and can
also be considered as a circumstance for constructive notice purposes (see pt. I.B. of this
opinion, post).
6
First, a preferential priority is given a property encumbrancer, termed a “bona fide
encumbrancer,” who acquires a lien interest in property in good faith and for value
without knowledge or notice of a prior interest. (5 Miller & Starr, supra, § 11:50,
p. 170.)
Second, regarding such knowledge or notice, “[e]very person who has actual
notice of circumstances sufficient to put a prudent man upon inquiry as to a particular
fact, has constructive notice of the fact itself in all cases in which, by prosecuting such
inquiry, he might have learned such fact.” (Civ. Code, § 19.)
And, third, “where th[os]e circumstances are such that only one conclusion [can]
reasonably be reached relative to their sufficiency for [putting a prudent person on
inquiry as to a particular fact], the question becomes one of law subject to ultimate
resolution by the appellate court.” (Southern Pac. Co. v. City & County of San Francisco
(1964) 62 Cal.2d 50, 56-57.)
Applying these three legal principles, we arrive at our answer. Given the
substantively identical property-identifying information as to owners, common address,
and APN that appears in both Bank’s deed of trust and HOA’s assessment lien regarding
the Subject Property and, further, given that the correct APN appears three times in the
deed of trust’s mistaken legal description (unit “72”) of the Subject Property and that the
APN itself contains the correct unit number “73,” we find that HOA, as a matter of law,
had actual notice of circumstances sufficient to put a prudent person upon inquiry as to
Bank’s deed of trust. Consequently, HOA, as a matter of law, had constructive notice of
Bank’s prior recorded, valid deed of trust and is not a bona fide encumbrancer in this
respect.
We conclude, then, as a matter of law, that Bank’s deed of trust mistakenly
specifies the unit number for the Subject Property, that the deed of trust is nonetheless
valid and is senior to HOA’s assessment lien, and that HOA had constructive notice of
7
that valid deed of trust; consequently, the deed of trust is reformable (“Unit No. 73” in
place of “Unit No. 72”). Accordingly, Bank has sufficiently established its causes of
action for reformation, declaratory relief, and quiet title.
One question remains: whether HOA’s answer raises a material issue or an
affirmative matter constituting a defense. (Barasch, supra, 147 Cal.App.2d at pp. 442-
443.) We turn to that question now.
II. HOA’s Answer Does Not Raise a Material Issue or an Affirmative Defense
Based on HOA’s answer, ML Partnerships (HOA’s successor), raises the
following issues on appeal, as quoted from its reply brief:
“1. The undisputed facts in this case are insufficient to meet the elements of
[Bank’s] causes of action;
“2. [Bank’s] claims are barred by the doctrine of laches;
“3. [Bank’s] claims are barred by the doctrine of estoppel;
“4. [Bank’s] deed of trust is void and unenforceable [because its legal description
of the Subject Property is inadequate];
“5. [Bank’s] deed of trust is not enforceable against [ML Partnerships] because
[HOA], [ML Partnerships’] predecessor in interest, was a bona fide [encumbrancer and,
hence,] purchaser;
“6. [Bank’s] motion for judgment on the pleadings . . . was in violation of the
California Code of Civil Procedure section . . . 438[, subdivision] (e) because the motion
was not timely filed; [and]
“7. Even if the Court disagrees with [ML Partnerships’] interpretation of the
foregoing issues, this Court should still reverse the trial court’s decision because there
8
was a reasonable probability that any defect could be cured by amendment to [the]
answer.”
We have already found against HOA (and hence, its successor, ML Partnerships)
on issues 1, 4 and 5. We shall now address issues 2, 3, 6 and 7, in order.
As for issue 2—laches—ML Partnerships relies on the facts that Bank recorded its
mistaken deed of trust on March 10, 2008, and did not file its action to reform this
document until December 30, 2010. As Bank points out, however, “[r]egardless of
whether or not [Bank] brought its legal action to correct the Deed of Trust within a
reasonable period of time, [HOA] was already on [constructive] notice of the Deed of
Trust [no later than when HOA recorded its assessment lien in March 2010] and therefore
cannot reasonably assert prejudice due to any purported delay by [Bank]” (as the defense
of laches requires—Getty v. Getty (1986) 187 Cal.App.3d 1159, 1170).
As for issue 3—estoppel—ML Partnerships relies on the equitable principle that
when one of two innocent persons must suffer a loss, the loss must be borne by the one
whose act or failure to act brought about the injury. (Jessup v. Cattle Center, Inc. (1968)
259 Cal.App.2d 434, 439.) However, ML Partnerships, HOA’s successor, is not as
innocent as it appears to portray itself; Bank is no more liable than HOA given HOA’s
constructive notice, as a matter of law, of Bank’s deed of trust.
As for issue 6—timeliness—ML Partnerships relies on Code of Civil Procedure
section 438, subdivision (e), stating that a motion for judgment on the pleadings may not
be made “within 30 days of the date the action is initially set for trial . . . unless the court
otherwise permits.” This action was initially set for trial on June 6, 2012. Bank made its
motion on July 11, 2012. There are two responses to this issue. First, the trial court
implicitly permitted Bank’s motion. Second, case authority, decided after the cited
statute was enacted, has stated that a motion for judgment on the pleadings—the success
of which requires dispositive question(s) of law centered on the pleadings—may be made
9
at any time either prior to the trial or at the trial itself. (Stoops v. Abbassi (2002)
100 Cal.App.4th 644, 650.)
And, finally, as for issue 7—amending the answer—given all we have said
previously, there is not a reasonable probability or possibility that HOA’s answer can be
amended to save HOA’s successor, ML Partnerships.2
DISPOSITION
The judgment is affirmed. Respondent Bank is awarded its costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1), (2).)
BUTZ , J.
We concur:
RAYE , P. J.
DUARTE , J.
2 The fact the trial court earlier had ruled, in denying Bank’s motion for summary
judgment, that the question of HOA’s constructive notice of Bank’s deed of trust was a
question of fact, does not alter our resolution of this appeal. A trial court is free to
reexamine such a ruling, as the trial court did here, in a subsequent motion for judgment
on the pleadings. (See Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.)
Paraphrasing that old adage, if a trial court cannot change its mind, how can the court be
sure it still has one. (See Edward de Bono, 1933.)
Finally, we would be remiss if we failed to note that Bank has cited and quoted in its
brief Selby v. Burtch (1987) 193 Cal.App.3d 147, for the proposition that constructive
notice is an issue of law, not an issue of fact. Although the Supreme Court denied review
of Selby on September 17, 1987, it also ordered Selby depublished. Citing depublished
cases as precedent is prohibited on appeal. (Cal. Rules of Court, rules 8.1115(a),
8.1125(c)(2).)
10
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719 F.2d 1367
FEDERAL LAND BANK OF ST. LOUIS, Appellee,v.John WILSON and Georgia Wilson, Appellants.The First State Bank of Newport, formerly The First NationalBank of Newport, Arkansas, United States Department ofAgriculture by and through Farmers Home Administration andBank of Newark, Appellees.
No. 82-1535.
United States Court of Appeals,Eighth Circuit.
Submitted Oct. 24, 1983.Decided Oct. 31, 1983.
David Hodges, Little Rock, Ark., for appellant.
Jerry Post, Batesville, Ark., Donald P. Raney, Lightle, Beebe, Raney & Bell, Searcy, Ark., and George E. Pike, Jr., Friday, Eldredge & Clark, Little Rock, Ark., George W. Proctor, U.S. Atty., Sherry P. Bartley, Asst. U.S. Atty., Little Rock, Ark., for appellee Federal Land Bank of St. Louis.
Before BRIGHT, ROSS and JOHN R. GIBSON, Circuit Judges.
ROSS, Circuit Judge.
1
Georgia Wilson appeals from the judgment of the district court1 rejecting her claims in a foreclosure action. The foreclosure action was an action against the United States pursuant to 28 U.S.C. Sec. 2410. This cause was removed from the Independence County, Arkansas, Chancery Court to the United States District Court pursuant to 28 U.S.C. Secs. 1441(b) and 1444, at the request of the United States of America, acting through the Farmers Home Administration (FmHA). Other parties in this rather involved and complex proceeding are: The Federal Land Bank of St. Louis (Federal), First State Bank of Newport (State Bank),2 Bank of Newark (Newark), John Wilson and Georgia Wilson.3
A. CLAIM OF FEDERAL:
2
On January 14, 1974, John and Georgia Wilson executed a promissory note to Federal in the sum of $20,000.00 with interest at the rate of 7 1/2% per annum. Under the terms of the note, Federal possessed the option to invoke a variable rate of interest if economic conditions warranted the action. Contemporaneously, the Wilsons executed a mortgage to Federal conveying the following property in Independence County to secure the promissory note:
3
Part of the West Half of Lot 5 of the Northeast Fractional Quarter of Section 5, Township 12 North, Range 4 West, of the 5th P.M., described as follows:
4
Commencing at the Southwest Corner of said Lot 5, thence East 264 feet to the point of beginning, thence North 330 feet, thence East 198 feet, thence South 330 feet, thence West 198 feet to the point of beginning.
5
On February 20, 1980, Federal filed a foreclosure action against the Wilsons in the Chancery Court of Independence County alleging that the Wilsons were in default in their payments on the note, that Federal had elected to accelerate the indebtedness and declare the entire principal indebtedness due, and praying for a judgment against the Wilsons for $21,828.10, interest due and reasonable attorney's fees.
6
Federal made State Bank, FmHA and Newark party-defendants, asserting that these defendants were necessary parties since each claimed a security interest in the property in question.
B. CLAIM OF NEWARK:
7
On March 10, 1980, Newark filed its answer and "cross-complaint" alleging that on June 19, 1978, John Wilson executed and delivered to Newark a promissory note for $10,500.00; and that on August 22, 1978, John and Georgia Wilson executed to Newark a deed of trust as security for the note to the extent of $7,556.75.
8
Newark alleged that John Wilson had failed to make payments as promised and requested a judgment in rem against the Wilsons for $7,556.75, interest at the rate of 10% per annum from August 22, 1978, and reasonable attorney's fees.
C. CLAIM OF FmHA:
9
John and Georgia Wilson obtained several loans from FmHA over a seven-year period. The initial loan was extended on January 9, 1974, and the most recent loan was made on February 24, 1978. On June 4, 1979, John Wilson filed a voluntary Chapter 7 bankruptcy petition; Georgia Wilson was not a party to this bankruptcy proceeding. When John Wilson filed his bankruptcy petition, FmHA was the holder of the following three unpaid promissory notes, each of which had been executed and delivered by John and Georgia Wilson:
10
DATE OF NOTE AMOUNT INTEREST RATE
------------- ---------- -------------
Feb. 20, 1976 $32,500.00 8 1/2%
Feb. 16, 1977 16,174.64 8%
Feb. 16, 1977 48,800.00 5%
11
The first two notes were secured by two junior real estate mortgages against the property involved in the foreclosure action (as well as a security interest in the farming equipment and crops of John Wilson and Georgia Wilson). The third note for $48,800.00 was secured only by farming equipment and crops.
12
In the fall of 1979, FmHA sought and obtained the abandonment by the bankruptcy trustee of the farming equipment in which FmHA had a security interest. The abandoned security items were sold at a public auction on February 12, 1980, and the net proceeds were applied to the Wilsons' FmHA account. On the date of the chattel liquidation sale, FmHA was still the holder of the three unpaid promissory notes mentioned earlier: the $32,500.00 and $16,174.64 notes, secured by junior real estate mortgages, and the $48,800.00 note secured only by perfected security interests in farming equipment and crops.
13
Instead of requesting the application of the liquidation sale proceeds to the $48,800.00 loan, which was secured only by the equipment which was sold, the FmHA county supervisor, who did not have custody of the Wilsons' file and assumed all three notes to be secured by real estate mortgages, instructed the FmHA finance office to pay the oldest loan in full and thereafter to pay the balance against the note bearing the higher rate of interest. Consequently, the net sale proceeds were initially credited to retire the $32,500.00 note and pay down the $16,174.64 note.
14
Realizing that the aforementioned allocation of the proceeds from the chattel sale was not in its best interest, FmHA, on January 23, 1981, reallocated the proceeds as follows: $19,573.37 as principal and $5,175.82 as interest to the note of February 20, 1976, and $12,855.57 as principal and $5,181.55 as interest to the note of February 17, 1977. The effect of the reallocation was to increase the unpaid balance on the reamortized note of February 16, 1977, from an unpaid balance of $3,323.49 as principal and interest at 8% per annum to an unpaid balance of $16,174.64 as principal and $6,519.03 as interest; and reduce the unpaid balance on the $48,800.00 note of February 17, 1977, from $26,354.67 as principal and $836.12 as interest to an unpaid balance of $9,130.73 as principal and $310.70 as interest.
15
FmHA did not seek any relief for the February 17, 1977 indebtedness in the foreclosure proceeding, since this note was not secured by the real estate involved.4
D. CLAIM OF GEORGIA WILSON:
16
Mrs. Wilson asserted that she was awarded possession of the real property in question under the divorce decree terminating her marriage to John Wilson; because of this, she maintained that the foreclosure action by the mortgagees, Federal, Newark and FmHA is subordinate to her claim and right to possession of the realty. Mrs. Wilson also challenged FmHA's and Newark's claims, asserting usury as an affirmative defense. The court rejected all of Mrs. Wilson's claims.5 On appeal, Mrs. Wilson contends that the district court erred:
17
1) in sustaining FmHA's reallocation of proceeds from the sale of certain collateral,
18
2) in excluding certain evidence concerning appellant's financial situation,
19
3) in holding that the Farm Credit Act of 1971 preempted Arkansas' usury laws, and
20
4) in denying appellant's claim to her residence and one half of a soybean crop.
21
I. Reallocation of Proceeds from Chattel Sale
22
The district court found that FmHA was not precluded from reallocating the proceeds from the sale of the farm equipment after discovering the mistake in the initial application. Appellant argues that the court erred; she contends that a creditor cannot change the application of proceeds once an account has been credited. In support of her argument, appellant cites 60 AM JUR 2d PAYMENT Sec. 86 (1972): "By mutual agreement, the debtor and creditor may change the application of a payment * * * but only if the rights of third parties are not prejudiced." In the case at bar, however, there is no risk of prejudice to any third party. The Bank of Newark originally contested the reallocation, but the district court rejected its claim, and the bank abandoned the claim on appeal.
23
A debtor desiring to avail himself of his right to direct the application of a payment must give the direction therefor either before or at the time of the payment; otherwise, the right is lost, because thereafter the money ceases to be his, and is no longer subject to his control. See St. Paul Fire & Marine Ins. Co. v. United States, 309 F.2d 22 (8th Cir.1962), cert. denied, 372 U.S. 936, 83 S.Ct. 883, 9 L.Ed.2d 767 (1963). Here, at the time the farm equipment was publicly auctioned, neither of the Wilsons requested that the FmHA appropriate the sale proceeds in any particular manner. A creditor can, absent clear direction otherwise, apply a payment from a debtor to any debt he chooses to maximize his security. Federal Deposit Ins. Corp. v. Freudenfeld, 492 F.Supp. 763, 770 (D.Wis.1980).
24
While it is often said that a creditor lacks the freedom to allocate involuntary payments made by a debtor that he has on receipt of a voluntary, unallocated payment, it is the right of the creditor to apply sums received from the debtor or for his account in such fashion as to give the creditor the utmost advantage of such security as the creditor may possess. And in the absence of any other creditor who would be prejudiced by such an allocation, the courts must respect this right of a secured creditor.
25
United States v. Pollack, 370 F.2d 79, 80 (2d Cir.1966).
26
We are mindful of the fact that reallocation is improper in some instances. Where an application of payment has been made and the debtor notified, the debt is discharged. Only assent of the parties can justify reapplication after the creditor has applied the payment and notified the debtor. Matter of S & W Exporters, Inc., 16 B.R. 941 (Bkrtcy.N.Y.1982). The district court pointed out, however, that the factor distinguishing the above case from the instant case is notice to the debtor. Here, the Wilsons had no notice of the misapplication and reallocation until after this litigation was commenced. In addition, Arkansas law recognizes a presumption that proceeds from a foreclosure sale will be applied to the indebtedness secured by the property sold:
27
When property is mortgaged to secure a debt, and afterwards this property is sold and the proceeds turned over to the mortgagee, the natural presumption is that both parties intend that the payment shall be applied on the mortgage debt, and the mortgagee has the right to apply the payment in that way, even though the mortgage debt be not due.
28
Lyon v. Bass, 76 Ark. 534, 89 S.W. 849 (1905). Furthermore, section III G of the security agreement involving the chattel and crops securing the $48,800.00 note provides in part:
29
Any payment made by Debtor may be applied on the note or any indebtedness to Secured Party secured hereby, in any order Secured party determines. (Emphasis added.)
30
The mere entry of a credit to a particular account is not conclusive evidence of an irrevocable application of the payment in the absence of notice to the debtor. In re Stacy, Wolf Hat Co., 99 F.2d 793 (2d Cir.1938); In re Automatic Equipment Mfg. Co., 103 F.Supp. 427 (D.Neb.1952). In the instant case the district court reasoned that the combination of the state law presumption, the creditor's contractual right and the absence of notice to the debtor provide the legal basis for FmHA's reallocation. We agree.
II. Evidentiary Rulings
31
Appellant contends that the court erred in excluding evidence regarding her financial situation. The trial court received appellant's testimony that she had no job, assets, or other source of income since her divorce in 1979. The court sustained an objection to the line of questioning; appellant's counsel then stated that he had completed his questioning on that point anyway. Appellant now argues that the testimony was relevant and crucial to the issue of reallocation.
32
The trial court has broad discretion in determining the relevance of proposed evidence, United States v. Johnson, 516 F.2d 209, 214 (8th Cir.), cert. denied, 423 U.S. 859 [96 S.Ct. 112, 46 L.Ed.2d 85] (1975); United States v. Mitchell, 463 F.2d 187, 191 (8th Cir.1972), cert. denied, 410 U.S. 969 [93 S.Ct. 1449, 35 L.Ed.2d 705] (1973), and the admission or exclusion of such evidence will be overturned on appeal only if the court has abused its discretion. United States v. Kills Crow, 527 F.2d 158, 160 (8th Cir.1975) (per curiam).
33
United States v. Williams, 545 F.2d 47, 50 (8th Cir.1976).
34
Aside from a general conclusory allegation, appellant makes no claim that would support a finding of abuse of discretion. In light of the cases cited in the preceding section regarding reallocation, it is difficult to envision how appellant's financial situation is of any consequence when pitted against the rights of a secured creditor. We find no abuse of discretion in the court's evidentiary ruling.
III. Usury
35
In trial and post-trial proceedings, appellant offered six arguments to prove that the Federal Land Bank's note and security were in violation of Arkansas' usury provision, Article 19, Section 13 of the Arkansas Constitution.6 The court declined to make a factual determination of whether any of the items listed by appellant generated an interest rate in excess of Arkansas' maximum rate of ten per cent per annum. Instead, the court based its decision on what we consider the pivotal issue: whether Congress intended to preempt the field of state usury laws when it enacted the Farm Credit Act of 1971, 12 U.S.C. Sec. 2001 et seq. The court held that state usury provisions are inapplicable in credit transactions involving Federal Land Banks. Appellant contends that this holding was erroneous, asserting three grounds: 1) that the Federal Land Bank is not a federal government agency, 2) that Congress did not intend to preempt state usury law in passing 12 U.S.C. Sec. 2015, and 3) that there is no conflict between the federal and state law in this situation.
36
The Federal Land Banks were established pursuant to the Farm Credit Act, 12 U.S.C. Sec. 2001, et seq. Federal Land Banks are appendages of the United States. This is clearly stated in 12 U.S.C. Sec. 2011: "The Federal land banks established pursuant to section 4 of the Federal Farm Loan Act, as amended, shall continue as federally chartered instrumentalities of the United States."
37
Appellant's second and third claims are equally lacking in merit.
38
As a general rule, there is no question that, when Congress legislates in an area in which it has constitutional authority, the laws of the states in the same field, to the extent that they are inconsistent with the federal law, must yield. International Union of United Automobile Workers v. O'Brien, 339 U.S. 454 [70 S.Ct. 781, 94 L.Ed. 978] (1950); Hanson v. Union Pacific R.R. Co., 160 Neb. 669, 71 N.W.2d 526 (1955).
39
Beatrice Production Credit Association v. Vieselmeyer, 376 F.Supp. 1391, 1392 (D.Neb.1973). Federal Land Banks set interest rates pursuant to 12 U.S.C. Sec. 2015, which provides:
40
Sec. 2015. Interest rates and other charges
41
Loans made by a Federal land bank shall bear interest at a rate or rates, and on such terms and conditions, as may be determined by the board of directors of the bank from time to time, with the approval of the Farm Credit Administration. In setting rates and charges, it shall be the objective to provide the types of credit needed by eligible borrowers at the lowest reasonable costs on a sound business basis taking into account the cost of money to the bank, necessary reserve and expenses of the banks and Federal land bank associations, and providing services to stockholders and members. The loan documents may provide for the interest rate or rates to vary from time to time during the repayment period of the loan, in accordance with the rate or rates currently being charged by the bank.
42
The statute plainly states that the directors of the bank will set interest rates with the approval of the Farm Credit Administration. There is no reference to state interest rate limits.
IV. Property Claims
43
Appellant submits that the court erred in denying her claim to possession of her residence unencumbered by the claims of all mortgagees. The court also denied her claim to one-half of the proceeds from the sale of a soybean crop. Appellant contends that she has dower rights in the residence and the soybeans.
A. Soybeans
44
The district court found that the state court, in dividing the Wilsons' property, intended to award John Wilson all the assets from the farming operation, to the exclusion of any claims of Mrs. Wilson. The divorce decree states: "(8) The Court finds [John Wilson] shall be entitled to the proceeds of any settlement or recovery on pending claims or lawsuits concerning the farming operation." Furthermore, it is settled Arkansas law that a husband may give a chattel mortgage in personalty without the consent of the wife; any dower interest of the wife is taken subject to the lien. Strang v. Strang, 258 Ark. 139, 148-49, 523 S.W.2d 887, 892 (1975).
B. Residence
45
The district court correctly denied appellant's claim to the residence. Strang v. Strang, supra, is dispositive: " * * * where property subject to division in a divorce case is mortgaged, each takes subject to the mortgage." Id. at 148-49, 523 S.W.2d at 893. The court correctly denied appellant's claim to the property.
46
We find no error in the district court's judgment and accordingly, we affirm.
1
The Honorable George Howard, Jr., United States District Court for the Eastern District of Arkansas
2
State Bank's claims were rejected by the district court; it is not a party to this appeal
3
John and Georgia Wilson, the payors and mortgagors on the notes and mortgages involved, were formerly husband and wife. This marriage was terminated by an absolute divorce decree of the Independence County Chancery Court on October 26, 1979
4
The real property involved in this action was abandoned pursuant to an order of the bankruptcy court dated January 9, 1980, after the bankruptcy court found:
(T)here is no reasonable basis to believe there is any equity above liens and that said property * * * is abandoned and disclaimed as an asset in this case.
5
Federal Land Bank of St. Louis v. Wilson, 533 F.Supp. 301 (E.D.Ark.1982)
6
Section 13 provides:
All contracts for a greater rate of interest than ten percent per annum shall be void, as to principal and interest.
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345 N.W.2d 800 (1984)
STATE of Minnesota, Appellant,
v.
Robert Dean McELHANEY, Respondent.
No. C8-83-1864.
Court of Appeals of Minnesota.
March 21, 1984.
R. Kathleen Morris, Scott County Atty., Shakopee, for appellant.
Mark W. Peterson, Minneapolis, for respondent.
Considered and decided by POPOVICH, C.J., and PARKER and LANSING, JJ., with oral argument waived.
OPINION
PARKER, Judge.
This is an appeal by the State contesting the November 15, 1983, order of the Scott County District Court allowing the defendant to withdraw his guilty pleas prior to sentencing. We affirm.
The issue on appeal is whether the trial court abused its discretion in allowing the defendant to withdraw his guilty pleas.
FACTS
Robert McElhaney and two co-defendants were charged with numerous theft-related offenses arising out of their operation of Valley Auto Plaza in Shakopee, Minnesota. After extensive plea negotiations, McElhaney pleaded guilty to four counts of felony theft by swindle. After a hearing in which the plea was tendered and the defendant questioned, the trial court postponed accepting or rejecting the plea and ordered a presentence investigation. Prior to the trial court's acceptance of the plea, the defendant moved to withdraw his guilty pleas pursuant to Rule 15.05, subd. 2, Minn.R.Crim.P. The trial court held a hearing on this issue and granted the defendant's motion on November 15, 1983. Pursuant to Rule 28.04, subd. 1, Minn.R. Crim.P., the State appealed from this order.
DISCUSSION
We believe that a defendant may withdraw his guilty plea prior to the judge's acceptance of the plea. The general policy favoring the finality of judgments in criminal cases is inapplicable before the plea is accepted. See Chapman v. State, 282 Minn. 13, 16, 162 N.W.2d 698, 700 (1968).
Our Rules of Criminal Procedure support this view. A judge may postpone acceptance of the plea until receipt of a presentence investigation. Rule 15.04, subd. 3(1). If the plea agreement is rejected, the defendant must be given a chance to withdraw the plea. Id.
Plea withdrawals are provided for in Rule 15.05. Subdivision 2 provides:
*801 Before Sentence. In its discretion the court may also allow the defendant to withdraw his plea at any time before sentence if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of his motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant's plea.
It is unclear whether this rule even applies to pleas that have not yet been accepted by the trial judge. Assuming arguendo that it does, it is evident that the trial court is given discretion in this area. The trial court found that "[n]o action has been identified by the State as one it took in reliance upon the defendant's plea which now operates to its prejudice."
"Reversal of an order vacating a plea of guilty is a rarity." Chapman, 282 Minn. at 20, 162 N.W.2d at 703.
DECISION
Our review fully supports the trial court; its finding that no prejudice was shown is not clearly erroneous. State v. Ulm, 326 N.W.2d 159 (Minn.1982). The State has not demonstrated specific actions taken in reliance on the plea. We need not address other points raised by the State.
Affirmed.
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691 F.2d 500
*U. S.v.Hodges
81-1362
UNITED STATES COURT OF APPEALS Fifth Circuit
10/25/82
1
N.D.Tex.
AFFIRMED
2
---------------
* Fed.R.App. P. 34(a), 5th Cir. R. 18.
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617 F.2d 602
Corte Construction Co.v.Pikeville Kentucky Public Hospital Corp.
78-3020
UNITED STATES COURT OF APPEALS Sixth Circuit
3/21/80
1
E.D.Ky.
AFFIRMED
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603 F.Supp. 138 (1985)
Ruth REDENBAUGH, Plaintiff,
v.
VALERO ENERGY CORPORATION, Defendant.
Civ. A. No. SA-83-CA-2088.
United States District Court, W.D. Texas, San Antonio Division.
January 21, 1985.
*139 Norman B. Smith, Greensboro, N.C., L. Bruce Fryburger, San Antonio, Tex., for plaintiff.
Shelton E. Padgett, Manitzas, Harris & Padgett, Inc., San Antonio, Tex., for defendant.
ORDER
PRADO, District Judge.
The matter before the Court is Plaintiff's Motion for Reconsideration of the Court's Order of November 7, 1984, granting Defendant's Motion for Dismissal or Summary Judgment of Plaintiff's State Tort Claim. Although still reluctant to exercise pendent jurisdiction over a state tort claim upon which Texas courts have not spoken, this Court will decline pendent jurisdiction for an additional reason lack of subject matter jurisdiction.
Several district court opinions have expressed concern over the incompatibility of purely equitable federal remedies with state legal claims and remedies. One such opinion by the Honorable John L. Kane, Jr., United States District Judge for the District of Colorado, offers a concise analysis for determining whether to exercise pendent jurisdiction in Title VII cases. The case of Haroldson v. Hospitality Systems, Inc., 596 F.Supp. 1460 (D.Colo.1984), presents issues very similar to the case at hand. Both Haroldson and the instant case are before federal courts under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. In addition, both plaintiffs allege state tort claims for which they seek compensatory and punitive damages and jury trials.
In determining whether to exercise pendent jurisdiction over related state claims, a two-step analysis must be utilized. First, a constitutional inquiry requires the existence of a substantial federal claim. If such is present, then both the federal and state claim must arise from a common nucleus of operative facts before a constitutional exercise of jurisdiction over the state claims is available to the Court. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Where the exercise of jurisdiction is proper under the Gibbs test, the Court must proceed to the second level of analysis and determine whether the statute upon which the federal claim is based negates the exercise of pendent jurisdiction. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978); Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976). See generally Comment, Aldinger v. Howard and Pendent Jurisdiction, 77 COL.L.REV. 127 (1977).
In Haroldson, Judge Kane concluded that while a Title VII claim meets the Gibbs constitutional test, the exercise of pendent jurisdiction over related state claims fails the statutory test of Aldinger and Owen. Haroldson v. Hospitality Systems, 596 F.Supp. 1460, 1461 (D.Colo.1984). The legislative intent to impliedly limit federal jurisdiction over state claims is evidenced by the limited equitable relief created for Title VII claims. Id; see also JongYul Lim v. International Institute of Metropolitan Detroit, Inc., 510 F.Supp. 722, 725 (E.D.Mich.1981); cf. Hannon v. Continental National Bank, 427 F.Supp. 215, 218 (D.Colo.1977) (adjudication of state claims circumvents scope of available remedies under Age Discrimination in Employment Act).
Judge Kane also found that a serious conflict with the federal policy underlying Title VII was forced upon the court when *140 pendant state claims necessitated procedural complications at trial. See Haroldson, supra at 1461. Compare id. (procedural differences negate subject matter jurisdiction over pendant claims) with Brown v. Blue Cross, 33 FEP 316, 317 (E.D.Mich. 1982) (pendent jurisdiction exists but not exercised due to procedural complexities if state claims heard). The addition of state claims with their corresponding proofs of damages expands the issues and frustrates the express intent of Congress to expedite Title VII claims. Id; accord Hughes v. Marsh Instrument Company, 28 FEP 702 (N.D.Ill.1981). This intent is further frustrated when a jury demand is filed.
This Court agrees with the foregoing analysis of Judge Kane and, therefore, DENIES plaintiff's motion to reconsider its previous order of dismissal of plaintiff's state claim.
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Electronically Filed
Intermediate Court of Appeals
CAAP-12-0000554
31-DEC-2012
09:01 AM
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119 N.J. Super. 94 (1972)
290 A.2d 300
MERCER COUNCIL #4, NEW JERSEY CIVIL SERVICE ASSOCIATION, INC., A NON-PROFIT CORPORATION OF THE STATE OF NEW JERSEY, APPELLANT,
v.
JAMES ALLOWAY, PRESIDENT NEW JERSEY CIVIL SERVICE COMMISSION, NEW JERSEY DEPARTMENT OF CIVIL SERVICE, AND THE NEW JERSEY CIVIL SERVICE COMMISSION AND THE NEW JERSEY DEPARTMENT OF CIVIL SERVICE, RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Argued March 20, 1972.
Decided April 28, 1972.
*96 Before Judges CONFORD, MATTHEWS and FRITZ.
Mr. Vincent J. Dotoli argued the cause for appellant (Mr. Joel I. Fern, attorney).
Mr. Theodore A. Winard, Deputy Attorney General, argued the cause for respondents (Mr. George F. Kugler, Jr., Attorney General, attorney).
PER CURIAM.
The question presented is whether the Civil Service Commission has not exceeded its statutory rule-making authority by promulgating an amendment of N.J.A.C. 4:1-3.8 authorizing the Chief Examiner and Secretary of the Commission, under the supervision and direction of the President of the agency, to assign to the various state operating departments outside Civil Service, on a one-year trial basis, duties and functions which the Civil Service Act imposes on and delegates to the Chief Examiner and Secretary himself, involving "classification programs, compensation programs, administrative procedures and promotional examinations in state service" (quoting from the rule amendment).
The expanded authority thus vested in the Chief Examiner and Secretary has been exercised by him by a limited subdelegation to the operating state departments, subject to certain reserved supervisory guidance and oversight by the *97 Commission itself, of functions of the type mentioned, for the period July 1, 1971 to June 30, 1972. This has been done in partial implementation of broad recommendations made by a Governor's Management Commission ("Field Commission"), acting pursuant to an Executive Order, which surveyed and reported upon a study of the functions and operations of the Executive Branch of the State Government in November 1970. This study, among many other things, criticized the efficiency of the fundamental organizational structure and operating procedures of the Civil Service Commission under the existing provisions of Title 11 of the Revised Statutes and recommended a complete reorganization of the Department of Civil Service and a substantial degree of what it denominates "decentralization" throughout the other state departments of personnel practices and procedures affecting State Government now vested in the Civil Service Department by statute. The merits of those recommendations are, of course, not now before us for review, but only the legality of the partial implementation thereof by the rule-making action of the Civil Service Commission aforesaid, taken without express legislative sanction.
It is initially useful to consider the degree of specificity of existing legislative provisions for performance of the subdelegated functions in question by the Commission and the Chief Examiner and Secretary.
That officer is required by N.J.S.A. 11:6-2(a) to establish and maintain a roster of all employees in the state classified service, recording titles of positions, rates of compensation, changes in status of employees, etc.; (b) to study and report to the Commission from time to time on rates paid in the Civil Service; (c) to regulate shedules of compensation; (d) to test and pass upon the qualifications of applicants for appointment to and promotion in the service, establish employment and reemployment lists, certify names of eligibles for employment and promotion, and numerous other ancillary administrative functions. N.J.S.A. 11:7-1 *98 details the requirements of the classification plan to be established by the Chief Examiner and Secretary and specifies that "the allocation of positions to the several classes by the chief examiner and secretary as provided by law and as approved by the commission, shall place each position to its proper class and each employee whose position has been so allocated shall assume and retain the classification title for his position." N.J.S.A. 11:7-5 requires the Chief Examiner and Secretary to certify as to the continuing need for existing positions and prohibits the creation of new positions until that officer has certified to the appointing department the necessity for such position.
In short, the Chief Examiner and Secretary, subject to the approval of the Commission, is vested by statute with primary, original, administrative authority and responsibility in the broad range of classification of positions, determination of compensation and working status and regulations, and of testing for appointment or promotion and certification of eligibles for either appointment or promotion in the whole range of the state classified service. Moreover, those duties and responsibilities are spelled out by the statute in considerable detail.
The foregoing is not to suggest that in some of the indicated respects it was not contemplated that the operating state departments should initiate requests for action by the Civil Service Department or that in many of them a good deal of cooperation between the other agencies and the Department was not envisaged, if not absolutely essential. But the operative effect of the particular action to be taken, in the categories mentioned, depends under the act upon the prior administrative decision or approval by Civil Service.
A summary of the subdelegation of functions and powers, previously exercised solely by Civil Service under the statute, effected by the President and Chief Examiner and Secretary of the Commission under the rule amendment, is as follows:
1. In the case of all employees at or below the salary range of $13,363 to $17,371, with the exception of certain specified *99 "key" titles, the operating department is given direct authority to reclassify and retitle positions. It uses for this purpose a manual of general guidelines supplied by Civil Service.
2. Certification of names for appointments from promotional employment lists is authorized to be done by the operating department.
3. The entire promotional examination process is to be conducted by the operating department whenever there are not in excess of ten interested eligibles beyond the number of vacancies to be filled.
4. The operating department is to issue promotional employment lists.
Dissatisfaction of an employee with any action in the foregoing categories is required to be appealed to the Department of Civil Service in writing within seven days of the action taken.
The Department of Civil Service will conduct periodic reviews of the general operation of the delegated functions by the operating departments and a total review of the experience under the rule change to determine whether it should be made permanent after July 1, 1972.
We are clearly of the view that the Department of Civil Service has transcended its legitimate rule-making power by the rule here adopted and its implementing subdelegations of classification and promotional functions to the operating departments. The general rule is that a power or duty delegated by statute to an administrative agency cannot be subdelegated in the absence of any indication that the Legislature so intends. R.H. Macy & Co., Inc. v. Director, Div. of Taxation, 77 N.J. Super. 155, 174-175 (App. Div. 1962), aff'd o.b. 41 N.J. 3 (1963). We find no indication from the statute or its general purposes and objectives of any legislative intent that the employee classification and promotional functions and duties expressly vested by the statute in the Commission itself, and particularly in the Chief Examiner and Secretary, or *100 any substantial portion of them, were intended to be permitted to be transferred by either the Commission or that officer to the very operating departments which are contemplated for control in respect of classification and promotional practices by the Civil Service Department. If the rule-making power extended that far, it would logically sustain extension in that manner of "decentralization" to testing for original appointments and without any of the limitations fixed for the delegated functions here involved.
The respondent argues such intent from the statutory power of the Chief Examiner and Secretary to appoint examiners, classifiers, etc., and such other employees as may be necessary to carry out the provisions of the statute. N.J.S.A. 11:6-1(a). However, this merely authorizes engaging assistants and employees to operate within the Department of Civil Service. Nor is there any comfort to respondent in N.J.S.A. 11:9-5, permitting the Chief Examiner to "obtain the assistance of other persons not on the regular staff of the commission, either within or without the classified service," in giving tests for the classified service. Here, again, the Department may hire technicians to aid it in the performance by itself of the administrative responsibility of testing.
The position of the respondent is not supported by the cases it cites sustaining the applicability of principles of flexibility and broad exercise of discretion in the manner by which the Civil Service Commission may exercise its responsibilities. They are not pertinent in the context of the issue presented by the present litigation. The specificity with which the subdelegated functions and duties in question have been allocated by the Legislature to the Commission itself and to its principal administrative officer, in the light of the general purposes of the Civil Service Act as a whole in constituting the Civil Service Department as the monitor of all other state agencies in order to achieve and maintain a merit system in career public employment, impels the view that the administrative functions here involved were *101 not intended to be transferred out of the Civil Service Department to the other operating state departments.
The foregoing is not to say that we agree with appellant's argument that the practice here challenged tends to destroy the basic civil service concept or that it violates the state constitutional provision for appointments and promotions in the state civil service according to merit and fitness and by competitive examination where practicable. N.J. Const. (1947), Art. VII, § I, par. 2. We are inclined to disagree with the position that the principles of merit and elimination of favoritism and partisanship in public employment are necessarily inconsistent with the course here taken. But we do not reach that question. It is enough that we think the Legislature has not authorized it, expressly or by reasonable implication. All reasonable intendment from the statute is to the contrary. Express sanction for a plan so far divergent from the existing statutory scheme should be sought from the Legislature.
The rule amendment is herewith reversed and set aside as invalid. However, in view of the substantial administrative reliance upon it to date, no administrative action heretofore taken pursuant to the rule or which may be taken within 45 days from the filing of the opinion herein shall be deemed invalid or otherwise affected by this decision. No costs.
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706 S.E.2d 111 (2011)
REGGLER
v.
The STATE.
No. A10A2067.
Court of Appeals of Georgia.
February 4, 2011.
*112 Cerille B. Nassau, Jonesboro, for appellant.
Tracy Graham Lawson, District Attorney, Ikechi A. Brumfield, Assistant District Attorney, for appellee.
BARNES, Presiding Judge.
A jury convicted Darren Reggler of burglary, and he appeals. He contends that the trial court erred in denying his motion to suppress and that the evidence is insufficient to sustain his conviction. For the reasons that follow, we affirm.
1. When reviewing a ruling on a motion to suppress, we accept a trial court's findings as to disputed facts unless the findings are clearly erroneous, but if the evidence is uncontroverted and no issue of witness credibility exists, we review de novo the trial court's application of the law to undisputed facts. Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994).
Reggler moved to suppress any evidence illegally seized during the investigation of this crime, including his own statements. He argued that the officer who found him on the scene arrested him without probable cause or a warrant, in violation of his Fourth Amendment rights. At a hearing on the motion, the officer testified that when she responded to a burglary alarm at a townhouse, she found Reggler walking around the building from the back. When she asked what he was doing there, he replied that he lived in the building and had put his dog inside through his back door. The officer asked why he let his dog in the back door but was walking around to the front, and he responded that he lived there and that was his right. The officer checked Reggler's identification, confirmed that he lived in the townhouse next door to the one with the alarm, and asked him to wait in front while she looked at the back of the building. She saw that Reggler's back yard was fenced in but the back yard of the townhouse with the alarm was not, and the screen in a window *113 adjacent to the back door was bent and broken. Seeing that the window was open, the officer returned to Reggler and said she was going to detain him because his actions were suspicious.
The officer was alone, and she placed Reggler in handcuffs, patted him down for weapons, and placed him in the back of her police car until backup arrived. When other officers arrived, they entered the townhouse and found a television on the floor in the foyer by the front door, the area where the initial audible alarm had indicated movement, and a remote control in Reggler's pocket operated the television. A shoe print near the broken back window matched Reggler's shoes. The investigating officer formally placed Reggler under arrest for burglary.
In denying Reggler's motion to suppress, the trial court concluded that the investigating officer had a reasonable, articulable suspicion sufficient to justify detaining him until backup arrived and the officer could investigate further. The court further concluded that, after discovering that the remote control in Reggler's pocket operated the television on the floor by the front door inside the townhouse and that his shoes matched a print found near the open window in the back, the officer had probable cause to place Reggler under arrest.
For Fourth Amendment purposes, we divide police-citizen encounters into three levels of interaction. Williams v. State, 269 Ga.App. 616, 617-618, 604 S.E.2d 640 (2004). At the first level, a police officer may approach someone with no particularized suspicion of wrongdoing and ask questions, as long as the officer does not detain the person. Id. At the second level, an officer may briefly seize a person for investigation if the officer has a particularized and objective basis for suspecting he is involved in criminal activity. Id. At the third level, a full-scale arrest must be supported by probable cause. Id.
Reggler contends that when the officer took his driver's license and checked for outstanding warrants, he was briefly detained for investigation, but that when he was handcuffed and placed in the police car, he was under a "full scale arrest" made without probable cause. Therefore, he asserts, any evidence seized as a result should have been suppressed. The State responds that the trial court properly found that Reggler was not under arrest at this point, but was being detained for further investigation.
In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court noted that "the limitations placed upon a brief investigatory stop depend[] on the facts and circumstances [and] would have to be developed on a case-by-case basis, with the touchstone being always the reasonableness of the officer's conduct." White v. State, 208 Ga.App. 885, 888(2), 432 S.E.2d 562 (1993). In White, an officer waiting for backup handcuffed a suspect and placed him in the back of a police car while he further investigated a check forgery case. Id. at 887-888(2), 432 S.E.2d 562. This court held that, given that the officer was alone in the dark with the suspect whose actions were suspicious at best, and the location being investigated was close by, the officer's actions were reasonable under the circumstances. Id. at 888(2), 432 S.E.2d 562. This court reasoned that an "officer remains particularly vulnerable during such a stop precisely because a full custodial arrest has not been effected, [and] the officer must make quick decisions as to how to protect himself and others from possible danger." (Citation and punctuation omitted.) Id.
The circumstances in this case are quite similar. The officer responding to an audible alarm call was alone, Reggler acted suspiciously, and the townhouse being investigated was close by. Reggler argues that he was arrested when he was placed in the police car, citing Scretchen v. State, 192 Ga.App. 436, 385 S.E.2d 115 (1989), in which this court said, "There can be no serious question that appellant was arrested at the time he was put into the police car." Id. at 437(1), 385 S.E.2d 115. The circumstances in Scretchen differ from those before us in this case, however; there, an officer saw the defendant walking one way, then returning 35 minutes later with "a hedge trimmer in one hand and a black box in the other; an electric drill was protruding from a jacket pocket; and a camera in a case was hanging around his neck." *114 Id. Upon investigation, the officer discovered that the camera had someone else's name on it, and the officer put the defendant into the police car and drove him to a location where the defendant said he had been keeping the items. Id. Here, Reggler was not taken anywhere, but was seated in the patrol car parked at the townhouse where he lived while the officer awaited backup and then investigated the residence with the alarm. Under the circumstances in this case, the officer acted reasonably by detaining Reggler while she investigated the alarm. See Campbell v. State, 255 Ga.App. 502, 505-506(1)(b), 565 S.E.2d 834 (2002) (briefly placing a detainee in the back of a patrol car to further a legitimate investigation does not constitute an arrest). This enumeration is without merit.
2. Reggler also includes a one-sentence argument related to the trial court not allowing him to continue cross-examining the investigating officer during the motion to suppress hearing. He did not enumerate this issue as error, but included it at the end of his argument that the trial court erred in finding probable cause for arrest. Assuming without deciding that Reggler properly presented this issue for review, we find no error. The trial court sustained the State's objection to Reggler's cross-examination of the officer as being outside the scope of the motion, and then directed Reggler to move on. Reggler asked no more questions, and on appeal does not discuss any specifics about questions he was unable to ask. Regardless of whether the trial court's ruling was error, Reggler has not shown or even argued how this error caused harm.
3. Reggler contends the circumstantial evidence was insufficient to sustain his burglary conviction. We view the evidence on appeal in the light most favorable to the verdict, and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses' credibility, but only determine if the evidence is sufficient to sustain the convictions. Taylor v. State, 226 Ga.App. 254, 255, 485 S.E.2d 830 (1997). We construe the evidence and all reasonable inferences from the evidence most strongly in favor of the jury's verdict. Sims v. State, 226 Ga.App. 116(1), 486 S.E.2d 365 (1997).
A conviction based upon circumstantial evidence is authorized when the "proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis but that of the guilt of the accused," OCGA § 24-4-6, although it need not exclude every possible inference or hypothesis. Smith v. State, 257 Ga. 381, 382, 359 S.E.2d 662 (1987). When it meets this test, circumstantial evidence is as probative as direct evidence, Christmas v. State, 171 Ga.App. 4, 7(2), 318 S.E.2d 682 (1984), and "[w]hether this burden has been met is a question for the jury." Doe v. State, 189 Ga.App. 793, 795, 377 S.E.2d 546 (1989). Viewed in that light, the evidence at trial was that the investigating officer found Reggler coming from the back of the townhouse, and he said he had just put his dog away through his back door. Reggler's shoe print was found outside the broken window of the townhouse with the alarm, and he had a remote control in his pocket that operated the television set that had been unplugged and put on the floor by the front door of the townhouse. Further, Reggler's fingerprints were found on the television. This evidence was sufficient for a rational trier of fact to find Reggler guilty beyond a reasonable doubt of burglary. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Judgment affirmed.
BLACKWELL and DILLARD, JJ., concur.
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492 Pa. 10 (1980)
421 A.2d 1065
In re ESTATE of Kenneth L. PIERCE, Deceased.
Appeal of Pluma CRILLEY, Administratrix of the Estate of Kenneth L. Pierce.
Supreme Court of Pennsylvania.
Argued October 2, 1980.
Decided October 31, 1980.
*11 Donald Laird Hankey, New Kensington, for appellant.
Joseph F. Strain, Deputy Atty. Gen., Harrisburg, for appellee.
Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.
OPINION OF THE COURT
PER CURIAM:
This is an appeal from a final decree of the Court of Common Pleas of Westmoreland County, Orphans' Court Division, sustaining a claim of Commonwealth of Pennsylvania in the amount of $6,340.34 against the estate of now-deceased Kenneth Pierce for care and maintenance of Pierce from May 1953 to July 1960 at Torrence State Hospital. Appellant, administratrix of decedent's estate, contends that the Commonwealth's claim should have been disallowed on the ground that the portion of the estate the Commonwealth claims constitutes veterans' benefits exempt from attachment *12 under 38 U.S.C. § 3101(a). This matter is controlled by Chojnacki Estate, 397 Pa. 596, 156 A.2d 812 (1959), cert. denied, 363 U.S. 826, 80 S.Ct. 1595, 4 L.Ed.2d 1522 (1960), as well as Grcich Estate, ___ Pa. ___ (J.319 of 1980, filed this day), where we have held that veterans' benefits are for the care and maintenance of the recipient and are not designed to provide a windfall inheritance to heirs of a deceased. The decree of the orphans' court here fully comports with Chojnacki and Grcich. Thus we affirm.
Decree affirmed. Each party pay own costs.
FLAHERTY, J., did not participate in the consideration or decision of this case.
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917 F.2d 1305
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Sheldon I. WIELAND, Jr., Petitioner-Appellant,v.Robert BROWN, Director, Michigan Department of Corrections,Respondent-Appellee.
No. 89-2213.
United States Court of Appeals, Sixth Circuit.
Nov. 8, 1990.
Before WELLFORD and DAVID A. NELSON, Circuit Judges, and MEREDITH,* District Judge.
PER CURIAM:
1
Defendant, Sheldon Wieland Jr., appeals his denial of habeas corpus following conviction for first degree criminal sexual conduct in Michigan state court proceedings. The issues presented are: whether Wieland filed a timely notice of appeal and, if so, whether Wieland was subjected to double jeopardy or denied due process of law in respect to overlapping dates in separate counts of the state indictment. We affirm.
2
At 34 years of age Wieland, a school teacher, was charged with six counts of criminal sexual conduct, first degree, with 12-year-old Debbi Hockman, in February 1984. Mich.Comp.Laws Sec. 750.520b(1)(a). The sexual acts allegedly took place at the following times:
3
Count I. On or about July 26, 1983.
4
Count II. On August 25, 1983.
5
Count III. On or about September 5 through September 19, 1983 (ultimately amended to September 6 through September 19, 1983).
6
Count IV. On or about September 26, 1983 (ultimately amended to September 16, 1983).
7
Count V. On or about October 10, 1983.
8
Count VI. On or about October 11, through October 17, 1983.
9
When Wieland was bound over for trial on these six charges the third count was amended to read "On or about September 6, 1983, through September 19, 1983," and the fourth count was amended to read "On or about September 24, 1983." There was no apparent overlap in dates on the face of the indictment at this juncture.
10
Prior to trial Debbi Hockman's mother discovered a telephone bill which indicated that Count IV was incorrect in its date. This phone bill indicated that Mrs. Hockman had called long distance to her daughter on September 16, 1983 which coincided with Debbi's refreshed recollection that one act of intercourse with Wieland had occurred while her parents were out of town on that night. After this discovery, the prosecution filed a pretrial motion to amend count IV to reflect the September 16 date. Wieland objected to this amendment raising the issue of overlap in counts III and IV since September 16 falls within September 6 through September 19 (the amended dates of the Count III), and noted that an alibi defense had already been prepared and offered for the September 24 date. The prosecution suggested amendment of count III to eliminate the 16th date, and Wieland maintained then that he was being subjected to double jeopardy. The amendment to count IV was allowed but count III was not amended. Somehow the trial court overlooked the apparent overlap after this change.
11
At trial Debbi Hockman testified about her babysitting for Wieland three to four times a week. She testified that he began making sexual advances that eventually resulted in intercourse. The allegations of sexual misconduct on the night of September 16 were corroborated to a greater degree than the other dates. On that evening Debbi and a friend stayed the night at Wieland's house because the Hockmans were out of town. The friend, Mary Priest, testified that she awoke during the night to find Wieland and Debbi Hockman "lying down and kissing," and revealed further details of her observations early on the morning of September 17.
12
During the second day of jury deliberation after the trial the following exchange took place between the judge and the jury foreman:
13
COURT: Mr. Foreman, would you rise, please? We have a question from you stating: "Since question number four, on or about September 16, falls within the dates of the question number three, September 6 through 19, does this now dictate that if guilty on number four, the answer must also be the same on number three?"
14
The answers to question number three and question number four need not be consistent.
15
Does that answer your question, Mr. Foreman?
16
FOREMAN: I don't believe it fully answers the question, Your Honor. Since the 16th does fall within the scope of the 6th through the 19th, the question was if it was guilty on the 16th, then it must also have been guilty somewhere between the 6th and the 19th, because it does fall on the same question.
17
COURT: No, because the 16th is a specific date and the other dates are collective, so they need not be consistent answers.
18
FOREMAN: Okay. Then I have a question then. May I ask it?
19
COURT: Sure.
20
FOREMAN: Okay, Then one could say not guilty with the exception of the 16th, which does fall in there, but we don't have a slot like that.
21
COURT: Then just put down not guilty.
22
FOREMAN: Very good. Thank you, Your Honor.
23
Wieland then raised his objection to the existence of the two charges stating that he was in danger of facing double jeopardy. The prosecution again offered to exclude September 16 from count III, but the court ordered no such amendment. The jury returned a verdict of not guilty on all counts except as to Count IV. The trial court sustained the jury verdict and sentenced Wieland on this count.
24
The Michigan Court of Appeals affirmed the conviction, and the Michigan Supreme Court denied further appeal. Wieland then pursued a writ of habeas corpus to the federal courts. The district court denied the petition, finding that a potential for multiplicity in the overlap between counts III and IV but that this problem was cured by the exchange between foreman and court.
25
Wieland requested a certificate of probable cause pursuant to Federal Rule of Appellate Procedure 22(b). The district court granted the request on April 14, 1988. No further action was taken for nearly a year. On March 21, 1989, Wieland filed a motion to enlarge appeal time, on the basis that he never received the district court's order granting the certificate of probable cause. (Neither had prosecution nor the appeals court clerk received the order). This motion was denied in an opinion and order entered May 15, 1989. Wieland moved for reconsideration which motion was also denied by the district court on October 2, 1989, and this appeal ensued.
1. Timeliness of notice of appeal
26
Nearly one year passed between the district court's denial of habeas relief (March 31, 1988) and Wieland's original motion to enlarge the appeal period (March 21, 1989). Wieland had requested a certificate of probable cause prior to appeal on April 8, 1988 since that issue had not been resolved in the March 31, 1988 order. The certificate was granted on April 14, 1988, but Wieland did not file notice of appeal until October 10, 1989, over one year and a half later. Because he did not receive a copy of the certificate of probable cause until March 1989 Wieland claims that he should be allowed to bring this appeal (Wieland finally telephoned to request the status of the matter during the week of March 6, 1989 when he learned for the first time that the certificate had long since been issued).
27
28 U.S.C. Sec. 2107 requires a notice of appeal to be filed within thirty days of the entry of judgment. It also provides that the "district court may extend the time for appeal not exceeding thirty days from the expiration of the original time ... prescribed, upon a showing of excusable neglect based on failure of a party to learn of the entry of the judgment, order or decree" (emphasis added). Federal Rule of Appellate Procedure 4(a) places a similar thirty day time limit on filing a notice of appeal and limits the extension a district court may grant to thirty days past the prescribed time or ten days from the date of order granting an extension, whichever is later, if the motion for extension is made within the original thirty day period.1 In addition Rule 26(b), while allowing enlargement of times prescribed by some of the rules, specifically prohibits enlargement of the time for filing a notice of appeal. Filing of a notice of appeal is "mandatory and jurisdictional." United States v. Robinson, 361 U.S. 220, 224 (1958).
28
Wieland argues that he was forced to wait because the "course of appeal proceedings [is] affected by whether or not [the court] issue[s] a certificate of probable cause." There is no specific rule, however, precluding the filing of a notice of appeal prior to receipt of the certificate of probable cause, as noted by the district court, although it may later be subject to challenge. The certificate of probable cause is merely an independent prerequisite to proceeding with the appeal. Fitzsimmons v. Yeager, 391 F.2d 849, 854 (3rd Cir.1968), cert. denied 393 U.S. 868 (1968).
29
Thus, there is a serious question of jurisdiction here. In his memorandum for reconsideration of the order denying his motion to enlarge the time for appeal Wieland argues that he in fact initially complied with the applicable rules by filing a motion for a certificate of probable cause. In support of this contention he cites McMillan v. Barksdale, 823 F.2d 981 (6th Cir.1987). In that case the district court accepted a prisoner's pro se motion for a certificate of probable cause as a notice of appeal although the formal notice of appeal was not filed until three months after the order appealed from had been entered. McMillan looked to the purpose of the rules and found that the request for the certificate of probable cause showed intent to appeal and since it had been filed within the thirty day limit was sufficient under the circumstances to satisfy the rules.
30
Although Rule 3(c) does suggest a form to be followed, there is no magic document called a Notice of Appeal. Any document that meets the requirements of Rule 3(c) and is filed within the time prescribed by Rule 4(a) can function as a notice of appeal.
31
Id. at 983.
32
Despite McMillan, the district court felt the present case to be distinguishable because Wieland was represented by counsel, he was not a prisoner at the time, and the delay at issue here was much longer than in McMillan. We believe that the McMillan holding is probably limited to prisoners' pro se requests for certificates of probable cause filed within the Rule 4(a) time limits.
33
McMillan was decided prior to Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988) and this court's interpretation of that holding in Minority Employees v. Tennessee Dep't of Employment Sec., 901 F.2d 1327 (6th Cir.1990) (en banc), cert. denied sub nom. David v. Tennessee Dep't of Employment Sec., No. 90-169, slip op. (U.S. Oct. 1, 1990). Torres interpreted Federal Rule of Appellate Procedure 3(c) which requires that a "notice of appeal shall specify the party or parties taking the appeal ... and shall name the court to which the appeal is taken," to preclude jurisdiction over plaintiffs who were indicated only through the words "et al." in the notice of appeal caption. Minority Employees strictly construed Torres, finding a failure specifically to name parties appealing to be more than an excusable informality. 901 F.2d at 1334. In this case, defendant does not name this court, as the rule requires, as the one to which he takes an appeal.
34
Without deciding that we have no jurisdiction, and it is certainly doubtful,2 we conclude that Wieland cannot prevail on the merits of his claim.
2. Double jeopardy
35
The Fifth Amendment provides in part that "[n]o person shall ... be subject for the same offense to be twice put in jeopardy of life or limb." The guaranty against double jeopardy applies against states by way of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784 (1969). It is designed to
36
protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.... The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
37
Green v. United States, 355 U.S. 184, 187-88 (1957).
38
Wieland argues that the overlapping time periods in amended counts III and IV placed him twice in jeopardy for the same offense. Double jeopardy cases typically involve attempted second prosecutions after the defendant has been acquitted, or convictions of both a substantive crime and the lesser included offense. On the other hand, it is clear that a prosecution is not unconstitutional merely because it has several counts which may involve an overlap. The overlap in dates between counts III and IV appears to give the jury an opportunity to convict twice for a crime committed on or about September 16.3 Nonetheless, the record demonstrates that the jury understood that count III was a general count covering activity over a period of time during which Debbi Hockman was allegedly babysitting and distinguished that from count IV which alleged a specific instance of conduct tied to a particular date. The proper course would have been to amend count III to formally omit September 16 (and September 17) as did the jury for all practical purposes, and as the prosecutor offered to do twice.
39
In North Carolina v. Pearce, 395 U.S. 711 (1969) the Supreme Court interpreted the Fifth Amendment to protect
40
against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.
41
Id. at 717 (citations omitted). "In sum, the double jeopardy clause prohibits both successive prosecutions and multiple punishments for the 'same offense' " Thomas, Rico Prosecutions and the Double Jeopardy/Multiple Punishment Problem, 78 Nw.U.L.Rev. 1359, 1360 (1984). Wieland claims that he has been twice prosecuted for the "same offense" and has suffered double jeopardy. He also claims to have suffered under the "multiplicity" doctrine which is related to double jeopardy multiple punishment analysis. The multiplicity claim appears most relevant here.
42
Multiplicity is the charging of a single offense in several counts or in several charging instruments. The danger of a multiplicitous indictment is that it may violate double jeopardy by resulting in multiple sentences or punishments for a single offense, United States v. Hearod, 499 F.2d 1003, 1005 (5th Cir.1974), or that it may prejudice the defendants by causing the jury to convict on a given count solely on the strength of evidence on the counts remaining. Id.
43
A multiplicitous indictment need not necessarily be set aside. United States v. Duncan, 850 F.2d 1104, 1108 n. 4 (6th Cir.1988) (dictum). Such an indictment may be cured through election or dismissal of counts. See e.g. United States v. Feldhacker, 849 F.2d 293, 298 (8th Cir.1988), cert. denied sub nom. Sink v. United States, 488 U.S. 1012 (1989) (election of counts curing multiplicitous indictment). Even after trial a multiplicitous indictment need not necessarily be dismissed, especially if there was no increased sentence or if duplicative convictions can be vacated. See United States v. Wilson, 721 F.2d 967, 971 (4th Cir.1983) (mere inclusion of two multiplicitous counts did not warrant new trial; remand for resentencing on one count instead of both); United States v. Kimberlin, 781 F.2d 1247, 1254 (7th Cir.1985) (remedy for multiple punishments resulting from multiplicitous indictment is to vacate three of four convictions), cert. denied, 479 U.S. 938 (1986); United States v. Brown, 688 F.2d 1112, 1121 (7th Cir.1982) (danger of multiplicitous indictment, multiple punishment, can be remedied at any time by allowing only a single punishment); United States v. Peacock, 761 F.2d 1313, 1319-20 (9th Cir.) (remedy for conviction on multiplicitous indictment is to vacate or reverse multiplicitous count rather than to require new trial), cert. denied, 474 U.S. 847 (1985); United States v. Davis, 799 F.2d 1490, 1494 (11th Cir.1986) (per curiam) (remedy for duplicative sentence resulting from multiplicitous indictment is to vacate duplicative conviction). This authority demonstrates that the danger of multiple punishment in a multiplicitous indictment or information may constitutionally be remedied at any stage. In our view, Wieland was not exposed to multiple punishment under the circumstances since he was only convicted for a single specific offense on or about September 16. See United States v. Lewis, 716 F.2d 16, 23 (D.C.Cir.), cert. denied sub nom., Motlagh v. United States, 464 U.S. 996 (1983).
44
Furthermore, any possible prejudice that arose from the overlap in the information against Wieland was cured through the interchange between the court and jury. We are conviced, as were the Michigan courts, that Wieland received due process of law and that his trial was essentially fair, even in the face of the overlap in time in the indictment counts III and IV. The jury fully understood any possible ambiguity in the indictment and, as a practical matter, eliminated it to find defendant guilty beyond a reasonable doubt on or about September 16 and on no other day. See United States v. Sherman, 821 F.2d 1337, 1339-40 (9th Cir.1987). In effect, it may well be said that the trial court directed the jury to find not guilty on count III when the jury explained its dilemma.
45
Wieland relies on United States v. Marzani, 71 F.Supp. 615 (D.C.1947); aff'd, 168 F.2d 133 (D.C.Cir.1948); aff'd, 335 U.S. 895 (1948), to make his case. Marzani stated that "[t]he test of double jeopardy through a multiplicity of counts is whether a conviction on one count and an acquittal on another would bring about a contradiction on the face of the verdict." 71 F.Supp. at 618. No authority is cited for this proposition. Despite Marzani, we believe, along with the Michigan courts that the dialogue between the court and jury makes it clear that the jury found Wieland guilty of criminal sexual conduct on or about September 16 only. On this basis, we decline to find any constitutional violation.
46
The decision of the district court is accordingly AFFIRMED.
*
The Honorable Ronald E. Meredith, United States District Judge for the Western District of Kentucky, sitting by designation
1
Rule 4(a)(5) reads: "The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of [the 30 day period initially granted after entry of judgment or order for filing an appeal].... No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion [for extension] whichever occurs later."
2
McMillan notes that the document taken instead of a notice of appeal must "meet[ ] the requirements of Rule 3(c)," which rule requires naming the court as noted above. 823 F.2d at 983
3
We have no problem with a conviction for an offense charged to have been committed "on or about September 16," if the evidence supports a reasonable basis that it occurred in the early morning hours of September 17
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276 S.W.3d 386 (2009)
John P. STREICHER, Petitioner/Respondent,
v.
DIRECTOR OF REVENUE, State of Missouri, Respondent/Appellant.
No. ED 91050.
Missouri Court of Appeals, Eastern District, Division Four.
January 27, 2009.
*387 James Chenault III, Jefferson City, MO, for Appellant.
Travis Noble, Clayton, Carl Ward, co-counsel, Jason Korner, co-counsel, Washington, MO, for Respondent.
BOOKER T. SHAW, Presiding Judge.
The Director of Revenue appeals the trial court's judgment reinstating John P. Streicher's driving privileges after the Director suspended them pursuant to section 302.505 RSMo 2000.[1] The trial court found that the Director's evidence failed to show the police officer had probable cause to arrest Streicher for driving while intoxicated. We reverse and remand with instructions.
In May 2007, a St. Charles County police officer arrested Streicher for driving while intoxicated after the officer responded to an automobile collision on Highway 94 involving Streicher and two other vehicles. Streicher admitted to falling asleep while driving and striking the other vehicles. The officer smelled alcohol on Streicher's breath and observed that his eyes were bloodshot and glassy. Streicher admitted that he had been drinking and consented to a portable breath test, which showed positive for the presence of alcohol. Streicher was then placed under arrest for driving while intoxicated. At the station, the officer administered another breath analysis test which revealed a blood alcohol content of .102 percent. Streicher's license was subsequently suspended pursuant to section 302.505. After an administrative law judge upheld the suspension, Streicher filed a petition for trial de novo in St. Charles County circuit court, and the trial court reinstated his driving privileges. This appeal follows.
At trial, the court admitted an exhibit that included inter alia a four-page alcohol influence report, the officer's narrative report, a breath test ticket, a maintenance report, and a certificate of analysis. Streicher stipulated to the officer's credibility and the accuracy of his report included in the Director's exhibit. Streicher submitted no evidence and no witnesses testified. The trial court found that the police officer did not have probable cause to arrest Streicher for driving while intoxicated and ordered reinstatement of Streicher's license.
The Director appeals, claiming trial court error in reinstating Streicher's driver's license because the evidence established that the officer had probable cause to arrest Streicher for driving while intoxicated. The Director contends that the trial court misapplied the law in holding that the officer's failure to perform field sobriety tests and the officer's lack of explanation as to why these tests were not performed contributed to the lack of probable cause.
This Court's review of the trial court's judgment reinstating Streicher's license, after it had been administratively suspended under section 302.505 for DWI, is the same as in any other judge-tried case and is governed by Murphy v. Carron.[2]Smith v. Director of Revenue, 13 S.W.3d 700, 704-05 (Mo.App. W.D.2000). The trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.
*388 In determining whether probable cause existed at the time of arrest, the trial court views the facts as they "would have appeared to a prudent, cautious, and trained police officer." Hopkins-Barken v. Director of Revenue, 55 S.W.3d 882, 885 (Mo.App. E.D.2001). Moreover, field sobriety tests are not mandatory to determine probable cause. Brown v. Director of Revenue, 85 S.W.3d 1, 6 (Mo. banc 2002).
Based on our standard of review, we find that the trial court's judgment was against the weight of the evidence. There is uncontroverted evidence from which the police officer could find probable cause to believe that Streicher was intoxicated.
We reverse and remand to the trial court with instructions to enter a judgment reinstating the suspension of Streicher's driving privileges.
KATHIANNE KNAUP CRANE, J. and MARY K. HOFF, J., concur.
NOTES
[1] All further statutory references are to RSMo 2000, unless otherwise stated.
[2] 536 S.W.2d 30 (Mo. banc 1976).
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Case: 09-41029 Document: 00511205892 Page: 1 Date Filed: 08/17/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 17, 2010
No. 09-41029
Conference Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ALEJANDRO FLORES-BENITEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:08-CR-1736-1
Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
The Federal Public Defender appointed to represent Alejandro Flores-
Benitez has moved for leave to withdraw and has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967). Flores-Benitez has not filed a
response. Our independent review of the record and counsel’s brief discloses no
nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to
withdraw is GRANTED, counsel is excused from further responsibilities herein,
and the APPEAL IS DISMISSED. See 5 TH C IR. R. 42.2.
*
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.
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NUMBER 13-08-00265-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
JOSE LUIS ALVARADO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On Appeal from the 370th District Court
of Hidalgo County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Garza and Vela
Memorandum Opinion Per Curiam
Appellant, Jose Luis Alvarado, attempts to appeal his conviction. The trial court has
certified that this "is a plea-bargain case, and the defendant has NO right of appeal." See
Tex. R. App. P. 25.2(a)(2).
On July 30, 2008, this Court notified appellant's counsel of the trial court's
certification and ordered counsel to: (1) review the record; (2) determine whether appellant
has a right to appeal; and (3) forward to this Court, by letter, counsel's findings as to
whether appellant has a right to appeal, or, alternatively, advise this Court as to the
existence of any amended certification.
On January 6, 2009, counsel filed a letter brief with this Court. Counsel's response
does not establish that the certification currently on file with this Court is incorrect or that
appellant otherwise has a right to appeal. Additionally, Counsel indicates that appellant
has already served his time in jail and no longer wishes to pursue his appeal.
The Texas Rules of Appellate Procedure provide that an appeal must be dismissed
if the trial court's certification does not show that the defendant has the right of appeal.
Tex. R. App. P. 25.2(d); see Tex. R. App. P. 37.1, 44.3, 44.4. Accordingly, appellant's
motion to dismiss is GRANTED and this appeal is DISMISSED. Any pending motions are
denied as moot.
PER CURIAM
Do not publish. See Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered
and filed this the 29th day of January, 2009.
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71 Ill.2d 210 (1978)
375 N.E.2d 115
THE HOME INSURANCE COMPANY, Appellant,
v.
THE HERTZ CORPORATION et al., Appellees.
No. 49796.
Supreme Court of Illinois.
Opinion filed April 3, 1978.
Rance V. Buehler and Philip W. Domagalski, of Chicago, for appellant.
Paul D. Frenz and Elias N. Matsakis, of McBride, Baker, Wienke & Schlosser, of Chicago, for appellees.
Reversed and remanded.
MR. JUSTICE UNDERWOOD delivered the opinion of the court:
Plaintiff, an auto insurer, filed this subrogation action in the circuit court of Cook County, seeking to recover from defendants certain payments plaintiff made to its insured under the property damage and medical payments provisions of the insured's auto policy. Defendants moved to dismiss, raising as a bar a general release running from the insured to defendants. The circuit court dismissed the complaint and the appellate court affirmed (49 Ill. App.3d 569), citing an "unbroken line of Illinois appellate *211 court cases which support the circuit court's ruling that plaintiff's claim is barred by the insured's release to the defendants" (49 Ill. App.3d 569, 571). We granted leave to appeal and now reverse.
Plaintiff-insurer alleged that on August 2, 1974, defendant Gary L. Gardner, an employee of defendant Ingram Barge, Inc., negligently drove an automobile owned by defendant Hertz Corporation so as to injure plaintiff's insured and damage his auto. Plaintiff also alleged that it paid its insured's property damage and medical payments policy claims in the amount of $2,082.36 and that it thereby became subrogated to the interests of the insured to the extent of those payments. Ingram submitted in support of its motion to dismiss a full and final release of all personal injury and property damage claims arising from the accident, which release was executed by the insured in consideration of the payment to him of $6,000. It is not disputed that this release had been executed by the insured in connection with the settlement of his separate suit against the defendants here for personal injury damages and the $100 property damage paid by him under his deductible clause, and that no recovery had been sought in that suit for the property damage paid by the insurer. It is also undisputed that defendants had notice of plaintiff's subrogation rights prior to the settlement of the insured's suit and the signing of the release.
The precise question before us is whether an unlimited general release by an insured of all claims against a tortfeasor bars a subrogation action by an insurer-subrogee against that tortfeasor, where the tortfeasor procures the release from the insured-subrogor with knowledge of the insurer's interest.
It is true as defendants contend that the appellate court authority in this State supports their position. The appellate court here relied on Inter Insurance Exchange of Chicago Motor Club v. Andersen (1947), 331 Ill. App. 250, *212 and two subsequent appellate decisions which cite Andersen with approval. (St. Louis Fire & Marine Insurance Co. v. Garnier (1960), 24 Ill. App.2d 408; Shaw v. Close (1968), 92 Ill. App.2d 1.) In Andersen, the insurer, after paying its insured under a collision policy, brought a subrogation action against the tortfeasor for property damage to the insured's automobile; it also joined the insured as a defendant, alleging that, by executing the release, he failed to protect the insurer's subrogation rights as required by the insurance contract. The tortfeasor invoked a release, signed only by the insured, as a bar to the insurer's action. Faced with deciding whether the tortfeasor or the insured should protect the insurer's subrogation interest, the appellate court chose the insured because he had a contractual relationship with the insurer while the tortfeasor did not. The court in Andersen acknowledged that "[t]he general rule seems to be that where the wrongdoer procures a release from the insured with knowledge that the insurance has been paid, the release is no bar to an action by the subrogee insurer against the wrongdoer" (331 Ill. App. 250, 254), but it found that "[t]he goal of prudence in one's conduct would seem to be reached more truly by making the insured duty bound to refrain from executing a release except with the approval of the insurer" (331 Ill. App. 250, 256).
While our appellate court has adhered to this position, authority elsewhere is to the contrary, allowing the insurer to recover from the tortfeasor. Sentry Insurance Co. v. Stuart (1969), 246 Ark. 680, 439 S.W.2d 797; Collins v. Mobile & Ohio R.R. Co. (1923), 210 Ala. 234, 97 So. 631; Mitchell v. Holmes (1935), 9 Cal. App.2d 461, 50 P.2d 473; Bahn v. Shalev (D.C. 1956), 125 A.2d 678; Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Home Insurance Co. (1915), 183 Ind. 355, 108 N.E. 525; Sharp v. Bannon (Ky. App. 1953), 258 S.W.2d 713; Pennsylvania *213 Fire Insurance Co. v. Harrison (La. App. 1957), 94 So.2d 92; Cleaveland v. Chesapeake & Potomac Telephone Co. (1960), 225 Md. 47, 169 A.2d 446; Wolverine Insurance Co. v. Klomparens (1935), 273 Mich. 493, 263 N.W. 724; Travelers Indemnity Co. v. Vaccari (1976), ___ Minn. ___, 245 N.W.2d 844; General Exchange Insurance Corp. v. Young (1948), 357 Mo. 1099, 212 S.W.2d 396; Omaha & Republican Valley Ry. Co. v. Granite State Fire Insurance Co. (1898), 53 Neb. 514, 73 N.W. 950; Davenport v. State Farm Mutual Automobile Insurance Co. (1965), 81 Nev. 361, 404 P.2d 10; Fire Association v. Wells (1915), 84 N.J. Eq. 484, 94 A. 619; Ocean Accident & Guarantee Corp. v. Hooker Electro-chemical Co. (1925), 240 N.Y. 37, 147 N.E. 351; Nationwide Mutual Insurance Co. v. Canada Dry Bottling Co. (1966), 268 N.C. 503, 151 S.E.2d 14; Motorists Mutual Insurance Co. v. Gerson (1960), 113 Ohio App. 321, 177 N.E.2d 790; Aetna Casualty & Surety Co. v. Associates Transports, Inc. (Okla. 1973), 512 P.2d 137; United Pacific Insurance Co. v. Schetky Equipment Co. (1959), 217 Ore. 422, 342 P.2d 766; Hospital Service Corp. v. Pennsylvania Insurance Co. (1967), 101 R.I. 708, 227 A.2d 105; Calvert Fire Insurance Co. v. James (1960), 236 S.C. 431, 114 S.E.2d 832; Continental Ins. Co. v. Weinstein (1953), 37 Tenn. App. 596, 267 S.W.2d 521; Wichita City Lines, Inc. v. Puckett (1956), 156 Tex. 456, 295 S.W.2d 894.
The difficulty with the Andersen rule, in our opinion, is that its application in the circumstances here is fundamentally unfair to both the insured and his insurer. Denied enforcement of its subrogation rights against the real wrongdoer, the insurer must instead seek recovery from its own insured, an obviously unpalatable alternative. Thus the tortfeasor and his own liability insurer, if any, escape payment for damage caused by the tortfeasor, while the tort victim is effectively denied payment from his own *214 insurance carrier and from the tortfeasor. The Andersen rule in these circumstances constitutes a trap for the unwary insured plaintiff. While no fraud is alleged here, the rule itself encourages fraud or, at the very least, sharp practice on the part of the tortfeasor or his insurance carrier. The insured may be an unsophisticated, unrepresented party presented with a full and final release which he is told he must sign in order to effect a needed settlement. To require him to execute a release of all claims, even though the tortfeasor has knowledge of the insurer's interest and the probable existence of a standard insurance policy provision obligating the insured to protect the insurer's subrogation rights, is simply not consistent with fair dealing and ought not to be encouraged. In short, adoption of the Andersen rule would (1) permit the tortfeasor to escape liability for the amounts paid by the insurer, (2) require the tort victim to go uncompensated as to the amounts paid by the insurer even though he has paid insurance premiums and has also suffered loss at the hands of the tortfeasor defendant, (3) force the insurer to sue his own injured insured, and (4) place a premium on sharp practice and dishonesty. Simply put, the Andersen rule produces, in our judgment, an inequitable result and ought not to be applied in the circumstances before us.
It was put considerably stronger many years ago when the Supreme Court of Michigan, quoting Lawyers' Reports Annotated, noted that:
"`It is too well settled to render the citation of authorities necessary that, as between an insurer and a tortfeasor who has caused a loss of the insured property, the latter is ultimately liable for the loss, and that upon payment to the insured by the insurer the latter is entitled to be subrogated pro tanto to the insured's right against the tortfeasor. With this right in view the authorities are agreed that where, with knowledge of a *215 previous settlement by the insurer with the insured, a tortfeasor who is responsible for the loss procures a release by making a settlement with the insured, the release amounts to a fraud upon the insurer's right, and therefore constitutes no defense as against the insurer in an action to enforce its right of subrogation against the tortfeasor.
* * *' [Annot., 1916A L.R.A. 1282-83 (1916).]" Wolverine Insurance Co. v. Klomparens (1935), 273 Mich. 493, 496-97, 263 N.W. 724, 725.
We accordingly hold that an unlimited release executed by an insured-subrogor for consideration not specifically including an amount designated as covering the insurer's subrogation interest does not bar a subsequent subrogation action by an insurer-subrogee against the tortfeasor, if the tortfeasor or his insurance carrier had knowledge of the insurer-subrogee's interest prior to the release.
The judgments of the circuit and appellate courts are accordingly reversed, and the cause is remanded to the circuit court of Cook County for further proceedings consistent herewith.
Reversed and remanded.
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DISMISS; Opinion issued April 26, 2013
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01629-CV
STEVEN CREAR, SR., Appellant
V.
JPMORGAN CHASE BANK, N.A., Appellee
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-11-01470
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Lang-Miers, and Justice Lewis
The Court has before it appellee’s April 1, 2013 motion to dismiss. As appellee notes, on
February 15, 2013, the Court informed appellant that if he did not pay his filing fee within ten
days, this case would be dismissed without further notice. Appellant has not paid his filing fee,
responded to appellee’s motion to dismiss, or otherwise communicated with this Court regarding
his appeal. We therefore GRANT the motion and DISMISS the appeal.
PER CURIAM
121629F.P05
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
STEVEN CREAR, SR., Appellant On Appeal from the 162nd Judicial District
Court, Dallas County, Texas
No. 05-12-01629-CV V. Trial Court Cause No. DC-11-01470.
Opinion delivered per curiam. Chief Justice
JPMORGAN CHASE BANK, N.A., Wright, Justice Lang-Miers and Justice
Appellee Lewis sitting for the Court.
In accordance with this Court’s opinion of this date, this appeal is DISMISSED.
It is ORDERED that appellee JPMORGAN CHASE BANK, N.A. recover its costs of
this appeal from appellant STEVEN CREAR, SR.
Judgment entered April 26, 2013.
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
1201629 crear op.docx –2–
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RUSSELL DEPASQUALE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-3321
[December 20, 2018]
Appeal of order denying rule 3.800(a) from the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Barbara Anne McCarthy,
Judge; L.T. Case Nos. 06-16972CF10A, 06-20348CF10 and 07-
11032CF10A.
Russell DePasquale, Raiford, pro se.
No appearance required for appellee.
PER CURIAM.
Affirmed.
WARNER, FORST and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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467 F.2d 1041
UNITED STATES of America, Plaintiff-Appellee,v.Martin C. WEBB, Jr., Defendant-Appellant.
No. 71-1714.
United States Court of Appeals,Seventh Circuit.
Argued Sept. 30, 1972.Decided Oct. 16, 1972.
Frank W. Oliver, Richard Allen Halprin, Chicago, for defendant-appellant.
James R. Thompson, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.
Before SWYGERT, Chief Judge, and CUMMINGS and SPRECHER, Circuit Judges.
SPRECHER, Circuit Judge.
1
Martin Webb was convicted by a jury of willfully and knowingly refusing to submit to induction into the armed forces of the United States in violation of 50 U.S.C. App. Sec. 462. He appeals on the ground that the government's only evidence of the offense, a letter mailed to the United States Attorney's Office stating that Webb had refused induction, was insufficient proof upon which to base a criminal conviction. We reverse and remand for a new trial.
2
The facts underlying the alleged violation are in dispute. Webb reported for induction as ordered on January 26, 1970, and proceeded through routine preliminary processing. At this point, Webb was apparently taken to the office of Lieutenant Colin Aldridge. Webb testified that he gave Lieutenant Aldridge a letter in which he expressed concern about possible criminal prosecution for war crimes and sought immunity from any prosecution. Lieutenant Aldridge, according to testimony, became upset and told Webb that the penalty for refusing induction could be five years imprisonment. Webb testified that he told the lieutenant that he was not refusing induction and that Lieutenant Aldridge then left the room, returning a few minutes later with Captain James Ohlson. Captain Ohlson reportedly asked Webb about the document and whether Webb intended to submit to induction. Webb insists that he stated he did so intend. Some discussion followed but apparently Captain Ohlson eventually took Webb to the Colonel in charge. Webb testified that the Colonel told him he could not sign the document and could not discuss it until Webb was formally inducted into the Army. The Colonel then left and Captain Ohlson, Lieutenant Aldridge and Webb returned to the ceremony room. Webb again asked Captain Ohlson to sign, or at least to read, the document he had brought to the induction center. Lieutenant Aldridge repeated his warning that the penalty for refusing induction was five years imprisonment. Webb said he told them again that he was not refusing but that Captain Ohlson said that Lieutenant Aldridge had stated that he had refused. Captain Ohlson then called the F.B.I.
3
Webb insists that as a result of the confusion, although the ceremony was explained to him, it was never begun and he was never given an opportunity to take the symbolic step forward. Webb also testified that he at no time intended to refuse induction and never told anyone at the induction center that he would refuse induction.
4
The government offered no testimony to contradict this version of the facts, relying instead on a letter, purportedly written by Captain Ohlson,1 sent to the U.S. Attorney's Office in which the writer stated that Webb had refused to submit to induction. According to this letter, Webb had been given two opportunities to submit but refused each time. The letter also stated that Lieutenant Aldridge and two other named Army personnel were witnesses to the refusal. A short memorandum bearing the type-written signature of Lieutenant Aldridge was attached in which Lieutenant Aldridge stated that Webb had refused induction.
5
The government argues that the letter and memorandum provided sufficient proof to justify a conviction for refusing to submit to induction under the Business Records and Government Records Act exceptions to the hearsay rule.2 The government relies on decisions of this court, particularly United States v. Van Hook, 284 F.2d 489 (7th Cir.), remanded for resentencing, 365 U.S. 609, 81 S.Ct. 823, 5 L.Ed.2d 821 (1961).
6
This reliance is misplaced. Although the documents may have been admissible in evidence under exceptions to the hearsay rule, this circuit has never countenanced a construction of the Government Records Act which would allow the government to establish the corpus delicti in a criminal case solely on the basis of unverified and contradicted statements contained in written memoranda. In Van Hook, in addition to a letter to the U.S. Attorney's office detailing the alleged refusal, the evidence included testimony by an agent from the Federal Bureau of Investigation that the defendant had admitted to refusing to submit to induction on the morning in question. 284 F.2d at 492. In United States v. Rogers, 454 F.2d 601, 604 (7th Cir. 1971), also relied upon by the government, this court was careful to note that the civilian employer's statement that the defendant had failed to report was not the only evidence offered to prove the corpus delicti. In that case the defendant had written his local board that he was unable to accept the job offered him. The court noted that the written statement by the defendant, like a comparable letter written by the defendant in United States v. Holmes, 387 F.2d 781, 783 (7th Cir.), cert. denied, 391 U.S. 936, 88 S.Ct. 1835, 20 L.Ed.2d 856 (1968), constituted an admission that he had failed to report on the critical date. The evidence in Rhyne v. United States, 407 F.2d 657, 660 (7th Cir. 1969), included, in addition to a letter written to the U.S. Attorney by Selective Service officials, a witnessed statement of refusal to submit to induction signed by the defendant.
7
The question of the sufficiency of evidence to establish the corpus delicti beyond a reasonable doubt was apparently not raised in United States v. Harris, 446 F.2d 129 (7th Cir. 1971). That case merely reaffirmed the admissibility of a selective service file in the face of the Sixth Amendment right to confrontation. Even so, the court limited its holding to a statement that the file was sufficient to establish a prima facie case of refusal to report for civilian work, noting that "[h]ad there been any evidence offered at the trial which tended to contradict the selective service file's representation that Mr. Harris had failed to report, we would be alarmed about his demand for the right to confront the witness on this issue." 446 F.2d at 131.3
8
No admissions are in evidence in the present case. The evidence in the record before us, consisting solely in two written statements by Selective Service officials, is insufficient proof upon which to sustain Webb's conviction.4
9
Since this case must be remanded for a new trial we think it appropriate to correct an additional error made by the trial court. Over objection, the trial judge instructed the jury that if it believed that "the defendant deliberately engaged in conduct that he knew would make induction impossible, then he is properly charged with refusal to submit to induction." In giving this instruction, the trial judge told the jury that while the symbolic step forward was the usual and customary procedure by which an inductee is asked to recognize that he is no longer a civilian, it is not the only way such recognition of change of status can be accomplished, and that it could find that the defendant had never been requested to take the symbolic step forward and still find him guilty under the above instruction. We recognize that there may be instances when a defendant's aggressive conduct could make even the formal attempt at ceremony impossible. There was no evidence from which such a conclusion could be reached here, however. The trial judge's instruction was therefore inappropriate in view of Army Regulation 601-270, paragraph 3-31c(1), which provides:
10
"Any registrant who has been removed from the group as prescribed in paragraph 3-22b and who persists in his refusal to submit to induction will be informed that such refusal constitutes a felony under the provisions of the Military Selective Service Act of 1967. He will be informed further that conviction of such an offense under civil proceedings will subject him to be punished by imprisonment for not more than 5 years, or a fine of not more than $10,000, or both. He will then be informed again of the imminence of induction, using the language specified in paragraph 3-22a, and his name and service again will be called. If he steps forward at this time, he will be informed that he is a member of the Armed Forces concerned, using the language specified in paragraph 3-22c."
11
Identical language in a predecessor regulation was held in Chernekoff v. United States, 219 F.2d 721, 725 (9th Cir. 1955), to be a mandatory regulation which had to be followed by the inducting officers. The court said:
12
"The Army deemed it useless to apply the Special Regulation to the appellant as he had said he would not if asked to so do step forward and become inducted into the Armed Forces. It does not matter that he might not have changed his mind. He should have been given the opportunity granted him by the Army's own regulation to seriously reflect and to let actions speak louder than words. In Corrigan v. Secretary of Army, 9 Cir., 1954, 211 F.2d 293, the court stated it is highly important that the moment a selectee becomes subject to military authority be marked with certainty. It is also important that the moment he becomes liable for civil prosecution be marked with certainty. The Special Regulation fulfills such a need. . . .
13
"The appellant could well have changed his mind and complied with the 'step forward' procedure had the Special Regulation been followed or 'stood in his tracks' if he desired to adhere to his former statement. The ceremony is designed to bring about a definite responsive course of conduct by the selectee marking his separation from his civil status. This ceremony must be conformed to unless the selectee himself makes it impossible, . . ."
14
The Chernekoff decision was approved by implication in United States v. Van Hook, 284 F.2d 489, 494 (7th Cir. 1960). We think its reasoning is applicable to the instant case and, without a greater showing that the defendant's conduct made the ceremony impossible,5 the trial court's instruction was improper.
15
Reversed and remanded for a new trial.
1
The letter bore the typewritten signature of Captain Ohlson
2
28 U.S.C. Sec. 1732 and Sec. 1733
3
The court in Harris did not discuss, and apparently was not presented with, a claim that there was any impermissible burden under the Fifth Amendment imposed upon the defendant by reason of a failure to offer any contradiction of the government's evidence
The opinion in United States v. Lyzun, 444 F.2d 1043, 1046 (7th Cir. 1971), merely stated that the government's case had been proved by letters and entries in the board file. The court's citation of Holmes, supra, indicates that the papers may have included written admissions by the defendant.
4
The government argues that the document brought to the induction center by the defendant constituted an "admission" that Webb intended to refuse induction. The record does not support this contention. On the contrary, the final paragraph of the document in question would seem to support Webb's statement that he did intend to submit to induction. The paragraph states:
"Should the Chief of the Armed Forces Entrance and Examining Station refuse to sign this instrument, inductee expresses the hope that he will appear as a witness in inductee's behalf should inductee, as a result of being a member of the Armed Forces of the United States, find himself charged with the commission of a war crime. . . ."
5
See Callison v. United States, 413 F.2d 133, 135 (9th Cir. 1969); United States v. Meyers, 410 F.2d 693, 695 (2d Cir. 1969)
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780 P.2d 1023 (1989)
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY, Appellant, Cross-Appellee,
v.
STATE of Alaska, DIVISION OF INSURANCE, DEPARTMENT OF COMMERCE AND ECONOMIC DEVELOPMENT, Appellee, Cross-Appellant.
Nos. S-2517, S-2518.
Supreme Court of Alaska.
September 29, 1989.
*1024 Susan R. Pollard, William B. Rozell, Faulkner, Banfield, Doogan, & Holmes, Juneau, for appellant, cross-appellee.
Jeffrey W. Bush, Asst. Atty. Gen., Grace Berg Schaible, Atty. Gen., Juneau, for appellee, cross-appellant.
Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.
OPINION
RABINOWITZ, Justice.
In 1957, the Alaska legislature amended its tax on insurance premiums to impose a tax rate on insurers based outside of Alaska (hereinafter "foreign insurers") double that imposed on Alaska-based insurers (hereinafter "domestic[1] insurers").[2] Alaska's differential premium tax remained in effect from 1957 until its repeal in 1986. This repealed tax was codified in Alaska Statute 21.09.210(b):
Each insurer ... shall pay a tax on the total direct premium income ... for the insurance of property or risks resident or located in the state [subject to enumerated exceptions and deductions]. .. . The tax ... is computed at the rate of
(1) for domestic companies, 1 1/2 per cent;
(2) for hospital and medical service corporations, 6 per cent of their gross premiums less claims paid;
(3) for companies other than domestic and hospital and medical service corporations, 3 per cent.[3]
On October 23, 1981,[4] 11 foreign insurance companies, but not appellant, filed suit challenging the constitutionality of Alaska's differential premium tax. John Hancock et al. v. State, No. 1JU-81-1699 Civ. (Alaska Super., 1st Dist., Juneau, Oct. 23, 1981). Five more foreign insurance companies were added as plaintiffs in 1982. Similar suits were brought in other states, and on March 26, 1985, the United States Supreme Court decided the case of Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985) (Ward), which involved a challenge to Alabama's differential premium tax law.
The Alaska legislature amended AS 21.09.210(b) during the next full legislative session to equalize the tax rate applicable to foreign and domestic insurers at 2.7 percent, retroactive to January 1, 1986 (i.e., for taxes due April 1, 1987). Ch. 118, § 1, SLA 1986. On July 21, 1986, 14 more foreign insurance companies were added as plaintiffs in the John Hancock suit. Other cases were also filed concerning the constitutionality of AS 21.09.210(b), including a 1986 suit by two foreign insurance companies. Northern Life Insurance Co. v. State, 1JU-86-786 Civ. Settlement was reached with all 32 companies, and the *1025 John Hancock and Northern Life cases were dismissed in November 1986.[5]
On November 14, 1986, Principal Mutual Life Insurance Company ("Principal"), an Iowa corporation licensed by the Division of Insurance to do business in Alaska, filed with the Division a request for a refund of taxes paid under AS 21.09.210 in 1983, 1984, and 1985. The Division denied Principal's refund request. Principal requested a hearing before the Division on the denial, as authorized by AS 21.06.180. The Division, through the Department of Law, denied Principal's request. On February 27, 1987, Principal added a claim for a refund of premium taxes paid in the taxable years ending 1980, 1981, and 1982. The Division denied this refund request as well. Principal requests a total refund of $95,606 for taxes it alleged were overpaid for the tax years 1980-1985.[6]
Principal appealed the Division's refund denial to the superior court, which agreed with Principal that AS 21.09.210(b)(3) was unconstitutional. Citing Ward, 470 U.S. 869, 105 S.Ct. 1676, 84 L.Ed.2d 751, and Metropolitan Life Insurance Co. v. Commissioner of Department of Insurance, 373 N.W.2d 399 (N.D. 1985), the superior court concluded that AS 21.09.210(b)(3) violated the equal protection provisions of both the Alaska and the federal constitutions. The superior court refused, however, to grant Principal any refund. The court found the analysis of Commercial Fisheries Entry Commission v. Byayuk, 684 P.2d 114 (Alaska 1984), controlling on the question of whether Principal was entitled to retrospective relief.
The state has appealed the superior court's finding that AS 21.09.210 is unconstitutional. Principal has appealed the court's denial of any refund.
A. AS 21.09.210(b) IS UNCONSTITUTIONAL UNDER THE EQUAL PROTECTION PROVISIONS OF THE FEDERAL AND ALASKA CONSTITUTIONS.
We conclude that former AS 21.09.210(b)[7] violates the equal protection clauses of both the Alaska and the federal constitutions. Principal's main argument, which we find persuasive, is that AS 21.09.210(b) is unconstitutional because it imposes a higher tax on foreign insurance companies than on domestic insurance companies, a discrimination which lacks any legitimate state purpose.
Under federal equal protection analysis, the "imposition of more onerous taxes or other burdens on foreign corporations than those imposed on domestic corporations [is forbidden] unless the discrimination between foreign and domestic corporations bears a rational relation to a legitimate state purpose." Western & Southern Life Insurance Co. v. State Board of Equalization, 451 U.S. 648, 668, 101 S.Ct. 2070, 2083, 68 L.Ed.2d 514, 530 (1981) (Western & Southern). What level of scrutiny such discrimination is subject to under Alaska equal protection analysis has not been decided by this court.[8] In any *1026 case, the minimum level of equal protection scrutiny in Alaska, also denominated a rational basis test, is more demanding than the federal rational basis test mandated by Western & Southern.[9]
In Ward, the Supreme Court considered Alabama's differential premium tax statute, Ala. Code § 27-4-4 & -5 (1975). 470 U.S. 869, 105 S.Ct. 1676, 84 L.Ed.2d 751. The Court held that the two purposes of the statute advanced by the state, promoting the formation of new domestic insurance companies in Alabama and encouraging capital investment by insurance companies in Alabama, were not legitimate state purposes, but rather were "purely and completely discriminatory, designed only to favor domestic industry... ." 470 U.S. at 878, 105 S.Ct. at 1681, 84 L.Ed.2d at 759.
The state denies that AS 21.09.210(b) reflects any intent "to penalize foreign, or reward domestic, insurers", and advances three state purposes it believes are legitimate:
1) The tax differential enables domestic insurers, burdened by Alaska's higher costs of doing business, to maintain competitive equality with foreign insurers.
2) The tax differential ensures a more stable insurance market in Alaska because domestic insurers cannot leave the state if they perceive the risks to be too high.
3) The tax differential increases the availability of insurance in Alaska because domestic insurers are more familiar with the state and will write coverage for risks which foreign companies will not insure.
We are not persuaded by the state's arguments. Even if we accept the legitimacy of these purposes,[10] there is no evidence whatsoever in the record to support the state's contention that they are advanced by the differential tax rates imposed by AS 21.09.210.[11]
The state's first argument fails to persuade us because the state has not presented any evidence supporting its claim that domestic insurers have a higher cost of doing business in Alaska than do foreign insurers. Moreover, even if such evidence were presented or judicially noticed, it is doubtful that any difference is simply the result of the insurer's decision to locate its home office in Alaska. It is reasonable to assume that foreign and domestic insurers operating in Alaska pay their Alaska agents and claims adjusters roughly equivalent salaries and commissions, and that their Alaska policyholders make equivalent numbers of claims. (Payment of claims is the largest cost of doing business.) The state has introduced no evidence indicating that foreign and domestic insurers insure different Alaska risk pools.
*1027 The only substantial business expense that may be significantly higher in Alaska than in Des Moines, Iowa, where Principal's home office is located, is administrative costs ("paperwork").[12] This argument becomes much less persuasive when we substitute Hartford-based Aetna or New York-based Metropolitan Life for Principal. However, there is nothing preventing an Alaska insurer from contracting out the bulk of its paperwork to a non-Alaska company or setting up an administrative center in a less expensive state.
Contrary to the state's second argument, there is no reason why domestic insurers cannot leave the state if they find the risks to be too high; Alaska-organized insurers are free to obtain licenses to do business in other states, just as foreign insurers are free to seek licenses to do business in Alaska.
Third, merely because an insurer is organized in Alaska does not necessarily mean that it is more familiar with the state than are foreign insurers (who may have operated in the state for much longer periods of time).[13] Even if we assume that domestic insurers are more familiar with Alaska's insurance environment than are foreign insurers, it does not logically follow that domestic insurers will write coverage for risks that foreign companies will not insure. Indeed, a domestic insurer's alleged greater familiarity with the state may cause it to avoid underwriting Alaska risks that foreign underwriters do underwrite. Nothing in Alaska's insurance laws compels domestic insurers to underwrite risks that foreign insurers are not required to underwrite.
The Michigan Court of Appeals reached the same conclusion in finding Michigan's differential tax statute unconstitutional:
We hold that, unlike in Ward, the purpose advanced by the state is legitimate (i.e., making insurance coverages available to residents), but the means chosen are not rationally related to promoting that purpose. The classification scheme is based on residency. Although it is not required that close distinctions be drawn in making classifications, the foreign/domestic classification scheme made here affords no opportunity for a foreign insurer to share in the tax preference given to domestic insurers if it desires to offer insurance in the areas of greatest public need despite the lower profit potential. The classification scheme also permits a domestic insurer to obtain a tax preference over foreign insurers even if the line of insurance offered is in a more lucrative market. Thus the classification is both under and over inclusive and not rationally related to promoting insurers to offer insurance in the high loss ratio areas such as medical malpractice, farm owners multiple peril, liquor liability, municipal liability, and product liability.
Penn Mutual Life Insurance Co. v. Department of Licensing & Registration, 412 N.W.2d 668, 672-73 (Mich. App. 1987). See also Met. Life v. Com'r., 373 N.W.2d at 406-08 (holding North Dakota's premium tax, applicable only to foreign insurers, unconstitutional).
The state's reliance on Western & Southern, in which the Supreme Court of the United States upheld the constitutionality of California's retaliatory tax[14] on commerce clause and equal protection grounds, is misplaced. A retaliatory tax does not violate the federal equal protection clause, the Court held, because it is rationally designed to "deter[] other states from enacting discriminatory or excessive taxes", thereby promoting the domestic insurance industry by lowering barriers to interstate business. 451 U.S. at 668-74, 101 S.Ct. at 2083-86, 68 L.Ed.2d at 531-35. Alaska's differential premium tax, on the other *1028 hand, does not encourage other states to lower the rate premiums they impose on Alaska insurers. For no matter how low the rate imposed by the foreign insurer's home state, AS 21.09.210 requires a foreign insurer to pay twice the premium rate paid by Alaska insurers. Unlike a retaliatory tax, AS 21.09.210 does not provide for the reduction of taxes on foreign business upon the reduction by their states of taxes imposed on Alaska businesses. Compare, AS 21.09.270, discussed supra in note 6.
We therefore conclude that AS 21.09.210(b) is unconstitutional under the equal protection clauses of both the Federal and Alaska Constitutions.[15]
B. DOES PRINCIPAL HAVE A RIGHT TO A REFUND OF TAXES PAID UNDER AS 21.09.210(b)?
Alaska Statute 43.15.010 governs whether a party may obtain a refund of taxes paid to the state.[16] This statute allows for the recovery of both inadvertent overpayments, and taxes paid under protest:
(a) The Department of Administration shall, with the approval of the attorney general and the Department of Revenue, refund to a taxpayer the amount of a tax paid to the Department of Revenue under protest and deposited in the treasury if (1) the taxpayer recovers judgment against the Department of Revenue for the return of the tax, or (2) in the absence of a judgment, it is obvious to the Department of Revenue that the taxpayer would obtain judgment if legal proceedings were prosecuted by the taxpayer.
(b) The Department of Administration shall refund the amount of an overpayment to a taxpayer if the Department of Revenue, on audit of the account in question, determines that a remittance by the taxpayer exceeds the amount due.
Principal argues that it "is [e]ntitled to a [r]efund of [e]xcess [t]axes [p]aid ..." under AS 21.09.210(b) for the 1980-1985 tax years. These taxes were not paid under protest.
Alaska Statute 43.15.010[17] has been interpreted in a manner that would preclude relief to Principal (1) because Principal did not pay the premium taxes under protest, as required by subsection (a), and, (2) because implicit in subsection (b) is the concept that the tax imposed was valid, and that the taxpayer, by the terms of the tax statute at the time of payment, erroneously *1029 remitted too much. We hold that Principal will be entitled to a refund only under subsection (a), and only if it is determined that the state waived the protest requirement in Principal's case.
Examination of the record shows the following in regard to the history of this litigation.
On November 14, 1986, Jed Fisk, Assistant Director of Principal's corporate tax division wrote to the Director of the Division of Insurance. This letter reads in part:
A review of your state's administrative provisions fails to provide guidance on a prescribed format for filing claims for refunds of premium taxes. The format of the enclosed Claims for Refunds [for tax years 1983, 1984, and 1985 in the amount of $62,739] provides the necessary information to determine the amount and propriety of the Claim. We hereby request that you indicate on the enclosed page if the format is NOT acceptable or will NOT constitute a valid Claim for Refund. (Emphasis furnished.)
On November 25, 1986, the Director of the Division of Insurance sent to Jed Fisk Order No. 86-19 which reads as follows:
We have reviewed your claim for a premium tax refund for the calendar years of 1983, 1984, and 1985. These premium taxes were properly paid under the provisions of Alaska Insurance Laws (AS 21). Therefore your claim is denied.
Subsequent to the receipt of Order No. 86-19, Principal wrote the Director of Insurance demanding "a hearing pursuant to AS 21.06.180 of the Alaska Insurance Code regarding our request for a refund of premium taxes paid for the years ending December 31, 1983, December 31, 1984, and December 31, 1985." The state responded to Principal's request in the following manner:
... Please be advised that you may consider Order No. 86-19, dated November 25, 1986, as a final order for appeal purposes. Because the issues in this case appear to be purely of a legal nature, there would be little purpose in holding any hearing. A similar approach has been taken in other cases challenging Alaska's premium tax laws as they existed prior to 1986.
... .
There is a long line of case law holding that when a court declares a tax or license fee invalid, that ruling is given prospective effect only, in order to avoid imposing undue administrative or financial burdens on the public and the taxpayers. (Citations omitted.)
... .
A few cases, however, have recognized an exception to the general rule of no retroactive relief. In these cases, the rule has been that the court will utilize its equitable powers to give its ruling a limited retroactive effect, only as to the parties in the litigation, and only back to the time that suit was brought. Rio Algom Corp. v. San Juan County, 681 P.2d 184, 196 (Utah 1984). Since your company paid the premium taxes without any formal refund requests until November 1986, we would contend it has no legitimate claim for any refund.[18] (Emphasis furnished.)
Given the record in this appeal we have concluded that the most appropriate disposition of the refund issue is to remand the matter to the superior court in order to permit the court to conduct such further proceedings as it deems necessary to resolve the following issues:
*1030 (1). Did the state waive the requirement of AS 43.15.010(a) that Principal protest the payments of premium taxes at the times payments were made for the tax years 1980, 1981, 1982, 1983, 1984, and 1985? (2). In the event it is held that the state waived the requirement of payments of the taxes under protest, and that Principal is entitled to a judgment for a refund of the questioned taxes, then the applicable limitations period governing Principal's claims for refunds should be determined.[19]
Concerning the question of whether the state waived the provision of AS 43.15.010(a) which requires that taxes must be paid under protest in order to obtain a refund, we consider it appropriate to make the following observations.
The general rule at common law is that if an illegal tax is voluntarily paid by the taxpayer without compulsion it cannot be recovered back in an action at law.[20] There is case authority holding that the protest by itself, renders the payment involuntary.[21] Accordingly, there is also authority which holds that taxes voluntarily paid cannot be recovered where there was no protest made at the time of payment.[22]
Some jurisdictions have by statute provided for the recovery of illegal taxes in actions at law where payment of the taxes was made under protest.[23] The Alaska legislature has provided for such a remedy by enacting AS 43.15.010(a). It is clear that AS 43.15.010(a) is a valid enactment in derogation of the common law rule regarding voluntary payment of taxes. The purpose of AS 43.15.010(a) is to "liberalize recoveries by creating rights where formerly none existed." Pacific Am. Fisheries, Inc. v. Mullaney, 13 Alaska 729, 734, 105 F. Supp. 907, 909 (D.Alaska 1952), and to provide an expeditious method by which state government can obtain necessary revenues. The protest requirement called for by AS 43.15.010(a) serves several purposes. It serves as proof that the payment of the tax in question was involuntarily made and it provides notice to the taxing authority that the tax is claimed to be illegal as well as the basis of the taxpayer's assertion.
One additional point remains to be made. In State v. Wakefield Fisheries, Inc., 495 P.2d 166 (Alaska 1972), this court held:
[T]he taxpayer is [not] limited to recovery of overpayments according to AS 43.15.010. The common law has long recognized a cause of action in assumpsit to recover overpayments of taxes. Because the statutory remedies do not explicitly supersede the common-law remedies, they are intended as a supplement, and the earlier remedy in assumpsit is still available.
Although we now question whether the common law remedy of a cause of action in assumpsit survived the enactment of AS 43.15.010, we take this occasion to overrule that portion of Wakefield which holds that there is no requirement that a taxpayer formally protest the payment of the tax at the time of payment in order to subsequently maintain a common law action in assumpsit for a tax refund. The burden of requiring a taxpayer to file a protest at the time of payment of the tax is at most minimal. On the otherhand the requirement of a protest serves the important function of providing state government with notice of the claimed tax illegality, the grounds advanced in support of the claimed illegality, and affords the state the opportunity to fashion budget appropriations, or *1031 expenditures, taking into account the magnitude of the claimed tax illegality. We think these are significant considerations which warrant the retention of the requirement of a protest.
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.
COMPTON, J., dissents.
COMPTON, Justice, dissenting in part.
I disagree with the disposition of this case mandated in Section II of the opinion. The court concludes that "the most appropriate disposition of the refund issue is to remand the matter to the superior court to conduct such further proceedings as it deems necessary to resolve the following issues," issues which I observe are not raised in either the briefs or the arguments of the parties. In order to reach this result, the court interprets AS 43.15.010(a), a statute neither party cites, and then gratuitously overrules a portion of State v. Wakefield Fisheries, Inc., 495 P.2d 166 (Alaska 1972), a case neither party cites.
To the court's credit, it does not attempt to justify the result under any particular judicial doctrine such as the "plain error doctrine," but that does not make the result any more palatable. In my view the manner in which the court proceeds in resolving this case is just as flawed as it was in Clark v. Greater Anchorage, Inc., 780 P.2d 1031 (Alaska 1989) (Compton, Justice, dissenting). Surely it cannot be said that on this record "it appears an obvious mistake has been made which creates a high likelihood that injustice has resulted." Clark, dissent at 1039.
NOTES
[1] A "domestic" insurer is defined as one formed under the laws of the state of Alaska. AS 21.90.070(a).
[2] Ch. 173, § 9, SLA 1957, codified as § 42-1-14 ACLA (Supp. 1958). Until 1957, the premium tax rates on foreign and domestic insurers were the same. Ch. 22, § 17, SLA 1937, codified as § 42-1-14 ACLA (1949) (2 percent); ch. 185, § 1, SLA 1957) (3 percent). There is no substantive legislative history on the differential tax provision, which was a floor amendment requested by Mr. K. Johnson and adopted by unanimous consent. 1957 House Journal 565. The insurance law was extensively revised in 1966. Ch. 120, § 1, SLA 1966.
[3] Unless otherwise noted, all references to AS 21.09.210(b) refer to the statute prior to its 1986 amending.
[4] This suit was filed almost exactly five months after the Supreme Court's decision in Western & Southern Life Ins. Co. v. State Board of Equalization, 451 U.S. 648, 668, 101 S.Ct. 2070, 2083, 68 L.Ed.2d 514, 530 (1981), discussed infra.
[5] Although the state has refused to disclose the monetary figures involved in the settlement, the state has revealed that the settlement involves future tax credits to the companies.
[6] Principal alleges that this sum is the difference between the 3 percent tax paid under AS 21.09.210(b)(3), and the 2 percent tax that would have been paid had AS 21.09.210(b)(3) not been in effect. Principal would have paid 2 percent (Iowa's premium tax rate) rather than 1 1/2 percent because of Alaska's retaliatory tax, AS 21.09.270(a). Under this statute, if the home state of a foreign insurer imposes a higher premium tax on insurers doing business in the home state than Alaska imposes on its domestic insurers, then Alaska imposes the foreign state's higher premium tax rate on the foreign insurer's business in Alaska. Principal has not challenged Alaska's retaliatory tax as part of this litigation. California's retaliatory tax survived a constitutional challenge in Western & Southern, note 4 supra, and discussed infra.
[7] As discussed above, the superior court actually declared subsection (b)(3) unconstitutional. The statute is unconstitutional because subsections (b)(1) and (b)(3) provide different tax rates for foreign and domestic companies. Subsection (b)(2) is not unconstitutional provided that it is interpreted to include domestic, as well as foreign, hospital and medical service companies. We believe that this interpretation comports with the rules of statutory construction.
[8] The state's reliance on Williams v. Zobel, 619 P.2d 422, 427 (Alaska 1980), for its assertion that Alaska's standard of review is also the rational basis test is inaccurate. In Williams, we stated that "[f]reedom from disparate taxation is not a federally protected fundamental right... ." Id. at 427 (emphasis added). We did not explicitly state in Williams what standard of review was used in our state equal protection analysis. See id. at 427-29. Williams is also inapposite because it involved discrimination in tax rates between two classes of Alaska residents, not between Alaska and non-Alaska residents. The only other case involving differential tax rates and discussing Alaska equal protection analysis is also inapposite. Sisters of Providence in Washington, Inc. v. Municipality of Anchorage, 672 P.2d 446, 448 n. 1 (Alaska 1983) (holding that different tax for owned and leased equipment is "rational and bears a fair and substantial relation" to the statute's goal).
[9] Isakson v. Rickey, 550 P.2d 359, 362 (Alaska 1976), superseded on other grounds, Commercial Fisheries Entry Com'n v. Apokedak, 606 P.2d 1255, 1261 (Alaska 1980) (Alaska will apply more flexible and more demanding standards where equal protection scrutiny is appropriate); Alaska Pacific Assurance Co. v. Brown, 687 P.2d 264, 269-70 (Alaska 1984) (under minimum level of constitutional review, there must be a substantial relationship between legitimate legislative goals and the ends chosen to achieve those goals).
[10] Making insurance coverage available to Alaska residents is a legitimate state purpose. See Penn Mutual Life Insurance Co. v. Department of Licensing and Registration, 162 Mich. App. 123, 412 N.W.2d 668, 672 (1987).
[11] In comparison, the state in Ward submitted economic studies "document[ing] differences between the two classes of insurers that are directly relevant to the well-being of Alabama's citizens." 470 U.S. at 887, 105 S.Ct. at 1686, 84 L.Ed.2d at 765 (O'Connor, J., dissenting).
[12] This argument assumes that labor is the largest component of administrative costs and that Alaska's cost of labor is higher than Des Moines'.
[13] Alaska Statute 21.09.210(c) exempts a domestic (but not a foreign) insurer from payment of the premium tax for five years from the date of its organization.
[14] Alaska's retaliatory tax is discussed supra in note 6.
[15] Since AS 21.09.210(b) fails the federal rational basis test, a fortiori, it does not satisfy Alaska's more demanding equal protection analysis.
[16] Because AS 43.15.010 provides a remedy for those who seek refunds, we reject the view of both parties that Commercial Fisheries Entry Commission v. Byayuk, 684 P.2d 114 (Alaska 1984), is relevant for purposes of determining whether Principal is entitled to a refund in this case.
[17] In Pacific American Fisheries, Inc. v. Mullaney, 13 Alaska 729, 734, 105 F. Supp. 907, 909 (D.Alaska 1952) a District Court for the Territory of Alaska denied a claim for a refund of an unconstitutionally collected nonresident fishing license fee under § 48-7-1, ACLA, which was recodified as AS 43.15.010. Ch. 16, § 1, SLA 1962. There Judge Folta wrote in part:
At common law, a taxpayer had an action in the nature of assumpsit whenever taxes were paid under duress and coercion, and they were wrongfully assessed. Section 48-7-1(a) [amended and recodified as AS 43.15.010(a)] provides for a refund of taxes paid under protest. At common law, no such refund could be secured on the basis of a mere protest. Section 48-7-1(b) [amended and recofied as AS 43.15.010(b)] provides for return of overpayments, and does not even require a protest, let alone duress. At common law, no recovery was allowed in this situation either. Therefore, it would appear that two new means of recovery have been created, and, since the common law action, requiring protest, wrongful assessment and duress, is not mentioned, it is apparent that the statutory forms are in addition to the one already in existence. It would seem that the statutes were intended to liberalize recoveries by creating rights where formerly none existed. The statutes may well be exclusive as to the situations covered by them, but, since they do not cover the duress situation, an action based on duress will still lie.
Even though an action will still lie outside the statutes, its requisites are not fulfilled by the allegations in the third count. Payment under protest, duress and an invalid assessment are not alleged. Since it is insufficient on these grounds, it is unnecessary to determine whether or not plaintiff is the real party in interest as to that part of the claim which was deducted from the fishermen's wages. (Emphasis in original.)
[18] Subsequent to the state's response the parties stipulated that
[T]his extension of time will provide adequate time for Principal Mutual to file a claim for refund with the Division of Insurance for premiums taxes for additional years and for the Division to act on that refund claim.
Thereafter on February 27, 1987, Principal filed a refund claim in the amount of $37,862.00 for the 1980, 1981, and 1982 tax years. By order No. 87-19, dated March 6, 1987 the Division of Insurance advised Principal that:
We have reveiwed your claim for a premium tax refund for the calendar years 1980, 1981, and 1982. These premiums taxes were properly paid under the provisions of Alaska Insurance Laws (AS 21). Therefore, your claim is denied.
[19] Although we do not decide the issue at this time it appears that AS 43.05.275 provides for a three-year limitations period for claims made under AS 43.15.010. Alaska Statute 43.05.275(a)(1) requires that a taxpayer file a refund claim "before the later of (A) three years from the time the return was filed; or (B) two years from the time the tax was paid."
[20] National State Bank of Boulder v. State, 156 Colo. 34, 396 P.2d 948 (1964).
[21] Title Guarantee & Trust Co. v. City of New York, 265 A.D. 304, 38 N.Y.S.2d 715 (1942), affirmed 290 N.Y. 910, 50 N.E.2d 301 (1943).
[22] Selectmen of Hull v. County Commissioners of Plymouth County, 12 Mass. App. Ct. 900, 422 N.E.2d 787 (1981).
[23] Helmsley v. City of Detroit, 320 F.2d 476 (6th Cir.1963); North Pier Terminal Co. v. Tully, 62 Ill.2d 540, 343 N.E.2d 507 (Ill. 1976).
| {
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477 Pa. 147 (1978)
383 A.2d 866
COMMONWEALTH of Pennsylvania
v.
William RUSSELL, Appellant (two cases).
Supreme Court of Pennsylvania.
Argued January 13, 1977.
Decided March 23, 1978.
*148 Burton A. Rose, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Maxine J. Stotland, Asst. Dist. Atty., for appellee.
*149 Before EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
ROBERTS, Justice.
On November 19, 1974, a jury found appellant William Russell guilty of murder of the first degree, aggravated robbery, burglary, and conspiracy in connection with the shooting death of William Lackman and John Seely and robbery of the residence of Dr. Frank Washick.[1] The trial court on October 21, 1975 denied appellant's post-verdict motions and sentenced appellant to life imprisonment on the murder conviction and both concurrent and consecutive sentences on the other convictions. Appellant contends that the trial court improperly instructed the jury that in evaluating the credibility of a witness who testifies favorably for the accused, but who was previously convicted and sentenced for the crime in question, the jury should view the exculpatory testimony "with disfavor because it comes from a corrupt and polluted source," should "accept [the testimony] only with caution and care," and should consider whether the testimony is "supported by independent evidence."[2] We agree, reverse judgments of sentence, and grant appellant a new trial.[3]
*150 I
The Commonwealth asserts that appellant, though not present during the commission of the crime, organized and planned it. Joseph Grissell testified for the Commonwealth that he was supposed to act as a lookout for the perpetrators, but withdrew from the enterprise. Grissell testified that he was present when appellant organized the crime. Adolph Schwartz, one of the perpetrators, testified for appellant that he did not know appellant and that appellant was not involved. Appellant also testified.
The trial court instructed the jury that in evaluating the testimony of Grissell, the prosecution's witness, it should be aware that an accomplice "may falsely blame others," and that his testimony should be examined closely. The court also charged that Grissell's testimony "standing alone is sufficient evidence on which to find the defendant guilty if, after following the foregoing principles [concerning accomplices], you are convinced beyond a reasonable doubt that he testified truthfully. . . ."
The court then charged the jury concerning the testimony of Schwartz, appellant's witness: "Now as to him, you also have to apply the same precautions [as for Grissell] in determining the credibility of his testimony. Briefly, to repeat what I have said for the other accomplice, in deciding whether or not to believe Schwartz's testimony, you should be guided by the same principles." The trial court continued:
"The testimony of Adolph Schwartz should be looked upon with disfavor because it comes from a corrupt and polluted source.
Two: You should examine his testimony closely and accept it only with caution and care, which is exactly the same thing I said for the other accomplice that testified.
*151 Third: You should consider whether Schwartz's testimony is supported in whole or in part by other evidence aside from his testimony, for if it is supported by independent evidence, then it is more dependable.
And, finally, you may believe Schwartz's testimony even though it is not supported by any other evidence."
II
The Commonwealth asserts that appellant failed to preserve the issue whether the trial court erred in instructing the jury concerning the testimony of Adolph Schwartz. We do not agree.
The jury returned its verdicts on November 19, 1974. Counsel for appellant on November 22, 1974, filed post-verdict motions challenging the sufficiency of the evidence. On November 25, appellant, though represented by trial counsel, filed timely pro se post-verdict motions challenging the sufficiency of the evidence, the trial court's charge to the jury, the prosecuting attorney's closing argument, and the trial court's failure to instruct the jury further on the credibility of the witnesses. On February 27, 1975, before argument on post-verdict motions, counsel withdrew from the case with the approval of appellant, and new counsel entered an appearance. New counsel filed a brief addressing the charge. After argument, the court denied the motions, including the objection to the charge concerning Schwartz's testimony.
Citing Commonwealth v. Bell, 442 Pa. 566, 276 A.2d 834 (1971), the Commonwealth argues that motions filed by a counseled defendant, such as the November 25 post-verdict motions of appellant, are not valid. In Bell, this Court pointed out the importance of defense counsel and stated "a hearing or trial court should not accept an accused's pro se motion when he has counsel of record and there is no evidence he has discussed the matter with counsel, particularly where the motion works to the accused's prejudice." Id. 442 Pa. at 571, 276 A.2d at 836.
*152 The Commonwealth misperceives Bell. Bell does not hold that such pro se motions by a counseled defendant are per se invalid. Rather, Bell directs trial courts to scrutinize such motions so that undue procedural confusion might be avoided. Where appellant has taken steps necessary to preserve his right to appellate review of an alleged error, and where these steps do not prejudice appellant, we cannot say that the trial court erred in treating appellant's timely pro se motions as a proper supplement to those post-verdict motions already filed.[4]
III
Giving an "accomplice charge" when an accomplice testifies on behalf of the prosecution is a well-established practice. See Commonwealth v. Sisak, 436 Pa. 262, 259 A.2d 428 (1969); see also Cool v. United States, 409 U.S. 100, 103, 93 S.Ct. 354, 357, 34 L.Ed.2d 335 (1972) (citing cases). Giving such a charge when the witness testifies for the defendant, however, is far less common. There are few reported appellate cases from other jurisdictions directly passing on this issue,[5] which is apparently one of first impression for this *153 Court.[6]
A legitimate basis exists for charging the jury to view an accomplice's testimony with suspicion when the accomplice testifies for the Commonwealth. Such a witness, out of a reasonable expectation of leniency, has an interest in inculpating others. This basis is inapplicable, however, when the accomplice testifies on behalf of the defense. One implicated in a crime cannot reasonably expect such leniency by exonerating others, particularly where, as here, the witness has already been sentenced for committing the crime. Thus, it is unreasonable to infer, and improper for the court to charge, that because this defense witness stood convicted of the crime in question, his testimony must be viewed "with disfavor" and accepted only with "caution and care."
We cannot say beyond a reasonable doubt that the error was harmless. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). The prosecution's case rested heavily on the testimony of the alleged confederate Grissell. The defense consisted of testimony of the convicted perpetrator Schwartz and appellant, both of whom contradicted Grissell. Credibility of these witnesses was crucial. Therefore, appellant was prejudiced by a charge misdirecting the jury in assessing the testimony of Schwartz, an important defense witness. See Commonwealth v. Jackson, 475 Pa. 604, 381 A.2d 438 (1977); Commonwealth v. Reese, 475 Pa. 120, 379 A.2d 1312 (1977).
Judgments of sentence reversed and new trial granted.
JONES, former C.J., did not participate in the decision of this case.
POMEROY, J., filed a dissenting opinion.
*154 POMEROY, Justice, dissenting.
I respectfully dissent. There is no doubt that when the prosecution calls as an inculpatory witness a person who is known to be or who may be found to be an accomplice with the defendant in the crime which is the subject of the trial, a so-called "accomplice charge" is proper. In the less usual situation where an accomplice is called by the defendant as an exculpatory witness, the Court now holds, as I read its opinion, not only that the normal accomplice charge is improper, but that no accomplice charge is proper. It is with this latter part of the Court's ruling that I disagree.
The normal accomplice charge contains admonition to the effect that persons caught in the commission of a crime may falsely blame others because of some corrupt or wicked motive, or in the hope of obtaining leniency through inculpating others. The jury is usually told that the testimony of such a person, standing alone, is enough to convict only if the jury is satisfied beyond a reasonable doubt that the witness testified truthfully. Such a charge was given in the instant case with reference to a Commonwealth witness, one Grissell. I agree with the Court that it would be wrong for a trial judge to charge relative to a defense accomplice witness that only if the jury believed beyond a reasonable doubt that the witness was telling the truth could they accept his testimony. So to charge would distort the well established principles of burden of proof. Commonwealth v. Griffin, 216 Pa.Super. 410, 413-414, 268 A.2d 129, 131 (1970). See In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). But I see no harm in a limited accomplice charge. As the Superior Court put it in Griffin, supra:
"Since the [defense] witness could properly be considered an accomplice and had admitted prior convictions of felonies a cautionary charge was proper. The form of such instruction lies within the discretion of the lower court. . . .
* * * * * *
"However, there is no burden on the defendant and no justification for requiring that his witness be believed *155 `beyond a reasonable doubt.'" Ibid. 216 Pa.Super. at 414-415, 268 A.2d at 131-132.
The trial court in the case at bar gave such a limited instruction, as quoted in Mr. Justice ROBERTS' opinion at page 867.[*] In my view it was exercising proper discretion in so doing.
The policy behind such a charge, of course, is to alert the jury to the possibility of perjured testimony. While the hope of favorable treatment by the prosecution would not be the motive for the testimony of a defense witness, other motives might well come into play. The favorable testimony of a witness like Adolf Schwartz, convicted and sentenced to life imprisonment on the offense for which the appellant *156 was on trial, might have been motivated by feelings of friendship, loyalty or even fear of future revenge by appellant or his friends should he, Schwartz, refuse to testify; such a person, moreover, would have nothing to lose by lying for a colleague, having already been convicted and sentenced himself. Hence, like the prosecution's evidence from an accomplice source, such testimony by a defense witness is also susceptible to the possibility of perjury. Thus I agree with the view held in a number of other jurisdictions that "whether an accomplice testifies for the defendant or for the State his credibility may be suspect, and the trial judge should have judicial discretion to decide whether to advise the jury to accept the accomplice's testimony with caution." People v. Legear, 29 Ill.App.3d 884, 890, 331 N.E.2d 659, 665 (1975). Accord, United States v. Nolte, 440 F.2d 1124 (5th Cir. 1971).
I would affirm the judgment of sentence.
NOTES
[1] This Court reversed appellant's previous conviction on these charges. Commonwealth v. Russell, 456 Pa. 559, 322 A.2d 127 (1974).
[2] We hear these appeals pursuant to the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, arts. II and V, §§ 202(1) and 503(a), 17 P.S. §§ 211.202(1) and 211.503(a) (Supp. 1977).
[3] Appellant asserts that the evidence was insufficient to prove guilt beyond a reasonable doubt. Viewing all the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, see Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976); Commonwealth v. Bastone, 466 Pa. 548, 353 A.2d 827 (1976), we conclude that the evidence was sufficient.
Appellant also contends that the trial court erred by: (1) instructing the jury that before it could apply the "accomplice rule" to the testimony of a prosecution witness it must first find that the witness had not withdrawn from the conspiracy; and (2) failing to emphasize to the jury that it could return a verdict of murder of the second degree. Our disposition makes resolution of these issues unnecessary.
[4] The Commonwealth also asserts that appellant's pro se motions referred generally to the charge of the trial court, but not to the "polluted source" charge. A fair reading of appellant's pro se motion, however, see Commonwealth ex rel. Saunders v. Creamer, 464 Pa. 2, 345 A.2d 702 (1975), citing Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), and new counsel's post-verdict brief, filed before argument, put the court on notice of appellant's allegation of error.
[5] The Supreme Court of New Jersey has held invalid an accomplice charge where the accomplice is a defense witness. State v. Gardner, 51 N.J. 444, 460-61, 242 A.2d 1, 10 (1968). Accord, Wheelis v. State, 340 So.2d 950, 952 (Fla.App. 1976) (disapproving charge that accomplice testifying for defense must be evaluated with great caution; no Florida case approving such a charge); People v. Legear, 29 Ill. App.3d 884, 892, 331 N.E.2d 659, 665 (1975) (as a general rule, accomplice instruction should not be given where it derogates from defendant's ability to use favorable testimony); People v. Howard, 130 Ill.App.2d 496, 498, 263 N.E.2d 633, 634 (1970) (general rule is to give instruction only where accomplice implicates defendant) (citing cases). But see United States v. Nolte, 440 F.2d 1124 (5th Cir.), cert. denied, 404 U.S. 862, 92 S.Ct. 49, 30 L.Ed.2d 106 (1971) (upholding instruction; accomplice credibility may be suspect).
[6] In Commonwealth v. Griffin, 216 Pa.Super. 410, 268 A.2d 129 (1970), the Superior Court held it was error to instruct a jury that it must believe an accomplice testifying for the defendant "beyond a reasonable doubt." The Superior Court went on to say, however, that without the "beyond a reasonable doubt" language the charge would be proper because the witness had admitted to prior felony convictions. This language, however, was not necessary to resolve the case; in any event, we decline to follow it.
[*] It is apparent that in giving this charge the trial judge was following the recommended charge proposed by this Court's Committee for Proposed Standard Jury Instructions where one or more of the defendant's exculpatory witnesses are accomplices. Section 4.05 of the Proposed Standard Jury Instructions reads:
"In deciding whether or not to believe ( ) and ( ), you should be guided by the following principles:
"First. The testimony of ( ) and ( ) should be looked upon with disfavor because it comes from a corrupt and polluted source.
"Second. You should examine ( )'s and ( )'s testimony closely and accept it only with caution and care.
"Third. You should consider whether ( )'s and ( )'s testimony is supported, in whole or in part, by other evidence aside from his (their) own testimony, for if it is supported by independent evidence it is more dependable.
"Fourth. However, you may believe ( )'s and ( )'s testimony even though it is not supported by any other evidence."
The majority opinion reads the court's charge as incorporating by reference the full accomplice charge given with reference to the Commonwealth witness Grissell into the charge later given with reference to the defense witness Schwartz. While there is language in the charge which can be so construed, I am satisfied that there was a sufficient break between the two passages in the charge so that the jury was not misled into thinking that their approach to the two witnesses should be identical. The four points in the cautionary charge given to the jury as to Schwartz were also included in the longer instruction as to Grissell, and that is no doubt why the trial judge assimilated the one to the other. But his charge as to Schwartz did not contain the "beyond a reasonable doubt" caution, as did the charge on Grissell, nor did it say, as does the longer charge, that a person caught in committing a crime may falsely blame others because of some corrupt and wicked motive.
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-31-2007
Bax v. Warden FCI McKean
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4187
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Bax v. Warden FCI McKean" (2007). 2007 Decisions. Paper 1713.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1713
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HLD-44 (January 2007) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4187
JOHN BAX,
Appellant
vs.
WARDEN FCI MCKEAN
___________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 05-cv-00194)
District Judge: Honorable Sean J. McLaughlin
____________________________________
Submitted For Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
January 19, 2007
Before: SCIRICA, Chief Judge, WEIS AND GARTH, Circuit Judges
(Filed: January 31, 2007)
OPINION
PER CURIAM.
Appellant John Bax, a federal prisoner incarcerated at the Federal
Correctional Institution at McKean in Bradford, Pennsylvania, appeals the order entered
1
by the United States District Court for the Western District of Pennsylvania dismissing
his petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241.
Bax was convicted in 1993 of conspiracy to manufacture and distribute
cocaine and crack. Bax was sentenced to serve 286 months of imprisonment under the
career offender guidelines. Bax’s conviction and sentence were affirmed by this Court in
1994. In 1997, Bax filed a 28 U.S.C. § 2255 motion to vacate, set aside or correct his
sentence. This motion was denied, as was Bax’s application to this Court for a certificate
of appealability. Bax thereafter filed an unsuccessful motion pursuant to Federal Rule of
Criminal Procedure 35(a) and 18 U.S.C. § 3582(c)(1)(A)(I). Subsequently, Bax applied
to this Court for authorization to file a second or successive § 2255 motion, but this
application was denied.
In his current § 2241 petition, Bax argues that his conviction and sentence
violated the Fifth and Sixth Amendments to the Constitution. The District Court
dismissed Bax’s § 2241 petition for lack of subject matter jurisdiction, concluding that it
constituted a collateral attack upon the legality of his sentence, and that Bax’s inability to
bring a subsequent § 2255 motion did not make that remedy “ineffective or inadequate”
to test the legality of his detention. On appeal, Bax contends that the § 2255 “safety
valve” should apply to him because he is “actually innoc[ent] of the elements needed to
subject him to the substantial career offender enhancement . . . .”
We have jurisdiction pursuant to 28 U.S.C. § 1291. Because there is no
substantial question on appeal, the District Court’s order will be affirmed.
2
Motions pursuant to 28 U.S.C. § 2255 “are the presumptive means by
which federal prisoners can challenge their convictions or sentences that are allegedly in
violation of the Constitution.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir.
2002) (citation omitted). Unless a § 2255 motion would be “inadequate or ineffective,” a
habeas corpus petition under § 2241 cannot be entertained by the court. Cradle v. United
States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam). Section 2255 is not
inadequate or ineffective merely because a petitioner is unable to meet its stringent
gatekeeping requirements. See In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997).
Rather, the “safety-valve” provided under § 2255 is extremely narrow, and has been held
to apply in unusual situations, such as those in which a prisoner has had no prior
opportunity to challenge his conviction for a crime later deemed to be non-criminal by an
intervening change in law. See Okereke, 307 F.3d at 120.
Bax’s claims fall within the purview of § 2255 because they challenge the
validity of his conviction and sentence. We agree with the District Court that Bax has not
demonstrated that § 2255 is an “inadequate or ineffective” remedy under the
circumstances presented here. This is not a situation where Bax has had no prior
opportunity to challenge his conviction for a crime later deemed to be non-criminal.
Indeed, Bax has already challenged – albeit unsuccessfully – being sentenced as a career
offender in his prior § 2255 motion. Accordingly, we need not reach the question of
whether a prisoner can be actually innocent of being a career offender.
For these reasons, we agree with the District Court’s conclusion that it
3
could not entertain Bax’s petition. We also conclude that the District Court did not abuse
its discretion in denying Bax’s motion for reconsideration. We will, therefore, summarily
affirm the District Court’s orders.
4
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110 P.3d 982 (2005)
William B. RATLIFF, Appellant,
v.
STATE of Alaska, Appellee.
No. A-8651.
Court of Appeals of Alaska.
April 15, 2005.
*983 David D. Reineke, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
OPINION
MANNHEIMER, Judge.
In late December 2002, a burglar broke into the Alaska Laundry in Juneau and stole almost $2000 from the safe. In the process of opening the safe, the burglar strewed the safe's powdery fireproofing material across the floor. The burglar left many shoeprints in this powder. When the police arrived to investigate the burglary, they "lifted" some of these shoeprints. The preserved shoe impressions revealed that the sole of the burglar's shoe had a waffle pattern, and that the sole was embossed with the letters "t", "n", "i", "e", and "s".
The police suspected that William B. Ratliff might have been involved in this burglary. Ratliff had an appointment with his probation officer the next afternoon, so a police officer was sent to interview Ratliff when Ratliff arrived for this appointment.
The officer asked Ratliff if he had been in the Alaska Laundry the day before. Ratliff declared that he had never been in that laundry. The officer then asked Ratliff to show him the bottoms of his shoes. The officer could see that the soles of Ratliff's shoes appeared to match the shoeprints found at the laundry, so the officer left the interview room to make a telephone call. Ratliff took this opportunity to run from the building. Ratliff was arrested the next day while he was purchasing new shoes at a shopping mall.
Ratliff was subsequently tried and convicted of burglary, theft, and criminal mischief. In this appeal, Ratliff challenges the admissibility of certain testimony offered by the government at his trial.
Lesley Hammer, a criminologist employed at the State Crime Laboratory, compared the shoeprints left at the laundry with the patterns on the bottom of Ratliff's shoes. Hammer ran side-by-side comparisons, and she also performed overlay comparisons. She found that some of the shoeprints at the laundry were "consistent" with Ratliff's shoesi.e., they were made by Ratliff's shoes or by other shoes of the same brand or similar manufacture. However, with respect to two of the shoeprints, Hammer concluded that these prints were made by Ratliff's particular shoes (not just shoes of the same brand or similar manufacture).
In the superior court, Ratliff objected to Hammer's testimony. He argued that shoeprint comparison was not valid science under the test enunciated by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,[1] and later adopted by the Alaska Supreme Court in State v. Coon.[2]
Superior Court Judge Larry R. Weeks held an evidentiary hearing on this issue. At *984 this hearing, Hammer was questioned regarding her training and experience, and also regarding the procedures and methods used by her and other shoeprint examiners. Hammer described how shoeprints are taken and preserved, and she described how these prints are then compared to particular shoes.
At the conclusion of this hearing, Judge Weeks concluded that the type of shoeprint analysis performed by Ms. Hammer was not "scientific" for purposes of the Daubert-Coon rule. Alternatively, Judge Weeks found that the type of shoeprint analysis described by Ms. Hammer met the Daubert criteria.[3] Finally, Judge Weeks concluded that Hammer's testimony was admissible under Evidence Rule 702 because her specialized knowledge and training in this area would assist the jury in understanding the shoeprint evidence and assessing its significance.
In this appeal, Ratliff takes issue with Judge Weeks's conclusion that the Daubert-Coon test did not apply to Hammer's testimonyi.e., the judge's conclusion that shoeprint analysis does not depend on the sort of scientific methodology governed by Daubert and Coon. Ratliff takes the position that the Daubert criteria apply, not just to scientific testimony, but to all expert testimony that is based on technical training or specialized knowledge. Accordingly, Ratliff contends that Judge Weeks abused his discretion when he ruled that it was unnecessary to subject Hammer's testimony to a Daubert analysis. Ratliff asks us to vacate Judge Weeks's ruling, to remand his case to the superior court, and to direct Judge Weeks to conduct a Daubert analysis of Hammer's testimony.
Ratliff relies on the Supreme Court's decision in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In Kumho Tire, the Supreme Court concluded that the admissibility of all expert testimony, not just scientific expert testimony, is dependent upon a showing of relevance and reliability.[4] The Court suggested that the Daubert criteria for evaluating the validity of scientific evidence might be pertinent outside a scientific contextalthough the Court conceded that other factors (i.e., factors not mentioned in Daubert) might also have a bearing on the reliability of testimony based on technical or other specialized knowledge.[5]
In rejecting a fixed dividing line between "scientific" evidence and other evidence based on technical or other specialized knowledge, the Court noted:
[I]t would prove difficult, if not impossible, for judges to administer evidentiary rules under which a gatekeeping obligation depended upon a distinction between "scientific knowledge" and "technical" or "other specialized" knowledge. There is no clear line that divides the one from the others [, and] conceptual efforts to distinguish the two are unlikely to produce clear legal lines capable of application in particular cases.
Kumho Tire, 526 U.S. at 148, 119 S.Ct. at 1174.
At the same time, however, the Supreme Court emphasized that it was not saying that all of the Daubert factors necessarily applied to all kinds of expert analysis.[6] The ultimate question is whether the offered evidence is based on valid principles and methodology.[7] In answering this question, the Supreme Court declared, trial judges must have leeway in analyzing whether the Daubert factors, or some of the Daubert factors, are pertinent to the assessment of the methodological *985 validity of the particular evidence being offered in each case.[8]
Our supreme court has not yet decided whether to adopt the rule of Kumho Tire as a proper interpretation of Alaska evidence law. But even if we were to follow the rule of Kumho Tire, that rule would not support Ratliff's position in this appeal.
Ratliff is wrong when he asserts that trial judges are obliged to apply the Daubert criteria to all expert testimony. The Supreme Court carefully worded Kumho Tire to avoid this result. What Kumho Tire requires trial judges to do is evaluate whether the Daubert factors are pertinent to assessing the methodological validity of the particular challenged evidence in their case.
The record shows that Judge Weeks fulfilled this duty. When Ratliff raised his Daubert objection, Judge Weeks held a hearing so that Lesley Hammer could explain the principles and methods used by forensic examiners to preserve shoeprints and conduct shoeprint comparisons. Ratliff offered no competing testimony (or any other evidence) on these matters. At the end of this hearing, Judge Weeks concluded that he could adequately assess the methodological validity of the proposed shoeprint testimony without conducting a formal Daubert analysis.
Kumho Tire holds that a judge's decision on this issue is to be upheld unless it constitutes an abuse of discretion.[9] Here, we find no abuse of discretion.
Hammer's explanation of shoeprint comparison and analysis did not rest on arcane scientific principles, or on the results of experiments or tests that could only be understood and interpreted by experts. Instead, her analysis rested on visual comparisons of physical samples: shoeprints "lifted" from the scene of the crime, the shoes obtained from Ratliff, and shoeprint transparencies made from Ratliff's shoes.
Hammer explained how these physical examples were created and how they were compared. She acknowledged that a lay person might be able to recognize the salient similarities or differences between a given shoe and a given shoeprint. She explained that her expertise lay in being able to spot small physical abnormalities that might escape a lay person's eye, and in being able to identify (through training and experience) which physical traits were characteristic of a class or group of shoes, as opposed to the physical traits unique to a particular shoe (e.g., individual manufacturing defects or patterns of wear).
Indeed, at the conclusion of Hammer's testimony, when Judge Weeks asked Ratliff's attorney if she had any argument to present regarding the scientific validity (or lack of validity) of Hammer's analysis, the defense attorney had nothing to say. She simply responded, "Your Honor, as far as whether the general techniques [of shoeprint analysis] are acceptable or not, I will just let the Court rule on that."
We doubt that such a response is sufficient to preserve a challenge to Judge Weeks's ruling.[10] But even assuming that this issue was properly preserved for appeal, the fact remains that Ratliff has pointed to nothing in the record that casts doubt on the methodological validity of Hammer's shoeprint comparison and analysisnothing to suggest that Judge Weeks abused his discretion when he concluded that he could adequately assess the validity of the challenged testimony without going through a formal Daubert analysis.
We note that other courts have likewise concluded that the test for evaluating the validity of scientific evidence does not apply *986 to shoeprint analysis. In People v. Perryman, the Colorado Court of Appeals held that the older test for evaluating scientific evidence (the Frye test) did not apply to shoeprint analysis because the comparison of the defendant's shoes to the prints found at the scene "involve[d] no manipulation of physical evidence" and because "the expert's techniques [were] readily accessible to the jury and not dependent upon familiarity with highly technical or obscure theories".[11] Similarly, in Belton v. State, the Georgia Supreme Court held that "the comparison of shoe prints to the external physical characteristics of particular shoes is not a matter of scientific principle or technique".[12] The court explained that the challenged expert testimony "did not deal with scientific principles[,] but with observation and comparison of physical objects, with matters not of science but of skill and experience".[13] The Supreme Court of Maine reached the same conclusion in State v. Boobar.[14]
Moreover, as we explained above, Judge Weeks also ruled (in the alternative) that the testimony presented at the hearing satisfied the Daubert inquiry. Ratliff does not address this alternative ruling, much less offer any reasons for believing that this ruling was wrong.
We note that other courts have concluded that the type of shoeprint analysis conducted in Ratliff's case meets the Daubert test for methodological validity. See United States v. Allen, 390 F.3d 944, 949-950 (7th Cir. 2004), and see the extended discussion of this issue in United States v. Mahone, 328 F.Supp.2d 77, 87-92 (D.Me.2004).
For these reasons, we conclude that Judge Weeks committed no error when he overruled Ratliff's objection to the shoeprint evidence.
The judgement of the superior court is AFFIRMED.
NOTES
[1] 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (construing the federal evidence rules governing expert testimony).
[2] 974 P.2d 386 (Alaska 1999) (adopting Daubert as the proper interpretation of Alaska's rules governing expert testimony).
[3] On page 275 of the transcript, Judge Weeks's finding is rendered: "I think that Ms. Hammer ... has also testified to things that ... meet the Daubert criteria as expressed by Professor Engleride." [sic] We assume that Judge Weeks actually said, "Professor Imwinkelried". Professor Edward J. Imwinkelried is the author of numerous articles on Daubert and scientific evidence.
[4] 526 U.S. at 141, 119 S.Ct. at 1171.
[5] 526 U.S. at 147-49, 119 S.Ct. at 1174-75.
[6] Id., 526 U.S. at 149-150, 119 S.Ct. at 1175.
[7] Guerre-Chaley v. State, 88 P.3d 539, 542 n. 4 (Alaska App.2004); Cf. State v. Coon, 974 P.2d 386, 395 (Alaska 1999) ("[scientific] testimony [must] be derived by the scientific method [or] based on scientifically valid principles").
[8] Kumho Tire, 526 U.S. at 150-52, 119 S.Ct. at 1175-76.
[9] Id., 526 U.S. at 152-53, 119 S.Ct. at 1176.
[10] See Hohman v. State, 669 P.2d 1316, 1325-26 (Alaska App.1983) (holding that when an attorney responded to a relevance objection by simply stating, "I'll accept the ruling from the court", the attorney could not challenge the court's ruling on appeal). See also Willis v. State, 57 P.3d 688, 691-92 (Alaska App.2002) (defense attorney failed to advance any grounds to support a request for a mistrial); Petersen v. State, 930 P.2d 414, 434 (Alaska App.1996) (defense attorney declined to argue the point or provide any rationale for giving a requested jury instruction); Cornwall v. State, 915 P.2d 640, 653 n. 11 (Alaska App. 1996) (same).
[11] 859 P.2d 263, 267 (Colo.App.1993).
[12] 270 Ga. 671, 512 S.E.2d 614, 617 (1999).
[13] Id.
[14] 637 A.2d 1162, 1167 (Me.1994).
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85 F.2d 553 (1936)
MAGNOLIA PETROLEUM CO.
v.
BLANKENSHIP et al.[*]
No. 7671.
Circuit Court of Appeals, Fifth Circuit.
July 7, 1936.
Rehearing Denied August 18, 1936.
*554 Russell Surles, of Dallas, Tex., for appellant.
W. Edward Lee, of Longview, Tex., J. B. Dudley, of Oklahoma City, Okl., and Wm. McCraw, W. J. Holt, and Harry S. Pollard, all of Austin, Tex., for appellees.
Before FOSTER and SIBLEY, Circuit Judges, and STRUM, District Judge.
SIBLEY, Circuit Judge.
Magnolia Petroleum Company, owning an oil lease on 81 acres of land in Gregg county, Tex., on March 7, 1934, brought suit in a state court for a permanent injunction against G. T. Blankenship to stop him from operating an oil well on an adjoining tract of about one-half acre, and against the Railroad Commission of Texas from issuing him a certificate of compliance with the Texas conservation statutes. The suit was removed to the federal court and on final hearing injunctions were denied. This appeal questions that judgment.
The main facts are undisputed. The owners who leased the 81 acres on which Magnolia Petroleum Company has several producing wells made another lease on a narrow strip of about 2 acres adjoining on the west. A conflicting lease was asserted, resulting in litigation which in the summer of 1933 was compromised, the strip being cut into 4 lots of about ½ acre each, of which appellee Blankenship got the southernmost. Permits were granted by the Railroad Commission to the owners of 2 of these lots to sink a well on each. Blankenship applied for a permit, but it was denied. He entered upon litigation with the Railroad Commission in which Magnolia Petroleum Company intervened, and he obtained temporary injunctions against interference under the protection of which he sank a well on his lot and then dismissed his litigation. The Railroad Commission and the state of Texas brought suit against him for a thousand dollar penalty for sinking the well without a permit and collected it; but by cross-action Blankenship got a judgment that the Railroad Commission do issue him a certificate authorizing him to operate his well. No appeal was taken, but it is contended by Magnolia Petroleum Company that the court had not jurisdiction to make the latter order. In the present suit the Railroad Commission joins Blankenship in taking the position that the penalty which was paid condones any wrong to the public that was done by his drilling without a permit. The three wells on the three half acre lots tend to drain the oil from adjoining lands where the wells are not so closely spaced. The court, however, found that Magnolia's wells which had been running for two years before Blankenship's was put down had drawn more oil from Blankenship's land than his well was likely to draw from Magnolia's land for a long time to come, and that it was inequitable as between Magnolia and Blankenship to enjoin operation of his well while the other wells continued to produce.
In Texas oil in place in the soil is capable of ownership and conveyance, Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566; Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.(2d) 27; but the ownership is qualified by what is termed the right of capture by adjoining landowners. Just as percolating waters are not capable of absolute ownership, so that if an adjoiner by sinking a well withdraws such waters from a neighbor, the neighbor has no right of action, Houston & T. C. Ry. Co. v. East, 98 Tex. 146, 81 S.W. 279, 66 L.R.A. 738, 107 Am.St.Rep. 620, 4 Ann.Cas. 827; so also an owner of oil in place has been held to have no right of action against an adjoiner *555 who by sinking wells on his own land drains away the former's oil, his remedy being to drill offsetting wells so as to get his full share. Hermann v. Thomas (Tex.Civ.App.) 143 S.W. 195; Prairie Oil & Gas Co. v. State (Tex.Com.App.) 231 S.W. 1088. The competition to produce oil thus set up resulted naturally in waste. Pursuant to a constitutional amendment, more comprehensive statutes looking to the conservation of the Texas gas and oil reserves and to the prevention of waste began to be enacted in 1919, the administration of them being committed to the Railroad Commission. By article 6023 of the Rev.Stats. of 1925 jurisdiction is given the commission over all persons, associations, and corporations owning or engaged in drilling or operating oil and gas wells in Texas, with authority to make all necessary rules to secure the objects of the statutes to be enforced by the Attorney General by injunction or other adequate remedy. Article 6024 gives the commission power both to institute suits and to hear complaints. Article 6029, as enlarged by acts passed in 1931 (1st Called Sess., c. 26, § 15) and 1932 (4th Called Sess., c. 2, § 7) directs the commission to make and enforce regulations: "(4) To require wells to be drilled and operated in such manner as to prevent injury to adjoining property. * * * (8) It shall do all things necessary for the conservation of crude petroleum oil and natural gas and to prevent the waste thereof, and shall make and enforce such rules, regulations or orders as may be necessary to that end." Article 6049c, § 7, as amended (1st Called Sess., c. 26) and 1932 (4th Called Sess., c. 2, § 5) provides: "Upon the initiative of the Commission, or upon the verified complaint of any party producing * * * crude petroleum oil * * * in this State that waste * * * is taking place in this State, or is reasonably imminent, the Commission may hold a hearing. * * * The Commission shall make such rule, regulation or order as in its judgment is reasonably required to correct, prevent or lessen such waste. In the event the rule provides for limitation or fixing production of crude petroleum oil in any common pool or portion thereof the commission shall distribute, prorate, or otherwise allocate the allowable production among the various producers on a reasonable basis." By its rule 37 the commission has prohibited the drilling of a well at a distance of less than 660 feet from another well, provided that in order to prevent waste or to protect vested rights exceptional permits, especially on smaller tracts, can be granted on hearing. It has also limited the allowable production from wells in the East Texas field. These changes in the law have not abolished the ownership of oil in place nor the right of capture without liability to adjoiners. But by thus limiting the sinking of new wells and the production from old ones the right to capture oil has been modified and protection against drainage by offset wells has been impaired, so that adjustments are rendered necessary and new remedies proper. The provisions above referred to were recently considered by the Supreme Court of Texas in Brown v. Humble Oil Co., 83 S.W.(2d) 935, 944, 99 A.L.R. 1107, Id., 87 S.W.(2d) 1069, 101 A.L.R. 1393, and held valid. Rule 37 was explained with reference to the fundamental property rights in oil and the exceptional permits to drill on small tracts. It was said: "Each person still owns the oil and gas in place under his land, and each still has the right to possession, use, enjoyment, and ownership of the oil and gas produced through wells located on his land, regardless of its origin. The primary rule of ownership is still operative. * * * Also, conditions may arise where it would be proper, right, and just to permit tracts to be subdivided and such subdivisions drilled after the adoption of the rule; but in all such instances it is the duty of the commission to adjust the allowable, based on the potential production, so as to give the owner of such smaller tract only his just proportion of the oil and gas. By this method each person will be entitled to recover a quantity of oil and gas substantially equivalent in amount to the recoverable oil and gas under his land. * * * In this connection, we hold that since the Legislature has bestowed the power of administering the oil and gas business of this state on the Railroad Commission, every person has the right to apply to that tribunal for relief as a matter of right, and not as a matter of grace. The commission, in order to prevent waste, has the power to limit the rate of flow in the same way that it has the power to regulate spacing."
Blankenship having been refused a permit for a well on his small tract would have been unable to save any of his oil unless by some arrangement, voluntary or forced, he could share in the oil produced from nearby wells. But he now has a *556 well and is at peace with the commission and the state. The question is, What are the private obligations between him and his neighbor Magnolia? Before the conservation statutes, each could have put on his own land all the wells desired without accountability to the other. The law through the commission has stopped that. But an owner unable to protect himself from drainage by an offset well is given the right to petition the commission and the commission has power and a consequent duty to "prevent injury to adjoining property," and touching a common pool or portion of it to "distribute, prorate or otherwise allocate the allowable production among the various producers." This we think is the remedy which Magnolia should seek if it believes that Blankenship is getting more than his fair part of the oil. It is certainly not equitable for Magnolia to have a perpetual injunction against Blankenship getting any while Magnolia continues to drain it all away. The evidence shows that there are difficulties about adjustment by means of suits for damages, if indeed they have become an available remedy under the conservation régime. We do not think the statute in the margin[1] relied on by Magnolia as vesting in it a right of action gives it any right to an injunction. The first sentence is negative, declaring that the conservation laws and proceedings under them shall not impair any cause of action for damages or other relief which one producer may have against another. It purports to give no new cause of action. The second sentence is affirmative, and gives a property owner or producer who is damaged by another by violating the acts a right to sue, but only to "recover such damages, and have such other relief as he may be entitled to in law or in equity." The general principles of law and equity thus remain the standards, and an injunction is not to be had when it is inequitable. Magnolia is not given an authority to enforce the orders of the commission. We are of opinion that Blankenship's well, whether lawfully put down or not, ought not to be permanently closed at the instance of Magnolia, and that Magnolia's preventive remedy if Blankenship is producing too much oil is to apply to the commission for a rule of proration among all the competing wells.
Judgment affirmed.
On Motions for Rehearing.
PER CURIAM.
Earnest motions for rehearing have been filed by appellant Magnolia Petroleum Company and by appellee Railroad Commission of Texas. The commission has but one pleading in the record, its answer in which it squarely takes the position that Blankenship by paying the $1,000 penalty became entitled to produce oil and gas from his well just as though he had originally got a permit to drill it, and that the judgment of the district court of Gregg county requiring the issuance to him of a certificate of compliance was valid and binding. The commission filed nothing to the contrary in this court. It cannot by a motion for rehearing repudiate its pleadings and join in the contentions of the appellant Magnolia Petroleum Company. See Pullman Co. v. Bullard (C.C.A.) 44 F.(2d) 347.
But we have not held, as both motions assume, that the Gregg county judgment is conclusive, or that it correctly decided that payment of the penalty for drilling without a permit necessarily rendered Blankenship's well a lawful one. Those are questions of Texas law which we have not found it necessary to decide. We say that the status of Blankenship's well being at least doubtful, it is not for Magnolia, owning competing wells, to wholly stop its operation by permanent injunction. Else other well owners could attempt the same thing, and even by a bill in Blankenship's home state of Oklahoma, since injunction operates in *557 personam. Conflicting results might easily be reached. The statutes of Texas referred to in our previous opinion expressly put the duty of enforcing as well as of making the rules and regulations upon the commission, and direct the Attorney General to enforce them by injunction or other appropriate remedy. In such enforcement proceedings as well as in the statutory quasi appeals to the court of Travis county from the making of rules and regulations, the commission represents the public and the result may establish status as against the world. See Magnolia Petroleum Co. v. Edgar (Tex.Civ.App.) 62 S.W.(2d) 359. Magnolia Petroleum Company is given no authority to enforce the commission's rules and orders, but can only assert its own private rights. We hold that it has under the circumstances of this case, which include the commission's refusal to question Blankenship's right to operate his well, no equity to a permanent injunction, but that if its oil lands are being unduly drained by Blankenship's well and by the other two wells on the same two-acre tract which before subdivision in 1933 was a unit of less than twenty acres, the legal and sufficient remedy is to obtain a proration adjustment order from the commission. When subsequent to the promulgation of rule 37 this small tract was subdivided by its owners for partition, we recognize that, although each owner acquired title to the oil under his subdivision, he had no absolute right to a well. The tract remained a single production unit to be handled under rule 37, which in terms applies to tracts held either by a single owner or by several owners. We suppose that if the commission denies to any subdivision of such tract its own well that it can make some just apportionment of the oil produced on those subdivisions which are allowed wells; it being implied, if not expressed, in the act of subdivision that owners not allowed a well are not wholly to lose their oil. Blankenship would have been in this situation, but he now has a well in fact, sunk at great expense and under color of court sanction. It is for the commission on a hearing for a proration order to say what production should be allowed to the whole two-acre tract as against Magnolia and other adjoiners, and within that tract what proportion if any of the production allowed to it should be awarded to Blankenship's well as against the other two wells previously on the tract. If found material, the effect of the payment of the $1,000 penalty by Blankenship and the force of the judgment of the Gregg county court may be then considered. Nothing in the disposition we make of this case would prevent.
We are referred to several recent decisions of the Texas courts in which injunctions against sinking wells without proper permit were awarded or recognized as proper: Magnolia Petroleum Co. v. Railroad Commission (Tex.Civ.App.) 90 S.W.(2d) 659, affirmed and rendered by the Supreme Court 96 S.W.(2d) 273; Stanolind Oil & Gas Co. v. Railroad Commission (Tex.Civ. App.) 92 S.W.(2d) 1057; Empire Gas & Fuel Co. v. Railroad Commission (Tex. Civ.App.) 94 S.W.(2d) 1240. These were all suits in Travis county brought under the statute directly to set aside orders of the commission allowing or refusing permits to sink wells. They do not deal with completed wells, or with the private right of an adjoiner to stop the operation of such. Our view that the adjoiner ought in a case like this to have recourse to the commission rather than to have a permanent injunction is apparently approved in Stanolind Oil & Gas Co. v. Railroad Commission and W. L. Sartain, 96 S.W.(2d) 664, where our opinion is cited.
The motions for rehearing are denied.
NOTES
[*] Writ of certiorari denied 57 S. Ct. 234, 81 L. Ed. ___.
[1] Art. 6049c: "Sec. 13. Nothing herein contained or authorized, and no suit by or against the Commission, and no penalties imposed upon or claimed against any party violating any Statute of this State, or any rule, regulation or order of the Commission, shall impair or abridge or delay any cause of action for damages, or other relief, any owner of any land or any producer of crude petroleum oil or natural gas, or any other party at interest, may have or assert against any party violating any rule, regulation or order of the Commission, or any judgment herein mentioned. Any party owning any interest in any property or production which may be damaged by any other party violating this Act or any other Statute of this State prohibiting waste or violating any valid rule, regulation or order of the Commission, may sue for and recover such damages, and have such other relief as he may be entitled to in law or in equity." (Vernon's Ann.Civ.St.Tex. art. 6049c, § 13.)
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Opinion issued July 28, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00108-CR
———————————
ANGEL LUIS MARTINEZ, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 264th District Court
Bell County, Texas
Trial Court Case No. 70443
MEMORANDUM OPINION
A jury found appellant, Angel Luis Martinez, Jr., guilty of the offense of
aggravated sexual assault of a child. See TEX. PENAL CODE ANN. §
22.021(a)(1)(B)(i) (West 2014). The jury sentenced appellant to fifty years’
imprisonment. See TEX. PENAL CODE ANN. §§ 22.021(e), 12.32(a) (West 2011).
Appellant timely filed a notice of appeal.
Appellant’s appointed counsel on appeal has filed a motion to withdraw,
along with a brief stating that the record presents no reversible error and the appeal
is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct.
1396 (1967). Counsel’s brief meets the Anders requirements by presenting a
professional evaluation of the record and supplying us with references to the record
and legal authority. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v.
State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has
thoroughly reviewed the record and is unable to advance any grounds of error that
warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State,
193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.). The only
potential issue identified in counsel’s Anders brief is whether the presiding juror’s
name was erroneously redacted from the appellate record. However, counsel does
not suggest that this is a reversible error, and while counsel suggests we have the
power to correct the record in this regard, any “error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded.” TEX. R. APP.
P. 44.2(b). No argument has been presented that this lone issue affects appellant’s
substantial rights, nor is it apparent to us how it could.
2
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, there are no arguable grounds
for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at
1400 (emphasizing that reviewing court—and not counsel—determines, after full
examination of proceedings, whether appeal is wholly frivolous); Garner v. State,
300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine
whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824,
826–27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing
court determines whether arguable grounds exist by reviewing entire record). We
note that an appellant may challenge a holding that there are no arguable grounds
for appeal by filing a petition for discretionary review in the Texas Court of
Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.
We affirm the judgment of the trial court and grant counsel’s motion to
withdraw. Appointed counsel still has a duty to inform appellant of the result of
this appeal and that he may, on his own, pursue discretionary review in the Texas
Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim.
App. 1997). Attorney Jeffrey Parker must immediately send appellant the required
notice and file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P.
6.5(c).
3
PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
4
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-22-2007
USA v. Weaver
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4596
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Weaver" (2007). 2007 Decisions. Paper 1437.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1437
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4596
UNITED STATES OF AMERICA
v.
EUGENE D. WEAVER,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 04-cr-00320-5)
District Judge: Honorable John P. Fullam
Submitted Under Third Circuit LAR 34.1(a)
January 16, 2007
Before: McKEE, AMBRO and STAPLETON, Circuit Judges
(Opinion filed : March 22, 2007)
OPINION
AMBRO, Circuit Judge
Eugene Weaver appeals his convictions for aiding and abetting wire fraud in
violation of 18 U.S.C. §§ 2(a) & 1343, conspiracy to commit wire fraud in violation of 18
U.S.C. § 371, aiding and abetting theft from a program receiving federal funds in
violation of 18 U.S.C. § 666(a)(1)(A), and conspiracy to commit theft from a program
receiving federal funds in violation of 18 U.S.C. § 371. For the following reasons, we
affirm his convictions on all counts.
I. Facts1 and Procedural History
This case concerns a scheme to steal money from a federally funded adult
education program. The Community College of Philadelphia (“CCP”) administered a
non-credit adult basic education program funded by the U.S. Department of Education.
CCP held classes on its main campus and at a variety of satellite locations. One of those
locations was the Sister Clara Muhammad School (the “School”).
Between 1999 and 2001, this program was a Potemkin village: while the School
and CCP personnel maintained all the trappings of a functioning program—hiring and
paying teachers, maintaining a course schedule, filing registration forms, and causing
CCP to pay rent to the School for the classrooms—no courses were taught. Rather,
Faridah Ali, a School administrator, and Delores Weaver, a CCP administrator, led a
fraudulent scheme to steal the money allocated to the program. Specifically, they ensured
that CCP paid the School rent money, which was then misappropriated, and that CCP
paid a variety of “teachers” for courses that never took place. Many of the ghost teachers
were relatives of one of the scheme’s principals.
Eugene Weaver, Delores Weaver’s son, was one of the program’s ghost teachers.
1
This section presents the facts in the light most favorable to the jury’s verdict. See
United States v. Jackson, 443 F.3d 293, 298–99 (3d Cir. 2006).
2
Over the course of three years, he was paid more than $47,000 for courses that he could
not have taught because he was either out of town or had an in-town conflict.
In the superseding indictment, the Government charged Weaver2 with one count of
conspiracy to commit wire fraud, six counts of aiding and abetting wire fraud, one count
of aiding and abetting theft from a program receiving federal funds, and one count of
conspiracy to commit theft from a program receiving federal funds. Weaver was tried
alongside Faridah Ali, Lakiha Spicer, and Azheem Spicer. Delores Weaver was supposed
to be tried at the same time, but her trial was severed because of an evidentiary dispute
that is on appeal to our Court. After a full trial, the jury convicted Weaver on all counts.
This appeal follows.3 Each issue is dealt with in turn.
II. Sufficiency of the Evidence
Weaver contends that the evidence was insufficient to prove (1) the requisite
criminal intent and (2) the conspiracy charged in the indictment. When we review a
conviction for sufficiency of the evidence, the question is “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
A. Criminal Intent
2
We use “Weaver” to refer to Eugene Weaver. When referring to Delores Weaver,
we use her full name.
3
The District Court had jurisdiction under 18 U.S.C. § 3231 (offenses against the
United States). We have jurisdiction under 28 U.S.C. § 1291.
3
Weaver does not dispute that the Government’s evidence supported most of the
elements of the crimes for which he was tried. One element that he does dispute is intent.
Wire fraud is a specific intent crime. A defendant cannot be convicted of it unless the
Government proves beyond a reasonable doubt that he knowingly and willfully
participated in a scheme to obtain money or property through fraud and specifically
intended to do so. United States v. Hedaithy, 392 F.3d 580, 590 (3d Cir. 2004); United
States v. Antico, 275 F.3d 245, 260 (3d Cir. 2001); see also United States v. Henry, 20
F.3d 112, 115 (3d Cir. 1994). Similarly, a conviction for theft from a federally funded
program under 18 U.S.C. § 666(a)(1)(A) requires a specific intent to convert money or
property from the program. United States v. Richards, 9 F. Supp. 2d 455, 458 (D.N.J.
1988); cf. United States v. Ford, 435 F.3d 204, 211 (2d Cir. 2006) (holding that §
666(a)(1)(B) is a specific intent crime). Thus, we accept Weaver’s argument that, to
sustain convictions on all counts, the Government must have proved that he knew he
improperly received payment for courses he did not teach.
Weaver admits that he received money from CCP and that it recorded the
payments as salary for courses listing him as the teacher. He also does not dispute that
Delores Weaver and Faridah Ali were involved in a large-scale conspiracy to steal money
from the adult education program. He claims, however, that the Government did not
prove that he knew that he was receiving money as part of that fraudulent scheme.
Rather, he argues that he reasonably could have believed that the payments were (1) for
legitimate work that he performed for CCP a few years earlier, or (2) for his mother’s
4
legitimate work at CCP (because Delores Weaver was a CCP administraor and was a
secondary holder of the account into which the money was paid). In this context, Weaver
contends that the Government did not prove that he had the criminal intent required to
support his convictions.
At trial the Government introduced evidence of the following facts relevant to
Weaver’s specific intent argument. The School assigned teachers to courses using
“availability notices” on which the putative teacher requested courses and stated his
availability. The Government submitted notices through which Weaver requested that he
be assigned to teach courses at the School. There are signatures on the notices that
purport to be those of Eugene Weaver. The Government submitted the signature on
Weaver’s passport and other documents so that the jury could compare them. The
signatures appear to be similar—certainly enough so that the jury reasonably could have
concluded that Weaver signed the availability notices and, therefore, affirmatively
requested that he be assigned to teach courses. Fed. R. Evid. 903(b)(3); see also United
States v. Clifford, 704 F.2d 86, 90 (3d Cir. 1983). Weaver, however, was out of town for
much of the time that the notices indicated that he was available and had numerous in-
town conflicts when he was not. From that evidence, the jury could have concluded that
Weaver did not teach and never intended to teach the courses to which he was assigned.
As to the payments Weaver received, the Government submitted evidence showing
that he was the primary holder of the account into which CCP paid his teaching salary.
When it made a ghost-teaching payment, the entry on the next bank statement reflected
5
that the payment was from CCP and that it was a payroll payment. Weaver withdrew
money from his account soon after many of the deposits. CCP business records admitted
in evidence show that Weaver was notified on several occasions that his payments for
teaching would be forthcoming but late. Under the business records exception to the
hearsay rule, Fed. R. Evid. 803(6), the jury was entitled to consider the records as
substantive evidence that he was in fact notified by CCP that his payments for teaching
were forthcoming.
As to Weaver’s claim that money could have been for legitimate work for CCP,
the Government counters that there is nothing in the record to suggest that Weaver did
any legitimate work for CCP. Thus, the jury had no reasonable basis on which to draw
that conclusion. As to his argument that the money could have been his mother’s, the
Government notes that it would make little sense for the payments to be his mother’s
regular salary, as the payments were spaced irregularly and of varying amounts.
From the evidence presented, the jury reasonably could have concluded that
Weaver knowingly and willfully participated in every aspect of the ghost-teaching
scheme, from requesting courses that he knew he would not teach to spending the money
that CCP paid him. We would be hard pressed to conjure anything that would make a
reversal on this issue even a possibility.
B. Number of Conspiracies
Weaver contends that the Government’s evidence did not support the existence of
one master conspiracy; rather, it suggested only the existence of multiple “hub and spoke”
6
conspiracies. He claims this is a problem because the evidence did not support the
existence of the conspiracy charged. In the superseding indictment, the Government
alleged one master conspiracy comprised of two sub-schemes: the rent payment sub-
scheme and the ghost teaching sub-scheme. The indictment clearly alleged that Eugene
Weaver’s involvement was limited to the latter.
Deciding how to characterize a large-scale criminal enterprise like this one is
rarely easy. We note, however, that the size and scope of a conspiracy are issues of fact,
and we typically defer to the jury’s resolution of them. United States v. Perez, 280 F.3d
318, 345 (3d Cir. 2002). Still, our deference is not absolute; we review for substantial
evidence, id., and in determining whether the Government’s proof was sufficient to
sustain a determination that there was one overarching conspiracy, we consider the
following factors: (1) whether the conspirators were bound by a common purpose, (2)
whether the agreement brought about a continuous result that could not carry on without
the ongoing cooperation of the conspirators, and (3) the extent of the participants’
overlap. United States v. Kelly, 852 F.2d 255, 259 (3d Cir. 1989) (citations omitted).
Here, the Government argues that the overall purpose of the conspiracy was to
steal federal funds granted to CCP by pretending to operate an adult education program.
The Government freely admits that the conspiracy’s principals—Delores Weaver and
Faridah Ali—devised two separate but related means of obtaining CCP money: (1) by
paying teacher salaries to ghost teachers and (2) by paying rent for the putative location
of the classes. All members of the conspiracy—the principals and the ghost
7
teachers—profited from the scheme. By ensuring that the program’s books and finances
looked normal (i.e., it was paying both rent and teachers, as one would expect), the two
sub-schemes worked together to keep up the appearance that everything was functioning
normally. Similarly, the participation of ghost teachers like Eugene Weaver was vital to
keep up the ruse that the program was actually holding classes. By formally scheduling
Weaver to teach courses, paying him for teaching, and keeping records to that effect, the
principals helped ensure that they maintained all of the trappings of an extant program.
It is true that the evidence does not show that lower-level co-conspirators (and
Weaver in particular) knew about one another. Moreover, it is unclear to what extent
they knew the breadth of the overall scheme. These facts, however, do not mean that a
jury could not find the existence of one unified conspiracy. Because the overarching
scheme had a common purpose with separate but interdependent parts, and the
Government proved that Weaver agreed with Delores Weaver to participate in one of the
sub-schemes, the fact that he may not have known all of the details, participants, or the
overall scope of the conspiracy does not defeat the jury’s finding. United States v.
Padilla, 982 F.2d 110, 114 (3d Cir. 1992) (citing United States v. Adams, 759 F.2d 1099,
1109–10 (3d Cir. 1985)) (“The government need not prove that each defendant knew all
the details, goals, or other participants.”).
Because the Government presented evidence from which the jury could have
concluded beyond a reasonable doubt that Weaver participated in a single conspiracy to
8
steal money from CCP, we cannot reverse on this ground.4
III. New Evidence
Weaver also argues that his motion for a new trial based on newly discovered
evidence was improperly denied. Specifically, he claims that after trial he discovered an
affidavit of one of the investigators, and a statement by Delores Weaver to investigators,
that help his case in each instance. His argument is dead on arrival, for the Government
disclosed the existence of both of these documents in a letter sent to defense counsel
some three months before trial. In that letter, the Government stated that the documents
were available for pick-up at the U.S. Attorney’s office. Weaver’s trial counsel
apparently did not pick up the documents, as his appellate counsel states that they were
not in the case file. Thus, Weaver did not exercise reasonable diligence, as he must, to
succeed in a motion for a new trial based on newly discovered evidence.5 United States v.
Cimera, 459 F.3d 452, 461 (3d Cir. 2006). The District Court’s denial of Weaver’s
4
Weaver also claims that the indictment impermissibly varied from the proof at trial
because the former alleged a single conspiracy, while the proof at trial only supported the
existence of multiple conspiracies. Because we conclude that the evidence supported the
existence of the conspiracy alleged in the indictment, there was no impermissible
variance. See United States v. Polichemi, 324 F.3d 698, 709 (7th Cir. 2000) (noting that a
variance claim in this context is one that the Government did not produce sufficient
evidence of the single conspiracy alleged in the indictment).
5
Weaver intimates that trial counsel’s failure to obtain these documents amounts to
ineffective assistance. While we understand his frustration with trial counsel, we
typically do not resolve ineffective assistance claims on direct appeal; rather, we require
that they be brought in a collateral proceeding in which a better record can be developed.
United States v. Thornton, 327 F.3d 268, 271–72 (3d Cir. 2003). Our usual rule applies
here, as Weaver deserves the chance to bring his claim on a record developed specifically
for that purpose. Thus, we leave the ineffective assistance question for a district court to
resolve in the first instance in a collateral proceeding.
9
motion, therefore, was proper.
IV. Jury Instructions
Weaver argues that the District Judge improperly instructed the jury by failing (1)
to give a culpable participation charge, (2) to instruct on the materiality element of wire
fraud, and (3) to define the intent element of the theft charge. At the outset, we note that
Weaver’s counsel failed to object to the District Court’s instructions. Thus, we review
the instructions for plain error. United States v. Brennan, 326 F.3d 176, 182 (3d Cir.
2003). To reverse, we must determine that there was an error, it was plain, and it affected
Weaver’s substantive rights. Even if so, correction of that error should only be ordered
where it seriously affected the fairness, integrity, or public reputation of the proceeding.
United States v. Olano, 507 U.S. 725, 733–38 (1993).
A. Culpable Participation
We have held that a jury can only convict a person of mail or wire fraud if it is
convinced of the person’s “culpable participation,” United States v. Pearlstein, 576 F.2d
531, 545 (3d Cir. 1978), that is, if it is convinced that the person “ha[d] knowledge of the
illicit objectives of the fraudulent scheme and willfully intend[ed] that those larger
objectives be achieved.” Gentry v. Resolution Trust Corp., 937 F.2d 899, 908–09 (3d Cir.
1991); see also United States v. Dobson, 419 F.3d 231, 237 (3d Cir. 2005). Thus, a
district court must make the culpable participation requirement clear.
That occurred here. The Court instructed that to convict the jury must find that
each defendant “was a knowing participant in a fraudulent scheme to obtain money . . .
10
from the community college . . . without a right to have it.” App. at 1150. In addition,
the Court stated:
[T]he defendant cannot be convicted merely because students
dropped out of the courses . . . [or ] because the program
didn’t work out the way everybody wanted it to.
They can be convicted only if, in fact, they knowingly
arranged matters, so that they would be paid for—when they
shouldn’t— . . . paid money that they were not entitled to
receive.
....
If that was the arrangement and if, in fact, they
knowingly arranged matters so that they collected money for
not teaching when they were supposed to be teaching, that
would be a basis on which you could find that they acted with
fraudulent intent.
....
. . . [T]he key to all of these charges is, do you find that
the defendant whose case you are considering acted with
fraudulent intent? Did they knowingly commit a crime, or
were they simply going with the flow of what—of this—and
were they—were all of the unfortunate wasting of money the
result of poor organization and poor supervision?
....
The issue then is, is the Government correct in
characterizing this as simply hiring ghost employees for the
purpose of draining money away from the community college
program that the people did not deserve and . . . kn[ew] they
were not entitled to?
Was this—in short—a fraudulent scheme to derive
money from the community college that the—instead of
providing the program that was intended for—went into the
pockets of people, who didn’t deserve it?
In short, the issue is, were the defendants acting in
good faith or were they not?
....
And I will emphasize one more time that before you
can convict of conspiracy, you must prove that the defendant
whose case you are considering was a knowing participant in
an illegal scheme. That is to say, a scheme to defraud that he
11
or she knew that that was what was going on and acted with
criminal intent.
....
As I said, you consider each person’s case separately.
App. at 1158–63 (emphasis added).
These instructions conveyed the basic point that guilt requires that Weaver knew
that he was participating in the fraudulent scheme alleged in the indictment. The
instructions drew the proper distinction between unwitting participation in a fraudulent
scheme and culpable participation. They are not erroneous.
B. Materiality
Turning to the District Court’s failure to instruct on the materiality element of wire
fraud, the Government concedes that the Court did not so instruct and that its failure was
error. See Neder v. United States, 527 U.S. 1, 25 (1999) (“[W]e hold that materiality of
falsehood is an element of the federal mail fraud, wire fraud, and bank fraud statutes.”).
Even assuming the error was plain, to reverse we must find that it affected Weaver’s
substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993).
It did not. Here, the falsehood that the Government alleged was Weaver’s
representation that he was teaching adult education courses at the School when he, in fact,
was not. This misrepresentation was the heart of the alleged fraudulent scheme; hence
the jury could not reasonably conclude that Weaver’s false claim that he was teaching
was somehow immaterial to the scheme by which he fraudulently received money for
teaching. The error, therefore, did not affect Weaver’s substantial rights, and we are
12
unable to grant relief under the plain error standard. Cf. United States v. Sharma, 190
F.3d 220, 229–30 (3d Cir. 1999) (holding this error harmless).
C. Intent
Weaver argues that the District Judge failed to instruct the jury as to the intent
element of the theft charge. Specifically, an element of the statute is that the defendant
“embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts
to the use of any person other than the rightful owner or intentionally misapplies” the
federally funded program’s property. 18 U.S.C. § 666(a)(1)(A). Put simply, did Weaver
intend to deprive the program of property by unlawful means?
In his instructions, the Judge explained this element as follows: “So basically, what
is required . . . [is that] the defendant whose case you are considering was an agent of that
[federally funded] organization and that that person obtained money from the
organization by fraud.” App. 1149. Weaver’s objection is that the Judge did not explain
the meaning of the word “fraud,” thus potentially confusing the jury as to the level of
intent required.
In determining whether a jury charge was improper, we consider whether it “as a
whole fairly and adequately submits the issues in the case to the jury.” United States v.
Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995) (en banc). “No error will be found if the
district court correctly communicated the substance of the law to the jury so that the jury
was not misled as to the relevant law or issues.” United States v. Parise, 159 F.3d 790,
798 n.6 (citing United States v. Traitz, 871 F.2d 368, 285 (3d Cir. 1989)). Moreover, we
13
are reluctant to focus on one portion of a charge in isolation, but “consider the totality of
the instructions.” United States v. Coyle, 63 F.3d 1239, 1246 (3d Cir. 1995).
Here, while the Judge provided little explanation of the intent element of § 666
when he read the statute to the jury, he went on to explain that element of all of the
charged crimes later in the discussion. See Part IV.A, supra. Essentially, he consolidated
the discussion because all of the charges required fraudulent intent.6 This was reasonable,
and it properly conveyed the substance of the charges to the jury.
V. Wiretapping Evidence
Weaver claims that the District Court improperly admitted wiretapping evidence.
In seeking authorization to collect the evidence under 18 U.S.C. § 2518, the Government
submitted its applications to Judge Eduardo Robreno of the Eastern District of
Pennsylvania. Counting new applications and extensions, the Government submitted a
total of 19 requests for authorization in the course of its investigation of the various
defendants in this case. This process, Weaver alleges, violated the District’s local rule, as
the various applications should have been submitted to different judges.
The Eastern District of Pennsylvania’s Local Criminal Rule 41.1 provides that
applications “shall be assigned on a random basis, to each Judge of the Court, or in his or
her absence the Emergency Judge, in accordance with the provisions of Local Civil Rule
6
Section 666 does not require fraudulent intent per se, for one can knowingly convert
or steal money without fraud. Here, however, the Government built its case around an
allegedly fraudulent scheme, so the Judge correctly instructed the jury only on the
“obtains by fraud” language in the statute. 18 U.S.C. § 666(a)(1)(A).
14
40.1.” Local Civil Rule 40.1 provides that all related matters shall be assigned to the
same judge. Recognizing that there is no express related-matters criminal rule, Judge
Robreno read the local criminal rule in connection with the local civil rule and determined
that he should decide all wiretapping applications related to this case. Delores Weaver
moved to suppress the wiretapping evidence on the basis of Judge Robreno’s alleged
error,7 and Judge Fullam—the trial judge—rejected her motion, finding that the local civil
and criminal rules could be read together to allow judges to take assignment of all
applications related to the same investigation. See United States v. Weaver, No.
04–320–41, 2004 WL 2399820 (E.D. Pa. Sept. 29, 2004).
Though the local rules could be clearer on this issue, the District Court’s resolution
was sensible. Moreover, Weaver’s statutory rights were adequately protected, as 18
U.S.C. § 2518(1) provides only that applications should be decided by a “judge of
competent jurisdiction.” Here, there is no question that Judge Robreno fit that
description. Weaver’s Fourth Amendment argument hardly warrants discussion, as no
court has held that the Amendment requires assigning wiretap applications arising out of
an investigation to different judges.
As an alternate sustaining ground, we note that Weaver does not have standing to
challenge the admission of wiretapping evidence when he was not “a person who was a
7
We note that Weaver has not presented evidence that he joined this motion—or any
other motion to suppress the evidence at issue. Because he apparently failed to do so, our
standard of review is plain error. United States v. Mornan, 413 F.3d 372, 378 (3d Cir.
2005). We need not delve too far into this issue because we conclude that there was no
error at all.
15
party to any intercepted wire or oral communication or a person against whom the
interception was directed,” 18 U.S.C. § 2510(11). Alderman v. United States, 394 U.S.
165, 175, n.9 (1969); accord In re Harkins, 624 F.2d 1160, 1165 n.8 (3d Cir. 1980).
Here, Weaver was not a party to any of the intercepted communications, nor was he
mentioned in them. Rather, the evidence was directed against other alleged conspirators
only.
We note further that we are troubled by defense counsel’s presentation of this
issue. He concludes his discussion with the following statement: “[B]ecause the
government and Judge Robreno’s collusive actions (and Judge Robreno’s remarkable
rationalization of these actions) evidence only of his failure to fulfill his obligation to act
independently in reviewing wiretap applications, and because these collusive acts
deprived appellant of the protection of the Fourth Amendment, appellant’s conviction
should be reversed.” Appellant’s Br. 76–77. Though (as explained above) we disagree
with counsel’s argument on the merits, we take special issue with counsel accusing a
District Judge of colluding with a party. Here, counsel does not support that charge with
any evidence; rather, it is clear that counsel and Judge Robreno merely interpreted a
provision of law differently. The rules of professional conduct prohibit making a
statement disparaging a judge’s integrity with reckless disregard to the statement’s
veracity. See Model Rules of Prof’l Conduct R. 8.2(a) (1983). It is decidedly out of
bounds for lawyers practicing before our Court to transform disagreements over the law
into bald allegations about a judge’s integrity.
16
VI. Conclusion
We hold that the evidence was sufficient to sustain Weaver’s conviction on all
counts. We further hold that his motion for a new trial based on newly discovered
evidence was properly denied, and we perceive no error in the handling of the
Government’s pre-trial applications to engage in wiretapping. The jury instructions did
contain one error: the District Judge improperly failed to charge the materiality element of
wire fraud. That error, however, was harmless. Thus, Eugene Weaver’s conviction on all
counts is affirmed.
17
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[Cite as Gale v. Gale, 2019-Ohio-5055.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
IN RE THE MARRIAGE OF: : MEMORANDUM OPINION
LISA M. GALE, :
CASE NO. 2019-L-093
Petitioner-Appellant, :
- vs - :
ROBERT J. GALE, :
Petitioner-Appellee. :
Civil Appeal from the Lake County Court of Common Pleas, Domestic Relations Division,
Case No. 2015 DI 000569.
Judgment: Appeal dismissed.
R. Russell Kubyn, Kubyn & Ghaster, 8373 Mentor Avenue, Mentor, OH 44060 (For
Petitioner-Appellant).
Edwin V. Hargate, 18519 Underwood Avenue, Cleveland, OH 44119 (For Petitioner-
Appellee).
MARY JANE TRAPP, J.
{¶1} Appellant, Lisa M. Gale, through counsel, filed an appeal from an August
26, 2019 entry, in which the Lake County Court of Common Pleas, Domestic Relations
Division, “finds the second amended shared parenting plan drafted by the guardian ad
litem * * * is to be prepared and circulated * * * to counsel for the signature of the parties
on the plan.” The trial court further stated that a “judgment entry adopting said plan shall
be provided as well.”
{¶2} On October 16, 2019, this court issued an entry indicating that there did not
appear to be a final appealable order and instructing appellant to show cause why the
appeal should not be dismissed. To date, no response has been filed.
{¶3} Initially, we must determine whether there is a final, appealable order, as
this court may entertain only those appeals from final judgments or orders. Noble v.
Colwell, 44 Ohio St.3d 92, 96 (1989). According to Section 3(B)(2), Article IV of the Ohio
Constitution, a judgment of a trial court can be immediately reviewed by an appellate court
only if it constitutes a “final order” in the action. Germ v. Fuerst, 11th Dist. Lake No. 2003-
L-116, 2003-Ohio-6241, ¶ 3. If a lower court’s order is not final, then an appellate court
does not have jurisdiction to review the matter, and the matter must be dismissed. Gen.
Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20 (1989). For a judgment to be
final and appealable, it must satisfy the requirements of R.C. 2505.02 and if applicable,
Civ.R. 54(B). See Children’s Hosp. Med. Ctr. v. Tomaiko, 11th Dist. Portage No. 2011-
P-0103, 2011-Ohio-6838, ¶ 3.
{¶4} R.C. 2505.02(B) defines a final order as one of the following:
{¶5} “An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
{¶6} “(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
{¶7} “(2) An order that affects a substantial right made in a special proceeding or
upon a summary application in an action after judgment;
{¶8} “(3) An order that vacates or sets aside a judgment or grants a new trial;
2
{¶9} “(4) An order that grants or denies a provisional remedy and to which both
of the following apply:
{¶10} “(a) The order in effect determines the action with respect to the provisional
remedy and prevents a judgment in the action in favor of the appealing party with respect
to the provisional remedy.
{¶11} “(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues, claims, and
parties in the action.
{¶12} “(5) An order that determines that an action may or may not be maintained
as a class action;
{¶13} “(6) An order determining the constitutionality of any changes to the Revised
Code * * *;
{¶14} “(7) An order in an appropriation proceeding * * *.”
{¶15} Here, the August 26, 2019 entry does not fit within any of the categories for
being a final order pursuant to R.C. 2505.02. The entry leaves issues unresolved and
contemplates that further action must be taken. Appellant will have a meaningful and
effective remedy by means of an appeal once a final judgment is reached.
{¶16} Based upon the foregoing analysis, the judgment of the trial court is not a
final appealable order, and this appeal is dismissed, sua sponte, for lack of jurisdiction.
{¶17} Appeal dismissed.
THOMAS R. WRIGHT, P.J.,
MATT LYNCH, J.,
concur.
3
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245 Ga. 650 (1980)
266 S.E.2d 463
WEBB
v.
WEBB.
35703.
Supreme Court of Georgia.
Argued January 16, 1980.
Decided April 8, 1980.
Rehearing Denied April 22, 1980.
Roy M. Sobelson, John L. Cromartie, Jr., for appellant.
Perry & Franklin, W. S. Perry, J. Reese Franklin, for appellee.
CLARKE, Justice.
This case calls for an interpretation of certain provisions of Georgia's Uniform Child Custody Jurisdiction Act, Code Ann. § 74-501 et seq. The mother appeals an order of the Superior Court of Berrien County modifying a previous final decree of divorce by changing custody from the mother to the father. The court also denied the mother's counterclaim for contempt and her application for a writ of habeas corpus.
The evidence authorized a finding that subsequent to the entrance of a final decree of divorce entered in Berrien County September 22, 1977, giving custody of the minor child to the mother, the mother moved some six times and finally established residency near Gainesville, Florida. On February 17, 1979, the mother left the six-year-old child of the parties without adult supervision at her home and flew to Miami for a weekend. Having been contacted by Florida authorities, the father went to Florida, picked up the child and returned to his home in Berrien County, Georgia.
On March 8, 1979, the wife filed an action in Alachua County, Florida, praying for an injunction for the purpose of enforcing the Georgia decree and seeking an order limiting visitation rights of the father. On March 23, 1979, before the issuance of a permanent order in the Florida action, the father filed a complaint in Berrien County, Georgia, asking that the original Georgia decree be modified to change custody of the minor child to him. *651 The mother counterclaimed for contempt and sought a writ of habeas corpus. Subsequent to the filing of the complaint in Georgia by the father, and prior to any hearing in Georgia on the matter, the Florida court entered a final order on April 18, 1979, establishing the Georgia decree as the judgment of the Florida court and modifying the father's visitation rights.
The Superior Court of Berrien County heard evidence on the father's complaint on May 10, 1979, and on June 21, 1979, entered an order changing custody to the father and ruling that the father was not in contempt as alleged by the counterclaim. The mother's counterclaim for habeas corpus was likewise denied. The mother appeals from this order of the Superior Court of Berrien County.
1. The mother contends that Georgia was not an appropriate or convenient forum for determination of the custody of the child because of insufficient contacts between the parties and this state. While it is true that the child was in Florida with the mother under a valid original decree of the Berrien County court giving custody to the mother, we find that the Georgia court was authorized under the evidence to find that the father retrieved the child in the face of an emergency situation created by the mother. The circumstances of the child's retrieval by the father were sufficient to afford Georgia jurisdiction under Code Ann. § 74-504 (a) (3).
2. The mother also argues that the pendency of the Florida action preempted Georgia jurisdiction. The action was pending in Florida at the time the father filed his suit, and while the father did not properly inform the Georgia court of this fact, this information was fully supplied to the Georgia court by the mother in her motion to dismiss. This fact placed a duty upon the trial court to confer with the Florida court with a view toward determining the appropriate forum. Code Ann. § 74-507. This was not done. Correspondingly, the Florida court, having notice in the mother's pleadings that an action might be pending in Georgia, was under a duty to confer with the Georgia court. There is nothing in the record before this court to indicate any effort on the part of the Florida court to fulfill this duty prior to entering its final *652 judgment.
Among the primary purposes of the Uniform Child Custody Jurisdiction Act is to avoid overlapping adjudication and to prevent judgment races. In this case, neither state made a contribution toward that goal. The Georgia court exercised its jurisdiction with knowledge of the case in Florida. The Florida court entered its final order with notice that an action might be pending in Georgia.[1] Neither court consulted the other.
The action required of a court before assuming jurisdiction or conducting a hearing in a custody proceeding is that the court determine whether an action is pending in another state. Code Ann. § 74-507. As subsections (b) and (c) clearly reveal, the crucial determination by the court is whether at the time it assumes jurisdiction another court is presently exercising jurisdiction over the issue of custody of the child. In the present case, at the time of the hearing on May 10, 1979, on the mother's motion to dismiss for lack of jurisdiction and upon the case in chief, the Georgia court had before it the final order of the Florida court entered April 18, 1979, concluding the Florida action. No additional inquiry was necessary, it being apparent that the Florida action had been concluded before the Georgia court exercised jurisdiction, although after the Georgia petition was filed. An investigation at that point would have been futile, and it is clear that the law does not require a useless act. Had the Georgia proceeding been dismissed, there could have been no resolution of the custody dispute by any court unless a new lawsuit were brought. This result would be contrary to principles of judicial economy and orderly administration of justice and would have done nothing to advance the purpose of § 74-507, which is the prevention of jurisdictional conflicts between the states. Consequently, we find that the pendency of the Florida action at the time the Georgia action was filed did not preempt the jurisdiction of the Georgia court.
*653 3. The mother also assigns error in the court's finding that there had been a material change in circumstances affecting the welfare of the child so that custody should be changed to the father. In making the determination whether there has been a material change in circumstances affecting the child, the trial court is vested with broad discretion which will not be disturbed on appeal unless abused. Wrede v. Beuke, 221 Ga. 778 (147 SE2d 324) (1966); Mallette v. Mallette, 220 Ga. 401 (139 SE2d 322) (1964). We find that the trial court did not abuse its discretion in finding it in the best interest of the child that custody be awarded to the father.
The remaining enumerations of error we are without merit.
Judgment affirmed. All the Justices concur, except Jordan, P. J., Hill and Marshall, JJ., who dissent.
HILL, Justice, dissenting.
The mother left her six-year-old son in the care of his 13-year-old step-sister for a weekend. The mother's cousins, who lived next door, were looking after the children. While such conduct may not be proper child care, it does not constitute abandonment or an emergency. The father brought the child back to Georgia on February 18, 1979, and did not file this suit until March 23, over a month later.
The majority find (Division 1, supra) that the Georgia court had jurisdiction under Code Ann. § 74-504 (a) (3). That section provides that "A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if: ... (3) The child is physically present in this State and (A) the child has been *654 abandoned or (B) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent." This is § 3 (a) (3) of the Uniform Child Custody Jurisdiction Act.
To avoid "child snatching" of allegedly abandoned children, or children found in a situation alleged to be an emergency, I would hold that § 3 (a) (3) of the UCCJA, Code Ann. § 74-504 (a) (3), supra, gives jurisdiction to a court of that state where the child is physically present when the alleged abandonment or emergency is discovered by his or her parent or person claiming the right to custody. That would be the Florida court in this case. In my view the majority has condoned child snatching contrary to the landmark decision in Matthews v. Matthews, 238 Ga. 201 (232 SE2d 76) (1977).
I respectfully dissent to this return to the old ways.
I am authorized to state that Presiding Justice Jordan and Justice Marshall join in this dissent.
NOTES
[1] The duty of a party to inform the court of any custody proceeding in any other state continues during the entire proceeding. Code Ann. § 74-510 (c).
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NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
FRANK SILVA ROQUE, Petitioner.
No. 1 CA-CR 14-0729 PRPC
FILED 11-15-2016
Petition for Review from the Superior Court in Maricopa County
No. CR 2001-095385
The Honorable Mark F. Aceto, Retired Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Frank Silva Roque, Buckeye
Petitioner
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Donn Kessler joined.
STATE v. ROQUE
Decision of the Court
J O N E S, Judge:
¶1 Petitioner Frank Silva Roque petitions this court for review
from the summary dismissal of the latest of his many successive notices of
post-conviction relief. We deny relief because the claims Roque presents
for review are claims he raised in his previous post-conviction relief
proceeding.1 Roque also concedes his appellate counsel raised the
underlying claims regarding the State’s failure to disclose and prosecutorial
misconduct on direct appeal in 2006. Any claim a defendant raised or could
have raised on direct appeal or in an earlier post-conviction relief
proceeding is precluded. See Ariz. R. Crim. P. 32.2(a). None of the
exceptions under Rule 32.2(b) apply.
¶2 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
1 While this is not one of the grounds upon which the trial court
dismissed the petition, we may affirm a result on any basis supported by
the record. State v. Robinson, 153 Ariz. 191, 199 (1987) (citation omitted).
2
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389 F.Supp. 287 (1974)
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL NO. 1, and Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO, Plaintiffs,
v.
Rear Admiral Joe WILLIAMS, Jr., USN, Commander, Norfolk Naval Shipyard, Portsmouth, Virginia, et al., Defendants.
Civ. A. No. 74-2-N.
United States District Court, E. D. Virginia, Norfolk Division.
February 7, 1974.
*288 Shapero, Levine & Friedman, Norfolk, Va., for plaintiffs.
Michael A. Rhine, Asst. U. S. Atty., Norfolk, Va., Mathew Wheeler, Office of Legal Counsel, Dept. of Navy, Office of Civilian Manpower Management, Washington, D. C., for defendants.
*289 MEMORANDUM ORDER
KELLAM, Chief Judge.
International Federation of Professional and Technical Engineers, Local No. 1 (International), and Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO (Tidewater), seek a temporary and permanent injunction against Rear Admiral Joe Williams, Jr., Commandant of the Norfolk Naval Shipyard; the Secretary of the Navy; and the United States, to enjoin and restrain defendants from changing the working hours of plaintiffs at the Norfolk Naval Shipyard.
I
Plaintiffs assert that sometime about September 1971 plaintiffs entered into contracts with Norfolk Naval Shipyard, a facility of the United States, dealing with the personnel policies and practices affecting working conditions for the members of the International and Tidewater unions at the Norfolk Naval Shipyard. The contracts, among other things, provide that the working hours of plaintiffs' members will be from 0800 until 1430, with one half hour for lunch.
Plaintiffs allege that while the above-cited provisions of the labor contracts were in full force and effect, Admiral Williams, without cause or authority, issued an order directing that on and after January 7, 1974, the hours of work for plaintiffs' members would be from 0720 to 1550. Plaintiffs say that such a change in working hours is in violation of the terms of their bargaining agreements, and defendants should be required to reestablish the working hours of plaintiffs' members to the times specified in the bargaining agreements.
The bargaining agreements here in issue were entered into between International and Tidewater and Norfolk Naval Shipyard (Shipyard) pursuant to the provisions of Executive Order 11491, as amended by Executive Order 11616 of August 26, 1971, granting leave to employees of the Executive Branch of the government to join unions and to have such unions bargain for them in the capacity permitted by said orders and amendments thereof.
The executive order and amendment provide that any such bargaining agreement "shall provide a procedure * * * for the consideration of grievances over the interpretation or application of the agreement." Section 13, Executive Order 11491 as amended by 11616. The last-quoted section also provides that no agreement may be established which does not conform to said section. Further that section provides that questions which cannot be resolved by the parties as to whether or not a grievance is on a matter subject to the grievance procedure in an existing agreement, or is subject to arbitration under that agreement, may be referred to the Assistant Secretary for decision.
Each of the bargaining agreements provides that employer and the union "recognize and endorse the importance of bringing to light and adjusting grievances promptly." International Agreement, Article XIX; Tidewater Agreement, Article XXVI. Further these articles provide that the "purpose of this Article is to provide a mutually satisfactory method for the settlement of grievances * * * involving the interpretation or application of this Agreement * * * or the interpretation or application of any rule or regulation, or practice of the Employer or the Employer's application of any other rule, regulation, or practice now or hereafter in force, or any employee's feeling of dissatisfaction with his working conditions." In the Tidewater Agreement a grievance is defined as "any matter of personal concern or dissatisfaction to any employee, that is under the control of the Employer." Section 3, Article XXVI, Tidewater Agreement. The Tidewater Agreement provides in Section 7 of Article XXVI, "any grievance between an employee(s) and the Employer shall be processed * * *." The International Agreement likewise refers to "any" grievance.
*290 II
Plaintiffs allege jurisdiction under 28 U.S.C. § 1361, and 5 U.S.C. §§ 702 and 706.
A
Section 1361 of 28 U.S.C. provides:
"The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff."
This section was enacted in 1962. It did not create any new cause of action but, in principle, only broadened the venue of the prior act, giving district courts other than the District of Columbia venue in actions against United States officers. It creates no new liability or cause of action, and does not waive the sovereign immunity of the United States in mandamus actions. Seebach v. Cullen, 224 F.Supp. 15 (N.D. Cal., 1963), affirmed 338 F.2d 663 (9th Cir., 1964), cert. denied 380 U.S. 972, 85 S.Ct. 1331, 14 L.Ed.2d 268; Udall v. Oil Shale Corporation, 406 F.2d 759 (10th Cir., 1969), reversed on other grounds 400 U.S. 48, 91 S.Ct. 196, 27 L.Ed.2d 193; Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364 (10th Cir., 1966), cert. denied 385 U.S. 831, 87 S.Ct. 70, 17 L.Ed.2d 67; Sprague Electric Company v. Tax Court of United States, 230 F.Supp. 779 (D.C. Mass., 1964), affirmed 340 F.2d 947 (1st Cir., 1965); Smith v. United States, 224 F.Supp. 402 (D.C.Wyo., 1963), affirmed 333 F.2d 70 (10th Cir., 1964); McEachern v. United States, 212 F.Supp. 706 (W.D.S.C., 1963), affirmed in part, vacated on other grounds 321 F.2d 31 (4th Cir., 1963). Jurisdiction under § 1361 is proper only to command an official to perform a ministerial act. An act is ministerial only if it is a positive command and so plainly prescribed as to be free from doubt. Mandamus may not be used to direct the exercise of a judgment or discretion in a particular way. For mandamus to issue, the plaintiff must have a clear right to relief, the defendant must have a clear duty to act, and there must be no other adequate relief available. It is an extraordinary remedy and a petition for relief must be supported by evidence showing petitioner is entitled to the relief and that the official has failed to perform a nondiscretionary ministerial act owed to petitioner. Wilbur v. United States, 281 U. S. 206, 218, 50 S.Ct. 320, 74 L.Ed. 809 (1930); United States Ex Rel v. Helvering, 301 U.S. 540, 543, 57 S.Ct. 855, 81 L.Ed. 1272 (1937); Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 318, 78 S.Ct. 752, 2 L.Ed.2d 788 (1958); Switzerland Company v. Udall, 225 F.Supp. 812 (W.D.N.C., 1964), affirmed 337 F. 2d 56 (4th Cir., 1964), cert. denied 380 U.S. 914, 85 S.Ct. 900, 13 L.Ed.2d 800; United States v. Walker, 409 F.2d 477 (9th Cir., 1969); Casarino v. United States, 431 F.2d 775 (2nd Cir., 1970); Carter v. Seamans, 411 F.2d 767 (5th Cir., 1969); Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364 (10th Cir., 1966); Yahr v. Resor, 339 F.Supp. 964 (E.D.N.C., 1972); Bowen v. Culotta, 294 F.Supp. 183 (E.D. Va., 1968); Parrish v. Seamans, 343 F. Supp. 1087 (D.C.S.C., 1972); National Anti-Vivisection Society v. F.C.C., 234 F.Supp. 696 (N.D.Ill., 1964). In Wilbur v. United States, supra, the court pointed out that mandamus might be employed to compel a ministerial act, "but not to direct the exercise of judgment or discretion in a particular way nor to direct the retraction or reversal of action already taken in the exercise of either." [281 U.S. 218, 50 S.Ct. 324.]
It is perfectly plain that there is no "untrammeled authority in the District Court to control or hamper the exercise of discretion vested in an officer or governmental agency." National Anti-Vivisection Society v. F.C.C., 234 F.Supp. 696, 697 (N.D.Ill., 1964).
Defendants say that 28 U.S.C. § 1361, does not authorize suit against the United States or grant jurisdiction to the district court of a suit seeking mandamus or injunctive relief against the United States. United States v. *291 Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); United States v. U. S. Fidelity Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940); Switzerland Company v. Udall, 225 F.Supp. 812, 819 (W.D.N.C., 1964), affirmed 337 F.2d 56, 61 (4th Cir., 1964), cert. denied 380 U.S. 914, 85 S.Ct. 900, 13 L.Ed.2d 800; Bowen v. Culotta, 294 F.Supp. 183, 186 (E. D.Va., 1968). Too, defendants say that a suit against an officer or agency of the United States is a suit against the United States. Manhattan-Bronx Postal Union v. Gronouski, 121 U.S.App.D.C. 321, 350 F.2d 451 (1965), cert. denied 382 U.S. 978, 86 S.Ct. 548, 15 L.Ed.2d 469 (1966); United States v. Walker, 409 F.2d 477, 480 (9th Cir., 1969); Bowen v. Culotta, supra. The general rule is that a suit is against the sovereign if "the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration," Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947), or if the effect of the judgment would be "to restrain the Government from acting, or compel it to act." Larson v. Domestic & Foreign Corporation, 337 U.S. 682, 704, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); Ex Parte State of New York, No. 1, 256 U.S. 490, 502, 41 S.Ct. 588, 65 L.Ed. 1057 (1921); Dugan v. Rank, 372 U.S. 609, 620, 83 S. Ct. 999, 10 L.Ed.2d 15 (1963); Bowen v. Culotta, supra. Here, it is asserted Admiral Williams was acting solely as an official of the United States, and his action can only be made the basis for specific relief against him as an individual if his action is "not within the officer's statutory powers or, if within those powers, only if the powers, or their exercise in the particular case, are constitutionally void." Larson v. Domestic & Foreign Corporation, supra, 337 U.S. at page 702, 69 S.Ct. at page 1467; Malone v. Bowdoin, 369 U.S. 643, 647, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962).
B
Under the provisions of 5 U.S.C. § 702, a person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. 5 U.S.C. § 706, limits the scope of review to "decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." Further, the section provides the court may compel agency action unlawfully withheld, and set aside agency action found to be arbitrary, capricious or an abuse of discretion, or not in accordance with law.
This section presupposes that a dispute at a Navy installation would have been appealed through channels to the Secretary of the Navy, pursuant to regulations governing administrative appeals. It is clear plaintiffs have not processed this complaint administratively. McEachern v. United States, supra.
Too, 5 U.S.C. § 701, excepts agency action which is committed to agency discretion by law.
The purpose of the act is to provide a judicial review of agency action rather than to confer jurisdiction upon the court. That is, it is for review of agency action, and the section does not extend jurisdiction of the federal courts to cases not otherwise within its competence. Ove Gustavsson Contracting Company v. Floete, 278 F.2d 912, 914 (2nd Cir., 1960); Kansas City Power & Light Company v. McKay, 96 U.S.App. D.C. 273, 225 F.2d 924, 932 (1955), cert. denied 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780; Yahr v. Resor, 339 F.Supp. 964 (E.D.N.C., 1972); McEachern v. United States, supra.
If an unfair labor practice exists in this case and arbitration does not apply then plaintiffs' remedy is pursuant to Executive Order 11491 by appeal to the Assistant Secretary of Labor.
Plaintiffs have not exhausted their administrative remedies. See National Alliance of Postal & Fed. Emp. v. *292 United States, 339 F.Supp. 1343, 1345 (W.D.Pa., 1972):
"Plaintiff has not exhausted his administrative remedies. Under 5 U.S. C., § 704, only final agency action is reviewable. In Executive Order 11491, provision is made that any party aggrieved by the final decision of the Assistant Secretary may petition the Federal Labor Relations Council for a review. Admittedly plaintiff has not sought review by this body and, therefore, has not exhausted administrative remedies and the case is not ripe for judicial review. Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938); United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 73 S. Ct. 67, 97 L.Ed. 54. See also Local 542 etc. v. NLRB, 328 F.2d 850 (3d Cir. 1964); Zimmerman v. United States Government, 422 F.2d 326 (3d Cir. 1970)."
C
At oral argument on the motion for a temporary injunction, counsel for plaintiff asserted that jurisdiction for this action might be laid under 29 U.S. C. §§ 141 and 185. Section 185 grants jurisdiction for violation of contracts between employer and a labor organization representing employees in an industry affecting commerce as defined in that chapter. However, 29 U.S.C. § 152, provides that employer does not include the United States or any wholly owned government corporation.[1]
III
There is another reason why this court does not have and should not take jurisdiction, and that is because the collective bargaining agreements require that the issue in dispute must be submitted to arbitration. On the issue of arbitration of labor disputes, we commence with the language of Congress as expressed in the Labor Management Relations Act, 29 U.S.C. § 173(d), which states in part:
"Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement." (Italics added.)
In Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583, dated January 8, 1974, the court pointed out "the now well-known presumption of arbitrability for labor disputes" with this language:
"`An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.' United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960)."
Further, the court pointed out that commercial and labor arbitrations have different objectives, and that labor arbitration "is the substitute for industrial strife."
The duty of the court is to decide whether the arbitration clauses of the collective bargaining agreements in this case can reasonably be interpreted to cover the dispute. If they do, then this action may not be maintained and the matter must be referred to arbitration. Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed. 2d 1409 (1960); Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); *293 Drake Bakeries v. Bakery Workers, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962); Local Union No. 24, International Brotherhood of Electrical Workers v. Hearst Corp., 352 F.2d 957, 959 (4th Cir., 1965), cert. denied 383 U.S. 937, 86 S.Ct. 1067, 15 L.Ed.2d 853.
Whether a party is bound to arbitrate, as well as what issues it must arbitrate, are matters to be determined by the court on the basis of the contract entered into between the parties. Operating Engineers v. Flair Builders, Inc., 406 U.S. 487, 491, 92 S.Ct. 1710, 32 L. Ed.2d 248 (1972); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962).
"In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here * * * the arbitration clause is quite broad." Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 584, 80 S.Ct. 1347, 1354 (1960). Further, the court there said, "the court should view with suspicion an attempt to persuade it to become entangled in the construction of the substantive provisions of a labor agreement, even through the back door of interpreting the arbitration clause, when the alternative is to utilize the services of an arbitrator." Id. 363 U.S. 585, 80 S.Ct. 1354.
The Gateway Coal Co. case, supra, pointed out what is so obvious here; i. e., that a "collective bargaining agreement cannot define every minute aspect of a complex and continuing relationship between the parties," while arbitration provides a method for resolving unforeseen disagreements which may arise.
If any doubt arises as to whether the arbitration clauses in the collective bargaining agreements in this case are susceptible of interpretation that covers the asserted dispute, then it should be resolved in favor of coverage. Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Local Union No. 24, International Brotherhood of Electrical Workers v. Hearst Corp., 352 F.2d 957 (4th Cir., 1965), cert. denied 383 U.S. 937, 86 S.Ct. 1067, 15 L.Ed.2d 853.
Construing the language of the agreements in these cases, in light of the decisions of the Supreme Court and of the Court of Appeals for the Fourth Circuit, it seems clear that arbitration is required.
In Operating Engineers v. Flair Builders, Inc., 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972), the court held that the language of the agreement required arbitration on whether a party was guilty of "laches" in institution of an action on the contract. The court said the language "any differences" used in the agreement meant exactly what it said and applied to any differences "whatever it might be." [406 U. S. 491, 92 S.Ct. 1710]
For the reasons hereinabove set forth, the plaintiffs are not entitled to the relief prayed for and the complaint is dismissed.
NOTES
[1] If jurisdiction is not laid under the Labor Management Relations Act, it may be doubtful that plaintiffs can maintain this action. Moffat Tunnel League v. United States, 289 U.S. 113, 53 S.Ct. 543, 77 L.Ed. 1069 (1933); Rock Drilling, Blasting, etc. v. Mason & Hanger Co., 217 F.2d 687 (2nd Cir., 1954), cert. denied 349 U.S. 915, 75 S.Ct. 604, 99 L.Ed. 1249; Moore's Federal Practice, Vol. 3, page 1331.
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985 A.2d 972 (2009)
COM.
v.
WRIGHT.
No. 196 EAL (2009).
Supreme Court of Pennsylvania.
December 9, 2009.
Disposition of Petition for Allowance of Appeal Denied.
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325 F.3d 1155
NORTHERN PLAINS RESOURCE COUNCIL, Plaintiff-Appellant,v.FIDELITY EXPLORATION AND DEVELOPMENT COMPANY, Defendant-Appellee.
No. 02-35836.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 4, 2003.
Filed April 10, 2003.
COPYRIGHT MATERIAL OMITTED Jack R. Tuholske, Missoula, MT, for Appellant.
Ronald Waterman and Jon Metropoulos, Gough, Shanahan, Johnson & Waterman, Helena, MT, for the appellee.
John B. Arum and Steven H. Chestnut, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, for amicus curiae Northern Cheyenne Tribe.
Elizabeth A. Brennan, Rossbach Brennan, Missoula, MT, for amicus curiae Tongue & Yellowstone Irrigation District.
Brenda Lindlief Hall, Reynolds, Motl & Sherwood, for amicus curiae Tongue River Water Users' Association.
Michael S. Kakuk and Palmer Hoovestal, Hoovestal, Kakuk & Fanning, Helena, MT, for amicus curiae Western Environmental Trade Association.
Appeal from the United States District Court for the District of Montana; Sam E. Haddon, District Judge, Presiding. D.C. No. CV-00-00105-SEH.
Before REINHARDT, W. FLETCHER, and GOULD, Circuit Judges.
OPINION
GOULD, Circuit Judge.
1
Defendant-Appellee Fidelity Exploration & Development Company ("Fidelity") extracts methane gas for commercial sale from coal seams located deep underground in the Powder River Basin, Montana. In the process of extracting coal bed methane (CBM), Fidelity pumps groundwater to the surface and discharges this water into the Tongue River. The water discharged is "salty," contains several chemical constituents identified as pollutants by Environmental Protection Agency (EPA) regulations, has characteristics that may degrade soil, and is unfit for irrigation. The Montana Department of Environmental Quality (MDEQ) advised Fidelity that no permit was required to discharge the coal bed methane groundwater because Montana state law exempts unaltered groundwater from state water quality requirements. Plaintiff-Appellant Northern Plains Resource Council (NPRC) filed a citizen suit under the federal Clean Water Act (CWA) in the District Court for the District of Montana, alleging that Fidelity unlawfully discharged pollutants into navigable waters of the United States. NPRC appeals the district court's grant of summary judgment to Fidelity.
2
On appeal, we decide (1) whether the CBM discharge water is a "pollutant" within the meaning of the CWA, and (2) whether Montana state law can exempt Fidelity from obtaining National Pollution Discharge Elimination System (NPDES) permits under the CWA. We hold that the unaltered groundwater produced in association with methane gas extraction, and discharged into the river, is a pollutant within the meaning of the CWA. We also hold that states cannot create exemptions to the CWA, whether or not the EPA has delegated permitting authority to the state.
3
* In 1997, Fidelity began exploring and developing natural gas from coal seams in the Powder River Basin, Montana. The coal reserves in Powder River Basin are several hundred feet below the ground and contain reservoirs of methane gas. The methane is trapped by groundwater that fills the interstitial areas of the coal reserves. To extract the methane, Fidelity drills a conventional well into the coal seam and pumps the trapped water to the surface to reduce water pressure. This pumping releases the trapped methane, which is captured at the surface and piped to market. Fidelity does not add chemicals to the pumped groundwater (CBM water). Fidelity discharges the unaltered CBM water into the Tongue River. Because CBM water comes from deep underground aquifers, it would not reach the Tongue River were it not for Fidelity's extraction process.
4
Though Fidelity does not add any chemicals to the CBM water before discharge, the water in its natural state contains suspended solids, calcium, magnesium, sodium, potassium, bicarbonate, carbonate, sulfate, chloride, and fluoride. The CBM water also contains measurable quantities of the following metals: aluminum, arsenic, barium, beryllium, boron, copper, lead, iron, manganese, strontium, and radium.
5
The CBM water is "salty," a characteristic measured by total dissolved solids or specific conductance. The mean total dissolved solids for the Tongue River is 475 mg/l as compared to 1,400 mg/l for the CBM water. Related to the "saltiness" of the CBM water is the water's high Sodium Absorption Ratio (SAR). SAR measures the ratio of sodium to calcium and magnesium in the water. The SAR of the CBM water discharged by Fidelity is on average 40 to 60 times greater than the background SAR of the Tongue River. For all these reasons, the CBM water is distinctly different from the Tongue River water to which it is added.
6
Farmers who use water from the Tongue River for irrigation are concerned with the "saltiness" and high SAR of CBM water because of the potential hazards these characteristics pose to soil structure. High SAR water, such as CBM water, causes soil particles to unbind and disperse, destroying soil structure and reducing or eliminating the ability of the soil to drain water. The Montana Department of Environmental Quality (MDEQ), in a Final Environmental Impact Statement analyzing coal bed methane extraction, warns that "clayey" soil, like that in the Tongue River Valley, is vulnerable to damage from high SAR water. Montana Statewide Final Oil and Gas Environmental Impact Statement and Proposed Amendment of the Powder River and Billings Resource Management Plans (hereinafter "Montana FEIS"), Soils Appendix SOI-1, available at www.deq.state.mt.us/CoalBedMethane/ finaleis.asp. Fidelity's soil expert concluded that "the SAR of CBM water creates a permeability hazard and precludes its use for irrigation without mixing, treatment or addition of soil amendments." The MDEQ cautioned that unregulated discharge of CBM water would cause "[s]urface water quality in some watersheds [to] be slightly to severely degraded, resulting in restricted downstream use of some waters." Id. 4-72. Some of the CBM water, however, is used by Fidelity's grazing lessee, CX Ranch, in livestock watering ponds and stock tanks.
7
In August 1998, Fidelity contacted the MDEQ about the possibility of discharging its CBM water into the Tongue River and Squirrel Creek. By letter, the MDEQ told Fidelity that it did not need a permit from the MDEQ to discharge into the Tongue River because the discharge was exempt under Montana Code section 75-5-401(1)(b), which provides:
8
Discharge to surface water of groundwater that is not altered from its ambient quality does not constitute a discharge requiring a permit under this part if: (i) the discharge does not contain industrial waste, sewage, or other wastes; (ii) the water discharged does not cause the receiving waters to exceed applicable standards for any parameters; and (iii) to the extent that the receiving waters in their ambient state exceed standards for any parameters, the discharge does not increase the concentration of the parameters.
9
The MDEQ, however, warned Fidelity in the same letter that "the EPA, which provides state program oversight under the federal Clean Water Act, does not agree with the [Montana] Water Quality Act permit exclusion under 75-5-401(1)(b). Therefore, they may ask at some point that you obtain an [Montana Pollution Discharge Elimination System (MPDES)] permit from us, or an NPDES permit from them."1 The EPA told MDEQ that section 75-5-401(1)(b) of the Montana Code conflicts with the CWA because it exempts some discharges otherwise subject to the CWA from NPDES permitting requirements. The EPA stressed that "the fact that a discharge does not increase the concentration of a particular parameter does not exempt it from permitting requirements." The MDEQ responded, resisting revocation of the section 75-5-401(1)(b) exemption and arguing that "the exemption is consistent with federal requirements governing NPDES programs because discharges of unaltered, natural groundwater do not contain `pollutants' as that term is defined under the Clean Water Act." In a final letter sent to the MDEQ by the EPA, the EPA reiterated its objection to section 75-5-401(1)(b) if applied to discharges that would otherwise require a permit under the CWA.
10
Even though MDEQ informed Fidelity in August 1998 that Montana state law exempted the discharge of unaltered groundwater, Fidelity filed MPDES permit applications in January 1999. At that time, Fidelity was discharging into both Squirrel Creek and the Tongue River without a permit.
11
NPRC sent a 60-day Notice of Intent to Sue letter to Fidelity, the MDEQ, and the EPA on April 18, 2000. NPRC alleged unpermitted discharges of pollutants into Squirrel Creek and the Tongue River. On June 23, 2000, NPRC filed a citizen suit under the CWA in federal district court alleging unpermitted discharges into Squirrel Creek. An amended complaint was filed on June 26, 2000, to add allegations of unlawful discharges into the Tongue River from outfalls not covered by an MPDES permit.2
12
The parties filed cross-motions for summary judgment in district court. The parties stipulated that of the five elements necessary to prove a violation of the CWA ((1) discharge, (2) pollutant, (3) from a point source, (4) to a navigable water, (5) without a permit), the only element at issue is whether the CBM water constitutes a pollutant; the other four elements are satisfied. The district court held that the CBM water was not a pollutant and granted summary judgment to Fidelity. NPRC appeals.3
II
13
The CWA prohibits the discharge of any pollutant from a point source into navigable waters of the United States without an NPDES permit. 33 U.S.C. §§ 1311(a), 1342. See also Ass'n to Protect Hammersley, Eld, and Totten Inlets (APHETI) v. Taylor Res., Inc., 299 F.3d 1007, 1009 (9th Cir.2002). Fidelity and NPRC agree that Fidelity discharged CBM water from a point source into navigable water without an NPDES permit. Given this agreement, we need only decide whether the groundwater derived from CBM extraction is a "pollutant" within the meaning of the CWA.
14
The district court granted summary judgment to Fidelity based on two conclusions: (1) CBM produced water is not a pollutant within the meaning of the CWA, and (2) Montana state law exempted Fidelity from CWA permitting requirements. We have jurisdiction, 33 U.S.C. § 1365(a); 28 U.S.C. § 1331, we review the district court's grant of summary judgment de novo, see Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002), and we reverse.
15
To determine whether CBM water is a "pollutant" regulated by the CWA, we begin with the plain language of the statute. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 56, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). The CWA defines "pollutant" broadly:
16
The term "pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. This term does not mean ... water, gas, or other material which is injected into a well to facilitate production of oil and gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources.
17
33 U.S.C. § 1362(6) (emphasis added). Because this definition does not literally list "unaltered groundwater" as a pollutant, Fidelity argues, and the district court held, that CBM water is not a "pollutant." Fidelity's argument and the district court's holding are untenable. The plain language of the CWA requires the conclusion that CBM water is a pollutant subject to regulation under the CWA.
18
The reasons for our conclusion are apparent from the statute's terms. First, CBM water is a "pollutant" because it is "industrial waste." Contrary to Fidelity's suggestion that "industrial waste" refers to "sludge oozing from manufacturing or processing plants, barrels filled with toxic slime, and raw sewage floating in a river," industrial waste is not limited to only the most heinous and toxic forms of industrial byproducts. See Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 568 (5th Cir.1996) (concluding "produced water" is encompassed in "industrial waste"); see also Hudson River Fishermen's Ass'n v. City of New York, 751 F.Supp. 1088, 1101 (S.D.N.Y.1990) (holding that chlorine residues are pollutants), aff'd, 940 F.2d 649 (2d Cir.1991); Umatilla Waterquality Protective Ass'n, Inc. v. Smith Frozen Foods, Inc., 962 F.Supp. 1312, 1322 (D.Or.1997) (holding that brine residues are industrial waste and therefore pollutants). "Industrial" means "of, pertaining to, or derived from industry." American Heritage Dictionary 672 (1979). "Industry," in turn, is defined as "the commercial production and sale of goods and services." Id. "Waste" is defined as "any useless or worthless byproduct of a process or the like; refuse or excess material." Id. at 1447. Combining these ordinary meanings, "industrial waste" is any useless byproduct derived from the commercial production and sale of goods and services. Because Fidelity is engaged in production of methane gas for commercial sale and because CBM water is an unwanted byproduct of the extraction process, CBM water falls squarely within the ordinary meaning of "industrial waste." Even Fidelity referred to CBM water as "wastewater" in its application to the EPA for an NPDES permit.
19
Second, CBM water is also a "pollutant" by virtue of being "produced water" derived from gas extraction. See Cedar Point Oil Co., 73 F.3d at 568 (addressing whether discharge of water "produced" during the extraction of oil and gas without an NPDES permit violated the CWA and concluding that produced water is an "industrial waste" regulated by the CWA). The EPA defines "produced water" as "water (brine) brought up from the hydrocarbon-bearing strata during the extraction of oil and gas, and can include formation water, injection water, and any chemical added downhole or during the oil/water separation process." 40 C.F.R. §§ 435.41(bb), 435.11(bb) (emphasis added). Fidelity argues that the CBM water is not "produced water" because Fidelity adds no chemicals to the water. Whether CBM water is "produced water," however, does not turn on the addition of chemicals or any other alteration. The EPA regulations provide that "produced water" can include added chemicals, but the definition does not require it. See id. CBM water is "produced water" because it is brought up from the coal seams underlying Powder Basin to extract methane gas.
20
The CWA contemplates that produced water, as defined by EPA regulations, is a pollutant within the meaning of the Act. The CWA only exempts water derived from gas extraction from regulation when the water is disposed of in a well and will not result in the degradation of other water bodies. 33 U.S.C. § 1362(6)(B). Cf. Cedar Point Oil, 73 F.3d at 568 ("produced water" is a pollutant if its discharge does not meet exemption criteria). Fidelity disposes of the CBM water by direct discharge to the Tongue, not by reinjection into a state-approved well. Because Fidelity discharges "produced water" and does not meet § 1362(6) exemption criteria, the CBM water discharged by Fidelity is a pollutant within the plain meaning of the CWA and is subject to NPDES permitting requirements.
21
Third, concluding that CBM water is a pollutant is consistent with the CWA's definition of "pollution." Cf. APHETI, 299 F.3d at 1017 (considering the definition of "pollution" to determine whether biological materials emitted by mussels are "pollutants"). "Pollution" is the "man-made or maninduced alteration of the chemical, physical, biological, and radiological integrity of water." 33 U.S.C. § 1362(19). By discharging CBM water into the Tongue River, Fidelity alters the water quality of the Tongue River. In particular, the MDEQ, in the Montana Environmental Impact Statement analyzing the impact of CBM production on Montana waterways, cautions that the resulting alteration may degrade, and limit uses of, the receiving water: "Surface water quality in some watersheds would be slightly to severely degraded, resulting in restricted downstream use of some waters." Montana FEIS at 4-72. And, unregulated discharge of CBM water to the Tongue River threatens to make the water unfit for irrigation. Id. at 4-138.
22
Because Fidelity's discharges of CBM water alter the water quality of the Tongue River, those discharges cause "pollution" as defined by the CWA. See PUD No. 1 of Jefferson County. v. Wash. Dep't of Ecology, 511 U.S. 700, 705, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994) (citing 33 U.S.C. § 1313(d)(4)(B) and recognizing CWA's "antidegradation policy" requiring state water quality standards to prevent further degradation of the Nation's waters); 40 C.F.R. § 131.12 (antidegradation policy regulation). Were we to conclude otherwise, and hold that the massive pumping of salty, industrial waste water into protected waters does not involve discharge of a "pollutant," even though it would degrade the receiving waters to the detriment of farmers and ranchers, we would improperly "undermine the integrity of [the CWA's] prohibitions." APHETI, 299 F.3d at 1016.
23
The district court determined that the CWA's definition of "pollution" supports a conclusion that CBM water is not a pollutant because Fidelity does not alter the CBM water before discharging it. We disagree with the district court's interpretation of the definition. The requirement that the physical, biological, or chemical integrity of the water be a "maninduced" alteration refers to the effect of the discharge on the receiving water; it does not require that the discharged water be altered by man. See Miccosukee Tribe v. S. Fla. Water Mgmt. Dist., 280 F.3d 1364, 1368 (11th Cir.2002) ("[I]n determining whether pollutants are added to the navigable waters for purposes of the CWA, the receiving body of water is the relevant body of navigable water."). A contrary reading of the definition is illogical because the goal of the CWA is to protect receiving waters, not to police the alteration of the discharged water. See 33 U.S.C. § 1251 (The objective of the CWA is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters"). Here, the alteration of the chemical integrity of the Tongue River is "maninduced," as the CBM water would not flow into the Tongue River but for Fidelity's methane extraction processes, and that must be a focus of our concern under the CWA. Contrary to the district court's conclusion, the definition of "pollution" supports a finding that CBM water is a pollutant.
24
In arguing that CBM water is not a pollutant, Fidelity makes much of the fact that the CBM water is "unaltered," "naturally occurring," and that it is only water. Fidelity relies on APHETI to argue that only those substances "transformed by human activity" can be pollutants under the CWA. See APHETI, 299 F.3d at 1017. Fidelity misapplies APHETI.
25
In APHETI, we clarified the meaning of "biological materials," a term included in the CWA's definition of "pollutant." Id. at 1016; see also 33 U.S.C. § 1362(6). In considering whether excrement from mussels suspended from rafts in Puget Sound was a pollutant under the CWA, we distinguished between biological materials that naturally occur in receiving waters, such as mussel feces, and biological materials that result from human activity, such as the "heads, tails, and internal residuals" of fish dumped back into the waters after processing. APHETI, 299 F.3d at 1017. Because one purpose of the CWA is to protect shellfish, we concluded that shellfish are not pollutants under the CWA unless human activity transforms them. Id. This conclusion was necessary to preserve the "integrity of the [CWA's] prohibitions." Id. at 1016.
26
APHETI cannot sensibly be read to require human transformation of all materials identified in the CWA's definition of "pollutant." For one thing, the CWA definition of "pollutant" includes such terms as "rock," "sand," and "heat." See 33 U.S.C. § 1362(6). It is the introduction of these contaminants, not their transformation by humans, that renders them pollutants. Also, by allowing the degradation of the quality of receiving waters, the consequences of Fidelity's interpretation of APHETI would upset the integrity of the CWA, a result that APHETI was careful to avoid. Fidelity's interpretation of APHETI is not correct, for it would allow someone to pipe the Atlantic Ocean into the Great Lakes and then argue that there is no liability under the CWA because the salt water from the Atlantic Ocean was not altered before being discharged into the fresh water of the Great Lakes. Or, water naturally laced with sulfur could be freely discharged into receiving water used for drinking water simply because the sulfur was not added to the discharged water. Such an argument cannot sensibly be credited.
27
Even though Fidelity argues that CBM discharges are "only water," other circuits have held that transporting water from one water body to another can violate the CWA. See Miccosukee Tribe, 280 F.3d at 1367 (affirming the district court's grant of summary judgment to the plaintiffs where the defendant discharged already polluted water into a navigable water even though the defendant did not introduce additional pollutants into the discharged water but only rerouted the discharged water into the receiving water); Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481, 492-93 (2d Cir.2001) (concluding that the transfer of water containing pollutants from one body of water to another requires an NPDES permit); Dubois v. U.S. Dep't of Agric., 102 F.3d 1273, 1299 (1st Cir.1996) (holding that the transfer of water from one body of water to another distinct body of water requires a NPDES permit where the discharged water contains pollutants).
28
Fidelity attempts to distinguish these cases because they addressed the issue of whether there was an "addition" of a pollutant under the CWA, not whether there was a pollutant. This distinction is inapposite. The issue of whether CBM water is a pollutant is practically indistinguishable from the issues considered by these cases. Fidelity is transporting water from the deep aquifers of the Powder Basin and discharging that unaltered water into the surface water of the Tongue River. Similarly, each of the cases cited above involve transport of water that could degrade the water quality of receiving waters. The cases apply insofar as they reject the argument that discharge of water cannot be a pollutant simply because the discharged water is unaltered and transported from one body of water to another.
29
In light of the CWA's definition of pollutant and pollution, our precedent in APHETI, and the conclusions of other circuits in analogous cases, we reject Fidelity's arguments and hold that CBM water is a pollutant pursuant to the CWA.
III
30
Having concluded that Fidelity's discharge of CBM water is subject to the CWA, we next consider whether Fidelity nevertheless can be relieved of permitting under the CWA by Montana state law. Section 75-5-401(1)(b) of the Montana Code provides:
31
Discharge to surface water of groundwater that is not altered from its ambient quality does not constitute a discharge requiring a permit under this part if:
32
(i) the discharge does not contain industrial waste, sewage, or other wastes; (ii) the water discharged does not cause the receiving waters to exceed applicable standards for any parameters; and (iii) to the extent that the receiving waters in their ambient state exceed standards for any parameters, the discharge does not increase the concentration of the parameters.
33
Based on Montana Code section 75-5-401(1)(b), the MDEQ advised Fidelity that no permit was needed to discharge CBM water into the Tongue River. The district court agreed, reasoning that the EPA implicitly approved of Montana's groundwater exemption because the EPA did not revoke Montana's authority to operate the EPA-approved state permitting program despite section 75-5-401(1)(b). Giving deference to the EPA's "approval" of Montana's permitting program, the district court concluded that discharge of CBM water does not require a permit under Montana state law and thus does not violate the CWA. We disagree with the district court's conclusion for several reasons.
34
First, though the district court reasoned that the EPA approved of section 75-5-401(1)(b), the EPA does not have the authority to exempt discharges otherwise subject to the CWA. Only Congress may amend the CWA to create exemptions from regulation. See Am. Mining Congress v. E.P.A., 965 F.2d 759, 772 (9th Cir.1992) (citing Natural Res. Def. Council v. Costle, 568 F.2d 1369, 1374 (D.C.Cir.1977)). The EPA could not have approved of the MDEQ's exemption of CBM water discharges under section 75-5-401(1)(b) even if the EPA wanted to do so.4
35
Second, Montana has no authority to create a permit exemption from the CWA for discharges that would otherwise be subject to the NPDES permitting process. See 33 U.S.C. § 1370 (states may not adopt or enforce standards that are less stringent than federal standards). Just as the EPA does not have the authority to create an exemption for unaltered groundwater, neither does the State of Montana, as the EPA cannot delegate to a state more authority than the EPA has under the CWA.5
36
Moreover, absent statutory authority in the CWA for Montana to create such exemptions, it cannot possibly be urged that Montana state law in itself can contradict or limit the scope of the CWA, for that would run squarely afoul of our Constitution's Supremacy Clause. U.S. Const. art. VI, cl. 2. See also Nat'l Audubon Soc'y, Inc. v. Davis, 307 F.3d 835, 851 (9th Cir.2002) (recognizing that the Supremacy Clause "invalidates state laws that `interfere with, or are contrary to,' federal law").
37
We hold that Montana state law cannot exempt CBM water from being subject to the CWA when the Act does not provide the EPA or the State of Montana the authority to create such exemptions.
IV
38
Because CBM water is a pollutant subject to regulation by the CWA and because Montana cannot create an exemption for CBM water that is otherwise subject to the CWA, we reverse the district court's grant of summary judgment to Fidelity and remand with instructions to enter summary judgment for NPRC.
39
REVERSED and REMANDED.
Notes:
1
Congress has authorized both the EPA and states to implement CWA permit programsSee 33 U.S.C. § 1342(a)-(b). The EPA issues NPDES permits, whereas Montana issues MPDES permits.
2
On June 16, 2000, the MDEQ issued Fidelity an MPDES permit authorizing Fidelity to discharge into the Tongue from seven specified outfalls. The MDEQ did not issue a permit to discharge into Squirrel Creek. Even though the MPDES permit allowed discharge into the Tongue River from seven outfalls, Fidelity discharged from twelve outfalls and continued to do so until the MDEQ amended the permit on July 3, 2000, to allow discharge from ten outfalls. Fidelity did not receive an amended permit allowing discharge from ten outfalls until after the amended complaint was filed
3
Three amici briefs were filed in this case: (1) The Western Environmental Trade Association (WETA) filed a brief in support of Fidelity. WETA is an extraction industry advocacy group; (2) Tongue & Yellowstone Irrigation District and Tongue River Water Users' Association (T & Y) filed a brief in support of NPRC. T & Y is a group of ranchers and farmers who depend on the Tongue River for irrigation; and (3) Northern Cheyenne Tribe (Tribe). The Tongue River forms the eastern boundary of the Tribe's Reservation
4
Judicial deference to agency action is not warranted where the agency had no authority to actSee United States v. Mead, 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (Chevron deference applies only when Congress explicitly or implicitly gave the agency authority to fill certain gaps left by Congress). Therefore, the district court erred in giving judicial deference to the EPA's implicit "approval" of Montana's groundwater exemption. Congress did not grant the EPA the authority to create such exemptions.
5
Even if the EPA could have approved of the MDEQ's application of section 75-5-401(1)(b), the EPA did not do so here. In a letter sent to the MDEQ, the EPA disapproved of the application of section 75-5-401(1)(b) to discharges that would otherwise be regulated under the CWA. The MDEQ, however, maintained that the exemption was consistent with the CWA because "discharges of unaltered, natural groundwater do not contain `pollutants' as that term is defined" in the CWA. In a subsequent letter to the MDEQ, the EPA stated that revocation of Montana Code section 75-5-401(1)(b) would not be necessaryif the MDEQ does not interpret that provision to authorize "any point source discharge of any pollutant to any water of the United States without an NPDES permit."
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685 F.2d 425
N. L. R. B.v.J. W. Mays, Inc.
81-4154
UNITED STATES COURT OF APPEALS Second Circuit
2/17/82
1
N.L.R.B.
ORDER ENFORCED
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69 U.S. 134
17 L.Ed. 871
2 Wall. 134
EX PARTE DUGAN.
December Term, 1864
1
ON a petition for a certiorari to the Supreme Court of the District of Columbia to send up the record of their proceedings upon a habeas corpus issued from that court upon the application of the petitioner, it was stated by Mr. J. H. Bradley, counsel of the petitioner, that a copy of the record had been obtained; and he asked this court, upon the admission of the Attorney-General that the copy was a correct one, to hear the case without a return from the court below. The Attorney-General, on the other hand, while admitting the copy of the record produced to be correct, moved the court, for reasons which he laid, to continue the case.
2
BY THE COURT.
3
We think it the better, as well as the more regular practice, to await the return of the court below before taking any action on the merits. The certiorari will, therefore, be now awarded. Upon the coming in of the return the case will be regularly before us; and the motion for continuance made by the Attorney-General will then be disposed of.
4
ACTION ACCORDINGLY.
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327 Mich. 363 (1950)
41 N.W.2d 894
SABA
v.
MILLER.
Docket No. 58, Calendar No. 44,668.
Supreme Court of Michigan.
Decided April 3, 1950.
Edward N. Barnard, for plaintiff.
Estes & Cooney, for defendants.
REID, J.
Plaintiff Saba filed her bill of complaint in chancery, January 24, 1949, for rescission on ground of fraudulent misrepresentations, of an *365 agreement partly evidenced in writing for exchange of plaintiff's residence property for defendants' wholesale and retail grocery and meat business. From a decree for defendants dismissing the bill, plaintiff appeals.
Plaintiff saw in a Detroit newspaper of November 7, 1948, defendants' advertisement which was as follows:
"WHY LOOK FURTHER Grocery, Super-Meats and Vegetables 2 walk-in boxes, new elec. meat saw, new 1 1/2-h.p. grinder, new 30' vegetable stand, new cubing machine, 12-hole freezer, sausage machine, smoke house, check-out counters, 40' meat cases, 20x40 extra storage space, gas heat, large stock, doing $15,000 month, half dn. of $7,500 takes it. Long lease. WO 5-2685."
Plaintiff in consequence of the advertisement went to the store in question, there met defendant Mr. Miller, looked inside the store, noted it seemed well-stocked, and asked defendants Miller to look at plaintiff's house, which plaintiff proposed to trade to defendants for the store and fixtures, but complained that the store was larger than the store she was familiar with, which had been operated by plaintiff and her lately deceased husband. Plaintiff told Mr. Miller that she needed $1,000 or $1,500 capital to operate the store, and he suggested he could loan plaintiff $1,000 for working capital. Plaintiff valued her equity in her residence at $15,000 and defendant placed $15,000 as the value of the store. Defendant Miller in his testimony said the stock of merchandise in the store was worth $5,000.
Defendant Miller told plaintiff that the fixtures and equipment were in good condition and free and clear. Defendant Miller made an affidavit dated November 20, 1948, which excepting the caption, signatures and jurat, is as follows:
*366 "Ralph Miller, of the city of Detroit, county of Wayne and State of Michigan, being first duly sworn, deposes and says:
"That he is the sole owner of a super market conducted by him at 22101 Federal avenue, Van Dyke, Michigan, which said super market is conducted under the firm name and style of `Federal Super Market,' and that said super market business, including all of the stock of merchandise and all of the fixtures, equipment and supplies therein, are free and clear of all indebtedness, liens and encumbrances whatsoever;
"That he makes this affidavit for the sole purpose of complying with the bulk sales law[*] of the State of Michigan in the sale of the said super market, including the fixtures, equipment and stock of merchandise thereof, to Edna M. Saba;
"That the following constitutes a full, complete and accurate list of all of his creditors and indebtedness of his said business and of any other and all kinds and nature whatsoever:
"NONE
"Deponent further says that he makes this affidavit with the full knowledge that Edna M. Saba, purchaser of said business, will act in full reliance thereon."
It appears, however, that most of the fixtures had been purchased (and were in process of being paid for) by defendant Miller on a title-retaining contract on which there was then over $16,000 unpaid, with one instalment in default, and the contract contained an acceleration clause.
The parties made the contemplated exchange on or about November 20, 1948, on which date plaintiff gave defendants a deed of her residence subject to a mortgage for about $5,100, which deed was recorded December 30, 1948; and defendants gave *367 plaintiff a bill of sale of the certain business known as the Federal Super Market together with certain fixtures, stock of goods and equipment described in the bill of sale. Plaintiff went into possession of the store and of the stock of goods and fixtures the same day, November 20, 1948, and conducted the store business about 2 months, at which time she closed the store, informed defendants of such closing, and she then sought rescission.
The parties discuss 6 propositions in their briefs:
One. Whether or not plaintiff suffered damage because of what the parties in their briefs and the court in its opinion, speak of as the lien (which was in fact a title retained in the contract by which defendant Miller purchased).
Defendants argue that although a Mr. Meyers retained title to the fixtures as though part of the real estate in his land contract of sale to defendant Miller and Warshaw (Warshaw afterwards sold to defendant Miller) yet because Meyers did not dispossess plaintiff, that plaintiff suffered no damage by reason of Miller's misrepresentation of free and clear title. Defendants argue that plaintiff having become a purchaser in good faith from one in possession, she could not be considered damnified. Such claim by defendants is without merit. Plaintiff's damage was immediate. The agreement that the fixtures were the property of defendants free and clear, was breached as soon as made. Plaintiff could not without her choice be put by defendants' fraud in a position where she must assert her own good faith to prove her title in lieu of a good title from defendant Miller, who swore he had such good title.
Plaintiff did not know what Meyers action might be. Plaintiff might have been put to expense of proving her bona fides in a suit brought by Meyers (who is not a party to this case) if she had attempted to *368 stand on title by bona fide purchase from those in possession. She was not compelled to litigate title. She did not bargain for a law suit. See Scadin v. Sherwood, 67 Mich 230, 232, 233.
Two. Whether or not there was fraudulent misrepresentation of the gross receipts of the business.
The advertisement hereinbefore quoted said, "doing $15,000 month." Defendant testified, "I told her [plaintiff] it was doing over three thousand dollars a week," which would be $13,000 a month. Sales tax statements showed an average of $11,051.18 per month for the 6 months preceding November, 1948, near the beginning of which month the ad appeared. It is fairly to be considered that the statement of $3,000 a week was a misrepresentation of the gross receipts even under defendant's own statement. However, the statement in the advertisement is $15,000 a month. Plaintiff testified that defendant Miller said that the store was doing $14,000 to $15,000 a month, and that his personal statement to her was that they had taken in over $14,000 the previous month. The sales tax statement showed $12,314.04 for October, 1948.
We find that there was a material misrepresentation to plaintiff of the gross receipts of the business, something more than mere seller's praise, especially since the actual receipts were totalled for sales tax purposes. Such fraudulent misrepresentation rendered the contract voidable and subject to rescission. See Chmielewski v. Nau, 324 Mich 375; McIntyre v. Lyon, 325 Mich 167.
Three. Whether or not, as plaintiff claims, defendant Miller misrepresented to plaintiff the amount of goods in the store.
Plaintiff testified that defendant Miller at her first interview with him early in November, 1948, told her the stock when she completed the deal would be the same as it then was, and that when she later *369 came to close the deal November 19th, the stock had been rearranged, and empty boxes and cases so placed as to deceive her into thinking there was more than the actual amount of goods on hand. Defendant Miller on November 17th gave no replacement of goods order to the wholesaler's agent as per usual. While on consideration of the whole testimony we are convinced of the truth of plaintiff's statement as to defendant's fraud in that regard, still it is apparent that plaintiff on taking possession of the store under the exchange of properties on November 20, 1948, at once proceeded to rearrange the stock, throwing out empty boxes and cases and moldy meat, and conducted the store business for about 5 or 6 weeks later. We consider plaintiff waived the particular fraud and misrepresentation as to amount of goods on hand, and do not award her relief on the ground of that particular misrepresentation.
Four. Whether or not plaintiff is entitled to rescission in chancery.
The court in his opinion said, "The case turns on the question of rescission * * * on proper tender," and also, "There was not a proper tender, consequently there can be no rescission."
We gather that the court applied the rule in a suit at law as to rescission. But the instant case is in chancery and is governed by the chancery rule.
In her bill, plaintiff states that because of the untrue and fraudulent representations of defendants, "she hereby elects to declare such conveyance [of her residence] void and demands the reconveyance of said premises to her, she hereby offering and agreeing to return to defendants the business, good will, stock and fixtures which they sold and transferred to her."
With reasonable promptitude after discovery of the misrepresentations as to amount of business *370 transacted and of the falsity of defendants' representation as to ownership of the fixtures being free and clear, plaintiff sought legal aid and advice, and as soon as she fairly could, filed her bill. Further, on January 27, 1949, plaintiff's attorney wrote defendants, notifying defendants of plaintiff's closing the store, and agreeing to surrender to defendants the business in pursuance of plaintiff's bill of complaint.
We said in Maurer v. Iden, 242 Mich 568, 571:
"While restoration or a tender of restoration is a prerequisite to recovery in a suit at law on the ground of rescission, it is not a condition precedent in this type of case, where cancellation or rescission is sought by bill in equity. This rule is well stated in Witte v. Hobolth, 224 Mich 286, in the following words:
"`It is said that plaintiff neither restored nor offered to restore to defendant the property received before seeking rescission. Neither was necessary. A bill in equity praying rescission proceeds on the theory that there has been no rescission, not on the theory that rescission has already been accomplished. Were plaintiff to sue at law for the money he paid defendant he should, before suit, restore or tender restoration of, the property he received that by his own act he thus may have legal right and title to the money. See 9 CJ p 1215; Jandorf v. Patterson, 90 Mich 40.'"
See, also, May v. Otto, 236 Mich 540, 544, 545; Gyles v. Stadel, 252 Mich 349, 352; Dorgan v. Birney, 272 Mich 145, 151; Mesh v. Citrin, 299 Mich 527, syllabus 7.
Five. Whether or not plaintiff has been guilty of laches. We have hereinbefore found that plaintiff waived the fraud as to the amount of goods on hand. However, we find that plaintiff acted promptly to obtain rescission on discovering the *371 fuller, other, different and greater extent of fraud, including the fraud as to the gross sales of business and fraud as to the fixtures being free and clear, wherefore plaintiff is not barred of her cause of action.
Six. Whether or not plaintiff has or can put defendants in status quo.
Defendants claim that they cannot be put in status quo because the condition and amount of the stock of goods is different now from what it was at the exchange on November 20, 1948. The stock of goods as of the day of the repossession by defendants was substantially the same as it was at the time of the exchange on November 20, 1948, and that question need not be further litigated.
The decree appealed from is reversed. A decree will be entered in this Court directing the retransfer by defendants of plaintiff's residence to plaintiff and the retransfer of the stock and contents of the store and lease by plaintiff to the defendants, and that in lieu thereof our decree may be recorded with like effect as though such retransfers had been executed by the parties.
Plaintiff is entitled to an accounting for loss sustained by plaintiff attributable to defendants' fraud and not attributable to plaintiff's mismanagement, default or neglect. The cause is remanded to the lower court for a full accounting between the parties excepting as aforesaid, that is, that the goods left by plaintiff in the store shall be considered equal in value to what she received, and that plaintiff shall be considered as not having been negligent or dilatory in filing her bill. Costs to plaintiff.
BOYLES, C.J., and NORTH, DETHMERS, BUTZEL, CARR, BUSHNELL, and SHARPE, JJ., concurred.
NOTES
[*] CL 1948, §§ 442.1-442.3 (Stat Ann §§ 19.361-19.363). REPORTER.
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162 F.3d 95
U.S.v.Polk**
NO. 98-40133
United States Court of Appeals,Fifth Circuit.
October 22, 1998
Appeal From: E.D.Tex. ,No.6:95-CR-38-ALL
1
Affirmed.
**
Conference Calendar
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73 Mich. App. 632 (1977)
252 N.W.2d 574
VERMEYLEN
v.
KNIGHT INVESTMENT CORPORATION
Docket No. 21320.
Michigan Court of Appeals.
Decided March 1, 1977.
Wenger, Vande Vrede & Lavigne, P.C., for plaintiffs.
*634 Frank R. Langton, for defendant.
Before: D.E. HOLBROOK, P.J., and ALLEN and D.C. RILEY, JJ.
D.E. HOLBROOK, P.J.
This opinion was written after Judge ALLEN'S well-written opinion affirming the trial court below. We agree with Judge ALLEN'S opinion as to plaintiffs' claims on appeal, however, we go one step further and also deal with defendant's counterclaim. We vacate the judgment against plaintiffs Fiehler on the basis that there is no evidence of a conspiracy to defraud.
Plaintiffs Walter and Evelyn Fiehler had no dealings with defendant Knight Investment Corporation, and apparently spent a great deal of money on improvements and made several mortgage payments during the time when both their coplaintiffs, the Vermeylens, and the defendant Knight Investment, refused to make these mortgage payments, apparently because of disagreements between the Vermeylens and Knight Investment. The facts clearly indicate that these plaintiffs should have been separately advised by counsel. It was counsel's duty to carefully advise plaintiffs that separate counsel for each was advisable, if not compelled. Conflict arose between the Vermeylens and the Fiehlers. It certainly appears that this conflict persists on appeal. Why counsel did not challenge the counter-complaint is not apparent. At trial the court indicated that it entertained substantial doubt as to the possibility of finding a conspiracy to defraud, however the court subsequently, and erroneously, changed its mind and made the following finding:[1]
*635 "To summarize, the Defendant alleges a conspiracy between the four Plaintiffs to defraud the defendant. The Court finds this to be true in the very broad meaning of the word `conspiracy'. Mr. Fiehler's considerable knowledge in the field of real estate could lead him nowhere else but to believe that he was wrong. As to the position of Evelyn Fiehler, while it is difficult to determine, she having very little if any involvement in the transactions involved in suit, yet nevertheless the property involved was titled in her name and the Court would have to assume that the Plaintiff Walter Fiehler, both because of experience in the real estate field and because of the fact that he was the husband of Plaintiff Evelyn Fiehler, acted for her and his activities relative to the property must be assumed to be hers also. So far as Plaintiffs Vermeylen are concerned, all of the testimony indicates that Robert Vermeylen knew very well what he was doing and further indicates that Plaintiff Joyce Vermeylen, while she apparently did not approve, knew also what she was doing. Hence, the result of the activities of the four, whether actual or imputed, was to attempt to work a fraud upon the Defendant Knight Investment Corporation, and to cloud the title to premises which were sold to them. The Statutes do not condone this." (Emphasis added.)
A review of the complex facts herein illustrates *636 the impropriety of a finding of conspiracy to defraud and the probability of inadequate knowledge, ignorance, fear and lack of proper counsel of the plaintiffs Fiehler.
In 1964 plaintiffs Vermeylen purchased a house by means of a land contract from coplaintiffs, the Fiehlers. The purchase price was $16,500. Vermeylens signed a note to Mr. Fiehler for $4,000 as down payment and the remainder, $12,500, was to be paid monthly as a land contract. In 1970 Mr. Fiehler asked the Vermeylens to refinance the home by obtaining a mortgage. In late 1970 this was accomplished and a mortgage was executed.
In 1972 the Vermeylens decided to sell the house, apparently because of dissatisfaction with the size of the house and the size of their monthly payments. Robert Vermeylen then contacted an agent of defendant with regards to sale of this house. Mr. Vermeylen wanted $1,200 for his equity in order to have sufficient funds for a down payment on another home. This was agreeable to defendant. The purchase agreement was entered into. Apparently Mrs. Vermeylen did not initially sign the agreement and was unhappy with it. She testified that she did sign the agreement after defendant, in writing, agreed to find a suitable home for the Vermeylens. The Vermeylens did later find another home, but apparently did so on their own after dissatisfaction with the homes shown them by defendant.
On April 19, 1972, a closing was scheduled. At the closing defendant agreed to assume and pay the mortgage. However, after deduction of closing costs, miscellaneous expenses and so on, plaintiffs only received approximately $275 for their equity. The Vermeylens testified that this made them very unhappy but that they were forced to sign *637 since they had already made an offer to purchase a new home.
At this point the plot thickens. Apparently plaintiffs Vermeylen were given 60 days to vacate. After that time rent was to be charged them. Mortgage payments were not made by defendant. Apparently defendant wanted plaintiffs off the premises before they would begin payments. Plaintiff Mr. Vermeylen claimed that defendant advised him that he did not intend to make any payments. On July 10, 1972, the Vermeylens received a notice of delinquency from the mortgage company. As of this date defendant had not assumed the mortgage.
Mr. Fiehler now reentered the picture. He apparently inquired as to the status of payments on the promissory note which Mr. Vermeylen had signed as a downpayment on the land contract when the property was initially purchased. Vermeylen then informed Mr. Fiehler that he had sold the house, but that the purchasers had apparently backed out of the deal. Mr. Fiehler was shown the purchase agreement. There was a dispute between Mr. Fiehler and Mr. Vermeylen at trial as to whether Mr. Fiehler was apprised of the fact that a deed was signed. Nevertheless, Mr. Fiehler did check with the mortgage company and found that the mortgage had not been assumed.[2] Mr. Fiehler did not check with defendant. Also at this time, the deed from Vermeylen to Knight had not been recorded.[3] To settle their financial differences Vermeylens and Fiehlers agreed to transfer title from Vermeylens to Fiehlers. A deed was executed on August 1, 1972. Mr. Fiehler did not *638 record this deed until November 21, 1972. Why anyone who was engaging in a conspiracy to defraud would leave a deed unrecorded has not been explained to us, particularly when that person had over 30 years experience as a real estate broker. Mr. Fiehler also paid the mortgage arrearage and subsequently paid additional payments on the mortgage. Some time after September 1, 1972, Mr. Fiehler made substantial repairs to the premises. After a representative of defendant found Mr. Fiehler on the premises and both parties then realized that something was amiss, defendant, accompanied by Mr. Fiehler, went to see Mr. Vermeylen. A verbal confrontation occurred between Mr. Vermeylen and the representative of defendant. However, Mr. Fiehler did not engage in this confrontation. Vermeylen explained to defendant that he transferred the second deed because Knight had "reneged on the agreement". It was apparent that the primary dispute herein was between Vermeylens and defendant. However, Vermeylen and Fiehler apparently sought the advice of counsel together after this confrontation. This lawsuit was then filed and a lis pendens was placed on the property. Defendant then counterclaimed on the agreement between defendant and Vermeylens and also alleged a "conspiracy to defraud".
At this point there is no evidence of a conspiracy to defraud. A mere mistake does not constitute fraud. Van Wie v Fidelity Trust Co, 254 Mich 108; 235 NW 863 (1931). Mr. Fiehler apparently thought defendant had backed out of the purchase agreement. Defendant had not as yet assumed the mortgage nor recorded its deed. Defendant does not show how plaintiff Fiehler was unjustly benefited. In fact, even without a judgment for conspiracy *639 against him, Mr. Fiehler will lose. Mr. Fiehler made substantial repairs and made payments on the delinquent mortgage for which the trial court properly determined he was not entitled to reimbursement by defendant. This was a mere mistake as to what had actually occurred between his coplaintiff Vermeylen and Knight Investment Corporation. There is no showing or evidence of any intent to defraud on the part of Mr. Fiehler. Mr. Fiehler, in fact, surrendered possession of the premises when confronted with the claim by defendant. The deed from Vermeylen to Fiehler was not immediately recorded, had Mr. Fiehler intended to defraud Knight, it would have been reasonable to expect him to immediately record his deed where Knight's deed was not recorded. Allegations of a conspiracy to defraud must be supported by clear and satisfactory proof. Harvey v Lewis, 357 Mich 305; 98 NW2d 599 (1959), Lewis v Poel, 9 Mich App 131; 156 NW2d 41 (1967).
Apparently plaintiffs' counsel based his entire case on one theory, that defendant had breached the agreement. He maintained that failure of defendant to make payments on the mortgage and pay the full amount agreed on for payment for Vermeylens' equity constituted a breach of the purchase agreement. Plaintiffs state in the brief at the conclusion of the summary of facts "It is all Plaintiffs' theory that Defendant, Knight Investment, breached its agreement by acts of commission and omission and created the issues of this lawsuit" The trial court herein expressly found:
"Perhaps it's a little unfortunate that Vermeylen and Fiehler were united as Plaintiffs, because Vermeylen's testimony and Mrs. Vermeylen's testimony indicate very definitely that Mr. Fiehler, and the knowledge would be attributable to Mrs. Fiehler, knew that they *640 had sold the property before they took the deed from them. And so, you can set aside any statute if he knew the property was conveyed, it was conveyed as to him or anyone else who had knowledge. The trip to the title company didn't do him any good. All I get from him was, he better see a lawyer, which would mean he had gotten a good end or a dead end, there is no way of explaining it. Mr. Fiehler knew that at the time he took the deed that Vermeylen had sold the property and interpretation of Mr. Vermeylen's testimony would be to the effect and Evelyn Fiehler and he in particular said Mr. Fiehler decided that the Defendant breached their contract and therefore they were setting aside the deed which Vermeylen had given to the Defendant, obviously the two of them together or any one of them alone does not have the power to do that. They cannot set aside that contract. They might be able to set aside in the Courtroom, who knows, but they certainly couldn't set it aside themselves. Walter Fiehler took no title to the property and once more the mortgage payments were made with the knowledge that the property had been conveyed to the Defendant here."
Nevertheless, this again does not illustrate fraud, only mistake or ignorance. There was also a dispute between both plaintiffs Vermeylens and Fiehlers as to whether Fiehler had knowledge of the signing of the deed to Knight. There was also a dispute as to the amount owed Fiehlers by Vermeylens on the promissory note representing the initial down payment. Facts arose which should have tipped off plaintiffs' counsel early that he was representing conflicting interests. Counsel explained at trial:
"Your Honor, this case has presented a strange situation to me which I never encountered before, being that the ignorance of the parties in regard to real estate is only exceeded by their ignorance of the rules of law; and the facts of counterclaim and counter suit which I have explained orally, but until the Court deems and *641 the parties see the events, understand the full gravity of the matter. It appears as if my clients, who I took on in good faith, and who still have some faith in perhaps myself; I would think so; I would hope so; desire that there, to, or, strike that; see that there are maybe some conflicts between themselves in regards to the counterclaim, in particular, the conspiracy charges; and see where there may be some particular points where they may be at odds. And also feel that there may be some prejudice to their case on the conspiracy charge where they're both represented by the same counsel; and based on that as opposed to almost anything else, they desire, I believe, at this time to obtain another attorney to represent them on that particular counterclaim; and it is not my motion at this time to necessarily drop them, although I will not oppose any motion or any request of theirs to have another attorney represent them in this matter." (Emphasis added.)
Apparently this fact was brought out by defense counsel at the initiation of this action.
"Your Honor, I think that I raised this problem with counsel at the initial start after the filing of this pleading. We talked about it many times, in our motions, and so on. I have raised this problem numerous times; I have raised it again at pretrial conference; I advised him I was going to be filing a counterclaim, which I did, alleging what I have; he is, as of yesterday the problem was presented, started, you know, it came to the head yesterday, at that point the clients agreed to proceed. We have come into the Court ourselves; we've been here two days almost, a day and a half; we are ready to defend the action and proceed with our counterclaim. I think we have the right to proceed regardless of any conflicts or the feelings of the parties in relation to this particular attorney or the claims being made against them."
It certainly appears that there was sufficient warning prior to trial. The canons of ethics expressly *642 provide that counsel shall avoid this situation.[4] Even if it was Mr. Fiehler's idea to share counsel with the Vermeylens, counsel should have fully advised the parties of potential conflicts. We fear that failure of coplaintiffs to be separately represented led to the trial court's improper finding of a "conspiracy to defraud".
The trial court's finding of a conspiracy, in the broadest sense of the word, to defraud defendant and the resulting judgment against plaintiffs Fiehler is not supported by the record. See, Crippen v Chatterton, 228 Mich 532; 200 NW 163 (1924), and Baldwin v Escanaba Liquor Dealers' Association, 165 Mich 98; 130 NW 214 (1911). This issue has not been raised by plaintiffs, however, the conflict of interest of counsel which continues on appeal is obviously a major factor in failure to raise the issue. Our function is to dispense justice, and we are given the limited power to raise questions on our own. In fact, we may well have the duty to raise this issue. Our Supreme Court noted:
"There is no hard and fast rule that appellate courts, sitting either in law or equity, cannot and, hence, do not raise and decide important questions sua sponte. Indeed, a mere glance at available precedent will disclose the contrary.[*] True, the power is exercised sparingly *643 and with full realization of the restrictions and limitations inherent in the employment thereof.
"[*] See Professor Campbell's thesis: `Extent to which courts of review will consider question not properly raised and preserved.' (7 Wis L Rev 91); Auditor General v Bolt, 147 Mich 283 [111 NW 74 (1907)]; Thomas v Morton Salt Co, 258 Mich 231 [242 NW 235 (1932)]. In Thomas this Court went so far as to raise and decide a question on which a circuit court judgment was reversed not affirmed." (Emphasis in original.) City of Dearborn v Bacila, 353 Mich 99, 118; 90 NW2d 863 (1958).
We remand and vacate judgment against plaintiffs Fiehler. Mr. Fiehler made mortgage payments for which defendant was apparently responsible. In addition, he made substantial repairs for which he will not be compensated. Mr. Fiehler also vacated the premises when confronted with Knight's claim of ownership of the premises. There has not been any showing of a conspiracy to defraud. Whether a judgment against plaintiffs Vermeylen is justified is a matter for trial court resolution. We do affirm the trial court's finding against plaintiffs on their complaint for the reasons stated in Judge ALLEN'S opinion.
D.C. RILEY, J., concurred.
ALLEN, J. (dissenting in part, concurring in part).
Plaintiffs and counter-defendants sued to recover alleged damages suffered in a series of transactions involving the same piece of real estate. The principal cause of the lawsuit was plaintiffs Vermeylen's unfortunate decision to sell the property to their coplaintiffs without bothering to go through the inconvenience of reacquiring the property from the defendant and counter-plaintiff which had already purchased the property from *644 them. The trial judge found no cause of action on the plaintiffs' complaint and awarded damages of $9,427.50 on the defendant's counter-complaint. The plaintiffs have appealed, but appear only to challenge the dismissal of their own complaint.
I would affirm the trial judge's ruling that the plaintiffs failed to demonstrate any damage to their credit rating, let alone any wrongful damage. The finding was not clearly erroneous. GCR 1963, 517.1.
I would also affirm the exclusion of certain testimony offered by the plaintiffs to contradict the terms of a fully integrated written contract for the sale of the subject property. Union Oil Co of California v Newton, 397 Mich 486; 245 NW2d 11 (1976). The plaintiffs appear to have offered no testimony except that which would have shown that the plaintiffs understood the contract to say something other than it clearly says on its face. Therefore, possible exceptions to the parol evidence rule which would allow proof of fraud are not applicable here.
Finally, I would affirm the trial judge's ruling that plaintiffs Fiehler were not entitled to recover amounts expended for mortgage payments and improvements. The judge found that the Fiehlers had actual knowledge of the previous sale to the defendant. That finding was not clearly erroneous, GCR 1963, 517.1, and it precludes any holding that the defendant was unjustly enriched or that the Fiehlers were otherwise entitled to recover for the improvements. Etherington v Bailiff, 334 Mich 543; 55 NW2d 86 (1952).
The plaintiffs' failure to brief or argue any matters relating to the judgment on the counter-complaint is unexplained. My vote to affirm the other rulings should not be read as expressing any opinion on that aspect of the case.
I would affirm.
NOTES
[1] At trial the court indicated his feelings as to defendant's allegations of a conspiracy to defraud:
"I will expect from each of you and I will give you thirty days, I want the whole thing completed in thirty days. Submit any written submissions that you wish in case law and drawing from your notes or from the transcript any comments or law regarding conspiracy between Vermeylens and Fiehlers and damages to the Defendant, which I doubt it.
* * *
"Breach of the covenants in the deed I will expect that is something you will cover as I said, statutory damages and the damages out of the filing of this lis pendens, and if you want to pursue the conspiracy theory, I will expect some case law alluding to the transcript will convince me of that, because I'm not convinced that there was an actual conspiracy between Vermeylen and Fiehler. To damages, the Defendant, I think whatever Vermeylen and Fiehler did may have damaged the Defendant, but whether or not it was a conspiracy, I don't know. I have some strong doubts."
We do not know what led the court to erroneously change its opinion.
[2] Defendant did not make any mortgage payments until November of 1972.
[3] This deed was recorded on August 9, 1972, approximately eight days after the deed from Vermeylens to Fiehlers was executed.
[4] Canon 5 indicates that "a lawyer should exercise independent professional judgment on behalf of a client". The disciplinary rules further provide for protection for clients.
"(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).
"(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each." DR 5-105(B) and (C).
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938 A.2d 1112 (2007)
COM.
v.
FAKE.
No. 1699 MDA 2006.
Superior Court of Pennsylvania.
September 24, 2007.
Affirmed.
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In
The
Court
of Appeals
Sixth
Appellate District of Texas at Texarkana
______________________________
No. 06-11-00088-CR
______________________________
BOBBY O’KEEFE DODDY, JR.,
Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 276th
Judicial District Court
Titus County, Texas
Trial
Court No. 15,504
Before Morriss, C.J.,
Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Bobby
O’Keefe Doddy, Jr., appellant, has filed with this Court a motion to dismiss
his appeal. The motion is signed by Doddy
and by his counsel in compliance with Rule 42.2(a) of the Texas Rules of
Appellate Procedure. See Tex.
R. App. P. 42.2(a). As authorized
by Rule 42.2, we grant the motion. See Tex.
R. App. P. 42.2.
Accordingly,
we dismiss the appeal.
Jack
Carter
Justice
Date Submitted: August
15, 2011
Date Decided: August
16, 2011
Do Not Publish
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867 F.2d 610Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Baxter R. STILL, Jr., Defendant-Appellant.
No. 87-7377.
United States Court of Appeals, Fourth Circuit.
Submitted: Nov. 29, 1988.Decided: Jan. 20, 1989.
Baxter R. Still, Jr., appellant pro se.
Glenda Gay Gordon (Office of the United States Attorney), for appellee.
Before DONALD RUSSELL, ERVIN and WILKINS, Circuit Judges.
PER CURIAM:
1
Baxter R. Still, Jr., appeals from the district court's order denying his motion to vacate his special parole term as unconstitutional. Our review of the record discloses that this appeal is without merit. Accordingly, we affirm the district court's holding that Still's special parole term was constitutionally imposed pursuant to 21 U.S.C. Secs. 952(a), 960(b)(1). United States v. Still, CR-81-533-R (D.Md. October 20, 1987).* We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not significantly aid the decisional process.
2
AFFIRMED.
*
Although the district court was correct in noting that the time in which Still could file a motion for the reduction of his sentence pursuant to Fed.R.Cr.P. 35(b) has long since passed, Still's motion is timely under Rule 35(a), which allows the court to correct an illegal sentence at any time
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owts
NO.
IN THF
,,,,„, RECEIVED SN
0 R!GINAL C0URT 0F CRIMINAL APPEALS COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS MAR 12 2015
Abel Acosta, Clerk
ON APPEAL FROM
179th DISTRICT COURT
HARRIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. 1402764
FILED IN
COURT OF CRIMINAL APPEALS
and
COURT OF APPEALS MAR 12 2915
for the
FIRST DISTRICT OF TEXAS Abel Acosta' Clerk
NO. 01-14-00145-CR
PETITION FOR DISCRETIONARY REVIEW
ROMELLE MONTE HAWKINS V. STATE
ROMELLE MONTE HAWKINS, APPELLANT
DARRINGTON UNIT
59 DARRINGTON RD.
ROSHARON, TX 77583
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
PROCEDURAL HISTORY AND PARTIES .'••. Ii
STATEMENT OF THE CASE '-•_ ....... v.:. . iii
STATEMENT REGARDING QRALiiARGUMENT iii
INDEX OF AUTHORITIES ....... .... ..^ iv
GROUND FOR REVIEW 1
THE FIRST COURT OF APPEALS ERRED IN
ITS REVIEW OF TRIAL COURT'S ABUSE OF DISCRETION
IN REFUSING A JURY CHARGE FOR THE LESSER-INCLUDED
OFFENSE OF CRIMINALLY NEGLIGENT HOMICIDE WHERE
THE RECORD SHOWS:(A) EVIDENCE ESTABLISHING THE
CHARGE AS A RATIONAL ALTERNATIVE,' AND (B) WHERE
THE RECORD INDICATES THE JURY ASKED TRIAL COURT
(DURING DELIBERATIONS) IF THEY COULD FIND
LESSER OFFENSE INSTEAD OF MANSLAUGHTER.
QUESTION FOR REVIEW
IN AN ABUSE OF DISCRETION REVIEW REGARDING
INSTRUCTION ON A LESSER-INCLUDED OFFENSE,
IS IT PROPER FOR THE REVIEWING COURT TO
SUBSTITUTE ITS INTERPRETATION OF TESTIMONIAL
EVIDENCE FROM THE RECORD FOR THAT OF THE JURY'S
FIRST-HAND ASSESSMENT OF CREDIBILITY OF THE
.-. WITNESS(ES) WHEN MAKING A DETERMINATION
OF THE LESSER OFFENSE OF NEGLIGENT,HOMICIDEu. ,
AS A RATIONAL ALTERNATIVE TO MURDER?
CONCLUSION
PRAYER 5
CERTIFICATE OF SERVICE 6
PROCEDURAL HISTORY AND PARTIES
Appellant was charged with murder (CR at". 9,)/, pled not guilty
and was tried by jury in the 179th District Court, Harris County;
Honorable Judge Kristin Guiney presiding; trial counsel Victor
Wisner, and prosecutors Alan Curry and Cara Burton. Appellant
was found guilty of Manslaughter (RR 7:6) and sentenced to twenty-
three years confinement in TDCJ-ID.
Timely notice of appeal was given and appellant counsel
Deborah Summers filed the appeal with the First Court of Appeals,
who Affirmed the conviction. Request for an extention of time
was filed with this Court, and the deadlina for filing this Petition
set for March 6, 2015.
The Prosecuting Attorney for the State of Texas was forwarded
a copy of this Petition as required.
STATEMENT OF THE CASE
The sole issue presented on appeal regards trial court's
denial of a lesser-included offense instruction on Negligent '•
Homicide. Of the seven witnesses at trial, two testified that
the Appellant had fired the shot(s) which killed the complainant.
Evidence was also presented that Appellant had not intended the
death of the complainant.
Trial counsel requested the lesser-included offense instruction
on Negligent Homicide, but trial court denied the request. The
jury acquitted Appellant of Mucder, and during deliberations,
requested from trial court, "Can the manslaughter term be reduced?"
(CR at 217).
li,
Appellant counsel raised the issue of abuse of discretion
in trial court's denial of the request for lesser-included offense
of negligent homicide, and the First Court of Appeals analyzed
the claim applying the two-step test used in Texas reviewing
courts. Cavazos v. State, 382 S.W.3d 377, 382 (Tex.Crim.App. 2012);
Sweed v. State, 351 S.W.3d 63, 67 (Tex.Crim.App. 2011); Guzman
v. State, 188 S.W.3d 185, 188 (Tex.Crim.App. 2006). Both the
State and the First Court of Appeals agreed that the first prong
was met--that criminally negligent homicide is a lesser-included
offense to Murder. However, the court ruled that, in light of
the evidence presented at trial, that criminally negligent homicide
was not a rational alternative available to the jury for consider
ation, citing Hall v. State, 225 S.W.3d 524, 535r36 (Tex.Crim.App.
2007).
Appellant's argument is that the First Court of Appeals
allowed the.trial, court's.ruling to stand by interpreting the
written record of testimony at trial, thereby negating the jury's
first-hand assessment of the demeanor and credibility of the
witnesses. The question from the jur-ocrs to trial court (on top
of their acqui,tal on the charge of murder), emphasizes that the
jury did not believe Appellant possessed the requisite culpable
mental state for Murder, and questioned whether he had the culpable
mental state for Manslaughter.
Appellant argues that, given the wide latitude for the jury
to weigh the evidence presented, that inclusion of the lesser-
included offense was justified, and trial court erred in its
exclusion.
ORAL ARGUMENT REQUESTED
in.
INDEX OF AUTHORITIES
CASES
BIGNALL, V. . STATE, 887 S.W.2D 21... '...1, 2
(Tex.Crim.App. 1994)
CAVAZOS V. STATE, 382 S.W.3d 377 .iii, 1
(Tex.Crim.App. 2012)
FOREST V. STATE, 989 S.W.2d 365 1
(Tex.Crim.App. 1999)
GUZMAN V. STATE, 188 S.W.3d 185 iii, 1
(Tex.Crim.App. 2006)
HALL V. STATE, 225, S.W. 3d ^524, . .iii, .1
(Tex.Crim.App. 2007)
MONTGOMERY V. STATE,,:369 S.W.3d 188 3
{Tex.Crim.App. 2012)
SWEEP V. STATE, 351 S.W.3d 63... 1
(Tex.Crim.App..2011)
TRUJILLO V. STATE, 227 S.W.3d 164 3
(Tex.App.--Houston [1st Dist.] 2006, pet. ref'd)
STATUTES
Tex. Penal Code Ann. § 19.05(a) (Vernon 2011) 2
IV.
ground restated
the first court of appeals erred in review of trial court's
abuse of Discretion in refusing a jury charge for the lesser-
included offense of criminally negligent homicide where the
record shows: (a) evidence establishing the charge as a
rational alternative, and (b) where the record indicates
the jury asked trial court (during deliberations) if they
could find for the lesser offense instead of manslaughter.
synopsis of the first court's opinion
The First Court applied "a two-step test to determine whether
appellant was entitled to an instruction on a lesser included
offense. Cavazos v. State, 382, S.W.3d 377, 382 (Tex.Crim.App. ^~
2012); Sweed v. State, 351 S.W.3d 63, 67 (Tex.Crim.App. 2011);
Guzman v. State, 188 S.W.3d 185, 188 (Tex.Crim.App. 2006)."
o
Opinion at 6. The inquiry into the first prong--whether the defendant
is entitled to the instruction--"is ..a question of law" which
0
the Court concluded was met. Hall, at 536. Opinion at 7.
The second step "then requires that we determine whether
some evidence in the record would have permitted the jury to
rationally find that, if he., was' guilty, he was guilty' only of
the lesser-included offense." Hall, 536 and Opinion at 7. The
Court then notes the following:
(a) that "[a.jnything more than a scintilla of evidence may be
sufficient to entitle the defendant to a lesser charge." Hall,
at 536; Forest v. State, 989 S.W.2d 365, 367 (Tex.Crim.App. 1999).
(b) that "the evidence must establish the lesser-included offense
as a valid,, rational alternative to the charged offense." Id.
(c) that "it .is. not.enough that the jury disbelieve crucial evidence
pertaining to the greater offense..." Bignall v. State, 887 S.W.^d
21, 24 (Tex.Crim.App. 1994).
(d) and that "there must be some evidence directly germane, to
1.
the lesser-included offense for :the .finder of fact to.consider
before a lesser-included offense instruction is warranted. Id.
The First Court then concluded that trial court did not
err in denying Appellant's request regarding the lesser offense
of criminally negligent homicide because "Appellant did not present
evidence showing that he failed to perceive the risk created
by his conduct, and the evidence shows that he did perceive and
disregard that risk." Opinion at 12.
SCINTILLA OF EVIDENCE
The State's central..witness,.:Ms,.Fallon, testified that there
was no animosity between Petitioner and the complainant and
that he would "not hurt someone he was with" (RR4 at 128, 135).
She.further, testified that Petitioner said, "what the fuck happened"
and was shaking after the fatal shot. (RR4 at 85, 96, 143-44).
Evidence that the Petitioner's shooting and killing of the .-.....,
complainant was unintentional arises from the State's own witness,
despite the fact that Ms. Fallon repeatedly stated she thought
the shot was intentional. (RR4 at 79-80, 84-86, 89, 92-93, 95-
96, 143). From the jury's acquittal of Petitioner on the charge
of murder, it is apparent the trier of fact chose to reject
Ms. Fallon's testimony regarding mens rea.: j ..
VALID, RATIONAL ALTERNATIVE
A person commits the offense of criminally negligent homicide
if he causes the death of an individual by criminal negligence.
Tex. Penal Code Ann. § 19.05(a) (Vernon 2011). Ultimately, "[tjhe
key to criminal negligence is not the actor's being aware of a
substantial risk and disregarding it, but rather it is a failure
2.
of the actor to perceive the risk at all" created by his conduct.
Montgomery v. State, 369 S.W.3d 188, 193 (Tex.Crim.App. 2012);
Trujillo v. State, 227 S.W.3d 164, 168 (Tex.App.--Houston [1st
Dist.] 2006, pet. ref'd); Opinion at 9.
Presented at trial is the Petitioner's statement, as testified
by Ms. Fallon ("what the fuck"), that provides evidence that he
had not perceived the potential consequence of his action (the
complainant stepping in front of the gun as he fired) though he
certainly 'should have perceived the risk his conduct created.
Trujillo at 168.
This level of the actor's perception of the risk, or the
level of culpable mental state, finds basis within the record,
and falls within the purview of the trier of facts. The Court
of Appeals states that the fact that the actor did not "intend
the result does "not automatically entitle him to a charge of criminal!
negligence." The .court further noted that "a defendant is not
entitled to a charge of criminally negligent homicide if the evidence
shows the defendant's awareness is such that he perceived the
risk his conduct created." Opinion at 10 (citing Truj illo).
But evidence existed supporting both manslaughter and criminally
negligent homicide, evidence on the trier of facts was in a position
to cipher, having first-hand impression of the credibility of the
testimony.
THE JURY'S REJECTION OF CRUCIAL EVIDENCE
The jury acquitted Petitioner of Murder. In so doing, the
jury rejected the State's theory and the contention of the State's
central witness that there was an..intent to murder the complainant.
An during deliberations, the jury queried the Court whether they
could convict Petitioner of a lesser charge. (CR at 217).
The factual basis for negligent homicide is the statement, or
excited utterance, ..of Petitioner just after the fatal shot, not
merely the rejection of crucial evidence.
GERMANE EVIDENCE
It bears repeating that the statement and reaction of the
Petitioner provided evidence of his culpable mental state at the
time of the complainant's death. This is further supported by
the revelation during cross-examination of the State's central
witness (Ms. Fallon) that there was no animosity between complainant
and Petitioner, not did he have the proclivity to hurt someone
he was with. (RR4 at 85, 96, 143-44).
DID THE COURT OF APPEALS SUBSTITUTE ITS: REVIEW OF THE TESTIMONIAL
EVIDENCE FOR THAT OF THE JURY IN DECIDING/WHETHER
THE LESSERfilNCIJJDED OFFENSE CHARGE WAS WARRANTED?
It is Petitioner's contention that evidence existed to support
the lesser-included offense charge of criminally negligent homicider-
specifically the Petitioner's statement after the fatal..:;shot.:-
Testimonial evidence would lend support to the charge of Manslaughter,
or even Murder. But that evidence is testimonial, subject to
the trier of fact--the jury, not trial court, and not the Court
of Appeals. The jury was free to choose whether the Petitioner
had the 'requisite mental state to justify a conviction or acquittal
as to murder. They acquitted. They had the option of deciding
whether the requisite mental state for Manslaughter was present,
and they reacted with the question to 'trial court as to whether
they could choose a lesser offense. It was not available to them,
not because there was no evidence to support the requisite mental
state, but because it had been denied by trial court as a lesser-
included offense.
All the jury needed to find Petitioner guilty of criminally
negligent homicide is to believe the testimony regarding Hawkin's
reaction just after the shot, and not believe the testimony of
the other parties. The Court of Appeals disregards the options
available to the jury.,; making an ex post facto determination
based upon facts the jury had rejected.
CONCLUSION
The trial court abused its discretion'-denying instruction:...
on the lesser-included offense of criminally negligent homicide
where there was evidence available to the jury to make a reasoned
determination when weighing the testimonial evidence presented
at trial. The First Court of Appeals erred in its review by
rendering a decision based on the written record devoid of the
first-hand assessment position of the jury in judging credibility.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Petitioner prays- this Court
give Petitioner's pleadings full consideration, despite the short
comings of a layman-at-law's petition, and Grant this request
for discretionary review.
/S/ ,00 /ttUW/tft
INMATE DECLARATION
I, Romelle M. Hawkins, TDCJ-ID No. 1911528, being currently
incarcerated at the Darrington Unit, Brazoria County, Texas,
do hereby declare that a true and correct copy of the above and
foregoing Petition for Discretionary Review has been sent to
the following addresses, first-class postage prepaid, and placed
in the USPS authorized mail receptacle on this the fS day of
^dRphj 2015:
Court of Criminal Appeals
Supreme Court Building
PO Box 12308, Capitol Station
Austin, TX 78711
State Prosecuting Attorney
PO Box 12405, Capitol Station
Austin, TX 78711
/S/ flmUlO ) \Awm
Opinion issued December 4, 2014
In The
Court of gppeafe
For The
jftnrt Btetrtrt of Cexa*
NO. 01-14-00145-CR
ROMELLE MONTE HAWKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Case No. 1402764
MEMORANDUM OPINION
Appellant Romelle Monte Hawkins pleaded not guilty to the charged offense
of murder.1 A jury found Appellant guilty of the lesser-included offense of
See Tex. Penal Code Ann. § 19.02 (Vemon 2011).
manslaughter2 and assessed Appellant's punishment at 23 years in prison. In one
issue on appeal, Appellant asserts that the trial court erred by refusing to instruct
the jury on the lesser-included offense of criminally negligent homicide.
We affirm.
Background
On April 8, 2012, at around 11:00 p.m., Fallon Kiser went to a bar to meet
friends, including her date, Jerold Griffin, and her best friend, Katherine
Brownlow-Stewart, the complainant in this case. Appellant was also at the bar.
He was Katherine's date.
The group stayed at the bar for a while and then went to a second club.
Fallon and Katherine were at the second club when, around 3:00 a.m., Jerold
decided that he wanted to leave. Although she wanted to stay at the club, Fallon
decided to leave with her date.
Fallon and Jerold rode in the backseat of Jerold's vehicle, a white SUV.
Jerold's cousin, Devline Smallwood, was driving, and another acquaintance,
Cedric Jackson, rode in the front passenger seat. During the ride, Fallon and Jerold
started to argue. They both had been drinking alcohol that night, and Jerold was
drunk.
See id. § 19.04 (Vernon 2011).
Fallon got out of the vehicle and began walking along the road, which was in
an isolated area. Devline drove the SUV slowly along the road to keep pace with
Fallon. The men encouraged Fallon to get back in the vehicle, but she would not
comply. Jerold got out of the SUV and began walking with Fallon trying to
convince her to get back in the vehicle. The two continued to argue as they
walked.
Fallon called Katherine to come pick her up. Katherine arrived shortly after
Fallon called her. Katherine was driving her black SUV. Appellant was in the
front passenger seat.
Fallon got into the backseat of Katherine's vehicle. Katherine and Jerold
began arguing, and Jerold walked toward Katherine's SUV in what Fallon later
described as an aggressive manner. Fallon saw Katherine reach under her driver's
seat to grab a gun, which Fallon knew Katherine kept in her vehicle, but Katherine
could not locate the weapon.
As Jerold approached her SUV, Katherine opened her door, hitting Jerold in
the face. Katherine then got out of the vehicle and began hitting Jerold. Fallon
also got out of the SUV and went to assist Katherine in the physical altercation
with Jerold. The two women engaged in a physical fight with Jerold for about 10
to 15 minutes.
The women were winning the fight when Devline approached to break it up.
He grabbed Jerold around the waist and tried to pull him away.
At this point, the group was near the driver's side of Katherine's SUV. The
driver's side door and window were open. Appellant had never gotten out of
Katherine's vehicle and remained seated in the front passenger's seat.
Without warning, the group heard a gunshot. It was Appellant; he had fired
a revolver from inside Katherine's SUV. Katherine told Fallon to "get down."
The two women ducked down by the vehicle. Jerold and Devline ran away.
Cedric, who was further away, hid in the bushes. Ten to fifteen seconds passed.
Appellant fired the gun a second time. That shot hit Jerold in the arm as he ran
away. Some time passed, and Katherine and Fallon thought it was safe. Katherine
stood up and went to get in the driver's side of her vehicle. About five seconds
after she stood up, Appellant fired the gun a third time, shooting Katherine in the
head. Katherine fell into Fallon's arms, and they both fell to the ground.
Fallon looked at Appellant and saw him holding the gun. He was shaking.
Fallon had heard Appellant say, "What the fuck happened?"
Fallon begged Appellant to help Katherine. Instead, Appellant got into the
driver's seat of Katherine's vehicle and drove off. The police and paramedics were
called to the scene. However, Katherine died from the gunshotwound to her head.
Fallon told the police that Appellant had shot Katherine and Jerold. Cedric
identified Appellant as the person he saw driving away from the scene.
Later that day, Appellant went to a police station to inquire about Katherine.
Appellant was taken into custody, and he agreed to be interviewed. During the
video-taped interview, Appellant denied being at the scene and firing the gun.
Appellant was indicted for the offense of murder. During trial, Fallon
testified in detail to the events occurring before, during, and after the shooting.
She stated that Appellant was the person who shot Katherine. Fallon testified that,
when Katherine was shot, she had seen Appellant aiming the gun at Katherine's
head. She stated that the shots had not been fired rapidly; rather, appreciable time
had elapsed between each of the three shots. Fallon testified that Katherine had
been standing upright for five seconds trying to get into her vehicle when
Appellant shot her.
Cedric also testified. He stated that, although he did not see who had fired
the shots, he saw Appellant drive away after the shooting. The investigating police
officers testified at trial, and the video-taped interview with Appellant was
admitted into evidence. The State further showed, through forensic evidence, that
Appellant had tested positive for gun residue on both his hands and his clothing.
The defense did not present any evidence.
At the charge conference, the defense requested that the jury be instructed on
the lesser-included offenses of manslaughter and criminally negligent homicide.
The trial court granted the request to instruct the jury on the lesser-included offense
of manslaughter, but denied the request to instruct the jury on the offense of
criminally negligent homicide.
When it returned its verdict, the jury found Appellant guilty of the offense of
manslaughter. Appellant pleaded true to an enhancement allegation found in the
indictment, indicating that he had previously been convicted of the felony offense
of felon in possession of a firearm. The jury assessed Appellant's punishment at
23 years in prison.
This appeal followed. In one issue, Appellant asserts that the trial court
erred in denying his request to instruct the jury on the lesser-included offense of
criminally negligent homicide.
Lesser-Included Offense Instruction
A. Standard of Review
We apply a two-step test to determine whether appellant was entitled to an
instruction on a lesser-included offense. Cavazos v. State, 382 S.W.3d 377, 382
(Tex. Crim. App. 2012); Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App.
2011); Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006). We first
determine whether criminally negligent homicide is a lesser-included offense of
murder by comparing the statutory elements of the greater offense and any
descriptive averments in the indictment with the statutory elements of the potential
lesser-included offense. Sweed, 351 S.W.3d at 68; Hall v. State, 225 S.W.3d 524,
535-36 (Tex. Crim. App. 2007). This inquiry is a question of law. Hall, 225
S.W.3dat535.
If this threshold is met, the second step then requires that we determine
whether some evidence in the record would have permitted the jury to rationally
find that, if he was guilty, the defendant was guilty only of the_ie_s^er-induded_
offense. Id. at 536; Guzman, 188 S.W.3d at 188-89; Rousseau v. State, 855
S.W.2d 666, 673 (Tex. Crim. App. 1993). Anything more than a scintilla of
evidence may be sufficient to entitle a defendant to a lesser charge, but the
evidence must establish the lesser-included offense as a valid, rational alternative
to the charged offense. Hall, 225 S.W.3d at 536; Forest v. State, 989 S.W.2d 365,
367 (Tex. Crim. App. 1999). Although the threshold showing required for an
instruction on a lesser-included offense is low, it is not enough that the jury may
disbelieve crucial evidence pertaining to the greater offense; there must be some
1 '
evidence directly germane to the lesser-included offense for the finder of fact to
consider before a lesser-included offense instruction is warranted. Bignall v. State,
887 S.W.2d 21, 24 (Tex. Crim. App. 1994).
B. Analysis
Here, the State does not dispute that criminally negligent homicide is a
lesser-included offense of murder. See Saunders v. State, 840 S.W.2d 390, 391
(Tex. Crim. App. 1992) (holding that negligent homicide is a lesser-included
offense of murder). Thus, as briefed, the dispute in this case centers on whether
there is some evidence from which the jury could have rationally found that, if
Appellant was guilty, he was guilty only of the lesser offense of criminally
negligent homicide. At this step of the analysis, "the evidence must establish the
lesser-included offense as a valid, rational alternative to the charged offense."
Hall, 225 S.W.3d at 536.
A person commits the offense of murder if he intentionally or knowingly
causes the death of an individual or intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the death of an
individual. Tex. Penal Code Ann. § 19.02(b)(1), (2) (Vernon 2011). A person
commits manslaughter if he recklessly causes the death of another. See id. § 19.04
(Vernon 2011). A person commits the offense of criminally negligent homicide if
he causes the death of an individual by criminal negligence. Id. § 19.05(a)
(Vernon 2011).
The essential difference between murder, manslaughter, and criminally
negligent homicide is the culpable mental state required to establish each offense.
See Thomas v. State, 699 S.W.2d 845, 849 (Tex. Crim. App. 1985). The Penal
Code defines the relevant culpable mental states as follows:
(a) A person acts intentionally, or with intent, with respect to . . . his
conduct when it is his conscious objective or desire to . . . cause the
result.
(b) A person acts knowingly, or with knowledge, with respect to a
result of his conduct when he is aware that his conduct is reasonably
certain to cause the result.
(c) A person acts recklessly, or is reckless, with respect to . . . the
result of his conduct when he is aware of but consciously disregards a
substantial and unjustifiable risk that 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.
(d) A person acts with criminal negligence, or is criminally negligent,
with respect to ... the result of his conduct when he ought to be aware
of a substantial and unjustifiable risk ... or the result will occur. The
risk must be of such a nature and degree that the failure to perceive it
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.
TEX. PENAL CODE ANN. § 6.03(a)-(d) (Vernon 2011).
"The key to criminal negligence is not the actor's being aware of a
substantial risk and disregarding it, but rather it is the failure of the actor to
perceive the risk at all" created by his conduct. Montgomery v. State, 369 S.W.3d
188, 193 (Tex. Crim. App. 2012); Trujillo v. State, 227 S.W.3d 164, 168 (Tex.
App.—Houston [1st Dist.] 2006, pet. ref d). Evidence showing that a defendant
did not intend the result does not automatically entitle him to a charge on criminal
negligence. See Trujillo, 227 S.W.3d at 168. "Rather, the difference between
criminally negligent homicide and manslaughter is the culpable mental state of
criminal negligence for the former and recklessness for the latter." Id. A
defendant is not entitled to a charge of criminally negligent homicide if the
evidence shows that the defendant's awareness is such that he perceived the risk
his conduct created. Id.
In support of his assertion that the jury should have been instructed on
criminally negligent homicide, Appellant asserts as follows in his appellate brief:
There was substantial evidence that the shooting and killing of the
complainant was unintentional and that the Appellant was trying to
break up the melee that had started in front of him. Ms. Fallon
testified that [Jerold] was getting more deadly and more aggressive
and she would have pulled a gun on him that night if she had one.
The fight had already lasted 10-15 minutes. Ms. Fallon admitted
under cross examination that there was no friction between the
complainant and the Appellant and that the Appellant would "not hurt
someone he was with." She further admitted that when the
complainant was shot and killed, the Appellant said, "What the fuck
happened" and was shaking. . . . There was further evidence that
[Appellant's] eyesight was not good and the lighting conditions were
only good.
(Record citations omitted.)
While it may show that he did not intendto kill Katherine, the evidence cited
by Appellant does not necessarily show that he failed to perceive the risk of
pointing and firing a gun in the direction of four people, standing nearby him. See
Trujillo v. State, 227 S.W.3d at 168. This is particularly true when the cited
evidence is viewed in the context of the other evidence in the record. See
Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (concluding that
appellant's statement he did not intend to hit victim not evidence he is guilty only
of lesser included offense, particularly given the other evidence in the record that
he intended to kill victim).
The evidence showed that Appellant fired the gun three times with a
significant pause between each shot. The second shot hit Jerold in the arm. A
sufficient amount of time passed, which led Katherine and Fallon to think that it
was safe to stand up. After Katherine stood up, another five seconds passed.
Appellant then shot her as she tried to get into her own vehicle in which Appellant
sat. Fallon testified that she saw Appellant aim the gun at Katherine's head.
Even if the evidence could be viewed (1) as showing that Appellant was
trying to break up the fight between the two women and Jerold by frightening the
group or (2) as showing that Appellant was shooting at Jerold to protect the
women, such evidence does not raise a scintilla of evidence that Appellant did not
perceive the risk his conduct created. To the contrary, viewing the evidence in
such a manner would show that Appellant disregarded the risk, knew the risk of
firing a gun, or was choosing to exploit that risk. See Trujillo, 227 S.W.3d at 168
(concluding that brandishing a loaded gun to frighten people indicates awareness
11
of a risk posed by a loaded gun); see also Jackson v. State, 248 S.W.3d 369, 372
(Tex. App.—Houston [1st Dist.] 2007, pet. refd) (holding that drawing handgun
from pocket in response to a threat does not alone raise an inference that appellant
was unaware of the risk posed by that conduct; instead, it indicates that the actor
was aware of the risk posed by the weapon and was choosing to exploit that risk).
Because Appellant did not present evidence showing that he failed to
perceive the risk created by his conduct, and the evidence shows that he did
perceive and disregard that risk, the trial court did not err by denying Appellant's
request to instruct the jury on the offense of criminally negligent homicide. See
Trujillo, 227 S.W.3dat 168-69. We overrule Appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Brown.
Do not publish. Tex. R. App. P. 47.2(b).
12
JUDGMENT
Court of gppeate
$ trtft JBtetrttf of Cexa*
NO. 01-14-00145-CR
ROMELLE MONTE HAWKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
Appeal from the 179th District Courtof Harris County. (Tr. Ct. No. 1402764).
This case is an appeal from the final judgment signed by the trial court on February
10, 2014. After submitting the case on the appellate record and the arguments properly
raised by the parties, the Court holds that the trial court'sjudgment contains no reversible
error. Accordingly, the Court affirms the trial court's judgment.
The Court orders that this decision be certified below for observance.
Judgment rendered December 4, 2014.
Panel consists of Justices Keyes, Higley, and Brown. Opinion delivered by Justice
Higley.
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769 S.W.2d 188 (1989)
Roy T. SHURN, Plaintiff-Appellant,
v.
Dr. James A. MONTELEONE, Defendant-Respondent.
No. 54818.
Missouri Court of Appeals, Eastern District, Division Two.
April 18, 1989.
*189 Roy T. Shurn, St. Louis, pro se.
Moser, Marsalek, Carpenter, Cleary, Jaeckel & Keaney, William L. Davis and Doreen G. Powell, St. Louis, for defendant-respondent.
KAROHL, Judge.
Plaintiff, the father of K.S., appeals after the trial court dismissed his two count petition for damages. Count I of the petition sounds in libel and slander. Count II alleges defendant violated plaintiff's constitutionally guaranteed right to privacy.
Defendant filed a motion to dismiss Count I for failure to state a cause of action and in support thereof alleged: (1) defendant had no duty owed to plaintiff, citing Missouri Child Abuse Statute, §§ 210.110 through 210.160, RSMo 1978; (2) defendant is immune under § 210.135; and, (3) the cause was barred by a two year statute of limitations, citing § 516.140 RSMo 1978. Defendant moved to dismiss Count II for failure to state a cause of action because: (1) defendant is protected by immunity, § 210.135 RSMo 1978; and, (2) the statutory affirmative duty to report suspect child abuse does not create a private cause of action of invasion of privacy. The court dismissed both counts without designating the ground or grounds relied on.
On appeal plaintiff presents a single narrow issue, namely,
THE TRIAL COURT ERRED IN APPROVING APPELLEE'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED BECAUSE THE TRIAL COURT DID NOT RECOGNIZE A STATUTORY TORT THE MISSOURI LEGISLATURE CREATED WHEN IT ENACTED THE 1982 AMENDMENT TO SECTION 210.135 OF THE MISSOURI CHILD ABUSE STATUTE WHICH SPECIFICALLY DENIED IMMUNITY FROM CIVIL LIABILITY FOR ANYONE WHO INTENTIONALLY MAKES A FALSE REPORT OF CHILD ABUSE. (Our emphasis).
A. When the Legislature enacted the 1982 Amendment to Section 210.135, it unambiguously removed any claim Dr. Monteleone has to immunity from civil liability for filing a false claim of child abuse.
B. When the trial court dismissed Shurn's claim that Dr. Monteleone intentionally filed a false report of child abuse, for failure to state a claim upon which relief can be granted, it erroneously attributed no meaning to the clear language of the 1982 Amendment.
The point on appeal assumes that Chapter 210 creates a statutory tort. We review this claim of error under the constraint to review "only in respect to the specific matters argued by appellant as constituting error." Schlanger v. Simon, 339 S.W.2d 825, 828 (Mo.1960). We find that the statute does not create, expressly or by implication, a statutory cause of action for a private person who becomes the subject of a child abuse report. We conclude that the trial court did not err, as argued in the point on appeal. First, it is uncertain and unlikely that the trial court dismissed plaintiff's petition on a finding that the petition insufficiently alleged a statutory tort. Second, the statute did not create a new tort cause of action. Third, the pleading was insufficient to state a cause of action for libel or slander for failure to allege the specific words which plaintiff claimed to be defamatory. Fourth, the remedy in tort for the publication *190 of untrue statements is governed by the law of defamation, not false light invasion of privacy.
Accordingly, we find the trial court properly dismissed Count I for failure to sufficiently allege the elements of libel or slander and properly dismissed Count II because it is based upon a theory of recovery not recognized in Missouri. Further, we find that the petition did not attempt to allege a statutory cause of action under Chapter 210 and that Chapter 210 does not create a statutory cause of action. We expressly do not reach and do not decide whether plaintiff could have stated a cause of action in libel or slander, as a matter of fact or law. We find only that the trial court properly dismissed plaintiff's petition for insufficiency of pleadings of the elements of the actions attempted. Therefore, we affirm dismissal without prejudice.
The Missouri Child Abuse law requires physicians and others to report suspected child abuse. Prior to 1982, the duty to report was defined in terms of "reasonable cause to believe child abuse had occurred." Section 210.115.1 RSMo 1978. In 1982, the statute was amended and now mandates a report based on "reasonable suspicion." Section 210.115.1 RSMo 1986. The statute balances the duty to report with a grant of immunity "from any liability, civil or criminal, that otherwise might result by reason of such actions." Section 210.135 RSMo 1986. The 1978 version of this section offered immunity to any person "participating in good faith." In 1982, this section was amended to offer immunity to any person "complying with" the report provisions. The 1982 amendment also added a new provision limiting the scope of immunity which reads, "however, any person intentionally filing a false report shall not have immunity, from any liability, civil or criminal."
Plaintiff attempted to state a cause of action in Count I for libel or slander. He alleged the report was intentionally false. Because we find that the allegations were insufficient to state a cause of action for libel or slander we need not decide whether immunity was an absolute legal defense to a well pleaded cause of action.
We find that the basic premise of plaintiff's claim of error on appeal fails. The premise is that Chapter 210 created a statutory cause of action for persons mentioned in a child abuse report, if the report is intentionally false. Our courts, state and federal, have recognized causes of action implied from constitutional provisions or statute. A court should do so only after a finding that the existence of the cause of action was necessarily implied to promote the purpose of the constitutional guarantee or new statutory right or privilege. The purpose of the Missouri Child Abuse Act is to encourage reporting for the benefit of protecting children. The purpose is wholly unrelated to plaintiff's theory of being a victim of an intentionally false report. If we were to adopt the view that the statute created a statutory cause of action it would have an opposite affect. Recognition of a new statutory cause of action would discourage rather than encourage reports of child abuse based upon reasonable suspicion.
Plaintiff argues this court recognized creation of a statutory tort based on §§ 210.110-210.165, RSMo 1986 in Voepel v. Cardinal Glennon Memorial Hospital, 743 S.W.2d 600, 601 (Mo.App.1988). This position is not correct. In Voepel we affirmed dismissal of a petition "sounding in libel and slander because `plaintiffs have failed to allege any malicious intent on the part of defendants'" and in the absence of other required elements. The petition did not overcome the immunity provision. It was unnecessary for us to decide and we did not decide that Chapter 210 created a statutory cause of action.
Plaintiff also relied on the language of the immunity section, § 210.135. He suggests recognition of liability, civil and criminal, for an intentional false report creates a statutory cause of action. This reference to civil liability merely recognizes existing common law causes. It does not compel the conclusion that a statutory tort was created by the act. The legislature could *191 have but did not expressly create a new cause of action.
In Count I plaintiff alleged, inter alia, defendant had no reason to suspect abuse; made a fictional and untrue report; and, the report was willfully and maliciously false. The petition does not allege the express language which plaintiff contends was defamatory. In order to state a cause of action for libel, it is necessary to allege the specific words which are alleged to be defamatory. Lorenz v. Towntalk Publishing Co., 261 S.W.2d 952, 953 (Mo.1953). Petitions which do not specifically allege those statements claimed to be libelous are subject to dismissal for failure to state a claim on which relief may be granted. Missouri Church of Scientology v. Adams, 543 S.W.2d 776, 778 (Mo. banc 1976).[1]
A similar rule applies to actions for slander. "In order to state a cause of action for slander, it is necessary to allege in haec verba the exact words which are alleged to be defamatory." Brown v. Adams, 715 S.W.2d 940, 941 (Mo.App. 1986).
Thus, whether Count I alleges a written or an oral report, the result is the same. In order to state a claim for libel or slander, the specific words claimed to be defamatory must be alleged in the petition. In addition to the cases above cited see, Angelina Casualty Co. v. Pattonville-Bridgeton Terrace Fire Protection District, 706 S.W.2d 483, 485 (Mo.App.1986); Bremson v. Kinder-Care Learning Centers, Inc., 651 S.W.2d 159, 160 (Mo.App. 1983).
The trial court sustained the motion to dismiss without specifying grounds. We will sustain the judgment if any of the asserted grounds, in the present case failure to state a cause of action, are proper. Sullivan v. Pulitzer Broadcasting Co., 709 S.W.2d 475, 476 (Mo. banc 1986). We affirm the dismissal of Count I because it fails to plead all the elements of the cause of action, not on the basis of the statute of limitations [which is not supported by facts available to this court] or the ground of immunity [which may or may not apply in a well pleaded case]. This limitation of the ruling is consistent with defendant's motion, to dismiss for failure to state a cause of action. Further, the motion was not one for judgment on the pleadings. Such motions are not favored in the law. Holt v. Story, 642 S.W.2d 394, 395 (Mo.App.1982).
The holding in Sullivan v. Pulitzer Broadcasting Co., 709 S.W.2d 475, 481 (Mo. banc 1986) supports dismissal of Count II for failure to state a recognized cause of action. The Supreme Court there considered pleadings that defendant published a false accusation of criminal conduct. It found such pleading constituted "nothing more than the classic defamation action." See, also, Hester v. Barnett, 723 S.W.2d 544, 563 (Mo.App.1987). We follow Sullivan and find no error in dismissing Count II which attempted to allege an invasion of privacy claim based upon intentional false statements.
We affirm.
GRIMM, P.J., and GARY M. GAERTNER, J., concur.
NOTES
[1] In the absence of a pleading that the express words are "hidden or unknown, but discoverable" we do not consider any exceptions to the requirement of specificity.
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294 F.Supp.2d 504 (2003)
LEHMAN BROTHERS, INC., Plaintiff,
v.
Wei WU, Defendant,
Wei Wu, Third-Party Plaintiff,
v.
Deutsche Banc Alex. Brown, Inc., Third-Party Defendant.
No. 03 CIV. 4553(JSR).
United States District Court, S.D. New York.
December 9, 2003.
David R. Francescani, Irene Hudson, Fish & Richardson P.C., New York, NY, for Plaintiff.
Maxim H. Waldbaum, Lora A. Moffatt, Lori D. Greendofer, Salans, Hertzfeld, Heilbronn, Christy & Viener, New York, NY, for Defendant/Counter Claimant/Third-Party Plaintiff.
Jatinder K. Sharma, Kerry Parker, pro hac vice, Epstein, Becker & Green, P.C., Kenneth J. Turnbull, O'Melveny & Myers, L.L.P., New York, NY, for Third-Party Defendant.
MEMORANDUM ORDER
RAKOFF, District Judge.
On October 31, 2003, see transcript, the Court ruled from the bench on every prong save one of the motion to dismiss brought by third-party defendant Deutsche Bank Securities, Inc. ("Deutsche Bank"), formerly known as Deutsche Banc Alex. Brown, Inc. See Order dated 11/03/03 (confirming the rulings from the bench). The remaining issue is whether defendant/third-party plaintiff Wei Wu has stated a claim against Deutsche Bank for contribution if Wu is found liable for the copyright infringement alleged against him by plaintiff Lehman Brothers, Inc.
It is well-established that the owner of a copyright may seek relief not only against someone who infringed that owner's copyright, but also against someone who knowingly contributed to that infringement. See, e.g., Gershwin Publ'g Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir.1971). But it does not automatically follow that the primary tortfeasor, if found liable, can reduce or recoup some of his damages by obtaining contribution from the ancillary tortfeasor. Such a claim for contribution would lie only if: (1) the Copyright Act creates such a right to contribution either *505 explicitly or implicitly, or (2) such a right inheres as a matter of federal common law. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 638, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981).[1]
As to the first possibility, Wu has not argued that the Copyright Act creates a right to contribution, even by implication, and when the Court raised the issue at oral argument, he chose not to pursue it. See transcript, 10/31/03, at 38-41.
As to the second possibility, the judicial extension of federal common law to create a right of contribution seems peculiarly inappropriate in the context of federal copyright law, where Congress has otherwise legislated with great particularity as to liability, damages, remedies, and the like. See, e.g., 17 U.S.C. § 501, et seq. Nor is the creation of a right to contribution between copyright infringers "necessary to protect uniquely federal interests," Texas Industries Inc., 451 U.S. at 640, 101 S.Ct. 2061, for the federal interest here in question is "securing for limited Times to Authors ... the exclusive Right to their respective Writings," U.S. Const. art. I, § 8, cl. 8, and the right of contribution is hardly "necessary" to protect that interest.
Accordingly, for the foregoing reasons, Deutsche Bank's motion to dismiss Wu's claim for copyright contribution is hereby granted.
SO ORDERED.
NOTES
[1] Although Wu suggests a third possibility, viz., obtaining contribution under New York state law, this is not availing because "whether contribution is available in connection with a federal statutory scheme is a question governed solely by federal law." Johnston v. Smith, 1997 WL 584349 (N.D.Ga.1997). See generally Northwest Airlines, Inc. v. Transport Workers Union of America, AFL-CIO, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981).
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29 Cal.2d 616 (1947)
THE PEOPLE, Respondent,
v.
JOE CAETANO, Appellant.
Crim. No. 4754.
Supreme Court of California. In Bank.
Jan. 31, 1947.
Blaine McGowan for Appellant.
Robert W. Kenny, Attorney General, and James O. Reavis, Deputy Attorney General, for Respondent.
GIBSON, C.J.
A jury found defendant guilty of murder of the first degree without recommendation, and later upon a trial of his plea that he was not guilty by reason of insanity found him to be sane. This is an automatic appeal from the judgment imposing the death penalty.
The homicide was the outgrowth of domestic difficulties that caused the parties to separate three times during their eleven years of married life. When they last separated, Mrs. Caetano withdrew their meager savings from the bank and a few days later, on March 8, 1946, she filed a suit for divorce demanding all of the community property. Defendant brooded over his marital troubles and was particularly upset by what he considered the unfair claims made by his wife to the little property they had accumulated. On Wednesday, April 24, 1946, defendant borrowed a 22 rifle from a friend, representing that he was going hunting. The next afternoon he walked into the grocery store where his wife worked as a clerk and raising the rifle ordered the persons present to stand aside. He said to his wife, "All right, you son of a bitch, you thought you was going to get everything, and you are not going to get a goddam thing, and neither am I. I am going to shoot you." She answered, "Go ahead, see if I care." Defendant shot her through the heart and she died almost instantly. He then shot himself twice and a few minutes later was taken into custody and placed in a hospital. Two days later, defendant told the district attorney that when he borrowed the gun he had made up his mind to kill his wife and himself, and that he had the same intention when he went to bed on Wednesday night and when he got up the next morning. He said that when he "got off work" Thursday afternoon, he *618 decided that he was going to "get it over with" and that he went to the store with the intention of shooting his wife.
There can be no question that the evidence was sufficient to support the verdict on the general issue of guilt, but it is contended that the judgment should be reversed because of errors committed during the trial.
[1] First, it is claimed that the court erred in giving an instruction which improperly assumed the commission of a homicide. In defining first degree murder, the court said in part: "You are instructed that the homicide in this case can be murder of the first degree, only if it is proven to have been deliberate and premeditated; and it is therefore necessary for you to know what is meant by the terms 'deliberate' and 'premeditated'." Homicide is the killing of a human being by a human being and may be excusable, justifiable or felonious. It was established without dispute that defendant killed his wife, and he was, therefore, in no way prejudiced by the assumption in the instruction that a homicide had been committed. (People v. Putman, 129 Cal. 258, 262-263 [61 P. 961].)
[2] Defendant next contends that it was not proved that Dr. Carl Wallace, who performed the autopsy, was a practicing physician at the time he examined decedent's body and that therefore the court erred in permitting the doctor to give his opinion of the cause of death. The doctor testified that he was a graduate of McGill University in Montreal, and that he was a practicing physician and surgeon in Humboldt County. He was not asked specifically on either direct or cross-examination concerning his professional status at the time the autopsy was performed. However, since the witness was a practicing physician at the time of the trial, which was less than two months after the homicide, it was not error to permit him to give an opinion as to the cause of death even though there was no specific proof of his professional status at the time he performed the autopsy.
[3] It is also urged that it was error to permit the doctor to give his opinion as to the caliber of the bullet which he found in the body of the decedent. The gun used by defendant which the owner testified was a "22 ... long pump rifle," and the bullet found in the decedent's body were introduced in evidence. The witness, holding the bullet in his hand while testifying, stated that he believed it to be of 22 caliber. Although the doctor may not have been as well qualified as a *619 ballistics expert to give an opinion as to the caliber of the bullet, it was for the jury to determine the weight to be given his testimony and it was not prejudicial error under the circumstances to permit him to give his opinion. (See People v. Johnson, 203 Cal. 153, 163 [263 P. 524].)
[4] The district attorney, in arguing to the jury that a death sentence should be imposed on defendant, said in substance that a sentence to life imprisonment did not necessarily mean that defendant would remain in the penitentiary all his life, that, if so sentenced, he would probably be paroled in ten or twelve years, that the penal institutions were very crowded and that the authorities "have got to make some sort of disposition ... so they do the best they can to make room for some more, and out they go. And that is what happens in these life sentences." In response to an objection that these statements constituted prejudicial misconduct the court gave an instruction prepared by defendant's attorney admonishing the jury to "disregard any remarks made by the district attorney in his closing argument about parole." It is contended that notwithstanding this instruction the jury may have been improperly influenced by the argument of the district attorney against making a recommendation for a sentence of life imprisonment.
The matter of punishment for first degree murder is entrusted to the discretion of the jury, but this does not mean that there may not be legitimate argument concerning matters which the jury is entitled to consider in determining the punishment to be imposed. A person sentenced to life imprisonment may be granted a parole after he has served at least seven calendar years (Pen. Code, 3040, 3046). In the case of People v. La Verne, 212 Cal. 29 [297 P. 561], the district attorney, in the course of his argument, stated in substance that it was a matter of common knowledge that a person under life sentence in the penitentiary could "be out on the streets again." The trial court refused to admonish the jury to disregard the statement and it was held on appeal that the remarks did not constitute reversible error "for it is a matter of common knowledge that a parole may be granted to a defendant serving life imprisonment." The statement of the district attorney in the present case could be construed to mean that because the penitentiaries are overcrowded, paroles are granted without regard to merit in order to provide *620 space for incoming prisoners. This was not proper argument but we cannot say, in view of the court's instruction, that the remarks constituted reversible error.
[5] With respect to the sanity issue three experts appointed by the court, all of whom were superintendents of state hospitals, testified that defendant was sane. Defendant, testifying in his own behalf on the trial of the sanity issue, said that he had received only a third grade education and had worked as a farmhand since he was fifteen. At the time of the trial he was 34. He testified that when his wife left him the second time she took everything but his clothes and that when, on the occasion of the last separation, she withdrew the savings account and demanded all of the community property, he felt that he was being unjustly treated and he worried about it. He said he could not sleep at night and that a voice kept saying to him "get it over with, do it, get it over with." He admitted that he knew it was wrong to shoot his wife but said "there was something just pushing my mind to it." A number of witnesses, some of whom had known defendant rather intimately for many years, testified that he was normally very cheerful and friendly but that for several weeks before the shooting he appeared to be worried, preoccupied and depressed. Other witnesses testified that they observed no change in his manner and that he appeared to be normal. The evidence is clearly sufficient to support the finding of the jury that defendant was sane at the time the crime was committed.
The judgment and order denying a new trial are affirmed.
Shenk, J., Edmonds, J., Carter, J., Traynor, J. Schauer, J., and Spence, J., concurred.
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122 P.3d 611 (2005)
2005 UT 55
SAVE OUR SCHOOLS et al., Plaintiffs and Appellants,
v.
The BOARD OF EDUCATION OF SALT LAKE CITY et al., Defendants and Appellees.
No. 20030994.
Supreme Court of Utah.
August 30, 2005.
*612 Paul M. Durham, Mark O. Morris, Wade R. Budge, Salt Lake City, for plaintiffs.
John E.S. Robson, Joan M. Andrews, Salt Lake City, for defendants.
WILKINS, Associate Chief Justice:
¶ 1 The Plaintiffs appeal the trial court's ruling that the Salt Lake City School Board did not act arbitrarily or capriciously when it determined to close Lowell and Rosslyn Heights elementary schools. We affirm.
BACKGROUND
¶ 2 On June 19, 2001, the Salt Lake City School Board ("the Board") voted to close Lowell and Rosslyn Heights elementary schools. This decision represented the culmination of more than four years of deliberation over how to resolve problems relating to school facilities usage, school boundaries, and school closure. Parents and others opposing the closure of the two schools filed separate lawsuits that were later consolidated into a single action. The matter was tried before the trial court from June 23 to July 7, 2003.
¶ 3 The sole issue before the trial court was whether the Board acted arbitrarily and capriciously in deciding to close the two schools because it allegedly failed to consider one of its closure policies, Policy FLA, in making its determination. The trial court held that the Board's closure decision should be upheld unless it was arbitrary and capricious. The court further held that such a finding could be made only if there was no reasonable basis for the Board's decision.
¶ 4 The Plaintiffs argued that the Board's decision was illegal because the Board ignored Policy FLA, a basic closure policy the Board enacted in 1973 to guide school closure decisions. Policy FLA was comprised of the following six factors:
(1) keeping neighborhood schools as close to students and community as economically possible;
(2) safety of students in travel to school and within the buildings they occupy;
(3) minimize the amount and distance of transportation required to place students in neighborhood schools;
(4) placement of students in efficient and educationally functional buildings;
(5) newer schools with more adequate facilities and less maintenance costs should be selected, if available in any given area, in preference to older schools; and
(6) replacement of old schools by building strategically placed new schools.
¶ 5 The Plaintiffs contended that because the Board members did not receive a copy of Policy FLA and some members were unaware of the specific policy itself, the Board should be precluded from asserting that it properly considered the policy in making the decision to close the two schools. The Board, on the other hand, maintained that all of the factors enumerated in Policy FLA were fully incorporated into new documents that guided the determination to close Rosslyn Heights and Lowell. Thus, the Board argues, regardless of whether all the Board members specifically knew about Policy FLA, its contents provided the basis for the decision and the Board therefore properly adhered to its closure policies.
¶ 6 At the conclusion of trial, the court made the factual finding that the Plaintiffs had "not proven that the Board failed to follow its closure policy in making its decision to close the two schools," and thus concluded that the Board had not acted arbitrarily or capriciously. It deferred to the Board's decision, holding that it could not do otherwise unless there was no reasonable basis for the Board's action. Accordingly, the trial court upheld the Board's decision and the Plaintiffs appealed. We have jurisdiction pursuant to Utah Code section 78-2-2(3)(j) (2002).
*613 ANALYSIS
¶ 7 This appeal requires us to analyze two issues. First, we must determine whether the trial court erred in making the factual finding that the Board considered Policy FLA in deciding to close Rosslyn Heights and Lowell elementary schools. We conclude that the trial court did not clearly err in making that finding. Second, we must determine whether the trial court granted the appropriate amount of deference to the Board's closure decision. We conclude that it did. We address each issue in turn.
I. THE BOARD ACTED IN CONFORMITY WITH ITS POLICIES
¶ 8 The sole basis for the Plaintiffs' argument that the Board acted arbitrarily or capriciously in deciding to close the two schools is that the Board acted without regard to Policy FLA. However, since the trial court found that the Board did consider Policy FLA, we would have to determine that the trial court's finding on that point was clearly erroneous before we could conclude that the Board acted arbitrarily and capriciously. See Utah R. Civ. P. 52(a) ("Findings of fact. . . shall not be set aside unless clearly erroneous."); 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 76, 99 P.3d 801 (evaluating a challenge to the trial court's factual findings under a clearly erroneous standard).
¶ 9 The trial court's factual findings will not be considered clearly erroneous unless they are "not adequately supported by the record, resolving all disputes in the evidence in a light most favorable to the trial court's determination." State v. Pena, 869 P.2d 932, 936 (Utah 1994); see also 438 Main St., 2004 UT 72 at ¶ 75, 99 P.3d 801 (holding that we will not "undertake an independent assessment of the evidence presented during the course of trial and reach our own separate findings," but will instead overturn the trial court's findings only if they "are against the clear weight of the evidence").
¶ 10 It is the Plaintiffs' responsibility to marshal the evidence to demonstrate that the factual findings made by the trial court were erroneous. See Utah R.App. P. 24(a)(9). Specifically, our marshaling rule requires plaintiffs to "marshal all the evidence in favor of the facts as found by the trial court and then demonstrate that even viewing the evidence in a light most favorable to the court below, the evidence is insufficient to support the findings of fact." Chen v. Stewart, 2004 UT 82, ¶ 76, 100 P.3d 1177 (internal quotation omitted). We find that the Plaintiffs have failed to present sufficient evidence to overturn the factual finding made below. Because we find that the Plaintiffs failed to meet their burden, we accept the trial court's factual determination that the Board did consider Policy FLA in reaching its decision to close the two elementary schools. We repeat the facts in the record to explain our conclusion.
¶ 11 The trial court found that the Board members knew about the existence of Policy FLA, though "with some degree of difference regarding the [policy's] binding effect," and agreed that no policy should be ignored. It also found that the members conceded that "they did not review [the] FLA [policy] at the time the closure decision was made, and that no discussion involved any specific acknowledgment of the criteria contained within the policy." The Plaintiffs contend that this concession equates to an admission that the Board acted without regard to its own policies, and therefore acted arbitrarily and capriciously.
¶ 12 The trial court disagreed, finding instead that the Board meeting minutes, the documents drafted and circulated to the Board pertaining to the closure decision, and the instructions to subcommittees charged with assisting in the closure evaluation are replete with discussion of the factors listed in the FLA document, and demonstrate the Board's compliance with its closure policies. Further, Superintendent Robles testified that she knew of the policy and that she specifically incorporated it into the guidelines the Board used in deciding whether and which schools to close. She did not cite the FLA document as the source of the policy consideration because she felt that the factors were so obvious and basic that doing so was unnecessary. The Board members also testified that the six factors in the FLA *614 document were important, driving concerns in the decision-making process. The trial court found the evidence to be clear that the basic factors contained in the FLA document were thoroughly discussed when the Board made the closure decision.
¶ 13 In addition, it is important to note that the language of the factors themselves portrays the discretionary nature of Board decisions. The factors are necessarily competing considerations, as there may be instances in which a newer facility that is more efficient and educationally functional may also be located slightly further away than an older, less functional school. The FLA document does not dictate a formula for deciding between schools that satisfy some but not all of the requirements. The policy itself requires the Board to exercise discretion in making these decisions.
¶ 14 For example, a preference for a newer but more distant school over a closer, older one is simply a matter of discretion itself, with no obvious answer under the FLA guidelines. Board members are to consider those factors in making their decisions; the members are not instructed as to how much weight each factor should receive. Rather, they were elected by their constituents to weigh the advantages and disadvantages of such alternatives.
¶ 15 Here, the trial court found that the Board did exactly that. Though the Board members did not have the specific FLA document in front of them during their deliberations, they did have documents that incorporated, without reference, the very factors outlined in the FLA document. Whether the Board placed increased emphasis on some of the factors over others or included additional factors in their analysis is the prerogative of the Board and is irrelevant to the determination of whether the Board acted without regard to the FLA policy. The record demonstrates that the Board considered each factor the FLA policy set forth. We hold that the trial court did not err in finding that the Board complied with its policies in making the closure decision.
¶ 16 We now address whether the trial court afforded proper deference to the Board when it sustained its decision to close the two elementary schools. We hold that it did.
II. THE TRIAL COURT PROPERLY DEFERRED TO SCHOOL BOARD ACTION
¶ 17 The trial court held that it would overturn the Board's decision only "if there was no reasonable basis for [that decision]." The Plaintiffs argue that such deference was inappropriate in this case because the decision constituted administrative, not legislative, action. Thus, they argue, courts reviewing school board decisions like the one at issue here must adopt a non-deferential "substantial evidence" standard. We disagree.
¶ 18 Under our case law governing school board action, the only question the courts have focused upon has been whether the action taken was within the Board's delegated powers to act, not whether the action was legislative or administrative. These cases have recognized that "a local school board is empowered to `make and enforce rules necessary for the control and management of the district schools' and to `do all other things necessary for the maintenance, prosperity, and success of the schools and the promotion of education.'" Bd. of Educ. v. Ward, 1999 UT 17, ¶ 9, 974 P.2d 824 (quoting Utah Code Ann. § 53A-3-402(14), (18) (2000) (current version at Utah Code Ann. § 53A-3-402(15)(a), (20) (Supp.2004))). We have repeatedly stated:
"`In harmony with the import of the statutes [governing the authority of school boards] is the fact that it is inherent in the nature of the board's function in managing school district business that it have a broad latitude of discretion in order to carry out its objective of providing the best possible school system in the most efficient and economical way.'"
Id. (quoting Espinal v. Salt Lake City Bd. of Educ., 797 P.2d 412, 414 (Utah 1990) (brackets in original) (quoting Ricker v. Bd. of Educ., 16 Utah 2d 106, 396 P.2d 416, 420 (1964))).
¶ 19 Further, we have emphasized a school board's broad discretion in interpreting its own policy, stating that such
*615 "management, supervision and determination of policy are the prerogative and responsibility of school officials; and that the courts should be reluctant to enter therein; and indeed not to do so unless it is shown that the complainant was in some manner deprived of due process, or that the action of the board was so entirely without justification that it must be deemed capricious and arbitrary."
Id. (emphasis added) (quoting E.M. v. Briggs, 922 P.2d 754, 757 (Utah 1996)) (further quotation omitted).
¶ 20 As found by the trial court, the Board did not act entirely without justification, nor did it interpret its FLA policy in an arbitrary and capricious way. The trial court found that the Board did in fact consider each and every policy factor that the Plaintiffs contend the Board was required to consider in making the closure decision. The fact that some members did not know the origin of those factors does not mean that they failed to consider them. Not only was the Board's action not "entirely without justification," the trial court found that it was pursuant to the very factors the Plaintiffs contend the Board was required to utilize. There is nothing in the record to demonstrate clear error in the trial court's finding.
¶ 21 Though the closure of one's neighborhood school is a sad event for those affected, that disappointment does not qualify a court to reevaluate an elected school board's decision unless that decision truly was without justification. The remedy for those dissatisfied with a school board's decision is in the voting booths on election day. We accordingly affirm.
CONCLUSION
¶ 22 The trial court did not err in finding that the Board considered all of the policies enumerated in the FLA document. The Board closed the schools in an effort to save money to build new schools in the west side of the city that it determined was underserving its student population. The Board determined that the city, and the student population as a whole, would be best served if two of its east-side elementary schools, one of which was significantly under-populated and located on an undesirable lot, were closed and the students were redirected to another area.
¶ 23 Though this decision is an unpopular one with the parents of the affected children, the Plaintiffs cannot make out a plausible case that the decision was arbitrary and capricious. The trial court properly concluded that the Board considered all of the policies it was bound to consider, as borne out by trial testimony, Board documents, and minutes of the Board meeting. It is not this court's province to interfere in the decision made by that elected body in the absence of arbitrary and capricious decision-making. We affirm.
¶ 24 Chief Justice DURHAM, Justice DURRANT, Justice PARRISH, and Justice NEHRING concur in Associate Chief Justice WILKINS' opinion.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4079
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAMON PENN,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:08-cr-00554-CCB-1)
Submitted: March 24, 2011 Decided: August 18, 2011
Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ebise Bayisa, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt,
Maryland, for Appellant. Paul Michael Cunningham, Assistant
United States Attorney, Rachel Miller Yasser, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Damon Penn appeals the 180-month sentence imposed
following his guilty plea 1 to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006).
On appeal, Penn argues that the district court erred by denying
his motion to suppress a firearm that officers seized from his
car after he was pulled over for a broken tail light and
arrested for driving with a suspended license. Finding no
reversible error, we affirm.
We review the factual findings underlying a district
court’s ruling on a motion to suppress for clear error and the
court’s legal conclusions de novo. United States v. Kelly, 592
F.3d 586, 589 (4th Cir.), cert. denied, 130 S. Ct. 3374 (2010).
When evaluating the denial of a suppression motion, we construe
the evidence in the light most favorable to the government, the
prevailing party below. Id.
In enforcing the Fourth Amendment’s “guarantees of
sanctity of the home and inviolability of the person,” the
exclusionary rule operates to require the suppression of
evidence that is the fruit of unlawful police conduct. Wong
Sun v. United States, 371 U.S. 471, 484 (1963). However,
1
Penn reserved his right to appeal the district court’s
denial of his motion to suppress.
2
evidence obtained during a search conducted unlawfully but “in
reasonable reliance on binding precedent is not subject to the
exclusionary rule." Davis v. United States, 131 S. Ct. 2419,
2429 (2011).
In New York v. Belton, 453 U.S. 454, 459-60 (1981),
the United States Supreme Court held that a police officer does
not violate the Fourth Amendment when he searches the passenger
compartment of an automobile subsequent to a lawful custodial
arrest. In 2009, however, the Supreme Court in Arizona v. Gant,
129 S. Ct. 1710 (2009), clarified Belton by holding that police
may conduct an automobile search incident to a lawful arrest
only when the arrestee is unsecured and within reaching distance
of the passenger compartment or when it is “reasonable to
believe evidence relevant to the crime of arrest might be found
in the vehicle.” 129 S. Ct. at 1719.
Here, the gun was seized pursuant to an unlawful
warrantless search of Penn's car under Gant; the search was
conducted after Penn was already detained and outside reaching
distance of the passenger compartment, and it was not reasonable
to believe the evidence of his license suspension would be found
in the car. Nonetheless, we hold that the district court did
not err in admitting the evidence. Police searched Penn's car
on July 1, 2008, over ten months before Gant was decided and
pursuant to this court's interpretation of Belton, which
3
authorized an automobile search incident to a recent occupant’s
arrest. See United States v. Milton, 52 F.3d 78, 80 (4th Cir.
1995). Thus, we hold that the exclusionary rule did not apply
to the evidence seized during the arrest.
Accordingly, we affirm the district court’s judgment. 2
Because Penn is represented by counsel who has filed an
extensive brief on the merits, we deny his motion to file a pro
se supplemental brief. See Fed. R. App. P. 28(a), (c). We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
2
In affirming the denial of a motion to suppress, "we are
not limited to evaluation of the grounds offered by the district
court to support its decision, but may affirm on any grounds
apparent from the record." United States v. Smith, 395 F.3d
516, 519 (4th Cir. 2005).
4
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980 F.2d 741
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Paul KEAS, Plaintiff-Appellant,v.The CITY OF ELK CITY, OKLAHOMA; Guy R. Hilton, Jr.,Individually, and as Mayor and Commissioner for the City ofElk City, Oklahoma; Basil Weatherly, Individually, and asCommissioner for the City of Elk City; Ray Duffy,Individually, and as Commissioner for the City of Elk City;and George Easter, Individually and as Commissioner for theCity of Elk City, Defendants-Appellees.
No. 91-6039.
United States Court of Appeals, Tenth Circuit.
Nov. 23, 1992.
Before PAUL KELLY, Jr., Circuit Judge, and McWILLIAMS, Senior Circuit Judge, and BROWN, Senior District Judge.*
ORDER AND JUDGMENT**
McWILLIAMS, Senior Circuit Judge.
1
Paul Keas was sworn in as Ward 3 Commissioner of Elk City, Oklahoma on April 10, 1989. Under the City Charter of Elk City, a Commissioner is an elected officer who serves without compensation. Further, there are five Commissioners for Elk City, one of whom also serves as Mayor.
2
Article II, § 8 of the Elk City Charter provides as follows:
3
The Commission shall determine its own rules and order of business and keep a journal of its proceedings. It shall have the power to compel the attendance of absent members, may punish its members for disorderly behavior, and by vote of not less than four members, may expel a member for disorderly conduct or violation of its rules, but no member shall be expelled unless notified of the charge against him and given an opportunity to be heard in his own defense.
4
Shortly after assuming office, Keas became involved in a sharp and ongoing political controversy with the City Manager and the Chief of Police of Elk City. Stemming therefrom, the Commission, acting pursuant to Article II, § 8 of the Elk City Charter, served on Keas a written "Notice of Allegations" of misconduct on his part and advised him that a special meeting of the Commission would be held to examine these allegations, at which time Keas could appear and defend himself.
5
At the special meeting of the Commission Keas appeared with counsel. Affidavits from the City Manager and the Chief of Police were read into the record, to which Keas responded. At the conclusion of the hearing the four Commissioners voted to expel Keas from the Commission.
6
Keas then brought suit under 42 U.S.C. § 1983 in the United States District Court for the Western District of Oklahoma against the City of Elk City and the four Commissioners, alleging that the defendants, acting under the color of state law, violated his constitutional rights under the First and Fourteenth Amendments when they expelled him from the Commission. Specifically, Keas alleged that the defendants deprived him of property and liberty interests, without due process of law, as required by the Fourteenth Amendment, and further, that the defendants violated his First Amendment rights.
7
By answer, the defendants denied liability and subsequently filed a motion for summary judgment. The district court granted the motion and entered judgment in favor of all defendants. Keas appeals. We affirm.
8
We believe that disposition of the present appeal is controlled by Mitchell v. King, 537 F.2d 385 (10th Cir.1976). In that case, Mitchell, an attorney, was appointed by the governor of New Mexico to serve a six-year term on the board of regents of the museum of New Mexico. Members of this board served without pay. Without going into great detail, differences thereafter arose between Mitchell and the president of the board, and those differences then caused controversy between Mitchell and the governor. As a result, the governor removed Mitchell from the board of regents, citing Article V, § 5 of the New Mexico Constitution which provides that the governor "may remove any officer appointed by him for incompetency, neglect of duty or malfeasance in office." Mitchell then sued the governor, and others, in the United States District Court for the District of New Mexico under 42 U.S.C. § 1983, claiming that his rights under the First, Fifth and Fourteenth Amendments had been violated by the defendants acting under the color of state law. On motion to dismiss under Fed.R.Civ.P. 12(b)(6), the district court dismissed Mitchell's complaint, holding that his removal from the board of regents did not deprive him of any federally protected property or liberty interests or violate any First Amendment right.
9
On appeal, we affirmed the district court's dismissal of Mitchell's complaint. In so doing, Judge Barrett spoke for the court, with Judges Breitenstein and Doyle specially concurring. However, as we read the concurring opinions of Judges Breitenstein and Doyle, concurring opinions in which Judge Barrett concurred in part, Judges Breitenstein and Doyle concurred in the central holding of the panel as expressed by Judge Barrett, namely that under the circumstances described in Mitchell's complaint, he had no property or liberty interest in the position in question which entitled him to relief under 42 U.S.C. § 1983 and that his removal as a regent was not violative of his right of free speech.***
10
In short, under the rationale of Mitchell v. King, supra, the judgment of the district court must be affirmed.
11
Judgment affirmed.
*
Honorable Wesley E. Brown, Senior District Judge, District of Kansas, sitting by designation
**
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3
***
The district court in Mitchell, having dismissed the federal claims, declined pendent jurisdiction. However, the district court did hold that Mitchell had no protected property interest in the office of regent by virtue of Article V, § 5 of the New Mexico Constitution, and on appeal we upheld that holding. In the instant case, the district court rejected Keas' contention that Article II, § 8 of the Elk City Charter violated provisions of the Oklahoma Constitution and that under the Oklahoma Constitution Keas had a property right in continuing as an unpaid City Commissioner. We are in accord with the district court's understanding of Oklahoma law that, if there was any conflict with provisions of the Oklahoma Constitution, the charter provisions controlled. See Dunham v. Ardery, 143 P. 331 (Okla.1914)
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930 F.2d 908
U.S.v.Rodriguez
NO. 90-1520
United States Court of Appeals,Second Circuit.
FEB 01, 1991
1
Appeal From: S.D.N.Y.
2
AFFIRMED.
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NO. 07-09-0160-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 7, 2009
______________________________
BRANDON MCDONALD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 110
TH
DISTRICT COURT OF FLOYD COUNTY;
NO. 4375; HON. WILLIAM P. SMITH, PRESIDING
_______________________________
Memorandum Anders Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Brandon McDonald appeals his conviction for burglary of a habitation with intent to commit sexual assault. A jury found him guilty of the offense and assessed punishment at sixty years in prison. Appellant timely filed his notice of appeal.
Appellant’s appointed counsel has filed a motion to withdraw, together with an
Anders
(footnote: 1) brief, wherein he certifies that, after diligently searching the record, he has concluded that appellant’s appeal is without merit. Along with his brief, he has filed a copy of a letter sent to appellant informing him of counsel’s belief that there was no reversible error and of appellant’s right to appeal
pro se.
By letter dated July 30, 2009, this court notified appellant of his right to file his own brief or response by August 31, 2009, if he wished to do so. Appellant filed a request for extension of time to file his response which was granted to September 30, 2009. To date no response has been filed.
In compliance with the principles enunciated in
Anders,
appellate counsel discussed one potential area for error which was the denial of appellant’s request for jury instructions on the lesser included offenses of 1) burglary of a habitation, 2) criminal trespass and 3) sexual assault. Upon his final analysis, counsel determined no reversible error existed. Thereafter, we conducted our own review of the record to assess the accuracy of appellate counsel’s conclusions and to uncover any error, reversible or otherwise, pursuant to
Stafford v. State
, 813 S.W.2d 503 (Tex. Crim. App. 1991), and concluded the same.
Accordingly, the motion to withdraw is granted and the judgment is affirmed.
(footnote: 2)
Brian Quinn
Chief Justice
Do not publish.
FOOTNOTES
1:See
Anders v. California
, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
2:Counsel shall, within five days after this opinion is handed down, send his client a copy of the opinion and judgment, along with notification of appellant’s right to file a
pro se
petition for discretionary review.
See
Tex. R. App. P
. 48.4.
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857 F.2d 1224
129 L.R.R.M. (BNA) 2486, 109 Lab.Cas. P 10,733
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.HAWKINS CONSTRUCTION COMPANY, Respondent.
No. 87-2701.
United States Court of Appeals,Eighth Circuit.
Submitted June 16, 1988.Decided Sept. 29, 1988.
Howard E. Perlstein, Washington, D.C., for petitioner.
Dean G. Kratz, Omaha, Neb., for respondent.
Before JOHN R. GIBSON, Circuit Judge, BRIGHT, Senior Circuit Judge, and STUART,* Senior District Judge.
JOHN R. GIBSON, Circuit Judge.
1
The National Labor Relations Board has applied for enforcement of its unfair labor practice order requiring Hawkins Construction Company to supply Local 1140 of the Laborers International Union of North America with requested information regarding the company's hiring and subcontracting practices. Hawkins argues that substantial evidence does not support the Board's finding that Hawkins violated the National Labor Relations Act by refusing to supply the requested information.1 We conclude that the Board improperly rejected the credibility determinations of the administrative law judge in reversing his finding that the union's request for information was made in bad faith. We therefore deny enforcement of the Board's order.
2
Hawkins is a construction contractor with an office in Omaha, Nebraska, and is a member of the Heavy Contractors Association (HCA) and the Omaha Building Contractors Employers Association (OBCEA). These groups are authorized to engage in collective bargaining on Hawkins' behalf and each has a bargaining agreement with Local 1140. These agreements include provisions relating to hiring hall practices and union referral services, and they apply to all construction workers and subcontractors hired by Hawkins in specified Nebraska counties.
3
In the spring of 1986, a dispute arose regarding allegations by Local 1140 that Hawkins was not using the union's referral service to hire workers. Although the parties reached an agreement resolving the matter in May, Henry Frank Schaefer, the assistant business manager of Local 1140, and Daniel K. Prochnau, a business representative for the union, testified that in May, June and early July they continued to receive complaints from union members that Hawkins was hiring workers "off the street." Schaefer testified that some of these members came to his office in mid-July and filled out forms stating that Hawkins' actions had resulted in their being out of work. Schaefer further testified that the union uses such forms to begin grievance investigations.
4
On July 23, 1986, Hawkins filed a lawsuit against Local 1140. Two days later, Schaefer sent Hawkins a letter requesting information relating primarily to the company's hiring and subcontracting practices over the past four years.2 The letter states that it "constitutes a grievance," and that Local 1140 requested the information to "determine whether there is merit to this grievance." In a letter dated July 31, Hawkins' executive vice president, Willis M. Epstein, responded that it would be necessary for the union to "declare the grievance" before Hawkins could provide the information.
5
Further correspondence between Schaefer and Epstein failed to resolve the matter. Local 1140 filed charges against Hawkins with the Board, which issued a complaint alleging that Hawkins was engaging in an unfair labor practice by failing to furnish Local 1140 with the requested information, thus breaching its duty to bargain in good faith under 29 U.S.C. Sec. 158(a)(1), (5).
6
The case was heard before an administrative law judge in October. The ALJ concluded that although most of the information requested by the union was relevant to its duties as the employees' collective bargaining representative, see NLRB v. Acme Indus. Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967), the union's request was made in bad faith because its only purpose was to harass Hawkins in retaliation for the lawsuit filed against the union on July 23. Schaefer, Prochnau and Epstein testified before the ALJ. In reaching his decision, the ALJ stated that his findings of fact were based on the entire record, including his observation of the witnesses' demeanor, and that the question of good faith turned on credibility. The ALJ stated that he did not believe Schaefer or Prochnau "when they testimonially described conversations they had with workers allegedly complaining about the hiring practices of Hawkins," and that he did "not believe Schaefer's denial that the lawsuit motivated him." The ALJ also "[found] it incredible that Schaefer would have sat on worker complaints for some 6 weeks," without contacting Epstein or obtaining or documenting specific information about the workers' complaints, rather than waiting until mid-July to record the complaints "in a generalized fashion." The ALJ further found that the timing of Schaefer's request, the common patterns of language among the employees' written complaints, and the lack of dates on the complaints, although consistent with innocent circumstances, further supported a finding that the union's request was made in bad faith.
7
General Counsel for the Board filed exceptions to the ALJ's decision, and the Board issued its final decision and order directing Hawkins to supply the requested information. Laborers Local 1140 (Hawkins Constr. Co.), 285 N.L.R.B. No. 147 (1987). The Board rejected the ALJ's finding that the union's request was made in bad faith, stating that the judge's reasons for discrediting Schaefer and Prochnau's testimony "were based on his analysis of the content of the testimony rather than on the witnesses' demeanor," and that the Board disagreed with the ALJ's reasoning and the inferences drawn to support his conclusions. The Board found that the union had requested the information in good faith, and that Hawkins had violated 29 U.S.C. Sec. 158(a)(1) and (5) by refusing to provide the information. The Board then filed this application for enforcement of its order.
8
The only issue we need address is whether substantial evidence supports the Board's finding that the union made a good-faith request for information. Such factual findings are conclusive "if supported by substantial evidence on the record considered as a whole." 29 U.S.C. Sec. 160(e) (1982). In reviewing the entire record, we must take into consideration the ALJ's contrary decision. Universal Camera Corp. v. NLRB, 340 U.S. 474, 492-97, 71 S.Ct. 456, 466-69, 95 L.Ed. 456 (1951). While reviewing courts generally accord much deference to an agency's decision adopting the ALJ's findings, an agency's departure from such findings is vulnerable "if it fails to reflect attentive consideration to the ALJ's decision." Citizens State Bank v. FDIC, 718 F.2d 1440, 1444 (8th Cir.1983). This is particularly true when the credibility of witnesses is important in the case. See Universal Camera, 340 U.S. at 496, 71 S.Ct. at 468. The ALJ's findings "which turn on credibility determinations with respect to witnesses whom he alone saw and heard, are entitled to considerable weight." Acme Products, Inc. v. NLRB, 389 F.2d 104, 106 (8th Cir.1968) (citations omitted). "Thus, evidence in the record which, when taken alone, may amount to 'substantial evidence' will often be insufficient when the [ALJ] has, on the basis of the witnesses' demeanor, made credibility findings contrary to the Board's position." Colson Equip., Inc. v. NLRB, 673 F.2d 221, 223-24 (8th Cir.1982) (citations omitted). In such cases, we review the Board's findings more critically, and the evidence supporting the Board's conclusion must be stronger than would be required when the ALJ's findings are accepted. Id. at 223.
9
We are satisfied that, in light of the ALJ's finding of bad faith, the Board's contrary conclusion is not supported by substantial evidence. The most troublesome argument asserted by the General Counsel is that when relevant evidence is not presented by the party with the burden of proof, here Hawkins, it is insufficient to rely on discrediting adverse testimony presented by the opposition. Roper Corp. v. NLRB, 712 F.2d 306, 310-11 (7th Cir.1983). The General Counsel argues that the burden was on Hawkins to show that Schaefer or Prochnau knew about the lawsuit and made their demand in retaliation, and that disbelief of Schaefer and Prochnau by the ALJ did not fulfill the burden. He particularly points to Schaefer's statement in the administrative hearing that he was familiar with the lawsuit, but that Hawkins, on cross-examination, failed to ask Schaefer when he was so familiar. The ALJ addressed this issue and recognized that Hawkins had the burden of proof on the affirmative defense of bad faith, and that his disbelief of Schaefer was not sufficient to satisfy this burden, specifically acknowledging the holding in Roper Corp.3 The ALJ, however, set out sound reasons for finding Hawkins had met this burden. The ALJ found that when Schaefer mailed the letter of July 25 he was aware of the suit.4 He also stated that he did not believe Schaefer's denial that the lawsuit had nothing to do with the request letter,5 and that the only purpose in sending the letter was retaliation.6
10
Hawkins, the union, and the General Counsel, as well as the ALJ, left the record in a less than satisfactory state. We are satisfied, however, that the record was such that the ALJ was justified in his findings and conclusion that Schaefer had knowledge of the suit and made the demand in retaliation. Bad faith is an issue that of necessity has a strong base in credibility. We conclude that the Board, in reversing the ALJ, did not engage in a close analysis of the reason for the ALJ's findings and conclusions. It simply set forth the findings of the ALJ, the general support for the requirement of good faith, and found that the union had made a good faith request for the information.7 The Board then engaged in a discussion in which it, in essence, substituted its findings for those of the ALJ, without giving attentive consideration to the ALJ's findings of fact. Citizens State Bank, 718 F.2d at 1444.
11
The Board also argues that the ALJ rejected the testimony on the basis of its content, rather than the witnesses' demeanor. A similar effort by the Board to evade an ALJ's credibility determinations was rejected in Ewing v. NLRB, 732 F.2d 1117, 1122 (2d Cir.1984), where the Second Circuit described the Board's distinction between demeanor and content-based credibility determinations as "overly fine" and, in that case, "untenable." Similar considerations apply here. In analyzing the bad faith issue, the ALJ specifically stated on three occasions that he simply did not believe Schaefer and Prochnau when they testified before him. We do not know of any clearer way for the ALJ to state that he found the testimony untrustworthy. While the ALJ went on to analyze the logic of the statements, this does not detract from the strong indications throughout the ALJ's decision that his findings were substantially based on his observations of the witnesses. This is not a case like Consolidation Coal Co. v. NLRB, 669 F.2d 482, 488 (7th Cir.1982), in which the ALJ merely included a "general preliminary recitation, of a boilerplate nature" that observation of witnesses was a factor in his decision. Although much of the evidence relied upon by the ALJ was circumstantial, the Board has not offered a reasonable ground for upsetting his decision. See, e.g., Acme Products, Inc., 389 F.2d at 106.
12
We have considered the remaining arguments offered by the Board and have determined that they are without merit. Enforcement of the Board's order is denied.
*
The HONORABLE WILLIAM C. STUART, Senior United States District Judge for the Southern District of Iowa, sitting by designation
1
29 U.S.C. Sec. 158(a) (1982) provides:
It shall be an unfair labor practice for an employer--
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
* * *
(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.
2
The letter requested:
(a) A list of your firms [sic] projects started or completed since June 1, 1982.
(b) A list of subcontractors with whom you have subcontracted work, with a copy of your subcontracting agreement since June 1, 1982, together with wage and fringe benefits paid to or for employees on the above projects during the above time period.
(c) A list of your present employees, with Social Security Numbers, date of hire, sex, and race from June 1, 1982 to date.
(d) Job number and daily time card records of employees, together with wages and fringe benefits paid to or for employees on the above projects during the above time period.
(e) A copy of your up-to-date Workmen's Compensation Insurance Policy and your subcontractors policy.
(f) A copy of your Nebraska unemployment records.
(g) And a copy of your posting of EEOC compliance forms.
3
The ALJ stated:
Respondent has the burden of persuasion on its affirmative defense of bad faith, and it does not carry that burden simply because I disbelieve Schaefer's denial of a retaliation motivation. Stated differently, disbelief of a negative (denial) does not, standing alone, establish a positive (the affirmative) which a party with the burden of persuasion as to that issue must establish by a preponderance of the evidence. Roper Corp. v. NLRB, 712 F.2d 306, 113 LRRM 3557, 3560 (CA 7, 1983). As I shall outline, however, there are additional factors which support Respondent's affirmative defense of bad faith.
Laborers Local 1140 (Hawkins Constr. Co.), No. 17-CA-13082-1, slip op. at 15, n. 20 (NLRB March 2, 1987).
4
The ALJ found:
On cross-examination Schaefer admitted that he is aware of a lawsuit Hawkins filed on (Wednesday) 23 July against Local 1140, and he denied that the lawsuit had anything to do with his mailing the request letter of (Friday) 25 July (1:55). The nature of the lawsuit is not described in the record. Schaefer was not asked whether he was informed of the filing of the lawsuit before he issued his 25 July request letter. There is no evidence showing when a copy of the papers from the lawsuit was served on Local 1140, or what the average elapsed time is in Omaha from the filing to service of lawsuits. In the absence of any contrary evidence, I find that a copy of the suit was served forthwith on the Union. When Schaefer mailed his letter of 25 July, he was, I find, aware of Respondent's suit against the Union.
Hawkins, slip op. at 7.
5
The ALJ found:
Before me, Schaefer denied that Respondent's 23 July lawsuit had anything to do with the request letter which Schaefer mailed 2 days later to Hawkins (1:55). I do not believe Schaefer, and I find that he was motivated by the lawsuit in sending his request of 25 July.
Hawkins, slip op. at 14.
6
The ALJ found:
I find that the Union's only purpose in sending its 25 July letter was to harass Hawkins in retaliation for the lawsuit which Hawkins filed 2 days earlier against Local 1140. Thus, the affirmative factors which support my disbelief of Schaefer's denial of a retaliation motivation are these: (1) Schaefer did not telephone Epstein when he supposedly began receiving complaints from employees in late May; (2) Schaefer did not begin immediately to document these complaints with specifics as to dates and jobs; and (3) the timing of the request letter as 2 days after Hawkins sued the Union. Because, as I find, the Union submitted its request in bad faith, I find that Respondent had no duty to comply. Accordingly, I shall dismiss the complaint.
Hawkins, slip op. at 16.
7
The Board held:
We find that in the instant case the Union made a good-faith request for information which the Respondent unlawfully denied. The judge's reasons for disbelieving the General Counsel's witnesses' uncontradicted testimony were based on his analysis of the content of the testimony rather than on the witnesses' demeanor. We disagree with the reasoning and inferences drawn by the judge to support his conclusions and find from our evaluation of the record that the conclusion that the Union acted in bad faith is unwarranted. J.N. Ceazan Co., 246 NLRB 637, 638 n. 6 (1979); Electrical Workers IBEW Local 38 Cleveland Electric, 221 NLRB 1073, 1084 n. 5 (1975).
Laborers Local 1140 (Hawkins Constr. Co.), 285 N.L.R.B. No. 147, slip op. at 5 (Sept. 29, 1987).
| {
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91 F.Supp.2d 926 (1999)
Ethan SHAW, and Clive D. Moon, On Behalf of Themselves and All Others Similarly Situated, Plaintiffs,
v.
TOSHIBA AMERICA INFORMATION SYSTEMS, INC., NEC Electronics, Inc., Toshiba Corporation, Toshiba America, Inc., and Toshiba America Electronic, Components, Inc., Defendants.
No. 1:99-CV-0120(TH).
United States District Court, E.D. Texas, Beaumont Division.
August 26, 1999.
*927 Hubert Oxford, III, Benckenstein & Oxford, Beaumont, TX, Gilbert Irvine Low, Orgain Bell & Tucker, Beaumont, TX, Charles Silver, Austin, TX, L. DeWayne Layfield, Beaumont, TX, for Ethan Shaw, Clive D. Moon.
Walter Joshua Crawford, Jr., Crawford & Olesen LLP, Beaumont, TX, Reagan Mark Brown, Frank G. Jones, David Jack Levy, Fulbright & Jaworski, Houston, TX, for Toshiba American Information Systems Inc., Toshiba Corp., Toshiba America Inc., Toshiba America Electronics Components Inc.
Walter B. Stuart, IV, Allan VanFleet, Erica L. Krennerich, Jason M. Powers, Vinson & Elkins, Houston, TX, Lawrence Louis Germer, Germer & Gertz, Beaumont, TX, for NEC Electronics Inc.
Jeffrey L. Simpton, Office of Atty. Gen., Sacramento, CA, for State of California.
Michael Rosenblat, Office of Ill. Atty. Gen., Chicago, IL, for State of Illinois.
John Mark Kraus, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, FL, for State of Florida.
Mike Bradford, U.S. Atty., Beaumont, TX, for U.S.
Joseph Charles Blanks, Doucette, TX, for Laura Bates.
Benjamin E. Baker, Jr., John P. Willis, IV, M Clay Alspaugh, Hogan Smith & Alspaugh, Birmingham, AL, for Biehl & Co., Inc.
Lawrence Smith, Joliet, IL, pro se.
Dawn L. Phillips-Hertz, Troy, MI, pro se.
Daniel R Castro, Watt Castro & Houser, Austin, TX, for Maxtor Corp.
Charles M. Thompson, Kearney Dee Hutsler, Thompson Hutsler Law Firm, Birmingham, AL, for J T Karney, Southern Network Services Inc.
Mark Allen Lindow, Lindow & Treat, San Antonio, TX, for Lindow & Treat LLP.
W. Wilson Randall, Susman Godfrey LLP, Houston, TX, for Dana Timaeus, Robert Rose.
Craig Randal Lively, Harris Lively & Duesler, Beaumont, TX, Frank H. Tomlinson, Pritchard McCall & Jones, Birmingham, AL, for Lindsey F. Tomlinson.
Craig Randal Lively, Harris Lively & Duesler, Beaumont, TX, Edward Cochran, Cochran & Cochran, Shaker Heights, OH, for Dan Gray, John Glase, Evan Morse, Betsy Melziner.
Brent M. Langdon, Holman & Langdon LLP, Texarkana, TX, Thomas C. Cronin, Robert P. Cummins, Cummins & Cronin, Chicago, IL, for Deborah Cummins, Frank Pedote.
R Stephen Griffis, Hooper & Griffis, Birmingham, AL, for David Skinner.
*928 Laurence W. Schonbrun, Office of Laurence Schonbrun, Berkeley, CA, for Robert Demyanovich.
William H. Yoes, Law Offices of William H. Yoes, Beaumont, TX, Robert W. Bishop, Pamela G. Wilson, Bishop & Wilson, Louisville, KY, for Peyton T. Talbott, III.
ORDER DENYING MOTIONS FOR PARTIAL SUMMARY JUDGMENT
HEARTFIELD, District Judge.
Before this Court are the Motion by NEC Electronics, Inc. for Summary Judgment on Plaintiffs' Claims Under 18 U.S.C. § 1030 [56] and Defendant Toshiba America Information Systems, Inc.'s Motion for Partial Summary Judgment on 18 U.S.C. § 1030 and Brief in Support [58]. Having considered the motions, the responses, the replies to the responses, and the arguments of counsel, this Court DENIES the Motion by NEC Electronics, Inc. for Summary Judgment on Plaintiffs' Claims Under 18 U.S.C. § 1030 [56] and Defendant Toshiba America Information Systems, Inc.'s Motion for Partial Summary Judgment on 18 U.S.C. § 1030 and Brief in Support [58].
1. Facts and Procedural History
On March 5, 1999 Ethan Shaw and Clive D. Moon (collectively referred to as "Plaintiffs") filed this class-action complaint on behalf of themselves and all others similarly situated against Toshiba America Information Systems, Inc. ("Toshiba") and NEC Electronics, Inc. ("NECEL"). Why? Plaintiffs allege Toshiba and NECEL designed, manufactured, created, distributed, sold, transmitted, and marketed faulty, floppy-diskette controllers ("FDC's"). How are they faulty? "An FDC designed and manufactured pursuant to relevant specifications will detect data errors and allow the control program to rewrite the affected data correctly. The FDC's at issue in this case, instead, fail to detect the error, resulting in the storage of corrupt data or the destruction of data without the user's knowledge." Plaintiffs' Second Amended Class Complaint [97] 8. Plaintiffs dub this a "boundary error." Still a bit vague?
A properly designed and manufactured FDC that meets manufacturer specifications, however, will detect the boundary error conditions and assert an error status, which triggers the control program to rewrite the affected data correctly. Because of the defective microcode, Defendants' defective FDC's instead verify the erroneous data as correct without an error status, resulting in the storage of corrupt data or the destruction of data without notice to the control program or operating system and without the operator's knowledge.
Local are network interface cards and sound cards are two examples of common DMA devices.
If a defective FDC is made to wait for data a few microseconds too long, because of competition for DMA, the defective FDC can cause corruption of data written to the attached device. If the wait for data is longer, a defective FDC can write the delayed data as the first byte[1] of the next physically adjacent data sector of a floppy diskette and destroy or "zero out" the remainder of data in that sectorall without reporting any error or notifying the control program or computer operator that data has been corrupted or destroyed.[2]
Id. at 9-10. Indeed, the possibility of this boundary-error problem occurring increased when computers became capable of "multi-tasking"that is, capable of performing several computer tasks at the same time. So Plaintiffs allege that if a computer is doing a bunch of stuff at the *929 same time the faulty FDC might stick the data in the wrong place; and it might stick it on top of other data which, consequently, gets messed up by the misplaced, overwritten data. Finally, all of this data garbling goes undetected by the allegedly faulty FDC's; this, in turn, means it goes undetected by the person sitting in front of the computer. "Therefore, Defendants' FDC's are not capable of notifying the control program of data corruption. Worse yet, defective FDC's write corrupted data to the disk or other storage device and report to the computer operator that the data transfer was performed successfully." Id. at 10.
On July 15, 1999 NECEL filed its Motion by NEC Electronics, Inc. for Summary Judgment on Plaintiffs' Claims Under 18 U.S.C. § 1030 ("NECEL's Motion for Summary Judgment") [56] and Toshiba filed Defendant Toshiba America Information Systems, Inc.'s Motion for Partial Summary Judgment on 18 U.S.C. § 1030 and Brief in Support ("Toshiba's Motion for Summary Judgment") [58].[3] In these motions, NECEL and Toshiba urge this Court to grant partial summary judgment as to Plaintiffs' claims under 18 U.S.C. § 1030 since there is no "transmission" of code. In the alternative, Toshiba urges this Court to grant partial summary judgment as to Plaintiffs' claims under 18 U.S.C. § 1030 since Plaintiffsas current owners of Toshiba's computersare not entitled to injunctive relief that would theoretically benefit future buyers of Toshiba's computers. Toshiba's Motion for Summary Judgment [58] 1-2. Finally, NECEL also urges it is entitled to summary judgment since "[t]here simply is no connection between Plaintiffs and NECEL on which to base liability."[4]Toshiba's Motion for Summary Judgment [56] 2 (emphasis in original). NECEL's and Toshiba's motions endorse an overly restrictive view of 18 U.S.C. § 1030 and a misunderstanding of the standing requirement for the facts presented;[5] and NECEL's argument that there is "no connection" between it and the Plaintiffs is not entirely correct. So, the motions are denied.
2. Summary Judgment Standard
Rule 56(b) of the Federal Rules of Civil Procedure says: "A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Furthermore, Rule 56(c) says, in part: "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Thus, summary judgment is proper when, after a reasonable period for discovery, one party is unable to show a genuine issue as to a material fact on which he will bear the burden of proof at trial, provided that judgment against him is appropriate as a matter of law. Nebraska v. Wyoming, 507 U.S. 584, 589, 113 S.Ct. 1689, 1694, 123 L.Ed.2d 317 (1993); Celotex, 477 U.S. at *930 322, 106 S.Ct. 2548. The moving party need not negate the elements of the nonmoving party's case. Id. at 323, 106 S.Ct. 2548; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548, and Lujan v. National Wildlife Fed'n., 497 U.S. 871, 888, 110 S.Ct. 3177, 3188-89, 111 L.Ed.2d 695 (1990)). Rather, the moving party need only "demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
The non-moving party does not overcome the absence of a genuine issue of material fact by simply "creating some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), by making "conclusory allegations," Lujan, 497 U.S. at 871-73, 110 S.Ct. 3177, by presenting "unsubstantiated assertions," Little, 37 F.3d at 1075, or by proffering only a "scintilla" of evidence. Id. When the non-moving party fails to make a sufficient showing on an essential element of his case, the moving party is entitled to a judgment as a matter of law. Id. Nonetheless, when considering a motion for summary judgment, the trial court must construe all evidence in the light most favorable to the non-moving party and resolve all doubts against the moving party. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 2076, 119 L.Ed.2d 265 (1992). With this standard in mind, this now Court turns to Title 18 U.S.C. § 1030 (the "Computer Fraud and Abuse Act").
3. Title 18 U.S.C. § 1030 The Computer Fraud and Abuse Act
Title 18 U.S.C. § 1030 is the "Computer Fraud and Abuse Act." Subsection 1030(a) (itself titled "Fraud and related activity in connection with computers") sets out the particular, substantive offenses proscribed by the statute.[6] As Toshiba notes, Plaintiffs (for whatever reason) do not specify which of the seven subsections of § 1030(a) that Defendants allegedly violated. However, a brief review of the statute makes clear that Plaintiffs' Second Amended Class Complaint [97] could only purport to allege a violation of subsection 1030(a)(5).[7]
Subsection 1030(a)(5)(A) says:
Whoever ... knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage[8] without authorization, to a protected *931 computer[9] ... shall be punished in subsection (c) of this section.
Title 18 U.S.C. § 1030(a)(5)(A). This is a criminal statute; however, § 1030 creates a private right of action for activity found to violate it:
Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief.
Title 18 U.S.C. § 1030(g). So, this criminal statute creates a private right of action.[10] But does Defendants' activity arguably violate Title 18 U.S.C. § 1030, thereby subjecting them to Plaintiffs' private right of action? Specifically, does Title 18 U.S.C. § 1030(a)(5)(A) prohibit Defendants' design, manufacture, creation, distribution, sale, transmission, and marketing of floppy-diskette controllers ("FDC's") allegedly made faulty by defective microcode?[11] Yes, it does.
This Court's goal in interpreting the language of this particular statute or any Congressional statute for that matter is to give effect to Congress' intent. Not surprisingly, "[t]he starting point for interpreting a statute is the language of the statute itself." Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); see Kennedy v. Texas Utilities, 179 F.3d 258 (5th Cir.1999). The "inquiry must cease if the statutory language is unambiguous and `the statutory scheme is coherent and consistent.'" Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997) (citing United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989) and Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149-50, 117 L.Ed.2d 391 (1992)). "Absent congressional direction to the contrary, words in statutes are to be construed according to `their ordinary, contemporary, common meaning[s].'" Kennedy, supra, at 261 (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 388, 113 S.Ct. 1489, 1495, 123 L.Ed.2d 74 (1993) (quoting Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979))). To interpret statutory terms, this Court examines "the statute as a whole, including its design, object, and policy." New York Life Ins. Co. v. Deshotel, 142 F.3d 873, 885 (5th Cir.1998); see Adams Fruit Co. v. Barrett, 494 U.S. 638, 642, 110 S.Ct. 1384, 1387, 108 L.Ed.2d 585 (1990). This Court defines particular terms with reference to the specific context in which they are used, Robinson v. Shell Oil Co., 519 U.S. 337, 340-41, 117 S.Ct. 843, 846-47, 136 L.Ed.2d 808 (1997); and it looks to the arrangement of certain terms within the statute as a guide to their meaning. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999).
As Toshiba so eloquently notes,[12] "[f]idelity to the plain meaning of the text is not boundless." Toshiba's Motion for Summary Judgment [58] 14. However, departure from the plain meaning of the text is not casually undertaken. If this Court "find[s] the terms of a statute unambiguous, judicial inquiry is complete, except in `rare and exceptional circumstances.'" *932 Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (citing TVA v. Hill, 437 U.S. 153, 187 n. 33, 98 S.Ct. 2279, 2298, n. 33, 57 L.Ed.2d 117 (1978), quoting Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50, 75 L.Ed. 156 (1930)). Well what are those "rare and exceptional circumstances?" This Court must depart from the plain meaning of the statutory text if "it would lead to a result so bizarre that Congress could not have intended it." Johnson v. Sawyer, 120 F.3d 1307, 1319 (5th Cir.1997) (internal quotations omitted); see also Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982); United States v. A Female Juvenile, 103 F.3d 14, 16-17 (5th Cir.1996) ("Axiomatic in statutory interpretation is the principle that laws should be construed to avoid an absurd or unreasonable result."). Also, when the statutory language is susceptible to more than one reasonable interpretation, this Court should look beyond the statutory text and examine the legislative history to divine congressional intent. Uniroyal Chem. Co. v. Deltech Corp., 160 F.3d 238, 244 (5th Cir.1998); Carpenters Dist. Council of New Orleans & Vicinity v. Dillard Dep't Stores, Inc., 15 F.3d 1275, 1283 (5th Cir.1994); Dowling v. United States, 473 U.S. 207, 213, 105 S.Ct. 3127, 3131, 87 L.Ed.2d 152 (1985) ("[W]hen assessing the reach of a federal criminal statute, we must pay close heed to language, legislative history, and purpose in order to strictly determine the scope of the conduct the enactment forbids ..."); accord Crandon v. United States, 494 U.S. 152, 157-58, 110 S.Ct. 997, 1001-1002, 108 L.Ed.2d 132 (1990) (the design, object, and policy of criminal statutes upon which civil liability is predicated is important evidence to consider). Look beyond to what? Should this Court determine that departure from the plain meaning of the text is warranted, it may look to official committee reports, conference reports, and contemporaneous statements by legislators on the committee that drafted the statute. See North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 534, 102 S.Ct. 1912, 1924-25, 72 L.Ed.2d 299 (1982); Garcia v. United States, 469 U.S. 70, 76, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984); In re CompuAdd Corp., 137 F.3d 880, 883 (5th Cir.1998); RTC v. Gallagher, 10 F.3d 416, 421 (7th Cir.1993); In re Kelly, 841 F.2d 908, 912 n. 3 (9th Cir.1988). In addition to these sources beyond the statutory text, remarks by the legislative sponsors are deemed an "authoritative guide" to the meaning of the statute. North Haven Bd. of Educ., 456 U.S. at 526-27, 102 S.Ct. at 1920-21. Here, Title 18 U.S.C. § 1030's language is unambiguous and its scheme is coherent and consistent. Thus, fidelity to the plain meaning of Title 18 U.S.C. § 1030 is warranted a plain meaning which encompasses Defendants' alleged activity.
1. Transmission or No Transmission? Transmission.
Both NECEL and Toshiba argue Plaintiffs have failed to state a cause of action under Title 18 U.S.C. § 1030. Both Defendants argue the requisite "transmission" does not exist since a "transmission is not a code or command that originates and ends within a single computer." See NECEL's Motion for Summary Judgment [56] 16; see also Toshiba's Motion for Summary Judgment [58] 2. Plaintiffs respond that they "state a cause of action under 18 U.S.C. § 1030 by alleging in their First Amended Complaint that Defendants did in fact knowingly transmit and are still transmitting microcode or instructions contained in floppy disk controllers [FDC's], which microcode or instructions Defendants knew would cause the loss and corruption of data on computers used in interstate commerce." Plaintiffs' Response to Toshiba America Information Systems Inc.'s Motion for Partial Summary Judgment Regarding 18 U.S.C. § 1030 ("Plaintiffs' Response") [73] 6 (emphasis in original). How? "TAIS [Toshiba] still transmits the microcode in the laptop computers they sell every day. Each new sale of a Toshiba computer is a new knowing *933 transmission of this defective FDC code to another unsuspecting consumer."[13]Id. (emphasis in original). So, "for purposes of 18 U.S.C. § 1030, the issue is: `Who caused the transmission of the microcode at issue in this lawsuit from its author in Japan to each of the Toshiba laptop computers in the United States.'" Id. at 8 (emphasis in original). Well, under 18 U.S.C. § 1030(a)(5)(A) does a "transmission" of microcode have to be from one computer to another computer i.e., a "hacking" into another computer? Or may a "transmission" of microcode under 18 U.S.C. § 1030(a)(5)(A) be from the drafting of defective microcode and the subsequent sale of FDC's containing that microcode to consumersi.e., a marketing of FDC's allegedly made faulty by defective microcode?
First, this Court notes that to "transmit" means, in plain English, "to send or convey from one person or place to another ... to cause or allow to spread ... to convey (infection) abroad or to another." Webster's Collegiate Dictionary, 10th ed. (1993). This is a rather broad definition for it encompasses an inter-computer transfer of code (Defendants' argument), an intra-computer transfer of code (Defendants' initial interpretation of Plaintiffs' argument),[14] and a marketplace transfer of code (Plaintiffs' argument). That is, this definition of transmission would allow all three methods of "transmission" to potentially fall under Title 18 U.S.C. § 1030(a)(5)(A). However, merely opening the dictionary and quoting Webster would not follow the directives issued by the Supreme Court and the Fifth Circuit. The Supreme Court instructs this Court to define particular terms with reference to the specific context in which they are used. Robinson v. Shell Oil Co., 519 U.S. 337, 340-41, 117 S.Ct. 843, 846-47, 136 L.Ed.2d 808 (1997). Further, the Fifth Circuit directs this Court to look to the arrangement of certain terms within the statute as a guide to their meaning. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999).
Thankfully, two other courts have already looked Title 18 U.S.C. § 1030(a)(5)(A) square in the eyewith particular focus on defendants' attempts to define themselves out of the statute via narrow construction of the term "transmission." The first case was North Texas Preventative Imaging v. Eisenberg, 1996 WL 1359212 (C.D.Cal. August 19, 1996). Plaintiff North Texas Preventative Imaging, L.L.C. ("NTPI") is a Dallas-based provider of medical diagnostic imaging (i.e., CAT scans), a method of diagnosing coronary artery disease, cancer, osteoporosis, and other medical conditions. In order to assist its diagnostic imaging, NTPI bought a computer systemthe "Scribe system"from defendant Medical Diagnostic Imaging, Inc. ("MDI"), a California-based company in the software business. The Scribe system performs computer enhancement of medical images. Plaintiff NTPI was dissatisfied with the Scribe system; and it sent Defendant MDI a letter "canceling" its purchase of the Scribe system and demanding return of the $161,721.00 which had been "overpaid." Defendant MDI responded with a letter asking Plaintiff NTPI to enter into a new license agreement and noting that, if the new license were not executed, the software *934 (i.e., the Scribe system) would be disabled on January 31, 1996. When the software was initially installed, it contained no time restrictions or other disabling codes. However, Defendant MDI periodically sent Plaintiff NTPI "update disks" to keep the Scribe system current. In late 1995, Defendant MDI sent Plaintiff NTPI an "update" disk which, unbeknownst to Plaintiff NTPI, contained disabling codesspecifically, a "time bomb." "Disabling codes, or `time bombs,' are computer software codes which render a software program inoperable at a pre-set time and date." Id. This 1995 "update disk" loaded one of these time bombs onto Plaintiff NTPI's computer a time bomb set to go off January 31, 1996 and shut down the Scribe system. Before the time bomb went off, Plaintiff NTPI learned about its existence, complained to Defendant MDI, and secured an extension to the time bomb's clock. Then, Plaintiff NTPI sued Defendant MDI under various causes of actionone of which was a violation of Title 18 U.S.C. § 1030(a)(5)(A), the Computer Fraud and Abuse Act (the "CFAA").
Under a previous version of Title 18 U.S.C. § 1030(a)(5)(A)a version arguably more favorable to Defendants than the current version[15]the district court examined the legislative history and found:
By casting the net broadly to include many different "transmission" techniques, the 1994 amendment shifted the CFAA's focus from the act of unauthorized access to the intent of the defendant. The transmission of a disabling code by floppy computer disk may fall within the new language, if accompanied by the intent to cause harm.
Id. at *6. That is, the district court found "transmission" to include the development of destructive microcode in California, shipment of that destructive microcode via disk to a Dallas-based company, and down-loading of that destructive microcode from the disk onto the Dallas-based company's computer. Defendant MDI had not "hacked" into Plaintiff NTPI's computers and installed the time bomb. Rather, Defendant MDI surreptitiously included the time bomb in one its regular "update disks" that Plaintiff NTPI itself loaded onto its own computer. Thus, Title 18 U.S.C. § 1030's "transmission" included creation of destructive microcode in California, the shipment of that destructive microcode via computer disk to Texas, and the down-loading of that destructive microcode from the disk onto the computer in Texas.
The second case is Gomar Manf. Co. v. Novelli, C.A. No. 96-4000 (D.N.J. Jan. 28, 1998). In that case, the district court (like this Court) faced a motion for partial summary judgment on the plaintiff's claims under the Title 18 U.S.C. § 1030(a)(5)(A), the Computer Fraud and Abuse Act. In May of 1994, Plaintiff Gomar Manufacturing Company, Inc. ("Gomar") bought a computer-controlled laminating machine from Defendant Geometric Machine & Design, Inc. ("Geometric"). Things got a little sticky when Plaintiff Gomar started having some problems with Defendant Geometric's laminating machine, and Defendant Gomar started having some problems with Plaintiff Gomar's payments (namely not getting them). Gomar alleged that, prior to delivery of the machine, Geometric *935 surreptitiously loaded a "time bomb" onto the machine with a resettable trigger date which, if not continually advanced, would cause the laminating machine to malfunction. Gomar alleged that in November of 1995 the laminating machine now victim to the exploded time bombsuddenly and repeatedly failed. Plaintiff Gomar sued Defendant Geometric under various causes of actionone of which was a violation of Title 18 U.S.C. § 1030(a)(5)(A), the Computer Fraud and Abuse Act (the "CFAA").
Under a previous version of Title 18 U.S.C. § 1030(a)(5)(A)again a version arguably more favorable to Defendants[16] the district court examined the statutory language, the legislative history, and the North Preventative decision and found:
no basis for concluding that disabling codes in the commercial context, even to prevent unauthorized use, are generally exempt from the CFAA. Senator Leahy's comments suggest, as the court in North Texas [North Preventative] concluded, that undisclosed disabling codes such as the disabling code at issue here were intended to be covered by the Act. That reading of the legislative history is consistent with the plain language of the Act as amended in 1994 to impose liability for damaging transmissions made "without the authorization of the persons or entities who own or are responsible for the computer system receiving the program, information or code or command ..."
Gomar Manf. Co. v. Novelli, C.A. No. 96-4000 (D.N.J. Jan. 28, 1998).
That is, the district court found "transmission" to include Defendant Geometric's loading of destructive microcode onto a computer laminating machine prior to the shipment and delivery of that laminating machine to Plaintiff Gomar. Defendant Geometric had not "hacked" into Plaintiff Gomar's computer laminating machine and installed the destructive microcode. Rather, Defendant Geometric actually loaded the destructive microcode onto the machine prior to the shipment and delivery of that machine to Plaintiff Gomar. Thus, Title 18 U.S.C. § 1030's "transmission" included the shipment and delivery of pre-installed, destructive microcode, and the subsequent, automatic enablement of that pre-installed, destructive microcode.
First, this Court joins the North Preventative court in noting there are "very few cases which construe 18 U.S.C. § 1030 at all." North Texas Preventative Imaging v. Eisenberg, 1996 WL 1359212 (C.D.Cal. August 19, 1996). Second, it joins the North Preventative and Gomar courts in their interpretations of the term "transmission" within 18 U.S.C. § 1030. The North Preventative court held Title 18 U.S.C. § 1030's "transmission" included the creation of destructive microcode in California, the shipment of that destructive microcode via computer disk to Texas, and the down-loading of that destructive microcode from the disk onto the computer in Texas. The Gomar court held Title 18 U.S.C. § 1030's "transmission" included the creation of destructive microcode, the installation of that destructive microcode on a laminating machine prior to delivery, the shipment of pre-installed, destructive microcode contained within that laminating machine, and the subsequent, automatic enablement of that pre-installed, destructive microcode. In this case, Plaintiffs argue Title 18 U.S.C. § 1030's "transmission" includes the shipment of defective microcode subsequently contained within computer FDC's. This Court agrees. Both the North Preventative and Gomar courts refused to hog-tie the Computer Fraud and Abuse Act ("CFAA") (and, consequently, Congress) through unnecessarily narrow interpretations of "transmission."[17]*936 Now, so does this Court. Title 18 U.S.C. § 1030's "transmission" includes the design, manufacture, creation, distribution, sale, transmission, and marketing of floppy-diskette controllers ("FDC's") allegedly made faulty by defective microcode.
Toshiba argues Congress never intended the CFAA to reach manufacturers; rather, the CFAA is geared toward criminalizing computer "hacking." Setting the North Preventative and Gomar decisions aside, this Court does not see a blanket exemption for manufacturers in Title 18 U.S.C. § 1030; nor does it see the term "hacking" anywhere in this statute. Again, Subsection 1030(a)(5)(A) says:
Whoever ... knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer ... shall be punished in subsection (c) of this section.
Title 18 U.S.C. § 1030(a)(5)(A). First, Toshiba argues:
Plaintiff's interpretation ... removes the requirement that it be the "transmission" that results in damage. According to Plaintiffs, the statute is violated if a component containing a bug in the microcodewhich could cause "damage" to a computer no matter where the computer is locatedis transported from one location to another ... Presumably ... a component that is not placed into interstate commerce, but which contains a bug in the microcode, would not give rise to liability, because there has ostensibly been no "transmission" of the componenteven though the microcode could still "damage" the user's computer.
Defendant Toshiba America Information Systems, Inc.'s Reply to Plaintiffs' Response to TAIS' Motion for Partial Summary Judgment ("Toshiba's Reply") [73] 4. Not necessarily. Toshiba urges an all or nothing interpretation of "transmission" either transmission is wholly outside computers via marketplace transfer or wholly inside computers via inter-computer communication.[18] Well, if the requisite intent is there, why not both? "The principle of strict construction of criminal statutes does not mean that they must be given their narrowest possible meaning." Singer v. United States, 323 U.S. 338, 341-42, 42, 65 S.Ct. 282, 284, 89 L.Ed. 285 (1945) (citing United States v. Giles, 300 U.S. 41, 48, 57 S.Ct. 340, 344, 81 L.Ed. 493). Toshiba argues that had Congress intended *937 for a marketplace transfer to fall under "transmission," "it would have used more specific words such as `shipment' or `transport' in place of `transmission.'" Perhaps. But it seems more plausible that Congress, grappling with technology that literally changes every day, drafted a statute capable of encompassing a wide range of computer activity designed to damage computer systemsfrom computer hacking to time bombs to defective microcode. Next, Toshiba argues "Plaintiffs' reading is also incorrect because it would render meaningless subsection 1030(a)(5)'s use of the word `command' ... A `command' cannot be shipped or mailed from one location to another. If `transmission' means shipping or mailing, it would be impossible to transmit a `command.'" Id. Again, not necessarily. This argument, yet again, relies on an overly restrictive definition of "transmission." If the definition of "transmission" encompasses both a marketplace transfer and an electronic transfer of damaging microcode,[19] then it is indeed possible to "transmit" a command.[20]
2. Plaintiffs Have Standing.
Plaintiffs seek an injunction requiring Toshiba "to advise all potential purchasers that computers they have manufactured can corrupt and destroy data without warning ..." Plaintiffs' Second Amended Complaint [97] 13. Toshiba argues Plaintiffs do not have standing to seek this requested, injunctive relief. "[N]either of the two named Plaintiffs are `potential' purchasers; both have allegedly purchased computers manufactured by one or both of the defendants. As a result, Plaintiffs do not have standing to seek injunctive relief on behalf of `potential purchasers' of the defendants' computers." Toshiba's Motion for Summary Judgment [58] 21.
Plaintiffs respond that Title 18 U.S.C. § 1030(g) specifically authorizes their request for injunctive relief:
any person who suffers damage or loss by reason of a violation of the section ... may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief.
Title 18 U.S.C. § 1030(g) (emphasis added). But authorization for injunctive relief and standing to assert it are not one in the same. To bring a claim for injunctive relief, a plaintiff must "show that he `has sustained or is immediately in danger of sustaining some direct injury' as a result of the challenged ... conduct." Armstrong v. Turner Indus., Inc., 141 F.3d 554, 563 (5th Cir.1998) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983)). Moreover, "`[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 564, 112 S.Ct. 2130, 2138, 119 L.Ed.2d 351 (1992) (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 676, 38 L.Ed.2d 674 (1974)).
Here, Plaintiffs have both authority to seek injunctive relief and standing to assert it. First, Plaintiffs are presently in the pool of prospective purchasers of Defendants' personal computers. Apparently, Toshiba would have this Court hold Plaintiffs do not have standing to assert a *938 claim under Title 18 U.S.C. § 1030 as "potential purchasers" merely because they already purchased Defendants' computers. But Plaintiffs' proposed class includes "potential purchasers" for a very simple reason: had Plaintiffs' proposed class sought to include "current owners" of Toshiba computers, Defendants could simply argue Plaintiffs lack standing to seek the requested relief of notice since they already know about the allegedly defective FDC (for how else could they complain about the defect if they didn't already know about it?). To prevent this catch22, the proposed class includes "potential purchasers," and Plaintiffs are precisely that potential purchasers of Defendants' computers.[21] More important, Plaintiffs' exposure to the allegedly corrupted data from other Toshiba computers is ever present. Plaintiffs allege:
The damage caused by the FDC's faulty microcode would include an impairment of the integrity or availability of data, or information that impairs or potentially impairs the medical examination, diagnosis, treatment, or care of one or more individuals or threatens the public health or safety. When doctors cannot trust the medical data in their computers or the test results they receive from the lab; when engineers cannot depend on the data they use to design our bridges, skyscrapers, dams, and commercial airliners, Defendants pose a clear risk to public health and safety.
Plaintiffs' Response to Toshiba's Motion for Summary Judgment [73] 23. Toshiba is currently the number-one provider of laptop computers in the United States. Toshiba's dominance of the computer market, combined with the considerable penetration of the defective microcode into computers via the ubiquitous FDC's allegedly containing the defective microcode, ensures Plaintiffs' exposure to the effects of faulty data allegedly generated by Defendants' conduct. It is unnecessary for someone to lack a computer in order to be a "potential purchaser" of one. Similarly, it is not necessary for someone to actually own a defective computer in order to experience continuing, adverse effects from it.[22]
3. NECEL's Connection to the Plaintiffs Computer History 101.
NECEL joins Toshiba in arguing Title 18 U.S.C. § 1030's application reaches only computer "hackers" and not manufacturers; but it departs Toshiba in arguing "[t]here simply is no connection between Plaintiffs and NECEL on which to base liability." NECEL's Motion for Summary Judgment [56] 2 (emphasis in original). NECEL is a California corporation in the business of selling semiconductor devices manufactured by its parent corporation, NEC Corporation of Tokyo, Japan ("NECTOK"). NECEL has sold FDC's, but never to Toshiba or any Toshiba affiliate. NECEL has never designed an FDC; and, except for packaging, it has never manufactured an FDC. So what's NECEL doing in this lawsuit?
NECTOK first produced the (micro)PD765 FDC in 1978the dawn of the computer age. Apple, Commodore, and Tandy had just introduced the personal computer in 1977; and IBM would not enter the personal computer market for another three years. In December of 1986, NECTOK first became aware of the boundary-error problem within its (micro)PD765 FDCwhich by then included model numbers (micro)PD765A, (micro)PD765A-2, and 72065 (collectively referred to as the "A-version FDC's").[23] In *939 March 1987, NECTOK notified NECEL's largest customer, IBM, of the boundary-error problem and NECTOK's plan to fix it.[24] On October 2, 1987 NECTOK and its overseas affiliates notified all FDC customers of the boundary-error problem. They also posted notice on NECTOK's communications network and later on its website, , where it remains today in both Japanese and English. Then, in late 1987, NECTOK produced the "B-version" of the (micro)PD765 FDCa version which fixed the boundary-error problem experienced by the "A-version" FDC's. Volume production of the new "B-version" of the (micro)PD765 FDC ((micro)PD765B and 72065B) began in 1988. But some customers elected to continue using the "A-version" FDC's, understanding they needed to keep their systems within certain timing specifications to avoid the boundary-error problem still contained within their older, "A-version" FDC's driven by the defective microcode.[25]
In 1990 NECEL began marketing its latest "B-version" of NECTOK's FDC (embodied in the further improved (micro)PD72064) as multitasking[26] ready, whereas its imitators were not. In November 1990 NECEL launched a colorful "Multitasking Murder Mystery" advertising campaign that warned computer-system manufacturers that some "765-compatible" FDC's had a "killer bug" that could result in "Dastardly deeds done in disk drives." For customers moved by the ad, NECEL provided a diagnostic disk to test whether the FDC's they were using had the defective microcode and, consequently, were subject to the boundary-error problem. The solution, of course, was to switch to NEC's new FDC's which did not have the defective microcode and, consequently, were capable of taking on the challenges of multitasking. The advertising campaign ended in November of 1991; and NECEL sold its last batch of "Aversion" FDC's in 1993, when it sold two hundred and thirty (230) pieces. Today, NECEL makes only semiconductors containing the "B-version" FDC's. As for the older "A-version" FDC's, NECEL merely keeps a few, old parts to provide replacements to customers who continued to use the "A-version" FDC's despite the boundary-error problem. So, it seems like NECEL should not be in this lawsuit. So it seems ...
NECEL's 765 FDC's were immensely popular in the 1980's; and NECEL suspected many companies, like Toshiba, were copying the NECTOK (micro)PD765 FDC. So, in 1985 NECTOK accused Toshiba of illegally copying its (micro)PD765 FDC; of course, Toshiba denied this allegation. But in 1986 NECTOK and Toshiba executed an agreement settling their dispute. This agreement provided that neither would sue or assert its patent, copyright, or maskwork rights against the other's FDC's specified in the agreement.[27] Under this "antipirating-type agreement," Toshiba agreed to pay NECTOK an eight percent (8%) royalty on its internal and external sales of specified FDC's. Later, in *940 1989, the parties amended the agreement to include Toshiba's newer FDC's and provided a royalty of seven percent (7%) for Toshiba's newer FDC's and semiconductors based on the accused, pirated core. Of course, as NECTOK's chips were allegedly "pirated" by Toshiba, NECEL did not provide any FDC designs to Toshiba; nor did NECEL review or approve any Toshiba designs; nor did NECEL test any FDC's for Toshiba; nor did NECEL permit Toshiba to put the NEC name on any Toshiba products or authorize Toshiba to represent that its FDC's were "NEC-compatible" or "765-compatible."
So, is there a connection between NECEL and the Plaintiffs? Yes, there is. At this point it's necessary to return to the statute at issue in this litigation Title 18 U.S.C. § 1030. This is a criminal statute. "It is a general principle of causation in criminal law that an individual (with the necessary intent) may be held liable if he is a cause in fact of the criminal violation, even though the result which the law condemns is achieved through the actions of innocent intermediaries." United States v. Kelner, 534 F.2d 1020, 1022 (2nd Cir.), cert. denied, 429 U.S. 1022, 97 S.Ct. 639, 50 L.Ed.2d 623 (1976) (citing United States v. Giles, 300 U.S. 41, 48-49, 57 S.Ct. 340, 344, 81 L.Ed. 493, 497-98 (1937); United States v. Scandifia, 390 F.2d 244, 249 (2nd Cir.1968), vacated on other grounds sub. nom., Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969); King v. United States, 364 F.2d 235, 238 (5th Cir.1966) ("There are, of course, many instances in which violations of the law are brought about by one who intentionally causes another to unwittingly perform the prohibited act.")). An intervening act, tortious or criminal, will insulate a defendant from liability only when the defendant could not have reasonably anticipated the subsequent act. Cullen v. BMW of North America, Inc., 691 F.2d 1097, 1101 (2nd Cir.1982), cert. denied, 460 U.S. 1070, 103 S.Ct. 1525, 75 L.Ed.2d 948, (1983); accord United States v. Sneed, 63 F.3d 381 (5th Cir.1995).
NECEL seeks exclusion from this lawsuit because it never designed, manufactured, or owned any intellectual property rights to any FDC design. Well that's a red herring. The issue in this case is not the transmission of FDC's it's the transmission of defective microcode subsequently contained within the FDC's. NECEL's incredible success with its "A-version" FDC'sFDC's containing the allegedly defective microcodeapparently spawned copy-cat versions themselves containing the defective microcode. Indeed, the "anti-pirating" agreement between NECTOK and Toshiba fosters the continued transmission of the defective microcode to this very day. Apparently, NECTOK and, most likely, NECEL have profited and continue to profit from the royalties earned from the NECTOK-Toshiba "anti-pirating" agreement. Regardless whether NECTOK and NECEL profited from the sale of FDC's allegedly containing the defective microcode, it seems most plausible that NECTOK and NECEL could have foreseen the transmission of the defective microcode via the marketplace transfer of FDC's containing the very same, defective microcode NECTOK had just claimed was "illegally copied" from it by Toshiba.[28] So NECEL did not provide any FDC designs to Toshiba; so NECEL did not review or approve any Toshiba designs; so NECEL *941 did not test any FDC's for Toshiba; so NECEL did not permit Toshiba to put the NEC name on any Toshiba products or authorize Toshiba to represent that its FDC's were "NEC-compatible" or "765-compatible." So what. NECTOK and NECEL could have foreseen the transmission of the defective microcode via the marketplace transfer of FDC's containing the very same, defective microcode NECTOK had just claimed was "illegally copied" from it by Toshiba. The fact that an intermediaryToshiba (be it innocent or not)was used to allegedly violate Title 18 U.S.C. § 1030 does not relieve NECEL from liability since it could have reasonably anticipated the subsequent transmission of the defective microcode.[29]
4. Conclusion
First, NECEL's and Toshiba's motions endorse an overly restrictive view of Title 18 U.S.C. § 1030's "transmission." "Transmission" includes the design, manufacture, creation, distribution, sale, transmission, and marketing of floppy-diskette controllers ("FDC's") allegedly made faulty by defective microcode. Setting the North Preventative and Gomar decisions aside, this Court refuses to hog-tie Title 18 U.S.C. § 1030and, consequently, Congress with overly restrictive, statutory interpretations generated by semantic parsing designed to inject technicalities where none exist. Further, Toshiba's motion reflects a misunderstanding of the standing requirement for the facts presented. Toshiba's dominance of the computer market, combined with the considerable penetration of the allegedly defective microcode into these computers via the FDC's, ensures Plaintiffs' exposure to the effects of faulty data allegedly generated by Defendants' conductregardless whether Plaintiffs currently own one of Defendants' computers, are thinking about buying one of Toshiba's computers, or are commuting to work over a bridge with design specifications tainted by allegedly faulty FDC's misguided by the defective microcode. Finally, NECEL's argument that there is "no connection" between it and the Plaintiffs is simply incorrect. NECEL marketed defective microcode which its parent, NECTOK, generated. According to NECEL, Toshiba "illegally copied" this defective microcode and incorporated it into its FDC's. As a result of the popularity of its "A-version" FDC's, NECTOK executed a royalty agreement which actually rewarded NECTOK and, quite possibly, NECEL for the transmission of the allegedly faulty microcodealbeit under the guise of the Toshiba name. Even if NECEL did not profit from this royalty agreement, it most likely benefitted from Toshiba's decreased sales hampered by the sale of computers with defective microcode *942 initially generated by NECTOK, marketed by NECEL, and then "fixed" by NECTOK's "B-version" FDC's marketed by NECEL as correcting a problem that, in reality, NECTOK had created and NECEL had marketed.
For these reasons, this Court DENIES the Motion by NEC Electronics, Inc. for Summary Judgment on Plaintiffs' Claims Under 18 U.S.C. § 1030 [56] and Defendant Toshiba America Information Systems, Inc.'s Motion for Partial Summary Judgment on 18 U.S.C. and Brief in Support [58].
It is SO ORDERED.
NOTES
[1] A byte is an eight-bit segment of data. In typical computer usage, it usually represents one character, such as "A" or "z" or "7."
[2] So, the competition between a CD and a defective FDC for the DMA can cause the defective FDC to zero-out data.
[3] On the same day NECEL filed its Motion by NEC Electronics, Inc. for Summary Judgment on Plaintiffs' Claims for Breach of Contract, Breach of Warranty, and Revocation of Acceptance [55]. This Court addresses NECEL's Motion by NEC Electronics, Inc. for Summary Judgment on Plaintiffs' Claims for Breach of Contract, Breach of Warranty, and Revocation of Acceptance [55] in a separate order.
[4] The arguments presented by NECEL and Toshiba overlap considerably, but not completely. For example, both NECEL and Toshiba argue Plaintiffs fail to meet Title 18 U.S.C. § 1030's requisite transmission since the statute was only intended to reach computer "hackers." However, Toshiba individually argues Plaintiffs do not have standing to seek their requested, injunctive relief; while NECEL individually argues there is "no connection" between it and the Plaintiffs.
[5] A standing mis-understanding, if you will.
[6] This particular statute was actually born in 1984 as the "Counterfeit Access Device and Computer Fraud and Abuse Act of 1984." Pub.L. No. 98-473, 98 Stat. 2190. Prior to 1984, Congress relied on the mail and wire-fraud statutes to combat computer crime. However, the mail and wire-fraud statutes were often incapable of combating computer crime that did not involve interstate commerce. Thus, Congress enacted Title 18 U.S.C. § 1030; and it amended it in 1986, 1988, 1989, 1990, 1994, and 1996.
[7] As Toshiba points out, there simply are no allegations in Plaintiffs' Original Class Complaint [1] to support the violation of any other subsection of § 1030. Subsections 1030(a)(1) through 1030(a)(4) do not apply because each requires Defendants to have knowingly or intentionally "accessed" a computer without authorization (or exceeding the scope of authorization) and obtained sensitive information. Title 18 U.S.C. § 1030(a)(1)-(4). Moreover, there is no allegation that Defendants improperly obtained the specific types of information protected by subsections 1030(a)(1) through 1030(a)(4). Id. Subsection 1030(a)(6) does not apply because there are no allegations that Defendants intended to "traffic[ ] ... in any password or similar information through which a computer may be accessed without authorization." Id. Finally, subsection 1030(a)(7) does not apply because there are no allegations that Defendants intended to "extort ... any money or other thing of value" and subsequently transmitted "any communication containing any threat to cause damage to a protected computer." Id. This leaves subsection 1030(a)(5) and there are allegations to support the violation of this subsection.
[8] "Damage" is the "any impairment to the integrity or availability of data, a program, a system, or information ..." that causes an aggregate loss of five thousand dollars ($5,000.00) in a one-year period. Title 18 U.S.C. § 1030(e)(8).
[9] A "protected computer" includes a computer "which is used in interstate or foreign commerce or communication." Title 18 U.S.C. § 1030(e)(2)(B).
[10] Obviously, everyone concedes Title 18 U.S.C. § 1030 creates a private right of action. The dispute lies in whether Defendants' activity falls under this statutenot whether a private right of action actually exists under it.
[11] Incidentally, for purposes of this summary judgment motion, NECEL concedes the existence of the boundary-error problem. See NECEL's Motion for Summary Judgment [56] 3 ("... for purposes of this summary judgment motion, it [NECEL] will concede an `overrun' detection bug or defect.").
[12] All parties submitted exceptional briefs.
[13] It is noteworthy that Defendants interpret "transmission" narrowlywith particular emphasis on the technicalities of computer programming. On the other hand, Plaintiffs interpret "transmission" more broadlywith particular emphasis on the pragmatics of applying the statute to defendants' activity.
[14] Apparently, Defendants first read Plaintiffs' allegations as the requisite "transmission" occurring within a single computer as the defective microcode communicated with the FDC, which, in turn, improperly communicated to the attached device (i.e., the floppy disk). Subsequent briefing by Plaintiffs clarified that the requisite "transmission" encompassed the transmission of the defective microcode itself.
[15] In 1994 Title 18 U.S.C. § 1030(a)(5)(A) read:
[Whoever] through means of a computer used in interstate commerce or communications knowingly causes the transmission of a program, information, code, or command to a computer or computer system ... [commits an offense if other conditions are met]
Title 18 U.S.C. § 1030(a)(5)(A) (1994 version) (emphasis added). In 1996 Congress amended subsection 1030(a)(5)(A) by deleting the qualifying phrase "through means of a computer used in interstate commerce or communications." Although this Court finds the statute unambiguous and an examination of the legislative history improper, it notes in passing that Congress' deletion of this qualifying phrase arguably removed the need for computer-to-computer "transmission."
[16] See supra., fn. 15.
[17] Again, although the statute is unambiguous and examination of the legislative history is improper, it notes in passing that Congress considered the fluid nature of computer crime and the difficulty in drafting a rigid law capable of catching all defendants with technical ingenuity and the requisite intent. In the 1989 subcommittee hearings, Senator Leahy noted "hidden programs can destroy and alter data." The Impact of Computer Viruses and other Forms of Computer Sabotage and Exploitation on Computer Information Systems and Networks: Hearing Before the Subcommittee on Technology and the Law of the Committee on the Judiciary, 101st Cong. (1989), at 1. He remarked: "You know, this is an area that changes all the time. Answers we have today may well be different a year or so from now. The questions, I am sure, will be different." 1989 Hearings, at 12. Senator Leahy continued:
On the day that we pass a law, we are, in effect, taking a snapshot of what we know that day.
But however we draw it, somebody is going to sit down and say, well, look, I am just going to create a variation not covered by the statute. I am not sure all of us, putting our best minds together, could come up with every variation on a law that might get enacted some time this year to cover some new variation next year.
1989 Hearings, at 34.
[18] For example, Defendants argue a computer that contains destructive microcode could avoid having "transmitted" the microcode if the computer is never shipped in interstate commerce. Aside from the fact that this hypothetical computer necessarily moved in interstate commerce prior to the transmission of the damaging microcode, the emphasis should be on the transmission of the destructive microcodenot the physical location of the computer that contains it. If the destructive microcode is transmitted to or from that computer by a defendant with the requisite intent, then such activity would properly fall under the statute regardless whether the defendant actually put the computer in his car and drove it up and down the interstate highway across state lines.
[19] Toshiba alternatively argues that even if a code or command within a single computer constitutes a "transmission," the FDC's allegedly "failed to send code or commands to other components ... [and][a] `transmission' is not a failure to send a particular code or command." Id. Again, the emphasis should be on the transmission of the damaging microcode, whether it be in the form of a floppy disk loaded with destructive microcode, a laminating machine loaded with destructive microcode, or FDC's loaded with destructive microcode. The reason the FDC "failed" to send code to other components is because defective microcode was allegedly authored in Japan and transmitted to computers in the United States.
[20] And lo, the hog is set free.
[21] It goes without saying (or maybe not) that Plaintiffs, although current owners of Defendants' computers, may indeed be future purchasers of other computers containing FDC's allegedly infected with the defective microcode.
[22] If the nay-sayers and army surplus vendors are right, just wait until Y2K to see this proposition proven true with a vengeance.
[23] NECEL calls the boundary-error problem an "overrun detection defect or bug." See NECEL's Motion for Summary Judgment [56] 3. For simplicity, this Court will continue to refer to the defect as a "boundary-error problem." See supra, pp. 928-29.
[24] Why IBM? The boundary-error problem was particularly important to IBM since it was working on the OS/2 operating systema system capable of multi-tasking and, consequently, increasing the possibility for the boundary-error problem to occur. See supra, p. 929.
[25] Specifically, customers continuing to use the defective "A-version" FDC's needed to keep their systems' data request ("DRQ") data acknowledgment ("DACK") signals strictly within the NEC timing specifications. The NEC User's Manuals for the (micro)PD765A/765B and (micro)PD765/72065B explained the boundary-error problem in the "A-version" FDC's and cautioned customers to stay within NEC's timing specifications.
[26] See supra, p. 929.
[27] Plaintiffs' counsel, Mr. Hubert Oxford, accurately described the NECTOK-Toshiba agreement as a "you won't sue me for using these chips, an antipirating-type agreement." Transcript of June 24, 1999 Hearing on Objections to Initial Disclosures at p. 31, ll. 14-15.
[28] How convenient for NECTOK to create, and NECEL to market, the "A-version" FDC's with defective microcode, have those FDC's copied by competitors, and enter into antipirating-type agreements to actually get paid for competitors using defective microcode that NECTOK and NECEL created and marketed. How even more convenient for NECTOK and NECEL to detect the boundary-error problem, correct it with its new "B-version" FDC's, and market these new "FDC's as correcting the `competitors'" boundary-error problem amplified by the development of multitaskinga boundary-error problem that NECTOK and NECEL created, marketed, and passed on to its competitors. All of sudden the "Multitasking Murder Mystery" is not such a mystery after all.
[29] Indeed, not only could NECEL have anticipated the subsequent transmission of the defective microcode, it had proof-positive that transmission had occurred. How's that? The only way NECTOK and NECEL could get royalty checks from Toshiba would be for the sale of FDC'sFDC's that allegedly contained the "illegally-copied," defective microcode created by NECTOK and marketed by NECEL. In a way, Toshiba actually paid NECTOK and NECEL to transmit defective microcode. NECEL argues it would not intentionally market this defective microcode since, to do so, would be "suicide" in the computer market. Well, as NECEL points out, it was Toshiba's name plastered all over the FDC's allegedly containing the defective microcode. NECEL, in the business of selling laptop computers, wants to sell more of those laptop computers. If Toshiba's (and other competitors') sale of computers falls due to a reputation damaged by concern over FDC's allegedly made faulty by defective microcode (defective microcode created and passed on by NECTOK and NECEL, nonetheless), then NECEL gets to sell that many more laptop computers, all while touting the superiority of its "B-version" FDC's in light of the inferior "A-version" FDC's which, although created by NECTOK and marketed by NECEL, have the Toshiba name plastered all over it. Certainly, the White Star Line would have happily painted "Carnival Cruise Lines" all over the Titanic had it known the ship's rudder was too small, there were too few lifeboats, and the captain was going to speed in the dark of night through the Atlantic shipping lane which, at that time, was an impassable slalom course of icebergs.
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176 S.W.3d 407 (2004)
Stevie Aaron PETRO, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-03-00820-CR.
Court of Appeals of Texas, First District, Houston.
October 14, 2004.
Discretionary Review Refused March 16, 2005.
*408 Kurt B. Wentz, Houston, TX, for Appellant.
Dan McCrory, Asst. Dist. Atty., Charles A. Rosenthal, Jr., Dist. Atty.-Harris County, Houston, TX, for Appellee.
Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
OPINION
ELSA ALCALA, Justice.
Appellant, Stevie Aaron Petro, pleaded not guilty to aggravated robbery. A jury found appellant guilty and sentenced him to confinement for five years in prison and a fine of $2000. In two issues, appellant contends that the evidence is legally and factually insufficient to sustain his conviction. We affirm.
Background
On November 7, 2002, at approximately 9:00 p.m., as Geraldine Ukegby and Grace Bassey walked to their car parked at an apartment complex in southwest Houston, appellant pointed a gun at Ukegby's head and demanded her purse. When Ukegby gave appellant her purse, he and an accomplice fled. Ukegby and Bassey drove their car around the apartment complex until they encountered a peace officer in his patrol car and reported the robbery to him. Because the peace officer was at the complex for an unrelated matter, he directed the women to wait in their car while he attempted to summon another officer to the scene to assist them. The women parked their car behind the officer's patrol car. After waiting about 30 minutes for another peace officer to arrive, the women saw appellant walking through the apartment complex and notified the peace officer. The officer took appellant to the patrol car, where both women identified him as the robber. The officers searched the area and never found the gun used in the robbery, Ukegby's purse, or the man who accompanied appellant during the robbery. At appellant's trial, both women identified appellant in court as the armed gunman who took Ukegby's purse.
Sufficiency of the Evidence
Appellant's two issues challenge the legal and factual sufficiency of the evidence to support his conviction for aggravated robbery.
A person commits aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. TEX. PEN.CODE. ANN. § 29.03(a)(2) (Vernon 2003). A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Id. § 29.02(a)(2). "In the course of committing theft" means conduct that occurs in an attempt to commit theft, during the commission of theft, or in immediate *409 flight after the commission of theft. Id. § 29.01(1). A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of the property. Id. § 31.03(a).
In assessing legal sufficiency, we determine whether, based on all of the record evidence, viewed in the light most favorable to the verdict, a rational jury could have found the accused guilty of all of the essential elements of the offense beyond a reasonable doubt.[1]Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App.2003). In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993).
In a factual sufficiency review, we view all the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817-18 (Tex.Crim.App. 2004).[2] In conducting a factual-sufficiency review, we must discuss the evidence that appellant asserts is most important in allegedly undermining the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). In conducting the factual sufficiency review, we must also employ appropriate deference to the factfinder so that we do not substitute our judgment for that of the fact finder. Zuniga v. State, 144 S.W.3d 477, 481-82 (Tex.Crim.App. 2004). Unless the available record clearly reveals a different result is appropriate, an appellate court conducting a factual sufficiency review must defer to the factfinder's determination concerning the weight given contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App.2000).
Appellant's legal and factual sufficiency complaints concern his identification as the perpetrator of the aggravated robbery.[3] He contends that the women's identifications of him are not sufficiently reliable to be legally or factually sufficient to support his conviction. Appellant makes eight *410 challenges to the women's identifications of him.[4]
1. Lack of Physical Evidence
Appellant suggests that the evidence is insufficient to support his guilt because no physical evidence supports the women's identifications of him. Appellant points to the undisputed facts in the record, which show that neither the gun used to commit the robbery nor any of the fruits of the crime were found in appellant's possession or were subject to his control after his arrest.
A reasonable jury could have rationally determined that the 30-minute time lapse between the time of the offense and the time of appellant's arrest allowed appellant sufficient time to dispose of any physical evidence that may have connected him to the offense. Given the circumstances presented here, which include the women's positive identifications of appellant, the jury could reasonably have concluded, that the absence of physical evidence to connect appellant with the offense was immaterial. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex.Crim.App.1971) (holding that testimony of eyewitness alone sufficient to support jury's verdict); see also Johnson v. State, 176 S.W.3d 74, 78, 2004 WL 1472064, at *3 (Tex.App.-Houston [1st Dist.] July 1, 2004, no pet. h.) (designated for publication) (holding that differences in witness testimony and lack of physical evidence are factors for jury to consider in weighing evidence).
2. Descriptions of Robber's Height
Appellant contends that the evidence to support his conviction is insufficient because the two women described the robber's height differently. The record contains conflicting evidence concerning the robber's height. Bassey testified the robber was about five feet and four inches tall, but Ukegby testified the robber was five feet and ten inches tall. Ukegby's description of the robber's height, however, is consistent with the description of appellant's height given by Officer Boutte, the officer who transported appellant to the police station on the night of the robbery. Despite the inaccuracy of Bassey's estimation of appellant's height, Bassey testified that she got a good look at appellant while he committed the robbery and she was "positively sure" of her identification of him. The jury could have reasonably determined that the discrepancy in Bassey's description of the robber's height was minor when considered with the certainty of her identification of appellant. See Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App.1978) (concluding that four-inch discrepancy in description of robber's height compared to defendant's actual height and discrepancy in description of his hair length was minor discrepancy when considered with all evidence).
3. Lack of Hood on Appellant's Jacket
Appellant contends that the evidence is inconsistent because the women described the robber as wearing a jacket with a hood, but appellant's jacket did not have a hood. The undisputed record shows that when appellant was arrested, he was wearing a black, hooded sweatshirt underneath a black outer jacket that did not have a hood. Additionally, although the officer testified that appellant's jacket did not have a hood, the officer said appellant "had a hood on him." Whether the hood was on the sweatshirt or on the jacket, the undisputed evidence shows that appellant wore clothing with a hood on it. A reasonable *411 jury could have rationally concluded that the women's clothing description was sufficiently similar to the officer's description of appellant's clothing to be reliable. We defer to the jury the weight to give any contradictory testimonial evidence concerning appellant's attire under these circumstances because the resolution of the issue turns on an evaluation of credibility and demeanor of the witnesses at trial. See Johnson, 23 S.W.3d at 8.
4. Description of Word on Robber's Jacket
Appellant contends that neither woman reported to the officer that the robber's jacket had the word "cowboy" written on the back of it and that the women did not mention that description until after appellant's jacket was shown to them at trial. The record shows, however, that the officer testified that he could not recall whether or not the women reported that the robber's jacket had the word "cowboy" on the back. At trial, both Ukegby and Bassey identified appellant's jacket as the same jacket worn by the robber. Appellant's complaint is, in essence, an assertion that the women's testimony is unbelievable because their trial testimony changed to conform to the physical evidence. Under these circumstances, we defer to the determination of the jurors, who heard the women testify, concerning what weight to give allegedly contradictory testimony, because resolution of contradictions necessarily turns on evaluation of credibility and demeanor. See Johnson, 23 S.W.3d at 8.
5. Descriptions of Robber's Voice
Appellant contends that the women's identification of him as the robber cannot be accurate because their descriptions of his voice differ. Ukegby testified that the robber's voice was "deep," while Bassey testified that his voice was "medium-heavy" and "medium, not too deep." Although the women used different adjectives to describe the robber's voice, both women recognized and identified appellant's voice as that of the robber's. What weight to give the differing descriptions of the robber's voice is a matter best left to the jury because resolution turns on evaluation of credibility and demeanor. Id. Under the circumstances presented here, a reasonable jury could have rationally found that the descriptions of the robber's voice were consistent with the appellant's.
6. Failure to Identify Appellant Immediately in Court
Because Ukegby did not immediately identify appellant in court when she was asked to identify him, appellant maintains the evidence is insufficient to establish his identity as the robber. The record shows the following dialog:
State's attorney: Ms. Ukegby, I'm going to ask you, do you see the person that robbed you that night here in the courtroom?
Witness: No.
State's attorney: Okay. So you cannot identify anyone in the courtroom as to who robbed you?
Witness: No.
State's attorney: If you can't, that's fine. I just need to know.
Witness: That's him right there (indicating).
The cold record offers no explanation concerning the reasons for the delay in Ukegby's identification. The jury, however, was present to observe the circumstances of Ukegby's in court identification, and was therefore in the best position to assess the weight and credibility of the identification. Under these circumstances, we will not disturb that identification on appeal. See id.
*412 7. Descriptions of Direction of Robber's Gun
Appellant contends that the evidence supporting his conviction is insufficient because Ukegby testified that the gun was pointed at her head, but Bassey testified that the gun was pointed at Ukegby's neck. The undisputed evidence shows that the gun was pointed above Ukeby's shoulders. The weight to give any discrepancy concerning whether the gun was pointed at the complainant's head or neck is a matter best resolved by the jury based on their evaluation of the witnesses' credibility and demeanor. See id.
8. Circumstances of Identification of Appellant at Scene
Appellant argues that neither woman faced appellant directly while identifying him when he was detained in the backseat of the patrol car on the night of the robbery. According to the record, both women stood on the side of the patrol car while identifying the detained appellant. Complainant was "a hundred percent" sure and her companion was "positively sure" of their identification of appellant at the scene of the robbery. Whether the women directly faced appellant or not at the scene, the record shows they were positive about their identification of appellant as the robber. Because the jury's resolution turned on evaluation of credibility and demeanor of the witnesses at trial, we defer to the jury assessment of the weight to give appellant's identification at the scene. See Johnson, 23 S.W.3d at 8.
Summary
The jury heard both women testify that appellant pointed a gun at Ukegby and demanded her purse. Both women remembered and recognized appellant's face and voice as those of the robber. Appellant's arrest occurred near the area of the robbery within 30 minutes of the offense, after a sufficient length of time for him to have disposed of any physical evidence linking him to the crime. Any discrepancies in the descriptions of the robber's clothing and physical characteristics, and any discrepancies in the manner of the witnesses' in-court and out-of-court identifications are matters best left for the jury's evaluation of the credibility and demeanor of the witnesses who appeared before them. See id.
Viewing all of the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that appellant robbed Ukegby with a firearm. We conclude that the evidence is legally sufficient to prove the essential elements of the offense of aggravated robbery beyond a reasonable doubt. See Swearingen, 101 S.W.3d at 95.
After viewing the evidence in a neutral light, we conclude that the evidence supporting the verdict is not too weak to support the finding of guilt beyond a reasonable doubt and that the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met. See Escamilla, 143 S.W.3d at 817-18. Therefore, the jury was rationally justified in finding appellant guilty of aggravated robbery beyond a reasonable doubt. See id. We conclude that the evidence is factually sufficient to prove the essential elements of the offense of aggravated robbery beyond a reasonable doubt. See Johnson, 176 S.W.3d at 78, 2004 WL 1472064, at *3 (holding testimony sufficient to support conviction for aggravated robbery because conflicting testimony concerning perpetrator's identity and lack of physical evidence were factors for jury to consider in weighing evidence).
We overrule appellant's two issues.
*413 Conclusion
We affirm the judgment of the trial court.
NOTES
[1] Appellant asserts that we should apply the Texas Supreme Court's legal-sufficiency analysis used in In re J.F.C., 96 S.W.3d 256 (Tex.2002), and in In re C.H. 89 S.W.3d 17 (Tex.2002). We reject this argument and apply the well-established criminal standard of legal sufficiency review. See Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App.2003).
[2] We again reject appellant's assertion that we should apply the Texas Supreme Court's factual sufficiency analysis used in In re J.F.C., 96 S.W.3d 256 (Tex.2002), and in In re C.H. 89 S.W.3d 17 (Tex.2002). We apply the criminal factual sufficiency standard of review, as recently restated by the Court of Criminal Appeals in Escamilla v. State, 143 S.W.3d at 817-18 (Tex.Crim.App. 2004).
[3] Appellant also claims that the evidence is insufficient because he resided at the apartment complex and cooperated with peace officers when he was arrested, and because others were present at the apartment complex that night. Appellant claims it would be illogical for him to walk past complainant as she sat in the car after the robbery if he had just robbed her minutes earlier. These circumstances, which show that appellant lived nearby the location of the offense, cooperated with authorities, and behaved illogically, and that others were present at the apartment complex, are all circumstances properly left to the jury in its assessment of the credibility of the evidence and the weight to give the testimony concerning appellant's guilt. See Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App.2000).
[4] The first four challenges pertain to appellant's challenges to the legal and factual sufficiency of the evidence, but the latter four challenges concern only his factual sufficiency complaint.
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United States Court of Appeals
For the First Circuit
No. 07-2134
UNITED STATES OF AMERICA,
Appellee,
v.
YNOCENCIO GONZÁLEZ-CASTILLO,
a/k/a Freddy Mora, a/k/a Freddy Correa,
a/k/a Ynocencio González,
Defendant, Appellant.
ERRATA SHEET
The opinion of this Court issued on April 9, 2009, is amended
as follows:
On p. 2, line 19: Replace "2005" with "2004"
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NO. 07-05-0282-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JULY 25, 2007
______________________________
JARED DANIEL LITTRELL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 181
ST
DISTRICT COURT OF POTTER COUNTY;
NO. 50,983-B; HON. JOHN BOARD, PRESIDING
_______________________________
Memorandum Opinion
________________________________
Before QUINN, C.J., HANCOCK, J., and BOYD, S.J.
(footnote: 1)
Jared Daniel Littrell appeals his convictions for murder, aggravated robbery, and unlawful possession of a firearm by a felon. Through five issues, he contends that 1) the evidence was legally and factually insufficient to support any of the convictions, 2) the convictions violated his right to be free of double jeopardy, 3) the trial court erred in admitting evidence of an extraneous offense, and 4) the trial judge should have recused himself. We affirm the judgment.
Background
On the night of November 9, 2003, Eric Seuss picked up Kissy Stiger, a prostitute, on Amarillo Boulevard and took her to his motel room at the Executive Inn in Amarillo where they engaged in sex. Seuss then drove Kissy back to the Inn of Amarillo. After using cocaine with one of her friends, Kissy went looking for another customer. She encountered her friend Anthony Gilbreath, and they agreed to obtain more drugs after he retrieved his car. While waiting on Gilbreath, appellant, who was driving a loud, older two-toned Chevy pickup truck with a hood ornament of a bulldog, approached Kissy and asked where he could obtain cocaine. Kissy entered the truck, and the two proceeded to drive away. While doing so, they passed Gilbreath and stopped so he too could get in. Around that time, Kissy noticed that appellant had a small gun that fit into the palm of his hand. Kissy, appellant, and Gilbreath drove around town making several purchases of cocaine. Thereafter, appellant asked if there was anyone they could “jack” or rob. Kissy told him of Seuss who she knew had a large amount of money. They then drove to the Executive Inn to accost him.
According to the record, appellant and Kissy climbed the stairs to Seuss’ room, at which point Kissy tried to persuade Seuss to open the door. Thereafter, appellant forced his way into the room and began to fight with Seuss. During the brawl, Kissy grabbed Seuss’ wallet, ran from the room, and left the area. Eventually, appellant attempted to flee as well. As he did, Seuss followed. At that point, a gunshot rang out, a .22 caliber bullet struck Seuss in the abdomen, and he fell down a set of stairs outside his room. Appellant then ran to his truck and left. The wound suffered by Seuss proved fatal.
One or more of the hotel guests heard an argument between several men and a woman shortly before the shooting. So too did one or more hear the shooting and see Kissy and a white man wearing a hood flee. The hooded man was also seen entering a two-toned Chevy pickup, which truck had a bulldog ornament on it much like that of appellant’s. And, while none of the bystanders testified that they saw a gun, appellant was known to own a .22 caliber handgun small enough to fit within the palm of his hand. Kissy and Gilbreath saw appellant with it shortly before the shooting while others saw appellant with it days earlier.
Sufficiency of the Evidence
Appellant questions the legal and factual sufficiency of the evidence supporting his conviction. His focus lies upon the accomplice witness rule and the circumstantial nature of the case. Simply put, he believes that the only evidence of his guilt was provided by accomplices, and there existed no independent evidence sufficient to corroborate that accomplice testimony. We overrule the points.
It is true that a defendant cannot be convicted upon the testimony of an accomplice unless it is corroborated by other evidence.
Tex. Code Crim. Proc. Ann.
art. 38.14 (Vernon 2005). In assessing whether this rule was satisfied, we eliminate the accomplice testimony from consideration and examine the record to see if any evidence
tends
to connect the defendant to the commission of the offense.
Solomon v. State,
49 S.W.3d 356, 361 (Tex. Crim. App. 2001). More importantly, the evidence need not directly link the defendant to the crime or establish his guilt beyond a reasonable doubt.
McDuff v. State,
939 S.W.2d 607, 613 (Tex. Crim. App. 1997). It need only tend to connect him to it.
Irrespective of whether Kissy or Gilbreath were appellant’s accomplices, sufficient independent evidence exists that tends to connect appellant to the crime. It consists of third parties seeing 1) appellant’s two-toned pickup truck with its unique bulldog ornament in the motel parking lot whereat Seuss was shot, 2) Seuss at the top of the stairwell facing his assailant who was at the bottom of the stairwell facing Seuss when the shots were fired, 3) the assailant enter appellant’s vehicle and drive away after the shooting, and 4) appellant with a small .22 caliber handgun several weeks before the shooting. To this, we add the evidence that Seuss was shot with a .22 caliber firearm. Combined, the sum tends to connect appellant to the robbery and shooting, and because it does, the purported accomplice testimony was indeed corroborated and susceptible to consideration by the jury.
Next, upon consideration of the accomplice testimony, we find evidence illustrating that 1) appellant asked Kissy and Gilbreath if they knew anyone they could rob, 2) appellant journeyed with Gilbreath and Kissy to Seuss’ motel room once a robbery plan was concocted, 3) appellant had a small handgun that fit within his palm, 4) appellant forcibly entered Seuss’ motel room and fought with Seuss while Kissy took Seuss’ wallet and left, 5) appellant was the only member of the group present when the gun play erupted, 6) Seuss was shot with a bullet of the caliber emitted from appellant’s handgun, and appellant fled the scene. Collectively, the evidence is both legally and factually sufficient to support appellant’s convictions for murder, aggravated robbery, and unlawfully possessing a firearm under the standards pronounced in
Jackson v. Virginia,
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),
Watson v. State,
204 S.W.3d 404 (Tex. Crim. App. 2006),
Zuliani v. State,
97 S.W.3d 589 (Tex. Crim. App. 2003), and
King v. State,
29 S.W.3d 556 (Tex. Crim. App. 2000).
Double Jeopardy
Next, appellant argues that his conviction for murder required proof of an aggravated robbery, and, therefore, his conviction for aggravated robbery violated principles of double jeopardy. He also contends that since possession of a firearm by a felon is a lesser-included offense of aggravated robbery, his conviction for it similarly violated concepts of double jeopardy. We overrule the issue.
With regard to the greater/lesser-included offense issue, we note that the authority cited by appellant,
e.g., Ex parte Rodriguez
, 600 S.W.2d 835 (Tex. Crim. App. 1980) and
Ex parte Harris
, 583 S.W.2d 419 (Tex. Crim. App. 1979), dealt with convictions arising from separate causes or proceedings. Since that time, the Court of Criminal Appeals has held that the same double jeopardy concerns do not arise when the multiple offenses are tried in one cause.
Cervantes v. State,
815 S.W.2d 569, 573-74 (Tex. Crim. App. 1991). The
Cervantes
court stated that double jeopardy was not necessarily implicated merely because the State was required to prove aggravated robbery in order to prove attempted capital murder.
Id.
at 574. All depends upon whether each offense has an element different from the other.
Id.
at 573. And, that exists here.
To prove aggravated robbery as alleged in the indictment, the State had to prove, among other things, the commission of a theft coupled with aggravating circumstances; such was not required to prove either murder or a felon in possession of a firearm. To prove murder, the State had to establish that an act of appellant caused Seuss’ death; that element is missing in both the crimes of aggravated assault and a felon possessing a firearm. Finally, in establishing the latter crime, the State had to prove appellant was a felon, and that is not an element of either murder or aggravated robbery. So, the test espoused in
Cervantes
was met and no problems with double jeopardy arose.
Finally, the United States Supreme Court authorities cited by appellant are also inapposite. They either dealt with succeeding prosecutions,
Harris v. Oklahoma
, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) and
Illinois v. Vitale
, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), or the levying of consecutive sentences.
Whalen v. United States
, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). Neither circumstance was involved here.
Extraneous Offense
Appellant next complains of the admission into evidence of the testimony of Billy and Jessica Cain which showed that he had been in the possession of a small handgun shortly before the murder of Seuss. He contends the evidence is not relevant to whether he possessed a handgun on November 9 or 10. We overrule the issue.
As previously discussed
, the evidence of appellant’s prior sightings with a .22 caliber handgun was used to corroborate the testimony of the accomplice witnesses. Evidence of extraneous offenses is admissible for that purpose.
Lawton v. State,
913 S.W.2d 542, 553 n.9 (Tex. Crim. App. 1995),
overruled on other grounds by Mosley v. State,
983 S.W.2d 249 (Tex. Crim. App. 1998);
Hernandez v. State,
52 S.W.3d 268, 282 (Tex. App. – Corpus Christi 2001, no pet.). Moreover, because no eyewitnesses other than those who appellant deemed to be accomplices identified appellant as the assailant, circumstantial evidence like that at issue here was necessary to tie him to the offense. Finally, a great amount of time was not spent in developing the evidence in dispute. Thus, we conclude that the trial court’s decision did not evince an instance of abused discretion when tested against the indicia discussed in
Montgomery v. State
, 810 S.W.2d 372 (Tex. Crim. App. 1991).
Recusal of Judge
Finally, appellant claims the trial judge should have recused himself because he made statements that indicated he was prejudiced against appellant. Apparently those statements consisted of its “failure to charge the jury concerning Gilbreath’s status as an accomplice witness” and comment that the sentences “should run ‘stacked.’” Yet, how those comments evinced any bias or prejudice or otherwise disqualified the trial judge went undeveloped; thus we consider them insufficiently briefed.
See Billy v. State,
77 S.W.3d 427, 429 (Tex. App.–Dallas 2002, pet. ref’d) (requiring the appellant to provide substantive analysis). We further note that at least with regard to the allusion to stacking the sentences, appellant concedes that he was not harmed. Finally, we note that he did not request any relief or argue that he was entitled to any. Given these circumstances, we overrule the issue.
Having overruled each issue, we affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Do not publish.
FOOTNOTES
1:John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2006).
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830 F.2d 1130
U.S.v.Perez***
NO. 87-5108
United States Court of Appeals,Eleventh Circuit.
SEP 16, 1987
1
Appeal From: S.D.Fla.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 23
**
Local Rule: 36 case
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NO. 07-01-0104-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JUNE 28, 2001
______________________________
CHERYL MCFALL, APPELLANT
V.
D-J INVESTMENTS, D/B/A CORONADO SHOPPING CENTER,
PAMPA, TEXAS, APPELLEE
_________________________________
FROM THE COUNTY COURT OF GRAY COUNTY;
NO. 4133; HONORABLE RICHARD PEET, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Appellant Cheryl McFall brings this appeal from a judgment entered against her for unpaid rent, utility charges, and other fees owed under a lease agreement. For the reasons expressed, we dismiss the appeal.
The order giving rise to this appeal was entered on January 25, 2001. The clerk’s record was thereafter filed with this court on March 22, 2001, and the docketing statement indicates there is no reporter’s record. That being so, appellant’s brief was due to be filed on April 23, 2001. Tex. R. App. P. 38.6(a). To date, neither a brief nor a motion for extension of time has been filed.
On June 7, 2001, this court notified appellant that if she did not file a response by June 19, 2001, reasonably explaining her failure to file a brief together with a showing that appellee has not been significantly injured due to such failure, the appeal would be subject to dismissal for want of prosecution. Tex. R. App. P. 38.8(a)(1). We have received no response.
Accordingly, the appeal is hereby dismissed.
John T. Boyd
Chief Justice
Do not publish.
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254 Cal.App.2d 102 (1967)
62 Cal. Rptr. 274
WILLIAM LLOYD SHAKIN, M.D., Plaintiff and Appellant,
v.
BOARD OF MEDICAL EXAMINERS, Defendant and Respondent.
Docket No. 30951.
Court of Appeals of California, Second District, Division One.
September 5, 1967.
*105 Marks & Schneider and Burton Marks for Plaintiff and Appellant.
Thomas C. Lynch, Attorney General, and Henry Lewin, Deputy Attorney General, for Defendant and Respondent.
FOURT, J.
This is an appeal from a judgment denying Doctor William Shakin's petition for a writ of mandate directing the Board of Medical Examiners of the State of California (hereinafter sometimes referred to as the Board) to vacate and annul its order revoking the doctor's license to practice medicine and surgery in the State of California and to reinstate said license.
On January 29, 1965, an accusation was filed by the executive secretary of the Board charging appellant with unprofessional conduct as grounds for disciplinary action. The accusation, in substance, charged the doctor with (a) conviction of a felony, the violation of a state statute regulating narcotics; (b) using narcotics and dangerous drugs regulated by statute to the extent and in such manner as to be dangerous to himself and to the public; (c) selling similar narcotics, without making a record of the sales, to a male addict who was not a patient and did not receive them in the regular course of the doctor's practice; (d) prescribing, furnishing and administering to himself morphine, a narcotic drug regulated by statute.
The doctor filed a notice of defense, requesting a hearing, and on March 2, 1965, he appeared without counsel before the Board and a hearing officer. Because it appeared that the doctor had misunderstood the nature of the proceeding and his right to counsel, the Board, after hearing both oral and documentary evidence in support of the charges, voted to continue the matter and to assign the case to a hearing officer. Accordingly, on June 28, 1965, a new hearing was held before a different hearing officer, and on that occasion the doctor appeared in person and with counsel. On or about July 8, 1965, the hearing officer filed with the Board his proposed decision, which the Board, on July 23, 1965, adopted as its decision to become effective on August 23, 1965. That decision provided that "The certificate to practice medicine and surgery in the State of California heretofore issued to respondent William Lloyd Shakin, M.D. is hereby revoked on each cause for disciplinary action established."
*106 On August 23, 1965, the doctor filed in the Los Angeles Superior Court a petition for writ of mandate (Code Civ. Proc., § 1094.5) to compel the reinstatement of his license and on January 28, 1966, filed an amendment to his petition adding a second cause of action and raising for the first time the affirmative defense of entrapment. At the hearing on March 25, 1966, the court admitted into evidence the transcripts and exhibits of the administrative hearings but denied appellant's motion to reopen the case and to present additional evidence on entrapment. On May 27, 1966, the court rendered its order and memorandum of decision denying appellant's petition and on August 16, 1966, rendered its judgment, including findings of fact and conclusions of law.
Appellant makes numerous contentions. He first claims that the trial court erred in finding the administrative proceedings regular in the light of the following alleged defects: (a) the administrative hearing did not conform to Administrative Procedure Act requirements (Gov. Code, § 11517); (b) appellant was denied due process because he had no opportunity to present, and the Board wilfully suppressed, evidence of entrapment; (c) appellant was denied the right to cross-examine the officer who filed the police report and testified at the March 2d hearing; (d) the Board based its decision on ex parte evidence, i.e., the officer's testimony at the March 2d hearing; (e) appellant's extrajudicial admissions were used as the basis of the Board's decision in violation of his constitutional rights; and (f) appellant's admissions were allowed to prove the corpus delicti of certain charges. In addition, appellant contends that it was error for the trial court to refuse to receive evidence of entrapment, that the court's findings of fact were unsupported by competent evidence, and that the court should have remanded the case to the Board for reconsideration of the penalty. Each of appellant's contentions is without merit.
At his first hearing on March 2, 1965, appellant appeared in person and without counsel before the Board in open session. At that time he was advised that he had the right to have an attorney, to cross-examine any witnesses called to testify against him, and to offer evidence on his own behalf. In support of the charge concerning the doctor's earlier narcotics conviction, a certified copy of the judgment, the probation officer's report, and psychiatric evaluations by two doctors were received in evidence. With respect to the charge that *107 appellant sold and did not record the sales of narcotics to an addict, the testimony of Officer Booth Shaw was received. He testified, in substance, that he met the doctor in Gardena and they then discussed their use of narcotics; at the officer's request appellant on several occasions thereafter sold him narcotics. He further testified in some detail to conversations in which appellant had related facts concerning his own use of drugs. Following this testimony appellant requested a continance to obtain an attorney on the grounds that he had not understood that evidence would be presented to prove the charge of self-use of narcotics and dangerous drugs. He made no attempt to cross-examine the witness. Although appellant subsequently withdrew his request, the Board voted to continue the matter and assign it to a hearing officer.
On June 28, 1965, the second hearing was held before a hearing officer of the Office of Administrative Procedure, appellant appearing with counsel. At that time counsel for appellant entered a stipulation with the Board whereby the doctor admitted as true his conviction of the felony sale of narcotics; his personal use of narcotics and dangerous drugs for a one-year period ending on or about August 1962; that on or about January 1964, he did self-prescribe and administer morphine and Demerol; and that he sold narcotics to an addict outside the regular conduct of his profession and without making records of such sales. Following the acceptance of this stipulation the Board's attorney rested, reserving the right to call appellant to the stand.
The doctor then introduced the testimony of a psychiatrist who originally had been contacted to render an opinion with respect to appellant's probation and sentence hearing in superior court following his narcotics conviction. The psychiatrist testified that appellant regularly had used large doses of narcotics since the age of 17, but that he believed appellant had taken none since the latter part of 1964. At this hearing a probation officer also testified, based upon his report, that appellant's problem was principally medical rather than criminal.
Appellant, who testified in his own behalf, said that he received his D.O. degree from the College of Osteopathic Physicians and Surgeons in Los Angeles in 1956 and in 1962 received his M.D. degree because of the amalgamation of these disciplines under the law. After a one-year internship, he opened his own office where he practiced until August 1962. He separated from his wife in late 1961 and thereafter *108 sought psychiatric help because his personality was disintegrating and he was taking many vacations from his practice. He had begun to take narcotics on his own prescription to enhance his sexual relations with his wife, and he continued this practice while he was under psychiatric treatment. Finally, he became a patient in a mental hospital and a conservator was appointed for his estate who closed his office, collected his disability insurance and made support payments therefrom to his wife and two children. Although his license, which had been suspended during his illness, was restored in September 1963, he had lost his incentive and lived as a recluse in an apartment in Hollywood until approximately November 1964, without resuming the practice of medicine. He spent his time gambling in Gardena card parlors, and when he ran out of money he spent his time in the bowling alley where he met Officer Shaw.
Appellant first sold narcotics to Officer Shaw because he was completely broke and needed the money for daily living. Although he admitted that to dispense narcotics to an addict or a former addict is not good medical practice, he sold narcotics to Officer Shaw, believing him to be a former addict who was cured and wanted narcotics for his addicted wife. He also occasionally self-administered narcotics, however, and he admitted recognizing similar hypodermic marks on the arms and hands of Officer Shaw which would indicate that he might be a current user. Confronted with statements he purportedly made to Officer Shaw concerning his own use of narcotic drugs, appellant testified in self-defense that he had told the officer many untrue facts because he wished to appear to be "one of the boys" in order to avoid suspicion in the course of his sales of drugs. Although appellant denied he was ever addicted to narcotics, he admitted that he had a drug problem. His practice of medicine, which he resumed on November 15, 1964, disintegrated once more when he was forced to file a petition in bankruptcy on May 18, 1965.
[1] Appellant's contention that the Board held a "hybrid hearing" not specifically sanctioned by section 11517 of the Government Code and thus violating the Administrative Procedure Act cannot be sustained. The Board acted in appellant's best interests when it abandoned the March 2d hearing after appellant, who appeared without counsel, offered to stipulate to the facts alleged in the accusation in lieu of Officer Shaw's testimony, requested a continuance to retain counsel when the stipulation was rejected, later withdrew his *109 request, and finally confessed that he had understood that no evidence regarding his use of narcotics would be considered by the Board. Concerned about appellant's misunderstanding, the Board terminated the hearing and had the case assigned to a hearing officer. A review of the entire record discloses that neither appellant nor the counsel he subsequently retained objected to this proceeding and both sides assumed that the hearing on June 28th constituted an entirely new and de novo hearing rather than one continued merely for the purpose of taking additional evidence. Therefore, outcome of the hearing was clearly controlled by section 11517, subdivision (b), of the Government Code[1] which allows the Board to adopt the proposed decision prepared by the hearing officer and based solely upon evidence adduced before him.
[2] Appellant next contends that he never received an opportunity to introduce evidence concerning the issue of entrapment and that the Board wilfully suppressed evidence tending to disclose entrapment, in violation of appellant's constitutional rights. At no time did appellant avail himself of the right to cross-examine Officer Shaw; this he interprets as a deprivation of his rights by the Board out of its fear that such cross-examination might reveal entrapment. In view of the fact that the March 2d hearing was terminated because appellant's conduct disclosed his misapprehensions, and the further circumstance that appellant was willing to stipulate to the truth of the accusation and was unprepared to introduce or, at any rate, at no time offered any evidence on entrapment, he may not now be heard to argue that he was deprived of the opportunity. The Board had no affirmative duty to raise the issue itself, especially since the application of this doctrine to the field of administrative law remains in doubt. (Harris v. Alcoholic Beverage Control Appeals Board, 245 Cal. App.2d 919, 924 [54 Cal. Rptr. 346]; United Liquors v. Department of Alcoholic Beverage Control, 218 Cal. App.2d 450, 454 [32 Cal. Rptr. 603].)
Moreover, appellant's counsel at the June 28th hearing took pains to avoid the introduction of testimony by Officer Shaw. *110 He stipulated to the truth of the accusation without hearing Officer Shaw testify; and when the Board's attorney rested, appellants' counsel attempted to avoid having the doctor testify in his own behalf without assurance that Officer Shaw would not be called as a witness in rebuttal, a risk he nonetheless was ultimately forced to take. The record is clear that Officer Shaw was present and available to testify at the June 28th hearing had appellant wished to call him for direct or cross-examination.
[3] Appellant contends that the Board rendered its decision on ex parte evidence since it retained the memory of the officer's testimony introduced at the earlier hearing. The Board, however, adopted the hearing officer's proposed decision in its entirety; that decision rested completely upon the evidence adduced at the June 28 de novo hearing. The hearing officer was not present at the earlier hearing and no resort to ex parte evidence of any sort occurred, as the trial court properly found.
[4] Appellant further contends that the Board's findings of unprofessional conduct were based, in part, on the extrajudicial statements made by appellant to Officer Shaw concerning his own use of narcotics. This contention cannot be sustained since appellant, through his counsel, at the June 28 hearing stipulated to the truth of the accusation, freely and voluntarily, and he therefore is bound by his stipulation. The "corpus delicti" of the accusation was not, as appellant claims, proved by his extrajudicial statements, and even if it were this circumstance would not demand reversal because an administrative hearing to revoke or suspend a professional license is not a criminal procedure or governed by criminal legal precedents. (Webster v. Board of Dental Examiners, 17 Cal.2d 534, 537-538 [10 P.2d 992]; Murphy v. Board of Medical Examiners, 75 Cal. App.2d 161, 166-167 [170 P.2d 510].) The admissions of a party may, therefore, be relied upon in the absence of independent evidence to support the Board's findings and decision with respect to charges of unprofessional conduct. (Hansen v. Civil Service Board, 147 Cal. App.2d 732, 738 [305 P.2d 1012].)
Also appellant unjustifiably attacks the trial court's ruling in declining to accept evidence of entrapment, its findings, and its decision to deny the petition without remanding the case for modification of the penalty.
[5] In order for the petitioner to be entitled to introduce additional evidence for the court's consideration in a mandamus *111 proceeding it must appear that he could not, in the exercise of reasonable diligence, have obtained and introduced such evidence to the Board or that it was improperly excluded at the hearing. (Schoenen v. Board of Medical Examiners, 245 Cal. App.2d 909, 913-914 [54 Cal. Rptr. 364].) Appellant offered no evidence of entrapment at the time of the criminal proceeding against him and at neither administrative hearing did he undertake the opportunity to introduce the issue. Since it cannot, thus, be claimed that such evidence was improperly excluded, the sole issue is whether reasonable diligence was used to obtain and assert it. Evidence of entrapment must by its nature exist at the time the alleged misconduct took place; yet appellant after four opportunities (his criminal trial, two administrative hearings, and original mandamus petition) failed to assert the issue. The defense was raised for the first and only time in an amendment to appellant's petition for mandamus. Appellant's tardy claim is not only suspect at this time, but clearly inappropriate at this late date and the trial court properly rejected it. "`It was never contemplated that a party to an administrative hearing should withhold any defense then available to him or make only a perfunctory or "skeleton" showing in the hearing and thereafter obtain an unlimited trial de novo, on expanded issues, in the reviewing court. [Citation.] The rule compelling a party to present all legitimate issues before the administrative tribunal is required in order to preserve the integrity of the proceedings before that body and to endow them with a dignity beyond that of a mere shadow-play. Had [appellant] desired to avail [himself] of the asserted [defense], [he] should have done so in the administrative forum, where the commissioner could have prepared his case, alert to the need of resisting this defense, and the hearing officer might have made appropriate findings thereon.'" (Harris v. Alcoholic Beverage etc. Appeals Board, 197 Cal. App.2d 182, 187 [17 Cal. Rptr. 167].)
Appellant attacks the trial court's findings that the grounds of the accusation were true, a fact to which appellant stipulated. He also claims his narcotics conviction has not become final and the matter is still pending on appeal. In fact, appellant filed no notice of appeal and his motion to set aside his conviction and guilty plea, which is merely a collateral attack on the judgment, was ultimately denied after consideration by the trial, appellate and Supreme Courts of California. His conviction has been final since the time for appeal *112 clapsed, well before the Board properly rendered its decision to revoke his license. (Bus. & Prof. Code, § 2383.)
[6] Finally, the trial court affirmed the Board's decision in its entirety and that decision revoked appellant's license "on each cause for disciplinary action established." Thus, even if the court had vacated one or more, but not all counts, appellant would not be entitled thereby to have his license reinstated, or to have the matter remanded to the Board for further consideration of the penalty. "`When an administrative tribunal after considering several charges against a licentiate makes a separate finding and imposes a specific sanction for each offense, the accused, in a mandate proceeding, is not entitled to have the cause sent back to the administrative agency for reconsideration of the penalty because the court vacates the administrative order as to some accusations, as would be the case if the penalty imposed had been based on collective rather than separate findings.'" (Randle v. California State Board of Pharmacy, 240 Cal. App.2d 254, 262 [49 Cal. Rptr. 485]; Mast v. State Board of Optometry, 139 Cal. App.2d 78, 91-93 [293 P.2d 148]; Caro v. Savage, 201 Cal. App.2d 530, 544 [20 Cal. Rptr. 286].)
[7] Appellant is not entitled to a reconsideration of the penalty imposed by the Board on any ground. The hearing officer, as found by the trial court, "considered all relevant evidence presented at the administrative hearing on June 28, 1965, and properly considered, weighed and summarized said evidence in his proposed decision to the Board; it is not true that the hearing officer arbitrarily, capriciously or in any other respect failed to consider and set forth in his proposed decision any relevant mitigatory evidence presented at the administration hearing on June 28, 1965." The court found further that the Board "in revoking petitioner's physician's and surgeon's certificate, acted reasonably and its action did not constitute an abuse of discretion." On this basis the conduct of the Board is deemed justifiable and appropriate.
"In determining whether there has been an abuse of discretion the Supreme Court of this state has stated that `if reasonable minds might differ as to the propriety of the penalty imposed, this fact serves to fortify the conclusion that the ... [administrative body] acted within the area of its discretion.' [Citations.] It is equally well settled that in reviewing the penalty imposed by an administrative body which is duly constituted to announce and enforce such penalties, neither a trial court nor an appellate court is free to substitute its own *113 discretion as to the matter; nor can the reviewing court interfere with the imposition of a penalty by an administrative tribunal because in the court's own evaluation of the circumstances the penalty appears to be too harsh. [Citation.] Such interference, in the light of the foregoing authorities, will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion." (Brown v. Gordon, 240 Cal. App.2d 659, 667 [49 Cal. Rptr. 901].)
Respondent filed its brief in this case on July 13, 1967. Thereafter, some 29 days later appellant filed what is denominated a reply brief wherein he "submits the following for the consideration of the court," that the Administrative Procedure Act (Gov. Code, § 11500 et seq.) is unconstitutional as applied to Doctor Shakin. There is no merit to such assertion. The act is consitutional. Appellant then refers to rule 40 of section 6068 of the Business and Professions Code. There is no such numbered rule under such numbered section. Further, appellant asserts that section 1094.5, Code of Civil Procedure, is unconstitutional as applied to the facts of this case. This assertion also lacks merit. The act as here applied is constitutional.
We note that counsel for appellant has raised these points in his reply brief for the first time and perhaps they should not be considered for obvious reasons of fairness. (See Richard v. Richard, 123 Cal. App.2d 900, 903 [267 P.2d 867]; Crowder v. Lyle, 225 Cal. App.2d 439, 450 [37 Cal. Rptr. 343]; Duncanson-Harrelson Co. v. Travelers Indem. Co., 209 Cal. App.2d 62, 70 [25 Cal. Rptr. 718].) However we have answered his assertions and disposed of the contentions.
Counsel for appellant filed a notice of motion to disqualify the judges of this court from hearing the appeal. There is set forth in a footnote the chronology of events, filings and rulings pertinent to this phase of the case.[2]
*114 We hold that the documents filed by counsel in his efforts to disqualify this court were not timely filed, were not in proper form and in all events were legally insufficient.
Section 170 of the Code of Civil Procedure deals with the disqualification of judges. That section in part provides, in effect, that whenever a judge shall have knowledge of facts *115 which disqualify him to act in any proceeding, it shall be his duty to declare the same in open court and steps shall be taken to have another judge hear the matter. Further, it is therein provided that "[w]henever a judge of a court of record who shall be disqualified under the provisions of this section, to sit or act as such in any action or proceeding pending before him, neglects or fails to declare his disqualification in the manner hereinbefore provided, any party to such action or proceeding who has appeared therein may present to the court and file with the clerk a written statement objecting to the hearing of such matter or the trial of any issue of fact or law in such action or proceeding before such judge, and setting forth the fact or facts constituting the ground of the disqualification of such judge." (Italics added.) Further, that "[t]he statement of a party objecting to the judge on the ground of his disqualification, shall be presented at the earliest practicable opportunity, after his appearance and discovery of the facts constituting the ground ..." (Italics added.)
[8] There are several reasons for the striking of the declaration and the supplemental declaration in the present case. First, they were not presented at "the earliest practicable opportunity." It was known by Doctor Shakin and his counsel for over a year (since August 1966) that this division of the court was to hear the petitions for the writ of supersedeas and the appeal. The membership of this division of the court is presently constituted as it was at the time the proceedings were lodged in this court. Had counsel any intention of attempting to disqualify this court, he should have instituted or caused to be instituted proper disqualification proceedings many months before August 11, 1967, and not waited until eleven days before the matter was calendared to be heard on oral argument.
[9] It is obvious that timeliness is extremely important, otherwise the sections of the law with reference to disqualifying judges might, on occasions, be abused by dishonest litigants or unscrupulous lawyers. In other words, it would create an intolerable situation to permit an attorney or a party who knew, or claimed to know of disqualifying facts, deliberately to withhold the making of a disqualification statement until he knew that the filing of such a statement would disrupt the orderly processes of a court. Too, if disqualification is not urged at the earliest practicable opportunity, there is a waiver of such alleged disqualification. (Sacramento etc. *116 Drainage Dist. v. Jarvis, 51 Cal.2d 799, 801-802 [336 P.2d 530].)
[10] "The bias and prejudice which must be shown in order to disqualify a judge under section 170 of the Code of Civil Procedure is bias and prejudice against the party moving for disqualification." (Italics added.) (People ex rel. Dept. of Public Works v. McCullough, 100 Cal. App.2d 101, 110 [223 P.2d 37].) There is no declaration or statement by Doctor Shakin in this case in other words, Doctor Shakin, the party plaintiff in this cause, has made no claim of bias or prejudice upon the part of any member of this court. It is his counsel who complains or declares in part, to the effect that the court has decided matters, in which he, the attorney, was not involved, in a manner not to his liking. This shows so little basis for claiming personal bias or prejudice against Doctor Shakin as to justify the conclusion that the charge of disqualification is sham and frivolous. (See Bompensiero v. Superior Court, 44 Cal.2d 178, 183 [281 P.2d 250]; People v. Sweet, 19 Cal. App.2d 392, 396 [65 P.2d 899]; Evans v. Superior Court, 107 Cal. App. 372, 379-380 [290 P. 662]; Kreling v. Superior Court, 63 Cal. App.2d 353, 362 [146 P.2d 935].)
It is true that this court on three separate occasions denied petitions for a stay of the judgment. In the first declaration (filed August 11, 1967) counsel sets forth that the denials of the petitions were within the discretion of this court and nowhere does he indicate that the court abused that discretion in denying such petitions. He disagreed with the determinations this court made, and sought a hearing in the Supreme Court where such a hearing was denied. [11] Even had this court's denials of a stay been faulty, it would make no difference under the circumstances of this case. "Erroneous rulings against a litigant, even when numerous and continuous, form no ground for a charge of bias and prejudice, especially when they are subject to review on appeal." (Kreling v. Superior Court, 63 Cal. App.2d 353, 359 [146 P.2d 935].) "Nor are a judge's expressions of opinion, uttered in what he conceives to be the discharge of his judicial duty, evidence of bias or prejudice." (McEwen v. Occidental Life Ins. Co., 172 Cal. 6, 11 [155 P. 86].) "[A] wrong opinion on the law of a case does not disqualify a judge, nor is it any evidence of bias or prejudice.... Where a judge is mistaken as to questions of law, a litigant cannot substitute for his remedy by appeal, proceedings for the disqualification of a judge for alleged bias *117 and prejudice." (Ryan v. Welte, 87 Cal. App.2d 888, 893 [198 P.2d 351].)
Counsel seems to assert that because this court ruled adversely to his petitions for supersedeas, it necessarily and at that time decided the merits of the case on appeal against his client (this regardless of the fact that the briefs on appeal were not even on file). This court did not pass upon the merits of the judgment under appeal in determining whether to grant or deny supersedeas. In Estate of Dabney, 37 Cal.2d 402, 406-407 [232 P.2d 481], it is appropriately stated: "The correctness of the decision of the trial court (at least when it is not apparent on the face of the record, and it is not so apparent here) is not involved in a supersedeas proceeding; it `is not the function of such a writ to reverse, supersede or impair the force of, or pass on the merits of the judgment or order from which the appeal is taken; the validity of such judgment or order is to be reviewed on the appeal therefrom. [Citations.] Its purpose is merely to suspend the enforcement of the judgment pending the appeal.'" [12] Even though some determinations were made at the times this court passed upon the various petitions, such is permissible to the extent that it is necessary under the circumstances. However, any determinations made in a supersedeas proceeding do not preclude a re-examination of such matters upon the final argument to whatever extent their re-examination may appear to be justified. (Orange County Water Dist. v. City of Riverside, 171 Cal. App.2d 518, 523 [340 P.2d 1036].) In any event the decisions in the supersedeas proceedings are not determinative of the appeal. (Guardianship of Walters, 37 Cal.2d 239, 252 [231 P.2d 473].)
Further, the declarations with which we are concerned do not state facts as contemplated in the statutes. Bias and prejudice are never implied and must be established by clear averments.
The court in Calhoun v. Superior Court, 51 Cal.2d 257, 260 [331 P.2d 648], succinctly stated the requirements under the law as follows: "Section 170 of the Code of Civil Procedure requires a verified statement showing facts, not conclusions, from which the claimed disqualification appears to be probable, that is, from which facts the disqualification appears to follow as a conclusion of law. Furthermore, the stated facts must make the bias appear probable as to the issue or issues to be tried."
This court said in Agnew v. Contractors Safety Assn., 216 *118 Cal. App.2d 154, 159 [30 Cal. Rptr. 690] (hearing denied): "`... section 170 requires the affidavit of bias and prejudice to set forth "the fact or facts constituting the ground of the disqualification of such [the trial] judge." A statement that contains nothing but conclusions and sets forth no facts constituting a ground of disqualification may be ignored or stricken from the files by the trial judge. [Citations.] Where the statement is insufficient the judge can so determine, whereupon the procedure provided by section 170 is not applicable. [Citation.] "Where no facts are set forth in the statement there is no issue of fact to be determined. It is only where an appropriate issue of fact is presented by the statement that a judge is prevented from passing on the question of his own disqualification under section 170." [Citation.]'" (See also People v. Sweeney, 55 Cal.2d 27, 35 [9 Cal. Rptr. 793, 357 P.2d 1049].)
[13] In other words, where the statement is legally insufficient the judge may ignore it or strike it from the files. (Ensher, Alexander & Barsoom v. Ensher, 225 Cal. App.2d 318, 323 [37 Cal. Rptr. 327]; Neblett v. Pacific Mut. Life Ins. Co., 22 Cal.2d 393, 401 [139 P.2d 934]; Fishbaugh v. Fishbaugh, 15 Cal.2d 445, 457 [101 P.2d 1084]; People ex rel. Dept. of Public Works v. McCullough, 100 Cal. App.2d 101, 109 [223 P.2d 37]; People v. Hooper, 16 Cal. App.2d 704, 708 [61 P.2d 370]; Ephraim v. Superior Court, 42 Cal. App.2d 578 [109 P.2d 378]; People v. Nolan, 126 Cal. App. 623 [14 P.2d 880].) There being no facts stated in the declarations in this case, we elected to strike the same from the files.
Counsel for appellant also stated, in effect, that he believes there is antipathy between the court and himself to the extent that no client of his can receive an impartial declaration of rights or of the law when he appears in this court. What was said in Higgins v. City of San Diego, 126 Cal. 303, at page 313 [58 P. 824, 50 P. 670], is appropriate: "The judges might, without just provocation, have thought the attorneys guilty of contempt and might have said so, but we cannot say that for this reason they would be disposed to bear down upon the attorneys' client or unduly favor the city. Nor can we so far impeach the sense of fairness and justice which it is presumed rests in the conscience of every judge as to say that, because the attorney has incorporated distasteful and even scandalous matter in a brief reflecting upon the judge, therefore the judge would punish the offense by mulcting the innocent client. If we must presume bias and prejudice toward the *119 client because of ill-feeling toward the attorney, it would establish a dangerous rule by which the attorney, through his own fault, could have his case transferred to another judge by quarreling with the court. We prefer to believe that a judge may, with or without cause, cordially dislike and even distrust an attorney, and yet be capable of doing exact justice toward his client."
In any event, there is no antipathy between any member of this court and counsel.
The judgment is affirmed.
Wood, P.J., and Lillie, J., concurred.
A petition for a rehearing was denied October 4, 1967, and appellant's petition for a hearing by the Supreme Court was denied November 1, 1967.
NOTES
[1] Government Code, section 11517, subdivision (b), provides:
"(b) If a contested case is heard by a hearing officer alone, he shall prepare a proposed decision in such form that it may be adopted as the decision in the case. A copy of the proposed decision shall be filed by the agency as a public record and a copy of the proposed decision shall be served by the agency on each party in the case and his attorney. The agency itself may adopt the proposed decision in its entirety, or may reduce the proposed penalty and adopt the balance of the proposed decision."
[2] 1966
August 24 Filed an application for a stay order in the nature of a
petition for a writ of supersedeas.
August 26 Answer filed to the petition for the writ by respondents.
August 29 This court denied the writ (Wood, P.J., McCoy and Fourt).
September 2 Appellant requested this court to grant a stay pending a
review of its order of August 29, 1966 by the Supreme Court.
September 2 Application denied (Wood, P.J., and McCoy).
October 7 Appellant petitioned for a hearing before the Supreme Court.
October 14 Appellant's petition to the Supreme Court denied.
October 21 Appellant made new application for a stay order.
October 24 Petition denied (Fourt, Acting P.J., Lillie, McCoy).
1967
March 27 Clerk's and reporter's transcript in the matter of the appeal
filed with court.
March 28 Counsel for appellant wrote a letter to this court requesting,
in effect, that the cause be transferred to some other
division of the court for the reason, in part, that the
petition for the writ of supersedeas had been denied by the
court and by such denial "a decision was reached on the merits,
at least in part. . . ."
June 12 Appellant filed his opening brief.
July 11 Appellant made a third application for a stay.
July 13 Respondent filed its brief.
July 20 The application for a stay was denied by the court (Wood, P.J.,
Lillie, McCoy).
August 11 Appellant filed reply brief.
August 11 Appellant's counsel filed a notice of motion to disqualify
judges of Division One from further hearing any matter
concerned with the appeal, the motion to be heard on August 22,
1967 (regular calendar date). Notice accompanied by declaration
of counsel (not Shakin) to the effect that (1) since the court
on three occasions rejected the application for a stay it is
indicated thereby that the court has already passed upon the
merits of the bill, and (2) further that it is the opinion of
counsel from a reading of reported cases that there seems to
exist in this court "a natural bias or prejudice . . . against
the constitutional rights of an individual . . ." and (3) that
there exists between counsel and one or more of the Justices of
the court an antipathy to the extent that no client of his can
secure an impartial determination in the court. The declaration
and notice of motion were apparently signed by counsel for
appellant on August 9, 1967, but were filed in this court on
Friday, August 11, 1967, at about 4 p.m.
August 16 This court ordered the declaration stricken from the files.
August 22 At about five minutes before this court convened on August 22,
1967, for the regular calendar, counsel filed what he titled a
supplemental declaration.
The supplement set forth in effect that the court has decided
matters in a way which is unsatisfactory to affiant and
apparently not in harmony with his views.
August 22 This court ordered the supplemental declaration to be stricken
from the files of this case. The motion to disqualify the court
was thereupon denied. Neither side argued the cause and the
matter was submitted.
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970 So.2d 846 (2007)
S.S.
v.
DEPARTMENT OF CHILDREN AND FAMILIES.
No. 5D06-4377.
District Court of Appeal of Florida, Fifth District.
December 26, 2007.
Decision without published opinion. Affirmed.
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279 F.3d 1051
Mary Louise CUMMINGS, Appellant,v.DEPARTMENT OF THE NAVY, Appellee.
No. 00-5348.
United States Court of Appeals, District of Columbia Circuit.
Argued October 16, 2001.
Decided February 15, 2002.
Appeal from the United States District Court for the District of Columbia (No. 98cv01183).
David P. Sheldon argued the cause for the appellant. Eugene R. Fidell and Steven H. Wishod were on brief.
Eric L. Hirschhorn, Anne W. Stukes, Philip B. Onderdonk Jr., Ronald S. Flagg, Joseph R. Guerra and Arthur B. Spitzer were on brief for amici curiae The American Legion, et al., in support of the appellant.
Meredith Manning, Assistant United States Attorney, argued the cause for the appellee. Kenneth L. Wainstein, Acting United States Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant United States Attorney, were on brief.
Before: GINSBURG, Chief Judge, HENDERSON, Circuit Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge HENDERSON.
Dissenting opinion filed by Senior Circuit Judge WILLIAMS.
KAREN LeCRAFT HENDERSON, Circuit Judge:
1
The appellant, Mary Louise Cummings, seeks reversal of the district court's September 6, 2000 dismissal of her Privacy Act lawsuit against the Department of the Navy (Navy). The district court held that the doctrine of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), bars a servicewoman's Privacy Act lawsuit if her injury arose out of or occurred in the course of activity "incident to service." Cummings v. Dep't of the Navy, 116 F.Supp.2d 76, 78-82 (D.D.C.2000). The court further determined on the facts that Cummings's injury did, indeed, arise in the course of activity incident to her service. See id. at 82-84. On appeal, Cummings challenges the district court's decision on two grounds. First, she argues that the Feres doctrine does not apply to service personnel's Privacy Act claims against the military. Second, she contends that even if the doctrine does attach to such suits generally, the unauthorized release of her training record to a civilian author was not incident to service under Feres's case-specific inquiry and that her suit against the Navy, therefore, is not barred.
2
Whether members of the armed forces may sue the military for damages under the Privacy Act is a question of first impression. We answer in the affirmative and hold that the Feres doctrine does not extend to suits under the Privacy Act. Accordingly, we reverse the district court's dismissal of Cummings's action and remand for further proceedings addressing her specific Privacy Act allegations.
I.
3
Cummings attended the United States Naval Academy, completed flight training and became a Naval aviator.1 She was assigned to a flight squadron at the Naval Air Station, Cecil Field, in Jacksonville, Florida and began training on the Strike Fighter Attack 18 — a.k.a. "Hornet" — aircraft in November 1994. Approximately seven months after Cummings's Hornet training began, the Navy convened a Field Naval Aviator Evaluation Board (Evaluation Board) to assess her flying skills and potential. After hearing testimony and reviewing the records of Cummings's four training flights, the Evaluation Board recommended that the Navy terminate her flying status. Notwithstanding the Evaluation Board's conclusion, Vice Admiral Richard Allen — Commander of the Navy's Atlantic Fleet — directed Cummings to retain her flight status and resume Hornet training under the same administrative command.
4
During Cummings's time at Cecil Field, the Navy permitted an author, Robert Gandt, to observe Hornet training so that he could research a book he was writing about the training of fighter pilots. Cummings alleges in her complaint that Vice Admiral Allen "allowed Gandt to follow specific squadron personnel without their knowledge as they proceeded throughout the [Hornet] training program." Cummings, 116 F.Supp.2d at 78 (quoting Compl. ¶ 13).
5
In 1997 Gandt published his book, Bogeys and Bandits: Making of a Fighter Pilot. The book was based primarily upon Gandt's observations of the Hornet training program and upon Navy-supplied information. Cummings asserts that a character in Gandt's book named "Sally Hopkins" portrays Cummings, that the book includes specific details and direct quotes from her negative Evaluation Board report, that as a result of the book's publication "her military and civilian career prospects have been severely damaged" and that "she has suffered severe mental distress, embarrassment, and humiliation, both personally and professionally." Id. (quoting Compl. ¶ 65).
6
Cummings sued the Navy for violating the Privacy Act of 1974. See 5 U.S.C. § 552a(b) ("No agency shall disclose any record which is contained in a system of records by any means of communication to any person ... except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains...."). The Navy moved to dismiss Cummings's claim on Feres grounds. The district court held that Feres applies to Privacy Act lawsuits and that the Navy's release of Cummings's Evaluation Board report was "incident to service" — and, therefore, not actionable — because it "was related to the policy [of openness] the Navy had ... established toward Mr. Gandt." Cummings, 116 F.Supp.2d at 84.
II.
7
Reviewing the district court's grant of the Navy's motion to dismiss, we accept as true the facts that Cummings alleges in her complaint. See El-Hadad v. United Arab Emirates, 216 F.3d 29, 32 n. 5 (D.C.Cir.2000) (citing Saudi Arabia v. Nelson, 507 U.S. 349, 351, 113 S.Ct. 1471, 1474, 123 L.Ed.2d 47 (1993)). Our review of the issues raised by Cummings's appeal is de novo. See Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C.Cir.1998) ("[W]e apply the de novo standard of review to the district court's application of law to undisputed fact[s].").
A.
8
In Feres, the United States Supreme Court held that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Feres, 340 U.S. at 146, 71 S.Ct. at 159. Cummings argues that this doctrine should not be extended to suits against government agencies under the Privacy Act. For the reasons discussed infra, we agree.
9
In determining whether members of the armed forces may sue the military for damages under the Privacy Act, we start with the "cardinal" canon of statutory construction: "[C]ourts must presume that [the Congress] says in a statute what it means and means in a statute what it says there." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (citations omitted). "When the words of a statute are unambiguous, then, this first canon is also the last: `judicial inquiry is complete.'" Id. at 254, 112 S.Ct. at 1149 (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981)). With these precepts in mind, we turn to the text of the Privacy Act.
10
As the district court recognized, the Privacy Act "applies to `agencies,' defined as `any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the government ... or any independent regulatory agency.'" Cummings, 116 F.Supp.2d at 78 n. 5 (quoting 5 U.S.C. § 552(f)) (emphasis added). And, as the trial court further observed, certain provisions of the Act manifest congressional intent to protect uniformed personnel like Cummings. See id. at 78 n. 5, 81 (citing 5 U.S.C. §§ 552(f), 552a(g)(1), 552a(k)(5) and 552a(k)(7)). One provision permits agencies, in certain circumstances, to exempt from the Act's purview "investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for ... military service...." 5 U.S.C. § 552a(k)(5). Another allows exemption — again, in limited circumstances — of "evaluation material used to determine potential for promotion in the armed services...." 5 U.S.C. § 552a(k)(7). The district court rightly noted that such exemptions "would be unnecessary if military servicepersons were excluded from the Privacy Act altogether." Cummings, 116 F.Supp.2d at 78 n. 5.
11
We conclude that the aforementioned provisions, taken together, demonstrate that the Congress unambiguously intended to establish a duty that runs from a "military department" (like the Navy) to military personnel (like Cummings) not to "disclose any record which is contained in a system of records" (like Cummings's Evaluation Board report). 5 U.S.C. § 552a(b). The Navy does not contest this. Instead, it contends that "without necessarily waiving immunity with respect to money damages," the Congress "intended to apply the Act to `military departments'" by permitting a servicemember to seek equitable remedies only. Br. of Appellee at 25. Its contention finds no support in the text of the statute; without regard to the identity of the plaintiff or the agency she is suing, the Act plainly authorizes injunctive relief, 5 U.S.C. § 552a(g)(2)(A), (3)(A), and monetary relief, 5 U.S.C. § 552a(g)(4),2 and it permits a court to "assess against the United States reasonable attorney fees and other litigation costs," 5 U.S.C. § 552a(g)(2)(B), (3)(B). Moreover, that the Act (as seen supra) allows a military department to exempt from the Act's reach certain records based upon their content,3 see, e.g., 5 U.S.C. § 552a(k)(5), (7), demonstrates that the Congress did not intend the courts to craft additional exemptions from coverage based upon the type of relief a servicewoman requests (i.e., by limiting suits to equitable relief only). See Fawn Mining Corp. v. Hudson, 80 F.3d 519, 523 (D.C.Cir.1996) ("Neither lawyers nor judges serve as back-seat lawmakers who may extend statutes beyond their bounds or change the rules that Congress has set.").
12
The district court correctly reminded us that "waivers of sovereign immunity must be unequivocally expressed and narrowly construed," Cummings, 116 F.Supp.2d at 81 (quoting Dorsey v. Dep't of Labor, 41 F.3d 1551, 1555 (D.C.Cir.1994)). Erroneously, however, it denied effect to the unequivocally expressed waiver contained in the Privacy Act, 5 U.S.C. § 552a(g). Construing a waiver of sovereign immunity narrowly, even "strictly in favor of the sovereign," means only that a court may not "enlarge[] [the waiver] beyond what the language requires." Tomasello v. Rubin, 167 F.3d 612, 618 (D.C.Cir.1999) (quoting United States v. Nordic Village, Inc., 503 U.S. 30, 34, 112 S.Ct. 1011, 1015, 117 L.Ed.2d 181 (1992)). We need not "enlarge" by any stretch the Privacy Act's purview in order for the statute to avoid the effects of the Feres doctrine. As the district court acknowledged, "[o]n its face, the Privacy Act would appear to permit actions brought by military personnel...." Cummings, 116 F.Supp.2d at 81. And statutory text remains the best evidence of congressional intent. See Tataranowicz v. Sullivan, 959 F.2d 268, 276 (D.C.Cir.1992). The Act not only appears to, but does, permit actions brought by military personnel.
13
The fact that "the Privacy Act was enacted once the Feres doctrine was in place, yet does not specifically [insulate] the causes of action it creates from the effects of Feres," Cummings, 116 F.Supp.2d at 81, does not alter our conclusion. Congressional enactments are better evidence of legislative intent than is congressional silence. See Burns v. United States, 501 U.S. 129, 136, 111 S.Ct. 2182, 2186, 115 L.Ed.2d 123 (1991) ("[A]n inference drawn from congressional silence certainly cannot be credited when it is contrary to all other textual and contextual evidence of congressional intent."); but cf. Arthur Conan Doyle, Silver Blaze, in 1 Sherlock Holmes: The Complete Novels and Stories 455, 475 (1986) ("I had grasped the significance of the silence of the dog, for one true inference invariably suggests others.... Obviously the midnight visitor was someone whom the dog knew well."). True, the Congress's familiarity with Feres can be presumed, see Wash. Legal Found. v. United States Sentencing Comm'n, 17 F.3d 1446, 1450 (D.C.Cir.1994) (citation omitted), but the Feres doctrine was not extended beyond the Federal Tort Claims Act (FTCA) context until 1983. See generally Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (applying Feres to constitutional tort claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)). When the Congress enacted the Privacy Act in 1974, therefore, it had no reason to insulate the Act from the effects of a doctrine that, at the time, applied exclusively to the FTCA.
14
That the Congress did not bark about Feres in enacting the Privacy Act is especially unenlightening in view of the fact that a Privacy Act lawsuit does not implicate any of the concerns that caused the Supreme Court to enunciate the Feres doctrine in the first place. Cf. Lockhart v. Fretwell, 506 U.S. 364, 373, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (applying maxim "[c]essante ratione legis, cessat et ipsa lex" (when reason for law ceases, so does law itself)). In formulating the (oft-criticized) Feres doctrine, the Supreme Court first observed that because the FTCA provides that "[t]he United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances," Feres, 340 U.S. at 141, 71 S.Ct. at 157 (quoting 28 U.S.C. § 2674), an "obvious shortcoming" in the plaintiffs' claims was that they pointed to "no liability of a `private individual' even remotely analogous to that which they [were] asserting against the United States." Id. Second, the Court found that because of the "distinctively federal" relationship between the United States and its military forces, the Congress could not have intended the armed forces to be subject to local tort law pursuant to the FTCA's provisions. Id. at 142-44, 71 S.Ct. 153 at 157-58 (quoting United States v. Standard Oil Co., 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947)). Third, the Court found that because servicemen were already entitled to veterans' benefits, the Congress could not have meant for them to recover double compensation for their injuries by allowing them to sue under the FTCA as well. Id. at 144, 71 S.Ct. at 158. Four years after Feres, in United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), the Court offered a fourth justification for military immunity from the FTCA — the "peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of [tort] suits on discipline, and the extreme results that might obtain if suits under the [FTCA] were allowed for negligent orders given or negligent acts committed in the course of military duty...." Brown, 348 U.S. at 112, 75 S.Ct. at 143.
15
Cummings convinces us that none of these rationales supports extension of the Feres doctrine to the Privacy Act. The Supreme Court's first concern is inapplicable to a Privacy Act lawsuit because the Act, unlike the FTCA, nowhere establishes the private liability parallel as a prerequisite for the "United States [to] be liable... in the same manner and to the same extent ... under like circumstances...." Feres, 340 U.S. at 141, 71 S.Ct. at 157 (quoting 28 U.S.C. § 2674). Feres's second and third rationales are likewise inapposite because the Privacy Act is federal (not state) law and because the Congress has provided no other compensation or benefits for those injured by a violation of the Act.
16
The Navy makes a superficially compelling argument that Feres's fourth concern (as expounded in Brown) mandates the doctrine's extension to Privacy Act suits. The portion of the district court order addressing the matter strengthens the Navy's case: "The [possibility] that every time a serviceman were demoted or saddled with a less than perfect performance rating he could resort to the courthouse could be a very real one if Privacy Act suits were not subject to the Feres doctrine." Cummings, 116 F.Supp.2d at 82 (quotations omitted). Although judicial reluctance to impinge on military matters is understandable in many contexts,4 it is unjustified in this setting; as we have discussed, the Congress clearly enlisted the federal courts to inquire into potential military violations of the Privacy Act. Cf. United States v. Johnson, 481 U.S. 681, 699, 107 S.Ct. 2063, 2073, 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting) ("I do not think the effect upon military discipline is so certain, or so certainly substantial, that we are justified in holding (if we are ever justified in holding) that Congress did not mean what it plainly said in the statute before us."). What is more, subjecting the Navy to suit under the Act does not permit a servicewoman like Cummings to "resort to the courthouse" simply because she does not agree with her performance ratings. Instead, the Act provides a remedy only if the military department has unlawfully released the performance rating and if the claimant establishes that she was injured as a result. See 5 U.S.C. § 552a(b) (prohibiting disclosure in certain circumstances); 5 U.S.C. § 552a(g)(1)(D) (requiring claimant to show "adverse effect" because of disclosure).
17
The Navy claims that because Feres has been extended beyond the FTCA context to suits under civil rights statutes and to common-law and constitutional tort actions, we must extend it as well to suits under the Privacy Act. See Br. of Appellee at 17-18 (citing, inter alia, United States v. Stanley, 483 U.S. 669, 682, 107 S.Ct. 3054, 3063, 97 L.Ed.2d 550 (1987); Chappell, 462 U.S. at 300, 103 S.Ct. at 2365-66). It is true that we, like other circuits, have extended Feres to bar claims brought "under both 42 U.S.C. § 1985(3) for deprivation of ... civil rights and under common-law tort theories." Bois v. Marsh, 801 F.2d at 468; see supra note 4; see also, e.g., Mackey v. United States, 226 F.3d 773, 776 (6th Cir.2000) (joining D.C., Second, Third, Fourth, Seventh, Eighth and Ninth Circuits in "hold[ing] that the Feres doctrine applies to intentional torts"); Alvarez v. Wilson, 600 F.Supp. 706, 712 (N.D.Ill.1985) (extending Feres to claims brought under § 1985(3)). But that fact in itself means nothing; we have also concluded "that the Feres doctrine and its rationale have no application to claims [brought by members of the armed forces] under the Swine Flu Act" because we cannot "imagine how [that] type of litigation could impinge on any legitimate interest in maintaining discipline within our fighting forces." Hunt v. United States, 636 F.2d 580, 599 (D.C.Cir.1980). That is, even "[d]espite the absence of a clear legislative intent" in the Swine Flu Act to insulate the legislation from the effects of Feres, we have nonetheless found it insulated. Id. at 589. Because "the duty remains ours to determine the meaning of [a particular] statute," id., and to determine whether the Congress in a particular statute intended to provide service personnel with a cause of action against the military departments, the bare fact that the Feres doctrine has been extended beyond the FTCA to other statutory contexts is not particularly probative. The Congress may provide a cause of action in some laws and leave other statutes subject to Feres; it is our job to sort out which it has done here. As the district court correctly noted, "[n]o court has yet provided an analysis of whether or not Feres should apply to actions under the Privacy Act" specifically. Cummings, 116 F.Supp.2d at 79. It would appear, then, that we have a clean slate to implement the Congress's will and to permit Cummings to seek monetary relief from the Navy for the allegedly unauthorized release of her training record to a civilian author.
B.
18
Because we conclude that the Feres doctrine is inapplicable to Cummings's action against the Navy, we need not address whether the release of her record was "incident to service" under Feres's case-specific test. That test is irrelevant and the issue is moot.
III.
19
Given a clear congressional mandate, we hold that the doctrine of Feres v. United States does not extend to Privacy Act lawsuits brought by military personnel against the military departments. Accordingly, we reverse the district court's dismissal of Cummings's action against the Navy. She may proceed with her action on remand.
20
So ordered.
Notes:
1
The following factual account is drawn largely from the "Factual Background" portion of the district court order,Cummings, 116 F.Supp.2d at 77-78, which in turn is "drawn from the allegations in the [c]omplaint." Id. at 77 n. 2.
2
Section 552a(g)(4) provides:
In any suit brought under the provisions of... this [Act] in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of ... actual damages sustained by the individual ... and ... the costs of the action together with reasonable attorney fees as determined by the court.
3
Whether the Navy has exempted — and whether § 552a(k)permits it to exempt — Cummings's report from the requirements of the Privacy Act are issues to be addressed, if at all, on remand. We express no opinion on those matters here.
4
InBois v. Marsh, 801 F.2d 462 (D.C.Cir.1986), for example, we applied the Feres doctrine to a 42 U.S.C. § 1985(3) suit by a military officer against her superiors because the Supreme Court's "analysis in Feres and Chappell that courts should not imply damage remedies for service-connected injuries is fully applicable to" such suits generally. Bois, 801 F.2d at 469 (emphasis added). In addition, we extended Feres to the officer's intentional tort claims against her superiors because "subjecting military commanders to personal liability" for such claims would "pose[] an equal, if not greater, threat to military discipline as would permitting suits under the FTCA." Id. at 471.
Bois's reasoning remains sound. We do not mean to imply otherwise by declining to extend it here; we simply note that neither of the concerns prompting our decision in that case exists in the Privacy Act context. Likewise, by declining to extend Feres to the Privacy Act, we are not — contrary to the assertion of our dissenting colleague — "abandon[ing]" it because it is "under a cloud." Dissenting op. at 1061. Nor are we fashioning "a rule rather arbitrarily cutting [Feres] off with the exact applications already found by the Supreme [C]ourt and no more." Id. Instead, we are merely holding that the Privacy Act means what it says. We would hope that that is not an option "available only to the Supreme Court." Id.
WILLIAMS, Senior Circuit Judge, dissenting:
21
Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), holds that the Federal Torts Claims Act ("FTCA") waiver of sovereign immunity is inapplicable to suits by uniformed military personnel for injuries arising out of activity "incident to service." The Feres doctrine is under something of a cloud. See, e.g., United States v. Johnson, 481 U.S. 681, 700, 107 S.Ct. 2063, 2074, 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting) ("Feres was wrongly decided and heartily deserves the `widespread, almost universal criticism' it has received."). Nonetheless, the Supreme Court, this court and our fellow circuits have all consistently extended Feres beyond the FTCA. That they have done so is unsurprising for damage actions that carry a genuine risk of disrupting the hierarchical command relations among military personnel — after all, that is the risk that ultimately underlies Feres. Comparing Privacy Act damage actions with other claims that the Supreme Court and this court have found barred by Feres, I see neither any greater hint from Congress that Feres should not govern, nor any indication that Privacy Act damage claims pose less risk of interference with command relations. This leads me to the conclusion that Cummings's claim is precluded.
22
It might seem at first blush that the Privacy Act's explicit provisions addressing the military might justify non-application of Feres. The Act purports to govern "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the government ... or any independent regulatory agency." 5 U.S.C. § 552(f) (incorporated into the Privacy Act by 5 U.S.C. § 552a(a)(1) & § 552a note (References in Text)). But Congress similarly specified the military in the FTCA. "Federal agency," the FTCA's basic unit for liability, see 28 U.S.C. § 2675, is defined to include "the military departments," id. § 2671.
23
The Privacy Act also exempts certain military documents from protection under limited circumstances. See, e.g., 5 U.S.C. § 552a(k)(5) (discussing "investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for ... military service"); 5 U.S.C. § 552a(k)(7) (addressing "evaluation material used to determine potential for promotion in the armed services"). But these provisions provide no basis for refusing to apply Feres; once again, the FTCA has similar language. It exempts claims "arising out of the combatant activities of the military or naval force, or the Coast Guard, during time of war," 28 U.S.C. § 2680; yet Feres applies to all claims, combat-related or not, wartime or peacetime. See, e.g., United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985) (applying Feres to claim involving crime off duty and off base).
24
Indeed, any inferences against Feres drawn from a statute's explicit coverage and partial exemptions of the military are weaker for Privacy Act damage actions than for the FTCA. The Privacy Act creates a range of specific, non-damage remedies, see 5 U.S.C. § 552a(g)(2) & (3), which the government concedes remain fully applicable. Navy Br. at 25. Cf. Jorden v. National Guard Bureau, 799 F.2d 99, 110-11 (3d Cir.1986) (distinguishing between monetary and injunctive relief in applying Feres to § 1983). But the FTCA provides only damage actions. Thus there is a broad world to which the military-specific language of the Privacy Act can apply, while Feres leaves the FTCA's similar language with little or no role.
25
More generally, we have understood Feres to create the equivalent of a "clear statement" rule. In finding it applicable to claims under 42 U.S.C. § 1985(3), we said:
26
... Feres itself represents a refusal to read statutes with their ordinary sweep. The unique setting of the military led the Feres Court to resist bringing the armed services within the coverage of a remedial statute in the absence of an express Congressional command.
27
Bois v. Marsh, 801 F.2d 462, 469 n. 13 (D.C.Cir.1986) (emphasis added); see also Coffman v. State of Michigan, 120 F.3d 57, 59 (6th Cir.1997) (holding that ADA and Rehabilitation Act do not apply to the military absent a "clear direction" from Congress (emphasis added)); Roper v. Department of Army, 832 F.2d 247, 248 (2d Cir.1987) (holding that in the "absence of some express indication" from Congress, Title VII does not apply to the military). In the Privacy Act there is no more of an "express Congressional command" than there is in the FTCA.
28
The Supreme Court has itself extended Feres to all Bivens actions. United States v. Stanley, 483 U.S. 669, 681-84, 107 S.Ct. 3054, 3062-64, 97 L.Ed.2d 550 (1987); Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). Bivens, of course, imposes liability on individual officials, as indeed does the liability under 42 U.S.C. § 1985(3) that in Bois we found subject to Feres. Thus one might write off both Stanley and Chappell, and Bois, as extensions addressed to some special anxiety that might flow from individual exposure to liability. Compare Maj. Op. at 1056 n.4. That is, of course, conceivable. But it is a rather odd spin on Feres itself, which after all involved only government liability. There is no basis in the Supreme Court opinions for some idea that the discipline issues explaining Feres depend materially on the nominal defendant. That is not surprising, in view of the widespread government provision for reimbursement of officers found liable for acts committed in the service of government. See, e.g., Huang v. Johnson, 251 F.3d 65, 70 (2d Cir.2001) (noting that the "vast majority" of § 1983 claims that the Second Circuit handles involve state indemnification of the individual defendants); see also Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397, 436, 117 S.Ct. 1382, 1404, 137 L.Ed.2d 626 (1997) (Breyer, J., dissenting) (listing various state statutes "authorizing indemnification of employees found liable under § 1983 for actions within the scope of their employment").
29
Alternatively, one might write Stanley/Chappell off as simply an exercise of judicial restraint when implying damage actions (such implication is, of course, the only basis for Bivens). See Stanley, 483 U.S. at 679, 107 S.Ct. at 3061. But we have already rejected this as too narrow a view. In Bois, confronting exactly such an argument by the dissenting judge, we said:
30
But Chappell will not reasonably bear such a crabbed interpretation. To the contrary, the Supreme Court expressly held in Chappell that the same analysis, based on concern with the disruption of military discipline, applies regardless of whether a court is asked to entertain an intramilitary suit under the Constitution or a statute.
31
801 F.2d at 470 n. 13 (citing explicit passages from Chappell).
32
Thus we must address the kinds of risks to military discipline that damage actions under the Privacy Act pose. For damage actions under the Act (in contrast with claims for specific relief), the plaintiff must show that the agency action was "intentional or willful." 5 U.S.C. § 552a(g)(4). Proof that such an intent underlies the alleged breach (here an impermissible release of data) is likely to take the factfinder deep into the breach's context. Indeed, the complaint here affirmatively asserts that the release arose out of sharply contested views about Cummings's performance as a trainee on "Hornet" aircraft. See Complaint ¶ ¶ 5-43; see generally Maj. Op. at 1052-53. How does this stack up against the plain vanilla sex discrimination claim involved in Bois? I cannot imagine why it would less involve "second guessing of military decisions by civilian courts," Bois, 801 F.2d at 470, or less "require testimony by military personnel about command decisions," id., or less "tend to pit a plaintiff's superiors against one another," id. Indeed, damage actions under § 552a(g)(4) seem quite commonly to yield evidence of prolonged workplace donnybrooks. See, e.g., Tomasello v. Rubin, 167 F.3d 612, 614-17 (D.C.Cir.1999) (involving government employee's claim of various unauthorized disclosures in conjunction with an alleged pattern of ethnic and age discrimination); Mount v. U.S. Postal Service, 79 F.3d 531 (6th Cir.1996) (involving employee's claim that certain disclosures of medical and other records to director and union official were motivated by a desire to retaliate for complaints about work conditions); Henson v. NASA, 14 F.3d 1143, 1146 (6th Cir.1994) (involving employee's claim that superior released confidential medical information, "intentionally or negligently inflicted severe emotional distress ... [and] engaged in an intentional, reckless, malicious, and tortious pattern of abusive management" as part of a pattern of retaliation). So Bois, I believe, controls.
33
In sharp contrast is Hunt v. United States, 636 F.2d 580 (D.C.Cir.1980), where we found Feres inapplicable to the "substituted liability" regime established under the Swine Flu Act. Id. at 583 n. 3. To encourage flu vaccine production, the government had assumed responsibility for product liability suits against the manufacturers, id. at 591-92, though assigning the United States a possible right of later indemnification, id. at 595-96. Suits under the Swine Flu Act therefore involved claims of tortious conduct only by the manufacturer, conduct that seems as remote from matters of military discipline and command as one can imagine.
34
I dissent primarily because the court's decision seems to me inconsistent with the principles laid down by the Supreme Court in its Feres jurisprudence, and with our circuit's clear understanding of those principles. But it's worth noting that other circuits have carried Feres well beyond its FTCA origins, applying it to § 1983 claims,1 to various antidiscrimination statutes such as Title VII,2 the Americans with Disabilities Act,3 and the Age Discrimination in Employment Act.4 And it has been applied to various admiralty waivers of immunity, such as those in the Suits in Admiralty Act, 46 U.S.C.App. § 742 et seq., and the Public Vessels Act, 46 U.S.C.App. § 781 et seq.5 As the Ninth Circuit has observed, holding that Feres barred a slew of common law, constitutional and even RICO complaints, the Feres "bar has been interpreted broadly," so that "practically any suit that `implicates ... military judgments and decisions' runs the risk of colliding with Feres." Bowen, 125 F.3d at 803 (case citations omitted).
35
Feres is, as I observed earlier, under a cloud. The most plausible solutions seem to be (1) consistent application of its principle; (2) a rule rather arbitrarily cutting it off with the exact applications already found by the Supreme court and no more; and (3) complete abandonment. As the second and third options are available only to the Supreme Court, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1922-23, 104 L.Ed.2d 526 (1989); Khan v. State Oil Co., 93 F.3d 1358, 1364 (7th Cir.1996) (Posner, C.J.) ("We have been told by our judicial superiors not to read the sibylline leaves of the U.S. Reports for prophetic clues to overruling."), I would proceed with the first.
36
I respectfully dissent.
Notes:
1
E.g.,Bowen v. Oistead, 125 F.3d 800, 803 n. 2 (9th Cir.1997); Knutson v. Wisconsin Air National Guard, 995 F.2d 765, 769 (7th Cir.1993); Watson v. Arkansas National Guard, 886 F.2d 1004 (8th Cir.1989); Walden v. Bartlett, 840 F.2d 771, 773 (10th Cir.1988); Crawford v. Texas Army National Guard, 794 F.2d 1034 (5th Cir.1986); Penagaricano v. Llenza, 747 F.2d 55 (1st Cir.1984).
2
E.g.,Roper, 832 F.2d at 247-48; Gonzalez v. Department of the Army, 718 F.2d 926, 927-28 (9th Cir.1983); Mackey v. United States, 226 F.3d 773, 776 (6th Cir.2000).
3
Baldwin v. United States Army, 223 F.3d 100 (2d Cir.2000); Coffman, 120 F.3d at 57-59.
4
Spain v. Ball, 928 F.2d 61 (2d Cir.1991) (dictum).
5
See, e.g.,Blakey v. U.S.S. Iowa, 991 F.2d 148 (4th Cir.1993); Potts v. United States, 723 F.2d 20 (6th Cir.1983); Charland v. United States, 615 F.2d 508 (9th Cir.1980); Beaucoudray v. United States, 490 F.2d 86 (5th Cir.1974).
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490 F.2d 990
*dBaileyv.Todd
73-3640
UNITED STATES COURT OF APPEALS Fifth Circuit
2/21/74
1
N.D.Ga.
AFFIRMED
*
Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N
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Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-13-00506-CV
Robert G. CORONA, Christina M. Mozisek, and all occupants,
Appellants
v.
GREEN TREE SERVICING LLC,
Appellee
From the County Court at Law No. 3, Bexar County, Texas
Trial Court No. 385145
Honorable Jason Wolff, Judge Presiding
BEFORE JUSTICE ANGELINI, JUSTICE MARION, AND JUSTICE BARNARD
In accordance with this court’s opinion of this date, this appeal is DISMISSED. It is
ORDERED that costs of appeal are taxed against Appellants Robert G. Corona, Christina M.
Mozisek, and all occupants.
SIGNED December 20, 2013.
_________________________________
Karen Angelini, Justice
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
FEBRUARY 1998 SESSION
July 22, 1998
Cecil W. Crowson
STATE OF TENNESSEE ) Appellate Court Clerk
) NO. 01C01-9705-CC-00189
Appellee )
) WILLIAMSON COUNTY
v. )
) Hon. Henry Denmark Bell
ROY D. LEACH )
) (D.U.I.)
Appellant. )
)
For the Appellant: For the Appellee:
Virginia Lee Story John Knox Walkup
136 Fourth Avenue South Attorney General & Reporter
P.O. Box 1608
Franklin, TN. 37065 Karen M. Yacuzzo
Assistant Attorney General
425 Fifth Avenue North
2nd Floor, Cordell Hull Building
Nashville, TN. 37243-0493
Joseph D. Baugh, Jr.
District Attorney General
Williamson County Cthse.
Suite G-6, P.O. Box 937
Franklin, TN. 37065-0937
OPINION FILED:____________________
AFFIRMED
WILLIAM M. BARKER, JUDGE
OPINION
The appellant, Roy D. Leach, appeals as of right his conviction in the Circuit
Court of Williamson County. After a bench trial, the appellant was convicted of driving
under the influence of an intoxicant and was sentenced to eleven (11) months and
twenty nine (29) days in the county jail. The trial court ordered the sentence to be
suspended for a term of probation upon the service of forty eight (48) hours in jail.
Additionally, the appellant’s driver’s license was revoked for one (1) year and he was
ordered to pay a three hundred and fifty ($350) dollar fine.
On appeal, the appellant challenges the sufficiency of the convicting evidence.
We affirm the judgment of the trial court.
Around midnight on July 10, 1996, the appellant was stopped by Deputy
Deborah Rogers of the Williamson County Sheriff’s Department after she observed
him weaving in traffic with his headlights turned off. Deputy Rogers testified that she
approached the appellant’s truck and noticed an odor of alcohol on his breath. She
informed the appellant that she had noticed him veering in the road and he admitted
that he had been drinking alcoholic beverages earlier in the evening.
Deputy Rogers conducted three field sobriety tests on the appellant. The first
test was the horizontal gaze nystagmus (“HGN”) test in which the appellant was
required to follow the movement of the deputy’s finger with his eyes. 1 According to
Deputy Rogers, the appellant failed the test because he could not follow the
movement of her finger. Instead, his eyes made jerking movements and displayed
signs of intoxication.
Deputy Rogers provided the only testimony concerning the appellant’s HGN
test. Although not raised by either party on appeal, our supreme court has recently
1
Nystagmus is an involuntary jerking movement of the eye as it attempts to focus on a fixed
point or as it mo ves f rom side t o side . The unst ead y mo tion re sults from the b ody’s attem pt to m ainta in
orientation a nd balan ce. See State v. Murphy, 953 S.W.2d 200, 202 (Tenn. 1997)(citing State v. Cissne,
865 P.2d 564, 566 (1994)). “The theory behind the [HGN] test is that there is a strong correlation
between the am ount of alcohol a person consu mes and the angle of onset of nystagmus .” Murphy 953
S.W.2d at 202 (quoting State v. W itte, 836 P.2d 1110, 11 12 (199 2)(quotin g Carp er & Mc Cam ey, Gaze
Nystagmus: Scientific Pr oof of DU I?, 777 Ill.B.J. 146, 147 (1988)) ).
2
held that testimony concerning the HGN test constitutes “scientific, technical, or other
specialized knowledge.” See State v. Murphy, 953 S.W.2d 200, 203 (Tenn. 1997). As
such, it must be offered through a qualified expert witness in accordance with Rules
702 and 703 of the Tennessee Rules of Evidence. Id.
In this case, Deputy Rogers was not qualified as an expert on how alcohol
consumption affects eye nystagmus. However, we conclude that any error in that
regard was harmless beyond a reasonable doubt. Tenn. R. App. P. 36(b); Tenn. R.
Crim. P. 52(a). The remaining evidence against the appellant was sufficient to warrant
his conviction.
The second field sobriety test was the “walk and turn.” Using lines on the
parking lot, Deputy Rogers ordered the appellant to walk heel-to-toe in a straight line
for nine steps before turning around and returning in the same manner. Deputy
Rogers testified that she explained the test to the appellant; however, he was unable
to successfully complete it. The appellant had trouble maintaining balance, he failed
to walk heel-to-toe, and he stopped several times to be reminded how to finish the
test.
The final test was the “one-leg stand.” Deputy Rogers testified that before
administering the test, she followed her customary procedure of asking the suspect
about any existing leg or back ailments. She stated that the appellant made no
complaints of any existing physical problems and attempted three times to complete
the test. According to Deputy Rogers, the appellant repeatedly put his other leg down
and on one occasion, told the deputy that the test was too difficult.
In addition, Deputy Rogers observed the appellant’s demeanor during the field
sobriety tests. She testified that the appellant had trouble remembering the test
instructions and, at times, appeared both nervous and aloof. She stated that at one
point, the appellant began to turn and walk away while she was explaining a test to
him. From her observations, she determined that the appellant was intoxicated and
arrested him for D.U.I..
3
Deputy Rogers testified that she informed the appellant about the optional
blood/alcohol and breath examinations. The appellant, however, declined both tests,
claiming that he had not been drinking. Deputy Rogers initially testified that she took
the appellant to the local jail when he refused the blood and breath exams. She later
recalled that she first took the appellant to a nearby hospital before he was
transported to jail.
The appellant testified in his own defense that he was returning from a fishing
trip when Deputy Rogers conducted the traffic stop. According to the appellant, he
was not driving with his lights off and he never admitted to consuming alcoholic
beverages. He further disputed the deputy’s testimony concerning the manner of his
dress2 and the manner in which she conducted the sobriety tests. The appellant
testified that Deputy Rogers conducted the HGN eye test with a pen instead of her
finger, and he stated that the deputy never questioned him about any physical
problems before he performed the “one-leg stand” test.
The appellant further testified that after his arrest, Deputy Rogers transported
him to a nearby hospital for a blood test. The appellant signed an implied consent
form at the hospital, but did not take the blood test. He testified that instead, he
requested to take a breathalyser, but the deputy refused to administer that exam. The
appellant stated that he had not been drinking and that, in his opinion, he successfully
completed each of the field sobriety tests.
The appellant’s cousin, Michael Carter, testified for the defense that he had
been with the appellant from 8:30 p.m. that evening until approximately midnight. Mr.
Carter testified that he did not see the appellant drink alcoholic beverages and that
appellant did not smell of alcohol. He further stated that the appellant did not show
any signs of intoxication when appellant parked a fishing boat between two cars that
2
Deputy Rogers testified that the appellant was wearing a tank top, long pants, and hiking boots
on the evening of the arrest. In contrast, the appellant stated that he was wearing a brown T -shirt, short
pants and tennis shoes.
4
evening. However, Mr. Carter admitted that he was working on a car while he was
with the appellant and that he did not closely observe appellant’s actions.
In considering the above evidence, the trial judge noted that the case turned on
the credibility of the witnesses. The trial judge accredited the testimony of Deputy
Rogers and found the appellant guilty of D.U.I..
The appellant contends that the testimony of Deputy Rogers alone is
insufficient to support his conviction of D.U.I.. He argues that her testimony was
impeached by alleged inconsistencies and by his own testimony at trial. The trial court
noted the conflicting testimony between Deputy Rogers and the appellant and chose
to accredit the deputy’s testimony. That determination is accorded substantial
deference on appeal and will not be reweighed or re-evaluated by this Court. See
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). 3
From the record, we conclude that the evidence was sufficient for a rational trier
of fact to convict the appellant of D.U.I.. The appellant has failed to carry his burden
of demonstrating otherwise.
Accordingly, the judgment of the trial court is affirmed.
____________________________
WILLIAM M. BARKER, JUDGE
CONCUR:
____________________________
GARY R. WADE, Presiding Judge
____________________________
J. CURWOOD WITT, JR., JUDGE
3
Although this case involved a bench trial, the findings of the trial judge who conducted the
procee dings ca rry the sam e weight a s a jury verd ict. See State v. T ate, 615 S.W.2d 161, 162 (Tenn.
Crim. App. 1981). A guilty verdict rendered by a jury accredits the State’s witnesses and a presumption
of guilt replac es the pr esum ption of inno cence . See State v. Grace, 493 S.W .2d 474, 476 (Tenn. 1973 ).
5
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 26, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 16-2075
(D.C. No. 2:16-CR-01028-WJ-1)
LUIS CARLOS PENA-MARQUEZ, (D. N.M.)
Defendant-Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
Mr. Luis Carlos Pena-Marquez violated the terms of his supervised
release by illegally reentering the United States. See 8 U.S.C. § 1326(a).
The district court imposed a sentence of 12 months, with 9 of these months
running concurrently with another sentence of 30 months. Mr. Pena-
Marquez argues that the district court failed to explain the 12-month
sentence. We affirm.
*
The parties do not request oral argument, and it would not be helpful.
As a result, we are deciding the appeal based on the briefs. See Fed. R.
App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
Because this appeal point was not made in district court, we apply
the plain-error standard. United States v. Romero, 491 F.3d 1173, 1178
(10th Cir. 2007). We can reverse only if Mr. Pena-Marquez shows (1) that
an error was made (2) that is plain (3) that affects Mr. Pena-Marquez’s
substantial rights and (4) that affects the “fairness, integrity, or public
reputation of judicial proceedings.” United States v. Chavez, 723 F.3d
1226, 1232 (10th Cir. 2013). We reject the appeal point at the second step:
If an error existed, it would not have been plain.
At the second step, an error is considered “plain” only if it is “so
clear or obvious that it could not be subject to any reasonable dispute.”
United States v. Courtney, 816 F.3d 681, 684 (10th Cir.), cert. denied,
2016 WL 4141537 (U.S. Oct. 3, 2016).
At sentencing, the district court found that the guideline range was
12-18 months and noted that Mr. Pena-Marquez had kept entering the
country illegally. When given an opportunity, defense counsel did not
address how long the sentence should be. Instead, defense counsel asked
only that the court run at least part of the sentence concurrently with the
30-month sentence. The court complied, running 9 of the 12 months
concurrently with the 30-month sentence.
The district court had to give a general explanation for the sentence.
United States v. Martinez-Barragan, 545 F.3d 894, 903 (10th Cir. 2008).
The district court arguably provided a general explanation by finding the
2
applicable guideline range and noting that Mr. Pena-Marquez had
continued to enter the country illegally. But if that explanation were not
enough, the deficiency would not have been obvious.
Because the 12-month sentence fell within the guideline range and
Mr. Pena-Marquez has not relied on any factors outside the guidelines, the
district court did not need “to explain on the record how the [18 U.S.C.]
§ 3553(a) factors justify the sentence.” United States v. Lopez-Flores, 444
F.3d 1218, 1222 (10th Cir. 2006). Thus, the court had no obvious duty to
explain the sentence beyond finding the applicable guideline range and
remarking on Mr. Pena-Marquez’s illegal entries into the country. In these
circumstances, we reject Mr. Pena-Marquez’s appellate challenge under the
plain-error standard.
Affirmed.
Entered for the Court
Robert E. Bacharach
Circuit Judge
3
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297 S.W.3d 803 (2009)
Demetrice Wayne PARKER, Appellant
v.
STATE of Texas, Appellee.
No. 11-08-00214-CR.
Court of Appeals of Texas, Eastland.
September 10, 2009.
*805 Frederick Dunbar, Galbreath Law Firm, Abilene, TX, for Appellant.
Ann Reed, Dist. Atty., Amos W. (Trey) Keith, Asst. Dist. Atty., Nolan County, Sweetwater, TX, for Appellee.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
OPINION
TERRY McCALL, Justice.
Demetrice Wayne Parker appeals his conviction for the first degree felony offense of possession of 400 grams or more of cocaine with the intent to deliver. Appellant pleaded nolo contendere to the offense after the trial court denied his motion to suppress evidence. Pursuant to a plea bargain agreement, the trial court sentenced appellant to twenty years confinement and a fine of $1,000. In his sole appellate issue, appellant contends that the trial court erred in denying his motion to suppress because police officers discovered the cocaine as a result of illegally detaining him after a traffic stop. We affirm.
Introduction
On August 22, 2007, appellant was a passenger in a vehicle being driven by Thomas Pimpton. On that date, at 12:32 p.m., Department of Public Safety Trooper Todd Adkins stopped Pimpton for speeding. After conducting an investigation, Trooper Adkins arranged for a drug dog to be brought to the scene for the purpose of performing a free-air sniff around the stopped vehicle. Department of Public *806 Safety Trooper Ben Mueller, the canine officer, arrived at the scene with the drug dog at 1:50 p.m. The drug dog alerted on the vehicle at 1:54 p.m., and, thereafter, law officers found cocaine in the trunk of the vehicle. This appeal involves two primary issues: (1) whether Trooper Adkins had reasonable suspicion to detain appellant and (2) if so, whether the duration of appellant's detention was reasonable.
Background
Trooper Adkins and Trooper Mueller testified at the suppression hearing. Trooper Adkins testified that, on August 22, 2007, at 12:32 p.m., he stopped Pimpton for a speeding violation on Interstate 20 at about mile marker 232. At that time, Pimpton was driving a white Dodge Magnum. Appellant was in the front passenger seat of the vehicle, and a juvenile was in the backseat of the vehicle. Trooper Adkins testified that Pimpton was going 76 miles per hour before the stop. The stop was videotaped by a camera in Trooper Adkins's vehicle, and the State introduced into evidence a copy of the video, which also contained audio, at the suppression hearing. The relevant part of the video was played for the trial court.[1]
After stopping the vehicle, Trooper Adkins approached the driver's side of the vehicle. He requested to see Pimpton's driver's license. Pimpton complied with Trooper Adkins's request. However, the manner in which Pimpton produced his license raised suspicion in Trooper Adkins's mind. Trooper Adkins testified that Pimpton had a "large bulge" in his front pants pocket, which Trooper Adkins believed was Pimpton's wallet. Trooper Adkins said that, instead of pulling the bulge out of his pocket, Pimpton "stuffed his hand in there, sat back in his seat, [and] thumbed around to get his license out as if he was trying to hide something in his front pocket from me." Trooper Adkins testified that, when he was talking with Pimpton, appellant was eating a hamburger. Trooper Adkins said that appellant continued to eat the hamburger "instead of actually putting it down like most people would have and paying attention to what was going on at the time." Appellant provided an identification card to Trooper Adkins.
The Dodge Magnum was a rental vehicle. Pimpton told Trooper Adkins that the vehicle had been rented in Abilene by his girlfriend, Tonya Carr. Trooper Adkins asked Pimpton for the rental agreement for the vehicle. Pimpton and appellant were unable to find the rental agreement in the vehicle. At 12:35 p.m., Pimpton got out of the vehicle at Trooper Adkins's request.[2] Trooper Adkins and Pimpton walked toward the rear of the Dodge Magnum. Trooper Adkins asked Pimpton, "[W]here y'all coming from?" Pimpton responded that they had come from California. When asked by Trooper Adkins how long they had been in California, Pimpton responded, "[T]hree days."
At 12:35:50 p.m., Trooper Adkins approached appellant to ask him whether he had found the rental agreement. Appellant was not looking for the rental agreement but was still eating his hamburger. Trooper Adkins believed that, by continuing to eat the hamburger, appellant was attempting to avoid speaking with him. Trooper Adkins thought that appellant may have been trying to hide something from him. Trooper Adkins testified that, based on other stops he had made, appellant's *807 conduct was indicative "of a passenger in the vehicle not wanting to speak to me." Appellant did not find the rental agreement. In response to questioning by Trooper Adkins, appellant said that he and Pimpton had been in California for five days. Thus, appellant and Pimpton gave conflicting statements about the length of the trip.
At 12:37:25 p.m., Pimpton recalled that the rental agreement might be in the trunk. At 12:37:43 p.m., appellant unlocked the trunk from inside the vehicle. Trooper Adkins walked to the back of the vehicle. At that time, Trooper Adkins looked through the back windows of the vehicle for luggage, and he saw that the vehicle did not contain the amount of luggage that would have been necessary for a three-day or five-day trip to California. The lack of luggage was significant to Trooper Adkins because he was aware of cases involving seizures of large amounts of narcotics and currency where "not a lot of luggage" had been taken. Pimpton lifted the hatchback, retrieved paperwork from the trunk area, and then immediately closed the hatchback. Before Pimpton closed the hatchback, Trooper Adkins saw a box of "Tide soap" inside the trunk. Trooper Adkins testified that, in the past, he had seen "Tide soap or soap boxes being used to contain illegal narcotics trying to mask the odors that the narcotic would put off."
At 12:38:15 p.m., Pimpton located a rental agreement in the paperwork that he had retrieved from the trunk. He handed the rental agreement to Trooper Adkins. Trooper Adkins then asked Pimpton, "[W]ho rented it?" In response, appellant told Trooper Adkins that his "girlfriend did." Pimpton put the other paperwork back in the trunk. At 12:38:50 p.m., Trooper Adkins told Pimpton that he was going to his vehicle to look at the rental agreement. Trooper Adkins also told Pimpton that he would be receiving a warning on the speeding, with no fine or penalty, and "if you'll hold on tight just a second, I'll be right with you."
By 12:39:00 p.m., Trooper Adkins had decided that he was going to ask for consent to search the vehicle. At that time, Trooper Adkins believed that he had sufficient articulable facts that gave him reasonable suspicion to detain the occupants of the vehicle. When he returned to his vehicle, Trooper Adkins requested warrant and criminal history information for Pimpton and appellant over his radio. At 12:40:00 p.m., while waiting for the warrant and criminal history information, Trooper Adkins stated a number of observations into his microphone, including the following: (1) that appellant was acting "real hesitant"; (2) that "they say they're coming from California"; (3) that they were in a third party rental vehicle; (4) that Pimpton said his girlfriend rented the vehicle; (5) that "they don't have hardly any clothes in the vehiclesaid they'd been there a week"; and (6) that appellant was "real nervousshakinghis hands [were] shaking real bad."
At 12:41 p.m., Trooper Adkins received the requested warrant information. Neither Pimpton nor appellant had any outstanding warrants. However, they both had lengthy criminal histories, including arrests for a number of drug offenses. The dispatcher gave Trooper Adkins the following criminal history for Pimpton: "1991one traffic offense; 1992one possession of cocaine; [audio interrupted] ... manufacture, deliver, possess controlled substance; 2002two possession of marihuana; one possession of a controlled substance; [and] one evading arrest." The dispatcher gave Trooper Adkins the following criminal history for appellant: "one theft of property; one possession of marihuana *808 under two ounces; two possession of marihuana under five pounds; one possession of a controlled substance over one gram; [and] one carrying prohibited weapon." After receiving the criminal histories, at 12:44:10 p.m., Trooper Adkins requested backup over his radio. Department of Public Safety Trooper Bill Wheat responded to the request.
In reviewing the rental agreement, Trooper Adkins noticed that Pimpton was not named in it. The rental agreement indicated that Tonya Carr had rented the vehicle. The fact that Carr was not in the vehicle was significant to Trooper Adkins because he had made other stops involving third party rental vehicles that "ha[d] yielded large amounts of narcotics or illegal drug money." At 12:45:09 p.m., Trooper Adkins exited his vehicle and then questioned Pimpton as to whether he was supposed to be driving the vehicle.
At 12:48:15 p.m., Trooper Adkins requested consent from Pimpton to search the vehicle. Pimpton denied consent to search. Trooper Adkins believed that he had sufficient articulable facts, including Pimpton's and appellant's criminal histories, to justify detaining Pimpton and appellant and waiting on the arrival of a drug dog. Trooper Adkins explained to Pimpton that he was going to arrange for a drug dog to be brought to the scene for the purpose of performing a free-air search around the vehicle. Trooper Adkins searched Pimpton and appellant for weapons. He did not find any weapons or contraband during the searches. Trooper Wheat arrived at the scene, and Trooper Adkins apprised him of the situation.
At 12:51 p.m., Trooper Adkins returned to his vehicle and attempted to locate an available canine officer. The video shows that, from 12:53 p.m. until 1:11 p.m., Trooper Adkins made numerous phone calls on the subject. He determined that the canine officer in Sweetwater was unavailable. At one point, Trooper Adkins thought that he would have to let Pimpton and appellant go because he had been unable to find a canine officer. However, at 1:10:40 p.m., Trooper Adkins located Ben Mueller, who was a canine officer in Big Spring. At the time of Trooper Adkins's call, Trooper Mueller was about thirty or forty minutes away from the scene. Trooper Mueller agreed to drive to the scene to assist Trooper Adkins.
Trooper Wheat discovered that the rental agreement Pimpton had provided to Trooper Adkins was for "a red Ford Fusion." While waiting for Trooper Mueller to arrive, Trooper Adkins contacted Avis to determine whether Pimpton was authorized to drive the Dodge Magnum. The manager at Avis told Trooper Adkins that Pimpton was not allowed to drive the vehicle.
At 1:50 p.m., Trooper Mueller arrived at the scene with his drug dog. Trooper Mueller testified that his dog was trained to alert on cocaine, heroin, methamphetamine, and marihuana. At 1:54 p.m., Trooper Mueller's dog performed a free-air sniff around the Dodge Magnum. Trooper Mueller testified in detail about the results of the free-air sniff. He said that his dog alerted to the driver's side of the vehicle near the bottom of the door, the driver and passenger doors, and the back wheel well of the driver's side of the vehicle. Trooper Adkins testified that the dog's alert on the vehicle gave the troopers probable cause to search the vehicle without consent. The troopers searched the vehicle, and they found a large bag of powdered cocaine in the Tide box that was in the trunk of the vehicle. They also found about $16,000 in the vehicle.
After the evidence was concluded, the trial court denied appellant's motion to suppress. The trial court entered findings *809 of fact and conclusions of law in support of its ruling. The trial court concluded, in relevant part, as follows:
1. The traffic stop for speeding was reasonable and lawful.
2. The continued detention during which Trooper Adkins checked on the status of the vehicle was reasonable and lawful. The time elapsed before the canine unit arrived at the scene was reasonable and lawful. When the canine unit alerted on the vehicle, it gave Trooper Adkins probable cause to conduct a search of the vehicle.
On appeal, appellant contends that the troopers found the cocaine as a result of unlawfully detaining him in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, section 9, of the Texas Constitution. See U.S. CONST. amends. IV, XIV; TEX. CONST. art. I, § 9. Appellant states in his brief that "[t]he narcotics in question were the fruit of an illegal detention" and that "[he] was detained for an absurd length of time without reasonable suspicion." Therefore, appellant asserts that the trial court abused its discretion in denying his motion to suppress.
Standard of Review
A trial court's denial of a motion to suppress is reviewed for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002). In reviewing a trial court's ruling on a motion to suppress, an appellate court must view the evidence in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006). We give great deference to the trial court's findings of historical facts, but we review de novo the trial court's application of the law. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim.App.2007).
Applicable Law
A traffic stop is a detention and must be reasonable under the United States and Texas Constitutions. Davis v. State, 947 S.W.2d 240, 245 (Tex.Crim.App. 1997); Spight v. State, 76 S.W.3d 761, 766 (Tex.App.-Houston [1st Dist.] 2002, no pet.). To be reasonable, a traffic stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Davis, 947 S.W.2d at 245. Reasonableness is measured in objective terms by examining the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996); Spight, 76 S.W.3d at 765.
During a traffic stop, an officer has the right to ask the driver for identification, a valid driver's license, information concerning ownership of the vehicle, proof of insurance, and information concerning the destination and purpose of the trip. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim.App.2004); Davis, 947 S.W.2d at 245 n. 6; Caraway v. State, 255 S.W.3d 302, 307 (Tex.App.-Eastland 2008, no pet.); Lambeth v. State, 221 S.W.3d 831, 836 (Tex.App.-Fort Worth 2007, pet. ref'd). The officer may also approach the passengers in the vehicle and ask them similar questions. Duff v. State, 546 S.W.2d 283, 286 (Tex.Crim.App.1977); Freeman v. State, 62 S.W.3d 883, 887-88 (Tex.App.-Texarkana 2001, pet. ref'd). The officer may also check for outstanding warrants. Kothe, 152 S.W.3d at 63; Caraway, 255 S.W.3d at 308. While the officer is awaiting a computer warrant check, questioning about matters unrelated to the initial traffic stop does not violate the Fourth Amendment because such questioning does not extend the duration of an initial valid stop. Willis v. State, 192 S.W.3d 585, 591 (Tex.App.-Tyler 2006, pet. ref'd). An officer *810 making a traffic stop is not required to investigate the situation in a particular order. Kothe, 152 S.W.3d at 65. For example, no per se rule exists that requires "an officer immediately to obtain the driver's license and registration information and initiate the relevant background checks before asking questions." United States v. Brigham, 382 F.3d 500, 511 (5th Cir.2004). Only if the investigation "unduly prolongs" the detention is the officer's action unreasonable under the circumstances. Kothe, 152 S.W.3d at 65.
When the reason for the stop has been satisfied, the stop may not be used as a "fishing expedition" for unrelated criminal activity. Davis, 947 S.W.2d at 243 (quoting Robinette, 519 U.S. at 41, 117 S.Ct. 417 (Ginsburg, J., concurring)). Once an officer concludes the investigation of the conduct that initiated the stop, continued detention of a person is permitted only if there is reasonable suspicion to believe that the person is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim.App.2005); Davis, 947 S.W.2d at 245. Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Castro v. State, 227 S.W.3d 737, 741 (Tex.Crim.App.2007); Ford, 158 S.W.3d at 492. This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. Ford, 158 S.W.3d at 492. Whether the totality of the circumstances is sufficient to support an officer's reasonable suspicion is a question of law that we review de novo. Madden v. State, 242 S.W.3d 504, 517 (Tex.Crim.App.2007).
A detention based on reasonable suspicion must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Royer, 460 U.S. at 500, 103 S.Ct. 1319. Although the length of a detention may render a traffic stop unreasonable, there is no rigid, bright-line time limitation. United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); Love v. State, 252 S.W.3d 684, 687 (Tex.App.-Texarkana 2008, pet. ref'd); Belcher v. State, 244 S.W.3d 531, 539 (Tex.App.-Fort Worth 2007, no pet.). Instead, common sense and ordinary human experience must govern over rigid criteria. Sharpe, 470 U.S. at 685, 105 S.Ct. 1568; Love, 252 S.W.3d at 687; Belcher, 244 S.W.3d at 539. The reasonableness of the duration of a detention depends on whether the police diligently pursued a means of investigation that was likely to confirm or dispel any suspicions quickly, during which time it was necessary to detain the defendant. Sharpe, 470 U.S. at 686, 105 S.Ct. 1568; Love, 252 S.W.3d at 687; Belcher, 244 S.W.3d at 539.
Application of Law to Facts
Appellant does not challenge the legality of the original traffic stop for speeding. He focuses on two periods of time in his brief: 12:44 p.m. to 1:03 p.m. and 1:03 p.m. to 1:50 p.m. He argues that detaining him during both of these periods of time was "patently unreasonable." Appellant apparently contends that the purpose of the original stop was satisfied at 12:43:18 p.m. after Trooper Adkins discovered that neither he nor Pimpton had outstanding warrants and that, at that time, Trooper Adkins did not have reasonable suspicion to further detain him. Therefore, he contends that his detention after 12:44 p.m. was unlawful. The troopers discovered that the rental agreement was for the red Ford Fusion at 1:03 p.m. Appellant contends that this discovery did not give rise *811 to reasonable suspicion to detain him and that, even if it had, the State cannot justify the earlier detention from 12:44 p.m. to 1:03 p.m. The State argues that Trooper Adkins had reasonable suspicion to detain appellant and that the duration of appellant's detention was reasonable.
We first address whether Trooper Adkins had reasonable suspicion to detain appellant. The stop occurred at 12:32 p.m. Trooper Adkins acted reasonably in approaching Pimpton and appellant and asking them for identification, information about the ownership of the vehicle, and information about their trip. Davis, 947 S.W.2d at 245 n. 6; Caraway, 255 S.W.3d at 307; Lambeth, 221 S.W.3d at 836; Freeman, 62 S.W.3d at 887-88. He also acted reasonably in checking for outstanding warrants and criminal histories. Kothe, 152 S.W.3d at 63. Within about ten minutes after the stop, Trooper Adkins learned the criminal history information. Thus, the record shows that Trooper Adkins conducted his investigation of the speeding violation in a diligent and timely fashion.
Based on his investigation of the traffic offense, Trooper Adkins discovered a number of facts that led him to suspect that Pimpton and appellant were transporting narcotics. During his testimony, Trooper Adkins identified a number of facts that raised suspicions in his mind: (1) testimony, Pimpton did not take his wallet out of his pocket when he retrieved his license; (2) appellant continued to eat his hamburger; (3) Pimpton and appellant made conflicting statements about the length of their California trip; (4) the lack of luggage in the vehicle; (5) the vehicle was a third party rental vehicle; (6) the Tide soap box in the trunk of the vehicle; and (7) Pimpton's and appellant's criminal histories. In addition, at 12:40 p.m., Trooper Adkins stated into his microphone that appellant was acting really nervous and that his hands were shaking really bad.
Viewed in isolation, some of the above facts might not support a reasonable suspicion finding. However, conduct that may be innocent when viewed in isolation may give rise to reasonable suspicion when viewed in the light of the totality of the circumstances. Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.1997). Based on his experience, Trooper Adkins knew that rental vehicles are used to traffic narcotics; that detergents are used to mask the odor of narcotics; and that, in cases involving seizures of large amounts of narcotics and currency, "not a lot of luggage is taken." Appellant's and Pimpton's lengthy criminal histories included numerous drug offenses. The criminal histories, when combined with the other facts, provided strong support for Trooper Adkins's conclusion that he had reasonable suspicion to detain Pimpton and appellant. Based on the totality of the circumstances, we conclude that Trooper Adkins possessed specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that appellant was engaging in criminal activity and that, therefore, Trooper Adkins had reasonable suspicion to detain him.
Appellant relies on the following cases to support his contention that Trooper Adkins did not have reasonable suspicion to detain him: Herrera v. State, 80 S.W.3d 283 (Tex.App.-Texarkana 2002, pet. ref'd); McQuarters v. State, 58 S.W.3d 250 (Tex. App.-Fort Worth 2001, pet. ref'd); and Veal v. State, 28 S.W.3d 832 (Tex.App.-Beaumont 2000, pet. ref'd).[3] The nature of *812 the specific, articulable facts that were known to Trooper Adkins in this case distinguishes it from the cases cited by appellant. For example, there was no evidence in the cases cited by appellant that the detainees had lengthy criminal histories that included arrests for drug offenses.
We now address whether the duration of appellant's detention was reasonable. The drug dog alerted on the vehicle about seventy minutes after Trooper Adkins discovered the criminal histories. A seventy-minute detention is not unreasonable per se. Strauss v. State, 121 S.W.3d 486, 492 (Tex.App.-Amarillo 2003, pet. ref'd) (A seventy-five-minute detention from the stop until the drug dog arrived was not unreasonable.); Josey v. State, 981 S.W.2d 831, 840-41 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd) (A ninety-minute detention from the stop until the officers searched the vehicle was not unreasonable.). Rather, the reasonableness of the duration of appellant's detention depends on whether Trooper Adkins diligently pursued a means of investigation that was likely to confirm or dispel his suspicions quickly. Sharpe, 470 U.S. at 686, 105 S.Ct. 1568. A free-air sniff by a trained drug dog is recognized as a minimally intrusive method of investigation for an officer to confirm or dispel his suspicions of the presence of narcotics. See Strauss, 121 S.W.3d at 492; Josey, 981 S.W.2d at 841.
After Pimpton denied consent to search the vehicle, Trooper Adkins returned to his vehicle and attempted to locate an available canine officer. Trooper Adkins made numerous phone calls over an eighteen-minute period in an attempt to find a canine officer. He determined that the canine officer in Sweetwater was unavailable. At 1:10:40 p.m., he called Trooper Mueller, and Trooper Mueller agreed to assist him. At the time, Trooper Mueller was thirty or forty minutes away from the scene. Trooper Mueller arrived with his drug dog at the scene at 1:50 p.m. When the drug dog arrived at the scene, it quickly confirmed Trooper Adkins's suspicions. The drug dog alerted on the vehicle within three or four minutes after arriving at the scene. Once the drug dog alerted on the vehicle, Trooper Adkins's reasonable suspicion ripened into probable cause to search the vehicle. Harrison v. State, 7 S.W.3d 309, 311 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd); Josey, 981 S.W.2d at 846; Ortiz v. State, 930 S.W.2d 849, 856 (Tex. App.-Tyler 1996, no pet.). We conclude that Trooper Adkins diligently pursued a means of investigation that was likely to confirm or dispel his suspicions quickly and that, therefore, the duration of appellant's detention was reasonable. See Love, 252 S.W.3d at 688.
Because Trooper Adkins had reasonable suspicion to detain appellant and because the duration of appellant's detention was reasonable, the trial court did not abuse its discretion in denying appellant's motion to suppress. We overrule appellant's sole issue.
This Court's Ruling
We affirm the judgment of the trial court.
NOTES
[1] The tracking is bad through most of the video, and there are also occasional audio problems.
[2] The times referenced in this opinion are approximate times as shown in the video.
[3] Appellant also relies on Parker v. State, 182 S.W.3d 923 (Tex.Crim.App.2006). However, the issue in Parker was whether the defendant had standing to contest a search of a vehicle. The court did not address whether the officer had reasonable suspicion to detain the defendant.
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83 F.3d 422
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.Cother D. HEARN, Plaintiff-Appellant,v.Regina S. VEASY; Shirley McClain; Cynthia A. Gardner,Defendants-Appellees.
No. 95-1051.
United States Court of Appeals, Sixth Circuit.
April 18, 1996.
Before: MERRITT, Chief Judge; CONTIE and BOGGS, Circuit Judges.
ORDER
1
Cother D. Hearn, a pro se Michigan prisoner, appeals a district court judgment dismissing his civil rights complaint filed pursuant to 42 U.S.C. §§ 1983, 1985 and 1986. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Seeking monetary relief, Hearn sued three court reporters employed with the Recorder's Court in Detroit, Michigan, alleging that they conspired to violate his right of access to the courts. Specifically, Hearn alleged that: 1) defendant Veasy did not provide him with a copy of his guilty plea transcript, even though she accepted payment for the transcript; 2) defendant McClain deprived him of his co-defendant's suppression hearing transcript, which included evidence exculpatory to him; and 3) defendant Gardner altered his guilty plea transcript. The defendants filed a motion to dismiss or in the alternative for summary judgment. Upon review, a magistrate judge filed a report recommending that the district court grant the defendants' motion for summary judgment as Hearn's complaint was barred by the doctrine of res judicata. Over Hearn's objections, the district court adopted the magistrate judge's recommendation and dismissed the complaint.
3
On appeal, Hearn argues that: 1) the district court improperly applied the doctrine of res judicata to his claims; 2) there were genuine issues of material fact that should have precluded summary judgment; and 3) a jury should have decided the issue of whether a conspiracy existed.
4
Upon review, we conclude that the district court properly granted summary judgment to the defendants as there is no genuine issue as to any material fact and the defendants are entitled to judgment as a matter of law. See City Mgmt. Corp. v. U.S. Chem. Co., 43 F.3d 244, 250 (6th Cir.1994). Michigan's doctrine of res judicata bars Hearn's claims against the defendants. See Barnes v. McDowell, 848 F.2d 725, 730 (6th Cir.1988), cert. denied, 488 U.S. 1007 (1989). In actions filed under § 1983, federal courts must give a state agency's factual findings the same preclusive effect that the state courts would give them. Cf. Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 80-85 (1984) (federal courts should give same preclusive effect to claims as they would be given under the law of the state in which the judgment was rendered. Michigan courts recognize the preclusive effect of final determinations by administrative agencies whether or not the determinations by administrative agencies whether or not the determinations have been reviewed in a state court proceeding. See Polk v. Yellow Freight Sys., 801 F.2d 190, 193 (6th Cir.1986). In addition, the Michigan Administrative Procedures Act provides litigants the right to seek judicial review of decisions by administrative agencies. See M.C.L. §§ 24.303-05.
5
Hearn filed an action with the Michigan State Courts Administrator's Office ("MSCA"), alleging that the defendants improperly processed (or failed to process) his request for various transcripts. The MSCA ruled against him on the merits. Hearn now seeks to raise the same claim, alleging that the defendants conspired to violate his right of access to the courts. Because the essence of this claim had been presented and rejected in his earlier action, Michigan law would preclude him from raising it in any subsequent action. Moreover, the MSCA was acting in a judicial capacity following a full evidentiary hearing with an opportunity for state court review. Cf. Nelson v. Jefferson County, Ky., 863 F.2d 18, 18-19 (6th Cir.1988), cert. denied, 493 U.S. 820 (1989) (preclusion afforded to agency determinations where the agency was acting in a judicial capacity following a full evidentiary hearing with an opportunity for state court review).
6
Accordingly, we hereby affirm the district court's judgment. Rule 9(b)(3), Rules of the Sixth Circuit.
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605 F.2d 1203
Nasimv.Lally
No. 78-6577
United States Court of Appeals, Fourth Circuit
9/7/79
1
D.Md.
AFFIRMED
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56 Cal.2d 773 (1961)
THE PEOPLE, Plaintiff and Respondent,
v.
HENRY RAY LANE, JR., Defendant and Appellant.
Crim. No. 6833.
Supreme Court of California. In Bank.
Nov. 2, 1961.
Dennis L. Woodman, under appointment by the Supreme Court, for Defendant and Appellant.
Stanley Mosk, Attorney General, Arlo E. Smith and John S. McInerney, Deputy Attorneys General, for Plaintiff and Respondent.
DOOLING, J.
Defendant was charged with the murder of John Lyle. He entered a plea of not guilty. A jury found him guilty of murder of the first degree and fixed the penalty at death. The trial court denied defendant's motion for a new trial and sentenced him to death. This appeal is automatic. (Pen. Code, 1239, subd. (b).)
About 2:30 p. m. on September 22, 1960, defendant and one Ralph Ruiz picked up defendant's truck at a Redwood *777 City garage where defendant had left it for repairs. They had driven that day from their homes in Stockton in a car temporarily loaned to defendant by the garage owner. Upon picking up the truck, defendant transferred from the loaned car to the truck a brief case, hat and jacket. About an hour later the two men drove into a shopping center parking lot in Hillsdale, where they stole a red Ford Thunderbird. Defendant drove the Thunderbird, and Ruiz followed in the truck, to the Stanford Shopping Center. They parked the cars there, and after some discussion, both got into the Thunderbird. Defendant drove around the area looking, according to defendant's later statements to the police, for a possible place to rob but not finding any, they decided to go elsewhere. They returned to the parking stall where they had left the truck; defendant continued driving the Thunderbird and Ruiz got into the truck to follow. They drove northerly on El Camino Real and turned into the parking lot at Draeger's Market in Menlo Park.
Meanwhile the owner of the Thunderbird had discovered the theft and reported it to the police. Officer John Lyle, a Menlo Park patrol officer, heard the police radio broadcast of the theft, saw defendant on the road in the stolen car, and as defendant turned into the market's parking lot and parked the Thunderbird, Lyle followed defendant, parking his police squad car directly behind defendant so as to block any attempted escape. Lyle got out of his patrol car and approached defendant sitting in the Thunderbird. It was then about 4:30 p. m., the parking lot was fairly crowded, and a number of persons witnessed the ensuing events.
According to the accounts given at the trial, Officer Lyle had his gun drawn at the time he walked toward defendant sitting in the Thunderbird and he was heard to order defendant to "get out." Immediately thereafter there was a fusillade of bullets. Who fired first was a main point of contention in the case: it was the prosecution's claim that defendant opened fire on Lyle with a .45 caliber pistol that defendant had concealed under a jacket on his lap, while the defense claimed that Lyle shot first and defendant fired back in panic. Apparently defendant emptied his .45 automatic shooting in the direction of Lyle, wounding and causing him to fall to the ground. Defendant then grabbed a fully loaded P-38 pistol that he was also carrying in the front seat and as he stepped out of the Thunderbird, he aimed the pistol at Lyle, having cocked it with the prosthesis he wore in place *778 of his left hand. The pistol jammed; two shots were fired in the air; and then defendant stood over Lyle and fired several shots directly into the body of Lyle. The pistol jammed again and defendant started running from the scene. After going a short distance, defendant returned to the Thunderbird, grabbed his jacket from the front seat and draped it over his artificial hand and arm. He then ran across the parking lot, dropping one of the guns there and the other at the back entrance of the market.
Meanwhile Officer Donohue, responding to Officer Lyle's previous radio call for help, reached the parking lot, heard some of the shooting, saw what was happening; and after parking his patrol car, Donohue set out on foot in pursuit of defendant. Donohue chased defendant through the market and out into the street where he finally overtook defendant. Two other officers then arrived on the scene and while defendant was being handcuffed, one of the officers asked defendant why he had shot Officer Lyle, to which defendant responded: "I got him. I am glad I got him." The officers searched defendant at the time of his arrest and found in his pockets a large quantity of ammunition for the two pistols defendant had been carrying.
A doctor in the vicinity had been summoned for the wounded Lyle but by the time he arrived, Lyle was dead. The autopsy performed later that day showed that Lyle had been shot four times--once in the back of the head and three times in the abdomen--and that Lyle died from his wounds. Defendant also was hurt in the gunplay with Lyle, suffering bullet wounds in both legs just below the kneecaps, and he was taken to the hospital for treatment, where he remained nine days, until October 1.
At the trial it appeared that four days before the Lyle episode defendant and Ruiz had entered a candy store in Walnut Creek and committed an armed robbery. The victim, who had come into the store while the robbery was in progress, testified that defendant accosted him with gun in hand and took his wallet containing about $50; that when he saw defendant's picture in the newspaper in connection with the Lyle homicide, he recognized defendant as his assailant in the robbery, and so reported to the police who were then still trying to solve that crime.
After his apprehension defendant made seven statements to the police, each time giving a little more detail about the Lyle homicide but never admitting either that he intended *779 to commit a robbery when he pulled into the parking lot at Draeger's Market or that he had fired first at Officer Lyle. The first statement was taken at the Menlo Park Police Station, where defendant was taken shortly after his arrest on September 22 and examined by a doctor before being transported to the hospital. In that statement defendant admitted the theft of the Thunderbird and driving it to Draeger's Market. He then related the officer's (Lyle's) parking his patrol car behind him so as to cut off any attempt at escape; the officer's subsequent approach with a drawn gun when "they both started shooting" but defendant insisted that the officer opened fire first. Defendant claimed that he was alone at the time, and stated that on September 22 he had walked from his home in Stockton to Hillsdale, where he stole the Thunderbird.
Defendant was then taken to the hospital and while so confined he gave four more statements to the police: two on September 23, one on September 28, and one on September 30. In each of these statements defendant's basic contentions remained the same: that the officer (Lyle) opened fire first and he, defendant, returned the gunfire more or less in panic. However, defendant did admit that as the officer approached him in the parking lot, he was aware that he was driving a stolen vehicle and was in illegal possession of firearms. Defendant denied any recollection of having shot the officer as the latter lay wounded on the ground. In answer to a query about his pickup truck, defendant admitted owning one but claimed that he had left it in Stockton and had not used it in the September 22d affair then under investigation. Defendant still insisted that he was acting alone at the time. In one of the statements he admitted commission of the Walnut Creek robbery.
Defendant gave a sixth statement in the district attorney's office on October 1 after his release from the hospital. He therein admitted that he had a companion, Ruiz, with him on September 22; that they had driven that day together from Stockton to the Redwood City garage where defendant's truck was being repaired; that after he, defendant, had stolen the Thunderbird from the Hillsdale parking lot, he drove to the Stanford Shopping Center, with Ruiz following in the truck; that after parking the Thunderbird and the truck, he and Ruiz talked together about finding a suitable place to rob. However, defendant further claimed that after surveying the situation at the Stanford Shopping Center, they decided *780 against committing a robbery there; that while they then thought they would look elsewhere for a place to rob, defendant changed his mind as he was driving to Menlo Park, with Ruiz following in the truck, and when he, defendant, pulled into the parking lot at Draeger's Market, he had abandoned all robbery plans and then merely intended to leave the Thunderbird there so as to be rid of it, although he had not yet communicated this change of plans to Ruiz. Defendant further claimed that he was so confused when the officer (Lyle) came toward him in the parking lot that he did not realize what was happening as the interchange of gunshots took place.
Defendant gave his seventh and last statement to the police on October 3 in a police car. At this time defendant directed the accompanying officers over the route that he and Ruiz had followed on September 22, pointing out the Hillsdale parking lot where he had stolen the Thunderbird, the various places he and Ruiz had considered robbing in the Stanford Shopping Center, and finally the scene of the homicide on the parking lot of Draeger's Market, Menlo Park, and the chase through the market until defendant was apprehended.
Defendant did not take the stand on the trial as to his guilt, but in his argument to the jury defendant's counsel referred to portions of defendant's several statements which were favorable to his theories of defense.
We shall separately state and consider the points argued by defendant as stated by defendant's counsel in his brief filed herein.
[1] 1. Defendant's constitutional rights were violated by being held in custody in excess of 48 hours before being taken before a magistrate, in violation of section 825, Penal Code. [fn. 1]
Admittedly defendant was not taken for arraignment until September 29, seven days after his arrest; but defendant was hospitalized for treatment of his leg wounds suffered in the gunfire at the time of Officer Lyle's homicide, and it was only in the evening of September 28 that Inspector Kieler was advised by the hospital authorities that defendant was well enough to be taken to court for arraignment. The next morning, September 29, defendant was taken to court for arraignment, booked into the county jail, and then returned to the *781 hospital to stay two more days before being released into the custody of the sheriff.
Obviously this delay was not due to police indifference nor to any attempt to hold defendant incommunicado from his friends and counsel. The evidence produced by the prosecution established that as soon as practicable after the hospital authorities had advised that defendant was well enough for the purpose he was taken before a magistrate and defendant did not attempt by cross-examination or the production of other evidence to controvert this. It would be an unreasonable application of section 825 to require a hospitalized defendant to be taken before a magistrate until it was possible to do so without jeopardy to his health. [2] In any event no prejudice to defendant is pointed out by the delay in his arraignment, and "[a] violation of a defendant's right to be taken before a magistrate within the time specified by the law does not require a reversal unless he shows that through such wrongful conduct he was deprived of a fair trial or otherwise suffered prejudice as a result thereof." (People v. Combes, ante, pp. 135, 142 [14 Cal.Rptr. 4, 363 P.2d 4].)
[3] The testimony that defendant's several statements made in the hospital were freely and voluntarily given was in no way controverted nor was any objection made to their admission into evidence on the ground of the delay in defendant's arraignment. One statement was given immediately after his arrest and the last two following his arraignment. While unreasonable delay in arraignment may be a factor to be considered in determining whether a statement of a defendant is voluntarily made (People v. Kendrick, ante, pp. 71, 85 [14 Cal.Rptr. 13, 363 P.2d 13]), there is no showing here, nor was any such claim made in the trial court, that the delay in arraignment in this case influenced any of the statements made by defendant. The mere delay in arraignment under these circumstances did not render the statements inadmissible. (Crooker v. California, 357 U.S. 433, 437 [78 S.Ct. 1287, 2 L.Ed.2d 1448]; People v. Bashor, 48 Cal. 2d 763, 765 [312 P.2d 255].)
[4] 2. Statements were introduced in evidence that had been taken from defendant while under the influence of drugs, narcotics and hypnotics.
This contention, like the previous one, was not urged in the trial court but is raised for the first time on appeal. As a witness for the prosecution, the attending doctor described defendant's wounds and treatment in the hospital. On cross-examination, *782 he stated that during the hospitalization certain drugs were prescribed for defendant, but the doctor was not questioned as to the quantities administered to defendant, the dates the drugs were given to defendant nor as to their effect upon him, except that the morphine sulphate given was "a pain killer." In these circumstances there is no evidence that defendant was under the influence of drugs when he gave any of his statements, and defendant may not predicate an argument on such ground on appeal when no proper foundation for such claim was laid in the trial court.
The prosecution agrees that the fact of "heavy sedation or drugs" at the time a statement is taken from a suspect would be a circumstance for the jury to consider in determining its voluntary nature. (People v. Cobb, 45 Cal.2d 158, 162 [287 P.2d 752]; People v. Grasso, 142 Cal.App.2d 407, 417-418 [298 P.2d 131]; see also People v. Waack, 100 Cal.App.2d 253, 257 [223 P.2d 486].) But where there is no evidence indicating any improper conduct in procurement of the statements so as to constitute a denial of due process and no attempt was made in the trial court to substantiate defendant's present challenge of the voluntary character of these statements, defendant cannot prevail in such claim now. (People v. Millum, 42 Cal.2d 524, 526-527 [267 P.2d 1039].)
[5] 3. The trial court erred in refusing the offers of proof of defendant in regard to evidence concerning the Mitchell matter.
Defendant argues that since "part of the (prosecution's) case in chief ... touched upon the Mitchell matter," he should have been allowed to have "inquired" into the "whole" of it. (Code Civ. Proc., 1854.) In the course of Inspector Kieler's testimony as to the statement he took from defendant on October 1, it appeared that Kieler had then asked defendant how he knew about a certain "shooting match," a matter he and defendant had discussed a few days previously. In the course of his statement defendant apparently gave a rather evasive answer but he did say that he knew that Officer Lyle had been involved in it. Upon cross- examination, Kieler was queried about this matter. The prosecution immediately objected, urging that the cross-examination should be limited to statements between Kieler and defendant. The defense argued that the prosecution had opened the door to query on the matter by introducing the statement containing the cited reference. The court finally permitted further query of Kieler as to whether the reference was to "the killing of a citizen *783 in his own home ... by Officer Lyle" and Kieler replied "Yes." After further argument between counsel, the defense was allowed to develop the matter to show that the man slain was a Mr. Mitchell, that Kieler had visited the Mitchell home after the shooting and while Officer Lyle was still there, and had seen Lyle's gun in his holster, and that Mitchell was found with "five bullet wounds in (his) body." It was then shown that Officer Lyle had gone to the Mitchell house on official business, that he was called by Mrs. Mitchell, and that Mitchell was shot in the course of the visit. Thereupon the defense attempted to introduce a report from the official police records; the prosecution objected and in an offer of proof to the court, without the presence of the jury, the defense cited a statement of Mrs. Mitchell in the case record to the effect that as Officer Lyle entered the house, her husband had a knife in his hand and had started arguing with Lyle; that Lyle told her husband to put down the knife but he would not; that her husband then overturned a table and Lyle pulled out his gun and started shooting; that her husband had not made any move toward Lyle at the time. The court finally ruled that no further questioning on the "Mitchell matter or any other matters concerning the conduct of Officer Lyle (relating) to the handling of a gun" would be allowed, in sustaining the prosecution's objection that such evidence was not relevant or material. It is clear that the record of Mrs. Mitchell's statements was hearsay and inadmissible on that ground, even though the report may have qualified as a business record under Code of Civil Procedure, section 1953f. (Behr v. County of Santa Cruz, 172 Cal.App.2d 697, 704-706 [342 P.2d 987]; Hoel v. City of Los Angeles, 136 Cal.App.2d 295, 309-310 [288 P.2d 989].)
It also appears that defendant had no knowledge of this incident at the time of his encounter with Officer Lyle. In the absence of such knowledge at the time of the killing no basis for its admissibility is suggested. (People v. Hoffman, 195 Cal. 295, 310-311 [232 P. 974].) [6] Defendant is not entitled to inquire into collateral matters not otherwise relevant or admissible because they have been incidentally touched upon in the testimony. (People v. Heckford, 149 Cal.App.2d 250, 255 [308 P.2d 497]; People v. McDaniel, 59 Cal.App.2d 672, 677 [140 P.2d 88].)
4. The court erred in instructing on armed robbery or attempted armed robbery.
The court instructed that a homicide committed in the *784 perpetration or attempt to perpetrate robbery is murder of the first degree.
Defendant concedes that the instructions were correct as stating abstract rules of law but argues that they were not responsive to any issue in the case because no evidence was introduced showing that defendant and Ruiz were attempting a robbery and were thwarted by Officer Lyle's intervention. The prosecution relies on (1) circumstantial evidence surrounding the happening of the homicide--the guns defendant was carrying, the additional rifle and ammunition in the pickup truck that Ruiz was driving; and (2) defendant's admission in his various statements that he and Ruiz were planning a robbery that afternoon but had not found a suitable place to rob. The only contrary evidence was defendant's further claim in his statements to the police that he had abandoned the robbery plan after leaving the Stanford Shopping Center where he and Ruiz had "cased" the area looking for a place to rob, and then he was only interested "in getting rid" of the stolen Thunderbird by leaving it in the parking lot where the homicide subsequently occurred. Defendant admitted that he had not told Ruiz of this change in his robbery plans. [7] The prosecution is not bound by all of defendant's declarations in his statements or confessions to the police negating criminality when there is other evidence tending to prove criminality, and it is "the function of the trier of fact to determine which version is to be believed." (People v. Acosta, 45 Cal.2d 538, 542 [290 P.2d 1]; People v. Fulton, 188 Cal.App.2d 105, 116 [10 Cal.Rptr. 319]; see also People v. Johnston, 48 Cal.2d 78, 83 [307 P.2d 921].) There was sufficient evidence to support a finding that the killing was committed while defendant was attempting to commit a robbery despite his statements to the contrary.
[8] The district attorney in his argument referred, without objection, to the prosecution's robbery theory and the felony doctrine in connection with the commission of a homicide; defendant's counsel replied by discounting the robbery claim; and in the related instructions submitted by defendant and given, there was included a recital of the elements or acts necessary to constitute an attempt to commit a crime and the circumstances required to establish an abandonment. Under the evidence the instructions on the robbery issue were properly submitted to the jury in determining defendant's guilt.
[9] 5. Any items removed from defendant's truck were *785 not required to the proof of the People's case, and the admission thereof was prejudicial. [fn. 2]
A search of defendant's abandoned truck which was being driven by Ruiz at the time of the homicide uncovered some guns and ammunition. These items were introduced in evidence over defendant's objection that they had been seized during an "unlawful search and seizure." After a hearing on this point, the court overruled defendant's objection in acceptance of the prosecution's theory that defendant and Ruiz were so fully armed because of their robbery plans. Defendant argues that since the guns that were used in the Lyle homicide by defendant were absolutely identified at the trial, the other weapons and items found in the abandoned truck miles from the scene of the homicide were not relevant, and that the only purpose of their introduction was to try to establish that defendant was the "sort of person who carries deadly weapons." (People v. Riser, 47 Cal.2d 566, 577 [305 P.2d 1].)
The weapons were of a character which could be used in armed robbery, in which defendant and Ruiz had agreed to engage, and were found in the truck used in furtherance of the criminal plan. Their circumstantial relevancy therefore seems clear. [10] In any event the only objection voiced at the trial was the claim of unlawful search and seizure. That ground is not urged on appeal and in view of the fact that Ruiz, defendant's confederate who was driving the truck in furtherance of their criminal plan, led the officers to the truck and identified the truck to them, it is not tenable. [11] Defendant cannot for the first time urge on appeal a different objection to the evidence not voiced in the trial court. (People v. Witt, 159 Cal.App.2d 492, 497 [324 P.2d 79].)
[12] 6. The Court erred in denying defendant's motion for the production of statements of named witnesses.
A few weeks before the scheduled trial date, defendant made a motion requesting the court to order the prosecution to furnish him with copies of statements from 13 named individuals (allegedly eyewitnesses to the homicide) and certain other items of evidence in the possession of the prosecution. The motion was granted as to the "other items of evidence" and a decision on the requested statements was continued *786 for two days. Upon later consideration of the matter, the court gave defendant permission to examine the statement of one of the 13 persons named by defendant and denied the request as to the others "without prejudice of defendant to make any further motions." The record does not show that defendant at any time made a further motion for discovery of any of these statements although the trial court had expressly left the way open for him to do so. Only three of the named persons whose statements were demanded were called by the prosecution as witnesses, and defendant was furnished copies of the statements of all three. The names of all were known to defendant and the record is silent as to whether he interviewed or attempted to interview any or all of them. "Although the defendant does not have to show ... that the evidence which he seeks to have produced would be admissible at the trial [citations], he does have to show some better cause for inspection than a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime." (People v. Cooper, 53 Cal.2d 755, 770 [3 Cal.Rptr. 148, 349 P.2d 964].) On the showing in this record neither error nor prejudice appears.
[13] 7. The court erred in excluding evidence in regard to the death penalty being a deterrence to crime.
8. The court erred in instructing on the death penalty being a deterrence to crime.
On the trial to determine the penalty defendant sought to produce a prison chaplain to testify to his opinion that the death penalty is not a deterrent of crime. The court properly excluded this evidence. (People v. Love, ante, p. 720 [16 Cal.Rptr. 777, 17 Cal.Rptr. 481, 366 P.2d 33, 809].)
[14] The court correctly instructed the jury that the fixing of the penalty at death or life imprisonment was in their "absolute discretion," that "there is no rule of law which suggests that the punishment should be death unless there is evidence of extenuating or mitigating circumstances nor does the law suggest that the penalty shall be life imprisonment unless there is evidence in aggravation of the offense."
The court further instructed: "In deciding the question whether the accused should be put to death or sentenced to imprisonment for life, it is within your discretion alone for you to determine, each for yourself, how far you will accord weight to the consideration of the several objectives of punishment, of the deterrence of crime, of the protection of society, of the desirability of stern retribution; or of sympathy, as well as revulsion against the defendant for his *787 crimes, or clemency, of age, as well as experience, sex, human passion, as well as ability to carefully deliberate and plan, ignorance, as well as experience, or weakness, as well as strength, or of the presumptions concerning, or possible uncertainties attaching to, life imprisonment, or of the irrevocableness of an executed sentence of death, or an apprehension that explanatory facts may exist which have not been brought to light as well as the definiteness and certainty of the evidence before you, or any other consideration whatever which appears to you to be important in the light of the evidence, the duty you owe to the accused and to the State, and the law as I explained it to you." (Emphasis added.)
We said in People v. Love, supra, page 731: "The Legislature has left to the absolute discretion of the jury the fixing of the punishment for first degree murder. [Citations.] There is thus no legislative finding, and it is not a matter of common knowledge, that capital punishment is or is not a more effective deterrent than imprisonment. Since evidence on this question is inadmissible, argument thereon by prosecution or defense could serve no useful purpose, is apt to be misleading, and is therefore improper." The same reasoning leads to the conclusion that an instruction on the subject "could serve no useful purpose, is apt to be misleading, and is therefore improper."
[15] The sole mention of deterrence of crime in the court's instructions is in the words emphasized in the quoted instruction: "of the deterrence of crime." The words appear in a long enumeration of many factors which the jury may take into consideration in fixing the penalty; they do not suggest any opinion of the court that one penalty is a greater deterrent than the other; and while they should have been omitted, we do not believe that this single casual reference to "deterrence of crime" was prejudicial to defendant.
[16] The same observation applies to the argument of the district attorney. While he did make some reference at one point to the possible deterrent effect of the death penalty, it was not a major part of his argument, as in People v. Love, supra, nor did it embody any of the aggravated features of the argument which we found prejudicial in that case. On the whole case we are satisfied that the defendant was not prejudiced by either instruction or argument on this point.
[17] 9. The court erred in allowing the district attorney to cross-examine and introduce case histories of specific lifers first. *788
After the administrative officer for the California Adult Authority had testified for the People generally as to the parole practices of the Authority in the cases of prisoners convicted of first degree murder and sentenced to life imprisonment, on cross-examination he was asked about the particular case of one prisoner convicted of first degree murder in San Mateo County about 1923 and sentenced to life imprisonment. The district attorney objected to "getting into specific individuals ... unless I have the same opportunity." Over this objection the witness testified that this prisoner had been in prison "[s]ince he was committed from San Mateo County." On redirect the district attorney was permitted to inquire about one other case of first degree murder with a life term sentence over the objection "... I know that the defense has gone into a particular case, but on a collateral matter, not on the question of merits of any individual case. I would object to going into the merits of any particular case by name." The court stated: "I think you are limited to the procedure in the case, are you not ...?"; to which the district attorney replied: "Just asking for particular incidents involving first degree life imprisonment cases." The witness then testified that this prisoner escaped, was recommitted, was paroled, violated parole and was reimprisoned, was then reparoled and was still on parole. Defendant having introduced the evidence of one specific case in which a defendant sentenced to life imprisonment was still in prison after almost 40 years, is in no position to complain about this evidence of one other prisoner sentenced to a life term whose treatment was more lenient. If it was error to go into the facts of a particular case, and it would seem better practice not to do so, defendant opened the door in this instance, and we can find no prejudice in counterbalancing the general facts of one case produced by the defense by the general facts of another single case produced by the prosecution.
[18] 10. The comment of the district attorney during argument was prejudicial misconduct.
Defendant complains in this specification of the district attorney's references in his argument to "an army of criminals" and to "two armies fighting each other," referring to the criminal element and the law- enforcement officers as opposing armies. The figurative characterization of the activities of law-enforcement agencies as the "war on crime" is a commonplace of our everyday language and the district attorney's drawing upon this prevailing figure of speech to *789 illustrate and emphasize his argument cannot under the circumstances be regarded as inflammatory or improper. (See 48 Cal.Jur.2d, Trial, 434, pp. 440-441.)
The judgment and the order denying a new trial are affirmed.
Gibson, C. J., Traynor, J., Peters, J., and White, J., concurred.
Schauer, J., and McComb, J., concurred in the judgment.
NOTES
[fn. 1] 1. "The defendant must in all cases be taken before the magistrate without unnecessary delay, and, in any event, within two days after his arrest, excluding Sundays and holidays. ..." (Pen. Code, 825.)
[fn. 2] 2. The order of presentation of appellant's points in his brief is departed from with this specification so as to consider all arguments directed to the trial on the issue of guilt before considering the specifications directed to the trial on the issue of penalty.
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202 F.Supp.2d 895 (2002)
INTERNATIONAL PAPER COMPANY Plaintiff
v.
MCI WORLDCOM NETWORK SERVICES, INC. Defendant
No. CIV.00-6202.
United States District Court, W.D. Arkansas, Hot Springs Division.
May 1, 2002.
*896 *897 Sherry P. Bartley and Leigh Anne Shults, Mitchell, Williams, Selig, Gates & Woodyard, Little Rock, for Plaintiff or Petitioner.
Kevin A. Crass and Jay T. Taylor, Friday, Eldredge & Clark, Little Rock, David A. Handzo and J. Alex Ward, Jenner & Block, LLC, Washington, D.C., for Defendant or Respondent.
OPINION AND ORDER
DAWSON, District Judge.
On this 1st day of May 2002, there comes on for consideration the motion for summary judgment filed by defendant MCI Worldcom Network Services, Inc. (MCI) on December 11, 2001. (Doc. # 13). The questions presented by the motion require this court to apply centuries-old real property principles to resolve a dispute involving modern technology. In 1987 and 1988, MCI installed fiber optic cables within a railroad right-of-way held by Union Pacific Railroad Company, successor in interest to Missouri Pacific Railroad (the railroad). The railroad right-of-way runs through property owned in fee by the plaintiff, International Paper Company (IPC). The installation of the fiber optic cable was completed by agreement with the railroad; however, MCI did not obtain the consent of, nor did it compensate, IPC, the owner of the underlying interest. Plaintiff IPC filed this litigation alleging trespass, unjust enrichment, and slander of title seeking declaratory and injunctive relief, an accounting, compensatory and punitive damages, and attorneys' fees and costs. MCI moves for summary judgment on the grounds that the claims are barred by the applicable statute of limitations, and also because it was not necessary to obtain any authorization from IPC to install the cable within the railroad right-of-way. For the reasons set forth within this memorandum, the motion for summary judgment will be granted and this case will be dismissed.
Factual Background
The facts are not substantially in dispute. At some point within the past century (and perhaps even further in the past), the railroad acquired for its use a right-of-way corridor running through the land currently owned in fee by IPC in Hot Spring and Clark Counties, Arkansas. The record before the court does not disclose whether the railroad rights-of-way were acquired by private deed, public grant, condemnation, or otherwise, and it is unknown with regard to each specific tract or segment of land whether the railroad owns the right-of-way in fee or whether the railroad's interest is something less. IPC acquired its interest in the tracts of land between 1941 and 1975, and the titles to IPC's tracts are subject to the railroad rights-of-way.[1]Pl.'s Exs. Resp. Mot. Summ. J. Exs. 3-16.
In the early 1980's, after the long distance communication market was opened to competitors of AT & T, various telecommunications companies, both large and small, began exploring the feasibility of developing their own long-distance communications networks. Most of these companies focused on the use of fiber-optic cable as the preferred technology on which to base their new systems, finding that fiber-optics offered performance advantages over satellite or microwave transmission *898 technologies. After establishing that the fiber-optic technology could be acquired and utilized on a cost efficient basis, telecommunications companies began searching for a means to acquire rights-of-way for installing the cable. Historically, railway and telegraph companies often formed symbiotic alliances because of the numerous benefits the arrangement afforded to both industries. Many of the same benefits enjoyed by the telegraph companies by association with the railroads, including availability of the rights-of-way, routing considerations, relative ease of acquisition, security, accessability, and safety, were found to be of equal or greater value to modern long distance companies, and it was determined that fiber-optic cables would be placed within railroad rights-of-way. As one study concluded, "Railroad rights-of-way provided the foundation for the earliest nation-wide telecommunications service, the telegraph; so why not the latest?" Dale Hatfield & Roland S. Homet, Jr., The Use of Sale of Railroad Rights-of-way for Fiber-Optic Communications, Phase One at 14 (March 15, 1983)(unpublished manuscript, on file with the Association of American Railroads Library). Pl.'s Resp. Mot. Summ. J. Ex. 1.
In 1984, MCI[2] entered into a survey agreement with the railroad which gave MCI the right to determine the feasibility of and to prepare and submit construction plans for a fiber-optic system to be placed within the railroad's rights-of-way. In 1985, MCI and the railroad entered into a master agreement which allowed MCI to proceed with the installation of fiber optic cable within the rights-of-way. The master agreement was amended by addendum in 1987 to permit the laying of cable within the railroad right-of-way running between Longview, Texas and Memphis, Tennessee, which corridor includes the lands now owned by IPC in Hot Spring and Clark Counties. The 1985 master agreement and the 1987 addendum were superseded by an amended master agreement in 1989. The perpetual easements granted to MCI by the railroad provide in part that the "grants are made without covenant of title or for quiet enjoyment and without warranty of title express or implied, and are subject and subordinate to outstanding or superior rights." Def.'s Mot. Summ. J. Ex. 10. There is no indication that MCI investigated the nature or quality of the railroad's property interests in the rights-of-way. Pl.'s Resp. Mot. Summ. J. Ex. 17 at 44-45.
MCI installed the fiber optic cables within the railroad right-of-way running across IPC's property in 1987 and 1988. Conspicuous, above-ground marker posts were installed at regular intervals along the cable route to warn of the cable's presence below ground. Def's Mot. Summ. J. Exs. 6 & 7.
Pursuant to the agreements, the railroad is entitled to use and does use a portion of the fiber-optic system buried beneath its tracks for its own railroad information and communications systems, although the exact uses have not been disclosed. Def.'s Mot. Summ. J. Ex. 2; Pl.'s Resp. Mot. Summ. J. Ex. 19 at 28-29. The railroad has averred that the right-of-way in Clark and Hot Spring Counties has been and is actively used as a railroad line. Def.'s Mot. Summ. J. Ex. 9 at ¶ 6.
MCI did not obtain the consent of IPC and did not compensate it for the installation of the fiber optic cable. However, by an agreement dated March 30, 1995, IP Timberlands Operating Company, Ltd., conveyed to MCI a temporary easement allowing MCI:
*899 to enter and re-enter a portion of [IP's] road for the purpose of accessing the railroad right-of-way to facilitate the relocation of [MCI's] fiber optic cable telecommunications system, including the right to park vehicles on [IP's] road.
Id. Ex. 12.[3] IP Timberlands Operating Company, Ltd. is a limited partnership that manages some if not most of IPC's timber resources. Id. Ex. 14. It appears that an officer of International Paper signed the temporary easement on behalf of IP Timberlands Operating Company. Id. Ex. 12.
IPC instituted this litigation on November 1, 2000. Jurisdiction is proper under the diversity statute, 28 U.S.C. § 1332.
The Summary Judgment Standard
The court should grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). A fact is material only when its resolution affects the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. Id. at 252, 106 S.Ct. at 2512. The court views the evidence in favor of the nonmoving party, giving that party the benefit of all justifiable inferences that can be drawn in its favor. If reasonable minds could differ as to the import of the evidence, judgment should not be granted. Id. at 250-51, 106 S.Ct. at 2511-12. However, the nonmoving party must set forth specific facts, by affidavit or otherwise, sufficient to raise a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); See also Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (opponent must do more than simply show that there is some metaphysical doubt as to the material facts).
The Railroad Rights-of-Way
The question is whether the railroad's interest in the right-of-way traversing the land owned by IPC is sufficient to allow the railroad to grant an easement to MCI for the installation of its fiber-optic cable system. Because this is a diversity case, we apply the substantive law of the state of Arkansas to resolve the question. Salve Regina College v. Russell, 499 U.S. 225, 226-227, 111 S.Ct. 1217, 1218, 113 L.Ed.2d 190 (1991); Shelter Ins. Cos. v. Hildreth, 255 F.3d 921, 925 (8th Cir.2001). A federal court is required to follow the announced state law in a diversity action "unless there are very persuasive grounds for believing that the state's highest court no longer would adhere to [it]." 19 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4505, at 145-47. (2nd ed.2001). If state law is unsettled, it becomes our duty to predict the rule we believe the Arkansas Supreme Court would follow. Novak v. Navistar Int'l Transp. Corp., 46 F.3d 844, 847 (8th Cir. 1995). We note at the outset that the developed case law concerning railroad rights-of-way is old, and many of the early decisions involved telegraph technology, the precursor to the telephone and modern day telecommunications technology.
IPC claims that any interest less than a fee would not entitle the railroad to grant an easement to MCI, and that a review of the documents evidencing the railroad's right-of-way is necessary to determine *900 validity of IPC's causes of action. MCI contends that it is not necessary to examine each individual deed or conveyance establishing the railroad right-of-way, because the railroad interest is at the very least an easement for railroad purposes. MCI's assertion appears to be a correct statement of the law. In Arkansas, a railroad right-of-way is traditionally a narrow strip of land that is either owned in fee, or held by conditional fee or easement to be used for "railroad purposes." Coleman v. Missouri Pacific Railroad Company, 294 Ark. 633, 745 S.W.2d 622 (1988); Chicago, R.I. & P.R.Co. v. Olson, 222 Ark. 828, 262 S.W.2d 882 (1953) (citing 2 Thompson on Real Property, § 462 and 74 C.J.S., Railroads, § 84 c. (1)); Daugherty v. Helena & Northwestern Ry., 221 Ark. 101, 252 S.W.2d 546 (1952) (citing Magnolia Petroleum Co. v. Thompson, 106 F.2d 217 (8th Cir.1939) rev'd on other grounds, 309 U.S. 478, 60 S.Ct. 628, 84 L.Ed. 876); St. Louis-San Francisco Ry. Co. v. White, 199 Ark. 56, 132 S.W.2d 807 (1939). The general rule in Arkansas is that "if the deed purports to convey only a right of way, it does not convey the land itself, but the fee remains in the grantor, and the railway company acquires a mere easement in perpetuity for railway purposes." Coleman, Id. at 635, 745 S.W.2d at 623 (citing Olsen, 222 Ark. 828, 262 S.W.2d 882). When called upon to construe deeds conveying a railroad right-of-way, the Arkansas Supreme Court has held that it does not make a difference whether the grant is construed as an easement or a conditional fee, because under either interpretation, the strip is to be used for railroad purposes. Boyd v. Pierce, 278 Ark. 161, 644 S.W.2d 927 (1983).
The Supreme Court has held that it is unnecessary to determine whether the effect of a deed is to convey fee-simple title or an easement, so long as some portion of the strip is used for railroad purposes. Ritter v. Thompson, 144 S.W. 910, 911, 102 Ark. 442 (1912). Even if the right-of-way is only an easement, the railway company has the right to use and possess all the land conveyed so long as any portion of the strip is used for railroad purposes. Id. An easement in perpetuity for railroad purposes "is an interest which is absolute for the purposes for which the land is conveyed so long as it is used for those purposes, even though the language of the deed may fall short of conveying the fee..." St. Louis-San Francisco Ry. Co. v. White, Id., 132 S.W.2d at 808. A perpetual easement for railroad purposes has been described as "an easement in the nature of a fee." Graham v. St. Louis, Iron Mountain & Southern Railway Co., 69 Ark. 562, 65 S.W. 1048, 1051 (1901)(on rehearing, opinion by J. Wood). Railroad companies "have the exclusive right to use their right of way for the purposes for which such corporations are organized, and such uses carry with it an interest in the ground which is in the nature of real property..." Standard Pipe Line Co., Inc. v. Index-Sulphur Drainage Dist., 173 Ark. 372, 293 S.W. 1031, 1033 (1927) (citation omitted)(stating that railroad right of way is subject to local assessments as real property). A railway company also has the right to "lease to permit the surplus use of its right-of-way, or of its property," and this right is the railroad's "private property and it is often very valuable property." Northern Pac. Ry. Co. v. North American Telegraph Co., 230 F. 347, 349 (8th Cir.1915) (citations omitted)(holding that telegraph company required to pay railroad for surplus use of railroad right-of-way for telegraph purposes). However, an easement for railway purposes is not a fee and does not convey the mineral estate in the land.[4]Olson, id. at 829, 262 S.W.2d at 883.
*901 We conclude that it is not necessary to review each of the relevant railroad deeds to determine the exact nature of the interest owned by the railroad, because at a minimum each right-of-way deed granted an easement for railroad purposes only. MCI has alleged that the railroad's interest in each parcel is at least an easement for railroad purposes, and IPC has not come forward with any proof suggesting that the railroad's interest is something less. Although possible in theory, we have seen nothing in the case law or elsewhere recognizing a railroad right-of-way more limited in nature than the traditional easement for railroad purposes. Arkansas law provides that these railroad easements convey an interest in the ground that entitles the railroad to lease or license the surplus right-of-way to third parties for railroad purposes. The key issue is whether, under Arkansas law, the laying of the fiber-optic cable may properly be deemed a railroad purpose.
In Ritter v. Thompson, 144 S.W. 910, 911, 102 Ark. 442 (1912), the railroad granted licenses to Ritter and other parties allowing them to build various structures on the railroad right-of-way, including a saloon, a doctor's office, a barbershop, a hardware store and a furniture store. Ritter, the underlying landowner, filed suit contending that the other parties' buildings presented a fire hazard to his buildings. Ritter sought to cancel the licenses and to enjoin the railroad from granting other licenses, contending that the licenses violated the "for railroad purposes only" clause in the railroad deed, and that the violation gave him the right to repossess himself of the land. The Court found that for five years Ritter failed to notify the railroad company of his objection to the granting of the licenses as being in violation of the "for railroad purposes only" clause, and held that, if Ritter ever had the rights claimed under the clause, he had waived them by his conduct.
A year or so later, the Arkansas Supreme Court denied compensation to a plaintiff for telephone poles constructed in a railroad right-of-way. "So long as the railroad company occupied any portion of its right of way, it had the exclusive use and right of control coextensive with the boundary described in its deed." Campbell v. Southwestern Telegraph & Telephone Co., 158 S.W. 1085, 108 Ark. 569 (1913).
We find the case relied upon by IPC to be inapposite to the issue. In Southwestern Bell Telephone Co. v. Biddle, 186 Ark. 294, 54 S.W.2d 57 (1932), the phone company placed a line of telephone poles within a strip of land that belonged to Biddle before it was condemned by the state highway commission for changing and widening the highway. The Supreme Court held that the condemnation of an easement for highway use would not prevent Biddle from collecting damages from the phone company for the new servitude imposed by the telephone poles, because the phone company use was not contemplated when the highway easement was taken or granted. Id., 54 S.W.2d at 59. Biddle is not controlling to our inquiry because an easement for highway purposes is not comparable to an easement for railroad purposes. See Wright v. St. Louis Southwestern Ry. Co., 175 F. 845 (C.C.W.D.Ark.1910)(finding that railroad right-of-way differs very essentially *902 from land taken for public highway). The Biddle opinion does not cite either Ritter or Campbell and did not change the law with regard to easements for railroad purposes.
In Boyd v. Pierce, 278 Ark. 161, 644 S.W.2d 927 (1983), the railroad acquired a right-of-way to a strip of land in 1912. On one portion of the strip a station was built, while another portion of the same strip (the gin lot) was leased to a third party for the construction and operation of a cotton gin served by a spur track. In approximately 1977, the railroad removed the station, took up the spur track, and sold the gin lot to Miss Boyd, a private party. Mr. Pierce, the underlying land owner, sued the railroad for title to and possession of the right-of-way strip contending that it had been abandoned by the railroad. The chancery court rendered judgment for Pierce. On appeal, the Supreme Court presumed that the lease of the gin lot and construction of the spur track "were arguably for railway purposes within the terms of the 1912 deed." Id., 644 S.W.2d at 929. The Court reaffirmed the rule that where a deed conveys an easement or a conditional fee "for railroad purposes only," the servient landowner has no right to assert its underlying claim to the property so long as any portion of the land is being used for railroad purposes. However, in Boyd, the railroad had clearly abandoned its interest by removing the track and station. The railroad company also failed to produce "proof that it had any immediate or future plan to use the vacant lot in the furtherance of its business." Id. Accordingly, Pierce was entitled to clear title and possession of the easement. The Court came to the same conclusion in El Dorado & Wesson Ry. Co. v. Smith, 233 Ark. 298, 344 S.W.2d 343 (1961), when it held that a right-of-way easement was abandoned and terminated when the railroad line was discontinued and the tracks were removed.
More recently, in Cannco Contractors, Inc. v. Livingston, 282 Ark. 438, 669 S.W.2d 457 (1984), the Arkansas Supreme Court held that a right-of-way deed for railroad purposes was abandoned when, after deciding that the land was no longer required for railroad operations, the railroad sold the right-of-way land and the railroad tracks to the Livingstons. The Court determined that the property was no longer used for "railroad purposes" because the property had been deeded to a private concern. "A railroad purpose is one which is primarily for the benefit of the public, and not a private individual." Id. at 441-442, 669 S.W.2d 457, 669 S.W.2d at 460 (internal quotes and citation omitted). Even though the Livingstons used the track to ship their products, the "primary benefit is still to the Livingstons' business, not the railroad, and certainly not the public." Id.See also Miller v. Empire Rice Mills, Inc., 228 Ark. 1161, 312 S.W.2d 925 (1958)(concluding deed conveying land from railroad to privately owned rice mill violated "for railroad purposes only" clause).
Based upon the foregoing authority, we are persuaded that the grant of a right-of-way by easement for railroad purposes conveys a substantial interest in the real property that is different from the usual easement. We believe the announced state law applicable to this matter can be summarized as follows: (1) A right-of-way deed does not convey the mineral estate in the land; (2) a perpetual easement for railroad purposes does not permit the railroad to sell the land to a third party for non-railroad use; (3) so long as the railroad is occupying any portion of the right-of-way, the railroad is entitled to grant licenses or easements to third parties provided the additional use may reasonably be considered to be of benefit to the railroad; (4) while the railroad is occupying *903 any portion of its right-of-way, the underlying owner is not entitled to compensation for obstructions the railroad places or permits to be placed upon its right-of-way;[5] (5) the owner of the servient estate may not re-enter and claim possession of the right-of-way until and unless the land is abandoned by the railroad; and (6) a railroad interest will be determined abandoned only when the railroad ceases to use the land or any part of it for railroad operations.
It is not necessary for the court to address whether the railroad may grant an easement or license for private, non-railroad uses over the objection of the underlying landowner, because telecommunications service is a public use. Arkansas State Highway Commission v. Southwestern Bell Telephone, Co., 206 Ark. 1099, 178 S.W.2d 1002, 1005 (1944) (citations omitted); St. Louis & S.F.R. Co. v. Southwestern Telephone & Telegraph Co., 121 F. 276 (8th Cir.1903). Furthermore, Arkansas statutes provide that telecommunications companies may construct, operate and maintain lines necessary "for the speedy transmission of intelligence... upon, along, and parallel to any of the railroads" upon the payment of damages to the owners of the railroads. ARK. CODE ANN. § 23-17-101.
We do not think the fact that the fiber-optic cable is buried a few feet[6] below the surface of the right-of-way would change the analysis under Arkansas law. As discussed herein, the Arkansas Supreme Court has consistently held that, with the exception of mineral rights, the railroad has an interest in the ground that carries with it the exclusive right to use the property for railroad purposes. Railroad use of the non-mineral topsoil is not inconsistent with the purposes for which the rights-of-way were granted. No one has suggested that the fiber-optic cable buried in the topsoil presents more of a burden upon the servient estate than the previously accepted arrangement of stringing phone lines along poles set into the ground at intervals along the right-of-way.
We find that the railroad has not abandoned the rights-of-way, and that they are still used as an active railroad corridor. While the railroad has granted MCI a perpetual easement, the railroad has not sold the right-of-way to a private party for non-railroad use. Furthermore, the laying of the fiber optic cable was for railroad purposes: a portion of the cable is used for railroad communications and data transmission while the remaining cable capacity is available for public use. Accordingly, we conclude that under the laws of the State of Arkansas the railroad had the right to grant the perpetual easements to MCI for the laying of the fiber-optic cable.
The Statute of Limitations
MCI contends that IPC is barred from pursuing its claims by the statute of limitations applicable to suits against telecommunications companies. Arkansas statutes provide that:
No suit shall be brought against any telecommunications company or cooperative by the reason of the installation, use, or maintenance of telecommunications lines, poles, equipment, or fixtures on any real property, or within any right-of-way of any public way, unless it *904 is commenced within two (2) years after the cause of action has accrued.
ARK. CODE ANN. § 23-17-237 (2002 Repl.) The fiber-optic cables were put in place in 1987-88, while this case was not filed until November 1, 2000. IPC claims that the statute is not applicable to this litigation because a company offering communications via fiber-optic cables is not included within the statutory definition of a telecommunications company.
A telecommunications company is defined as an "entity that offers telecommunications services to the public for compensation." ARK. CODE ANN. § 23-17-202(12).
"Telecommunications service" means the offering to the public for compensation the transmission of voice, data, or other electronic information at any frequency over any part of the electromagnetic spectrum, notwithstanding any other use of the associated facilities. Such term does not include radio and television broadcast or distribution services, or the provision or publishing of yellow pages, regardless of the entity providing such services, or services to the extent that such services are used in connection with the operation of an electric utility system owned by a government entity.
ARK. CODE ANN. § 12-17-202(13)(2002 Repl.) IPC relies on the history of these subsections to support its proposition that the Arkansas legislature intended to exclude transmission via fiber-optic cable from the definition of telecommunications service. Prior to 1989, the applicable subsections read as follows:
(10) "Telephone service" means any communication service whereby voice communication through the use of electricity and wire connection between the transmitting and receiving apparatus is the principal intended use thereof and shall include all telephone lines, facilities, or systems used in the rendition of such service;
(11) "Telephone company means any natural person, firm, association, corporation, or partnership, other than a cooperative, and their receivers, trustees, or lessees owing or operating any facility or system used in the furnishing of telephone service within this state"
ARK. CODE ANN. § 23-17-202 (1987). In 1989, the definitions contained within these subsections were broadened by amendment:
(10) "Telecommunications service" means any communication service through the use of electricity, microwave, fiber optics, or other accepted means establishing connection between the transmitting and receiving point and is the principal intended use thereof and shall include all telecommunications lines, facilities, or systems used in the rendition of such service;
(11) "Telecommunications company means any natural person, firm, association, corporation, or partnership, other than a cooperative, and their receivers, trustees, or lessees owning or operating any facility or system used in the furnishing of telecommunications service within this state"
ARK. CODE ANN. § 23-17-202 (1989 Supp.)(emphasis added). In 1997, section 23-17-202 was completely rewritten as set forth herein above. IPC contends that by specifically deleting from the definition of telecommunication service the reference to "any communication service through the use of electricity, microwave, fiber optics, or other accepted means establishing connection" and rewriting the definition to include "the transmission of voice, data, or other electronic information at any frequency over any part of the electromagnetic spectrum," the Arkansas legislature *905 specifically intended to exclude fiber-optics companies from the definition.
We do not agree. A reading of section 23-17-202 in its former and present forms makes clear that, by the 1989 amendment and the 1997 rewrite, the legislative intent was to continually expand the definition of telecommunications service to include new and emerging technologies. Transmission of information via light signals through fiber-optic cables meets the present definition of telecommunications service because light is electromagnetic radiation.[7] Accordingly, we find the two year limitations period provided in section 23-17-237 is applicable to IPC's claims against MCI.
We also find and conclude that IPC's claims accrued when the cable was buried within the right-of-way and marked by conspicuous posts at regular intervals. See Southwestern Bell Tel. Co. v. Poindexter, 245 Ark. 624, 433 S.W.2d 833 (1968); Core v. Southwestern Bell Tel. Co., 673 F.Supp. 974 (W.D.Ark.1987), aff'd, 847 F.2d 497 (8th Cir.1988). In any event, the claim accrued no later than March 30, 1995, the date on which IP Timberlands Operating Company, Ltd., conveyed to MCI a temporary easement allowing MCI to enter IPC's land to access and relocate the fiber-optic system. As IPC's claims are based upon the installation of the fiber optic cable system, and because the claims accrued more than two years before the filing of the instant litigation, this suit is barred by the applicable statute of limitations, and the complaint should be dismissed.
ORDER
The motion for summary judgment should be and hereby is GRANTED, and this case is hereby DISMISSED in its entirety. Each party shall bear its own costs.
IT IS SO ORDERED.
NOTES
[1] Many of the deeds specifically provide that title is subject to the Missouri Pacific Railroad right-of-way.
[2] The 1984 agreement was between MCI Telecommunications Corp. and the Missouri Pacific Railroad. MCI Worldcom is the successor to MCI Telecommunications, and Union Pacific Railroad is the current successor to Missouri Pacific.
[3] IPC disputes this fact, but has offered no facts or evidence to support the denial.
[4] In a case decided under federal law, the Eighth Circuit Court of Appeals held that the State of Nebraska, which owned as successor to the United States a servient estate underlying a railroad right-of-way, had sufficient title to convey a pipe-line easement in the subsurface subject to the railroad's right to use the land for railroad purposes. Energy Transportation Systems, Inc. v. Union Pacific Rd. Co., 619 F.2d 696 (8th Cir.1980)(construing railroad right-of-way granted pursuant to Pacific Railroad Acts of 1862 and 1864).
[5] The underlying owner of the land is presumed to have been compensated for all permissible uses, both present and future, at the time the land is conveyed to the railroad. See Little Rock & Ft. S. Ry. Co. v. Greer, 96 S.W. 129, 77 Ark. 387 (1906).
[6] Fiber-optic cable is buried just below the frost-line at a depth of four feet. Dale Hatfield & Roland S. Homet, Jr., The Use of Sale of Railroad Rights-of-way for Fiber-Optic Communications, id. at 38
[7] The dictionary defines "light" as "electro-magnetic radiation." WEBSTER'S II NEW COLLEGE DICTIONARY (1995).
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820 P.2d 1323 (1991)
113 N.M. 9
GOLDEN CONE CONCEPTS, INC., a New Mexico Corporation, d/b/a Pam's Ice Cream, Plaintiff-Appellee,
v.
VILLA LINDA MALL, LTD., a New Mexico limited partnership; Villa Linda Mall Company, a Texas limited partnership; and Herring Marathon Group, Inc., a Delaware corporation, Defendants-Appellants.
No. 19367.
Supreme Court of New Mexico.
November 21, 1991.
Rehearing Denied December 13, 1991.
*1324 Sutin, Thayer & Browne, Ronald E. Segel, Mary E. McDonald, Albuquerque, for defendants-appellants.
Roth, VanAmberg, Gross & Rogers, F. Joel Roth, Santa Fe, for plaintiff-appellee.
OPINION
FRANCHINI, Justice.
We have granted appellee's motion for rehearing. The opinion filed September 24, 1991, is hereby withdrawn, and this opinion is substituted therefore. Defendant below, Villa Linda Mall (Mall), in Santa Fe, New Mexico, celebrated its grand opening on July 31, 1985. In October of that year, plaintiff Golden Cone Concepts, Inc. (Golden Cone) signed a ten-year lease for space in the Mall's food court. Golden Cone operated an ice cream business for four months before filing suit against the Mall to rescind the lease and recover damages.[1] Following a bench trial[2], the district court rescinded and canceled the lease, awarded $105,723.00 in restitutionary special damages, $22,000.00 in attorney fees, and $1,190.77 in costs. In addition, the court awarded $50,000.00 in punitive damages based upon the court's conclusion that the Mall committed fraud, negligent misrepresentation, and constructive fraud upon Golden Cone in executing the lease. The Mall's counterclaim for rent was dismissed by the district court. We affirm in part and reverse in part.
Prior to executing the lease, the parties held many meetings, discussions, and negotiations concerning the food court facilities and lease terms. The district court entered numerous findings of fact regarding representations made to the Golden Cone principals by the Mall's leasing agent and marketing director, concerning the planning and development of the mall, past development successes, the trade area and "regional mall" idea, the food court concept, location of the ice cream business within the mall in relation to the movie theater, other prospective food court tenants including national fast food chains, and projected gross annual sales for the ice cream business *1325 based on the agent's knowledge of sales of other food vendors. The leasing agent assured Golden Cone that it would be the only ice cream business in the food court and that it could remain open past 9:00 p.m. to serve late movie goers.
The district court also found that Golden Cone's reliance on the representations led to its willingness to pay high rent, make leasehold improvements, and purchase equipment. Golden Cone's gross sales and the number of customers visiting the Mall were below the projections made by the Mall's agents. After closing its business Golden Cone owed rent and other charges to the Mall in the amount of $10,939.32. The Mall relet the premises as of December 1, 1987.
The following issues are raised on appeal:
(1) Whether the district court erred in allowing Golden Cone to proceed on its claims of fraud, negligent misrepresentation, and constructive fraud in light of an integration and exculpatory clause in Article 33 of the lease;
(2) Whether the district court erred in ruling that the representations concerning projected revenues were actionable as a matter of law;
(3) Whether nondisclosure of complaints of low mall traffic is a sufficient basis upon which to rescind the lease;
(4) Whether substantial evidence exists to support the findings of fact regarding representations regarding the identity of other food court tenants, traffic flow at the mall, the role of a food court, and Golden Cone's justifiable reliance upon representation concerning projected revenues;
(5) Whether the court erred in dismissing the Mall's counterclaim for unpaid rent;
(6) Whether the judgment amount is consistent with the court's finding of an offset for "minimum annual rental and other charges not paid" during Golden Cone's occupancy; and
(7) Whether substantial evidence supports the awards of punitive damages and attorney fees to Golden Cone.
LEASE PROVISION
The Mall asserts the following provision in the lease bars the misrepresentation claims made by Golden Cone:
It is understood and agreed by Tenant that Landlord and Landlord's agents have made no representations or promises with respect to the leased premises or the making or entry into this lease, except as in this lease expressly set forth, and that no claim or liability, or cause for termination, shall be asserted by Tenant against Landlord for, and Landlord shall not be liable by reason of, the breach of any representations or promises not expressly stated in this lease.
With regard to this provision, Golden Cone contends that the exculpatory clause argument by the Mall is being raised for the first time on appeal. The district court, however, entered a finding of fact relating to the lease provision, identical to the Mall's requested finding, stating:
The attorney for [Golden Cone] specifically brought to [its] attention the provisions of Article 33 of the lease which states, among other things, that no representations have been made to the tenant by the landlord unless specifically set forth in the lease.
The finding demonstrates that the provision was brought to the court's attention and was considered before it decided to rescind the lease. Additionally, in New Mexico exculpatory clauses do not preclude liability. Western States Mechanical Contractors, Inc. v. Sandia Corp., 110 N.M. 676, 798 P.2d 1062 (Ct.App.), cert. denied, 110 N.M. 653, 798 P.2d 1039 (1990).
Where one party to the contract has perpetrated a fraud upon the other, by means of which the latter was induced to enter into the contract, [one] cannot be precluded from seeking redress by a provision inserted in the contract by the party perpetrating the fraud, designed to shut the mouth of the adverse party as to such fraudulent representations which led up to the making of the contract. And this is true, whether the action be *1326 for rescission of the contract or for damages for deceit.
Berrendo Irrigated Farms Co. v. Jacobs, 23 N.M. 290, 296, 168 P. 483, 484 (1917). After the district court ordered Golden Cone to elect its remedy, it correctly permitted Golden Cone to proceed on its claims despite the language in Article 33 of the lease.
REPRESENTATIONS OF PROJECTED REVENUES
The district court found that the Mall's leasing agent represented to Golden Cone that its gross sales in the first year of business would be $300,000.00. This statement was found to be reckless and misleading and that Golden Cone justifiably relied thereon in entering into the lease. The court concluded that the representation was one of fact rather than opinion, justifiably relied upon by Golden Cone, which gave rise to the right to rescind the lease.
We disagree with the Mall's contention that the court erred as a matter of law in its ruling that fraud could be premised upon promises or conjectures as to future acts or events. When a party is challenging a legal conclusion, the standard for review is whether the law correctly was applied to the facts, viewing them in a manner most favorable to the prevailing party, indulging all reasonable inferences in support of the court's decision, and disregarding all inferences or evidence to the contrary. Texas Nat'l Theatres, Inc. v. City of Albuquerque, 97 N.M. 282, 639 P.2d 569 (1982).
Unlike the circumstances presented by this case, the Mall's reliance on Berrendo and those cases cited from other jurisdictions are distinguishable in that they involved the sales of existing businesses with representations made by the seller concerning future income, rather than representations concerning projected revenues for a new business enterprise under circumstances such as these. Register v. Roberson Construction Co., 106 N.M. 243, 741 P.2d 1364 (1987), stated the following on promises concerning future events to support an action for fraud:
While it is true that an action for fraud will ordinarily not lie as to a pattern of conduct based on promises that future events will take place, there are nonetheless the following well-established exceptions to this rule ... where the promises are based on contrary facts peculiarly within the promisor's knowledge, or where the promise is based on a concealment of known facts. Further, if the promise as to future events is part of an overall pattern designed to lead a party to act to his/her detriment, and in such a way as harmfully to alter a legal right possessed by the party, then promises as to future actions will support an action for fraud, especially in a situation where the defendant states an opinion or belief as to future occurrences which are shown to have had no support by the facts at the time the opinions or beliefs were given.
Id. at 246, 741 P.2d at 1367 (citations omitted). Accordingly, the district court was correct to permit the representations of projected revenues to serve as a basis for Golden Cone's claims.
NONDISCLOSURE AS A BASIS FOR RESCISSION
The Mall claims that nondisclosure to Golden Cone of complaints of low mall traffic is insufficient as a matter of law to rescind the lease. The uncontested finding of fact, however, that the Mall had a pattern of conduct of gaining prospective tenants' confidence, triggered the Mall's duty to disclose information about low levels of mall traffic under R.A. Peck, Inc. v. Liberty Federal Savings Bank, 108 N.M. 84, 766 P.2d 928 (Ct.App. 1988).
Whether a duty exists is generally a question of law for the trial court to decide. Schear v. Board of County Comm'rs, 101 N.M. 671, 687 P.2d 728 (1984). Several types of relationships between parties give rise to the duty to disclose one being where it appears that one or each of the parties to the contract expressly reposes a trust and confidence in the other. Peck, 108 N.M. at 89, 766 P.2d at 933. Other findings of fact entered by the court indicate that the Mall had received reports *1327 from several food vendors regarding lack of traffic before signing the lease with Golden Cone. The court found that:
Prior to [Golden Cone] signing its lease, the [Mall] had already received complaints from a food court tenant about the lack of customers in the Mall and food court, which they did not tell [Golden Cone.] While [Golden Cone] continued to construct its leasehold space and purchase equipment, the [Mall was] receiving many complaints from various food court tenants and other tenants at the Mall about the lack;ack [sic] of customers coming to the Mall and low gross sales, which they did not tell [Golden Cone].
One month after opening, the Mall offered Golden Cone rent relief due to a lack of customers. As found by the court, Golden Cone "was shocked to find out that [the Mall] had been receiving complaints about the lack of customers and low sales before it had signed the lease and during the construction of its leasehold space and that the information had not been told to [Golden Cone]." As discussed in the following section, the owners of Golden Cone were newcomers to the food vending business, and, where traffic flow information was peculiarly within the Mall's knowledge, a continuing duty on the part of the Mall existed to disclose these material facts to the prospective lessee. Therefore, under these circumstances, nondisclosure was a proper basis for rescission.
SUBSTANTIAL EVIDENCE ISSUES
The Mall alleges that Golden Cone offered no substantial evidence of misrepresentations or justifiable reliance. The Mall also challenges the punitive damages award, which will be discussed later in this opinion, and alleges conflict between the court's findings and its conclusion that the Mall committed negligent misrepresentation, constructive fraud, and fraud against Golden Cone. Our review of the record proper and proceedings indicate that substantial evidence exists to support the court's findings of negligent misrepresentation, constructive fraud and fraud based upon the representations made and nondisclosure of facts concerning traffic at the Mall.
"A negligent misrepresentation is one where the speaker has no reasonable ground for believing that the statement made was true." SCRA 1986, 13-819. The degree of proof required of a party asserting negligent misrepresentation is a preponderance of the evidence. State ex rel. Nichols v. Safeco Ins. Co., 100 N.M. 440, 671 P.2d 1151 (Ct.App.), cert. denied, 100 N.M. 327, 670 P.2d 581 (1983). Negligent misrepresentation is grounded in negligence rather than an intent to deceive. Id. The district court's findings that the principals of Golden Cone "had no retail operating experience with shopping malls," that the representations made by the Mall's agents concerning daily car traffic, national food chains, and the food court's function as an anchor store encompassed information only within its scope of knowledge, and that the Golden Cone principals were justified in their reliance thereon, all are supported by substantial evidence and support the court's conclusion of negligent misrepresentation.
Breach of a legal or equitable duty is constructive fraud and it is not necessary to prove actual dishonesty of purpose nor intent to deceive. Archuleta v. Kopp, 90 N.M. 273, 276, 562 P.2d 834, 837 (Ct.App.) cert. denied, 90 N.M. 636, 567 P.2d 485 (1977). A finding of constructive fraud need not be based upon a fiduciary relationship between the parties, as constructive fraud is defined as "acts contrary to public policy, to sound morals, to the provisions of a statute, etc., however honest the intention with which they may have been performed." Wolf & Klar Cos. v. Garner, 101 N.M. 116, 118, 679 P.2d 258, 260 (1984). Although not required as proof of a claim of constructive fraud, several of the court's findings indicate that the representations at issue were made with the intent to deceive. Another uncontested finding refers to the Mall's pattern of conduct of making representations for the purpose of gaining confidence of prospective tenants and inducing them into entering a lease contrary to equitable principles of *1328 fairness, justice, and right dealing that dominate all commercial practices and dealings. See Newman v. Basin Motor Co., 98 N.M. 39, 644 P.2d 553 (Ct.App. 1982).
A successful fraud claim must prove a misrepresentation of fact, known by the maker to be untrue, made with the intent to deceive and to induce the other party to act upon it, and upon which the other party relies to his detriment. See Poorbaugh v. Mullen, 96 N.M. 598, 601, 633 P.2d 706, 709 (Ct.App. 1981) (Poorbaugh I). Though each element of fraud must be shown by clear and convincing evidence, if disputed, a reviewing court will resolve all conflicting evidence in favor of the prevailing party. Poorbaugh v. Mullen, 99 N.M. 11, 653 P.2d 511 (Ct.App.), cert. denied, 99 N.M. 47, 653 P.2d 878 (1982) (Poorbaugh II). On appeal, our duty is to liberally construe the trial court's findings in order to sustain a judgment. Arnold v. Ford Motor Co., 90 N.M. 549, 566 P.2d 98 (1977). Based upon our review of the record, and as discussed above, we find that the required level of proof was established and the evidence supports the court's findings of fraud by representations and nondisclosure.
The Mall also challenges the court's findings that Golden Cone justifiably relied upon the representations regarding projected revenues of $300,000.00 per year. Our review of the record, as well as the unchallenged findings of fact, support the court's findings on this point. The principals of Golden Cone had never operated a business in a food court of a shopping mall and were entitled to rely on the Mall's representations regarding material facts peculiar to this type of location. See Ledbetter v. Webb, 103 N.M. 597, 602, 711 P.2d 874, 879 (1985). Misrepresentation of a material fact, even if innocently made, will entitle the party who has justifiably relied thereon to rescind the contract. Prudential Ins. Co. v. Anaya, 78 N.M. 101, 428 P.2d 640 (1967). Ordinarily the question of materiality is one of fact. Modisette v. Foundation Reserve Ins. Co., 77 N.M. 661, 427 P.2d 21 (1967). The finding of reliance upon the Mall's representation of projected revenues is supported by substantial evidence.
DISMISSAL OF COUNTERCLAIM
The Mall grounds its argument that it is entitled to judgment on its counterclaim for unpaid rent upon the premise that the lease was enforceable and not subject to rescission. Based upon all of the above, however, we find no abuse of discretion by the district court and affirm the dismissal of the counterclaim.
OFFSET OF JUDGMENT
The evidence supports the Mall's claim that the court's judgment failed to incorporate the finding of fact that "[a]ny rescission damages will be offset by $10,939.32." Accordingly, we remand with instruction to reduce the restitutionary special damages by this amount. See Mendez v. Southwest Community Health Servs., 104 N.M. 608, 612, 725 P.2d 584, 588 (Ct. App.), cert. quashed, 104 N.M. 632, 725 P.2d 832 (1986) (when finding conflicts with conclusion or judgment, finding will prevail as long as it is supported by substantial evidence).
PUNITIVE DAMAGES
The district court awarded punitive damages based on the reckless or grossly negligent acts of the Mall. The court found that representations made by the Mall concerning projected revenues and car counts were made recklessly with the intent to deceive and the representations made concerning national chain food vendors were untrue and made with the intent to deceive. As to the representation the food court would serve the same as an anchor store, the district court found the statement to be recklessly made and misleading. The Mall argues that the court made no specific findings of fact of gross negligence and further claims that the award of punitive damages is not supported by substantial evidence.
We stated in Romero v. Mervyn's, 109 N.M. 249, 784 P.2d 992 (1989), that "punitive damages may be recovered for breach of contract when the defendant's conduct was malicious, fraudulent, oppressive, *1329 or committed recklessly with a wanton disregard for plaintiff's rights." Id. at 255, 784 P.2d at 998. Any of the listed terms, standing alone, will support an award of punitive damages. Id. The substantial evidence that supports the district court's finding of fraud, as stated herein, also supports the court's finding of intentional deceit because intentional deceit is one of the elements of fraud. See Poorbaugh I, 96 N.M. at 601, 633 P.2d at 709. In addition, there is substantial evidence to support the trial court's findings as to the Mall's reckless conduct. Accordingly, we affirm the district court's award of punitive damages.
ATTORNEY FEES
We reverse the court's award of attorney fees. Rescission of the lease, which contained a provision for attorney fees, precluded any basis for such an award. Absent a specially authorizing statute or agreement, each party to a lawsuit bears its own attorney fees. First Nat'l Bank of Clovis v. Diane, Inc., 102 N.M. 548, 698 P.2d 5 (Ct.App. 1985). The trial court incorrectly relied upon the lease provision in making its awards, and, accordingly, we reverse.
Based upon the above, the judgment is affirmed in part, reversed in part, and remanded to the district court for entry of judgment consistent with this opinion.
IT IS SO ORDERED.
RANSON, C.J., and BACA, J., concur.
NOTES
[1] Golden Cone's complaint alleged six counts three based upon rescission of the lease and three seeking compensatory damages for alleged fraud, negligent misrepresentation and constructive fraud. The court granted the Mall's motion to compel an election of remedies with Golden Cone electing to pursue the remedy of rescission. See Smith v. Galio, 95 N.M. 4, 8, 617 P.2d 1325, 1329 (Ct.App. 1980) (when one remedy depends upon affirmance of a contract and another remedy depends upon the opposite, the remedies are inconsistent and the party seeking relief must elect one of them).
[2] Rescission is an equitable remedy to be tried by the court without a jury. SCRA 1986, 13-814 committee commentary.
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T.C. Memo. 2008-20
UNITED STATES TAX COURT
GEORDAN C. AND SAMANTHA S. MCQUISTON, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 8417-04. Filed February 5, 2008.
Larry D. Harvey, for petitioners.
Randall L. Preheim, for respondent.
MEMORANDUM OPINION
VASQUEZ, Judge: This case is before the Court on
respondent’s motion for summary judgment pursuant to Rule 121.1
1
Unless otherwise indicated, all Rule references are to
the Tax Court Rules of Practice and Procedure, and all section
references are to the Internal Revenue Code in effect for the
year in issue.
- 2 -
After a concession,2 the sole issue for decision is whether
petitioners can exclude from income wages earned during 2000 from
working in Antarctica.
Background
At the time they filed the petition, petitioners resided in
Medford, Oregon. During 2000, petitioners performed services at
McMurdo Station in Ross Island, Antarctica. On their 2000
Federal income tax return, petitioners excluded wage income
earned and received during 2000 for services performed in
Antarctica.
Discussion
I. Summary Judgment
Rule 121(a) provides that either party may move for summary
judgment upon all or any part of the legal issues in controversy.
Full or partial summary judgment may be granted only if it is
demonstrated that no genuine issue exists as to any material fact
and that the legal issues presented by the motion may be decided
as a matter of law. See Rule 121(b); Sundstrand Corp. v.
Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th
Cir. 1994). We conclude that there is no genuine issue as to any
material fact and that a decision may be rendered as a matter of
law.
2
Respondent concedes that no penalty pursuant to sec. 6662
is due from petitioners for 2000.
- 3 -
II. In General
Section 61(a) provides that gross income means all income
from whatever source derived. Accordingly, citizens of the
United States generally are taxed on income earned outside the
geographical boundaries of the United States unless the income is
specifically excluded from gross income. Specking v.
Commissioner, 117 T.C. 95, 101-102 (2001), affd. sub nom. Haessly
v. Commissioner, 68 Fed. Appx. 44 (9th Cir. 2003), affd. sub nom.
Umbach v. Commissioner, 357 F.3d 1108 (10th Cir. 2003).
Exclusions from income are construed narrowly, and taxpayers must
bring themselves within the clear scope of the exclusion. Id.
III. Section 911
In Arnett v. Commissioner, 126 T.C. 89, 91-96 (2006) (Arnett
I), affd. 473 F.3d 790 (7th Cir. 2007) (Arnett II), we addressed
the arguments made by the parties herein regarding section 911.
The U.S. Court of Appeals for the Seventh Circuit agreed with our
analysis of section 911 and affirmed our conclusion that
Antarctica is not a “foreign country” pursuant to section 911 and
the regulations thereunder. Arnett v. Commissioner, 473 F.3d at
799. We shall not repeat our analysis from Arnett I herein. We
follow our analysis and holding in Arnett I and the analysis and
holding of the Court of Appeals in Arnett II.3
3
In Arnett v. Commissioner, 126 T.C. 89 (2006), affd. 473
F.3d 790 (7th Cir. 2007), we concluded our Opinion with a
(continued...)
- 4 -
IV. Conclusion
Accordingly, for the reasons stated in Arnett I, Arnett II,
and herein, we conclude that petitioners cannot exclude from
gross income wages earned during 2000 from working in Antarctica.
To reflect the foregoing,
An appropriate order and
decision will be entered.
3
(...continued)
citation of sec. 863(d) suggesting that sec. 863(d) provided an
additional reason to rule against the taxpayer. Id. at 96 (“See
also sec. 863(d) (providing that income earned in Antarctica by a
U.S. person is sourced in the United States).”). In Arnett v.
Commissioner, 473 F.3d at 797, the U.S. Court of Appeals for the
Seventh Circuit addressed sec. 863(d) in greater detail, stating:
At the outset, we think that it is important to
note that considering Antarctica not to be a “foreign
country” is compatible with the general statutory
scheme. Notably, section 911 is found under subtitle
A, chapter 1, subchapter N of the IRC, which is
designated “Tax Based on Income from Sources Within or
Without the United States.” Part I of this subchapter,
entitled “Source Rules and Other General Rules Relating
to Foreign Income,” deems any activity in Antarctica to
be “space or ocean activity.” In turn, the United
States is designated the source country of income from
such activity when earned by a citizen of the United
States. 26 U.S.C. § 863(d). Although this provision
does not provide a definitive answer as to whether
Antarctica is a “foreign country,” it supports the
conclusion that section 911 is not intended to apply to
income earned for services provided in Antarctica.
We take this opportunity to state our agreement with the Court of
Appeals’ conclusion set forth above. See also HCSC-Laundry v.
United States, 450 U.S. 1, 6 (1981).
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684 F.Supp. 1324 (1988)
GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff,
v.
Antonio FRETT, Elias Petersen and Howard James, Defendants.
UNITED STATES of America, Plaintiff,
v.
Antonio FRETT, Elias Petersen and Howard James, Defendants.
Crim. Nos. 1988/5, 1988/7.
District Court, Virgin Islands, D. of St. Croix.
May 17, 1988.
*1325 Roland B. Jarvis, Asst. U.S. Atty., Christiansted, St. Croix, U.S. Virgin Islands, for Government and U.S.
Robert L. Tucker, Federal Public Defender, Christiansted, St. Croix, U.S. Virgin Islands, for defendant Antonio Frett.
Gordon Rhea, Law Offices of Alkon & Rhea, St. Croix, U.S. Virgin Islands, for defendant Elias Petersen.
Jeffrey L. Resnick, Law Offices of James & Resnick, Christiansted, St. Croix, U.S. Virgin Islands, for defendant Howard James.
MEMORANDUM OPINION
DAVID V. O'BRIEN, Chief Judge.
The issue before us exists because of this Court's unique jurisdiction to hear both federal and territorial criminal matters. We decide whether a violation of 18 U.S.C. § 922(g) is subject to the enhancement provisions of 18 U.S.C. § 924(c) when it occurred during a "crime of violence" not otherwise punishable by federal law. We hold that it does not, and we will sentence accordingly.
I. FACTS
The defendant, Howard James was tried with two co-defendants, Antonio Frett and Elias Petersen on multiple counts arising from a firearms incident which occurred at the Ralph de Chabert Project on St. Croix.[1] This altercation resulted in a 5 count information being brought by the Government of the Virgin Islands against James, two counts of which were for assault with intent to commit murder in violation of 14 V.I.C. § 295(1)[2]; and one count of which was for assault which inflicted bodily harm in violation of 14 V.I.C. § 297(4).[3] The final two Virgin Islands counts were for unauthorized use and possession of unlicensed firearms during a crime of violence in violation of 14 V.I.C. § 2253(a), (b).[4] Additionally, *1326 the United States of America brought a one count charge against James for the unauthorized possession of a firearm transported in interstate commerce in violation of 18 U.S.C. § 922(g),[5] for which it seeks to apply the enhanced penalty provision of 18 U.S.C.A. § 924(c)(1).[6]
*1327 The jury returned guilty verdicts upon all five territorial counts and the sole federal charge. It specifically found that James was in possession of a machine gun as defined by both territorial and federal law. Thereafter, the parties briefed the sentencing issue and the Government of the Virgin Islands brought an habitual criminal information against James pursuant to 14 V.I.C. § 61.
James now challenges the application of the enhanced penalty provision of 18 U.S.C. § 924(c) for want of a conviction of a "federal crime of violence" cognizable in the courts of the United States. The United States of America seeks application of § 924(c)(1) suggesting that the conviction under § 922(g) satisfies the federal crime of violence component of § 924(c), and that in any case, we may resort to James' territorial convictions for establishment of the "crime of violence" component. We address the issue at length because if applicable, § 924(c) would appear to mandate us to sentence James to a 10 year sentence to run consecutively with the sentence imposed upon the territorial convictions.[7]
II. DISCUSSION
The operative language of 18 U.S.C. § 924(c) provides for enhanced punishment for incidents involving the use or possession of a firearm (here, machine gun) during a "crime of violence". As relevant to this case, a crime of violence is a felony, that "... has as an element the use ... of physical force against the person ..." and which "... may be prosecuted in a court of the United States". See supra, note 6. Such language appears straightforward.
However, as applied to a certain class of cases prosecuted in this Court, to which the case at bar belongs, there is ambiguity with respect to the meaning of the phrase "may be prosecuted in a court of the United States." This is because the District Court of the Virgin Islands is not a United States District Court; Thorstenn v. Barnard, 842 F.2d 1393 (3d Cir.1988) (en banc); nor is it defined as a court of the United States by the U.S.Code. See 28 U.S.C.A. § 451 (1968). It does possess all the jurisdiction of a United States District Court in addition to its jurisdiction over offenses against local law. 48 U.S.C.A. § 1612 (Supp.1987). Thus, when as in this case, an accused stands trial before us simultaneously on unmerged federal and territorial counts arising out of the same incident, the issue is whether the language "may be prosecuted in a court of the United States" encompasses a crime of violence against the laws of the Virgin Islands which may be prosecuted in the District Court of the Virgin Islands.[8]
The U.S.A. contends that we need not resolve this question because James' violation of § 922(g) is a `crime of violence' within the meaning of § 924(c)(3) especially in light of the violent behavior in this case. We reject this contention. In United States v. Cruz, 805 F.2d 1464 (11th Cir. 1986), cert. denied, ___ U.S. ___, 107 S.Ct. 1631, 95 L.Ed.2d 204 (1987), the Eleventh Circuit made a careful analysis of the statutory phrase "crime of violence", using all of the statutory tools of construction after finding the phrase ambiguous. In so doing, it rejected a case by case approach urged by the government in that case, and similar to that urged by the U.S.A. here. Additionally, it rejected an argument put forward by the defendant Cruz, and proposed here by James, that we must look to whether the predicate crime of violence necessarily requires the use of force. Id. at 1469-1470.
*1328 We conclude likewise that the phrase "crime of violence" is hopelessly ambiguous and we need only refer to the Cruz court's discussion to suggest why. 805 F.2d at 1469-1475. Little legislative history, no case law and unclear language leaves us with no understanding of Congressional intent. All we have is a short statement in the legislative history suggesting that Congress had in mind similar incidents as punished by state law, i.e., assault and battery. 1984 Cong. and Ad.New 3487. Yet this does not tell us whether possession itself in violation of § 922(g) is sufficient to require enhancement under § 924 when it occurs during a crime of violence punishable only by local law. Common sense tells us that it does not simply because it would make James accountable for possession of a firearm during a crime of violence that the laws of the United States are not particularly interested in sanctioning.
This does not trouble the U.S.A. It refers us to United States v. Gironda, 758 F.2d 1201 (7th Cir.1985), cert. denied, 474 U.S. 1004, 106 S.Ct. 523, 88 L.Ed.2d 456 (1985). There the Seventh Circuit interpreted an earlier version of § 924(c) which prohibited the unlawful possession of a firearm during the commission of any felony which may be prosecuted in a court of the United States. The Gironda court joined another Circuit in holding that it was proper to define the term "unlawful" by resorting to state law. Id. at 1214. The U.S.A. here wishes us to do the same with the phrase "crime of violence".
This solution might be tempting except that as noted above, § 924(c)(3) partly defines a crime of violence as a felony. As the Gironda court noted in discussing the earlier version of the statute, the § 924(c) conviction required both a violation of a state firearm law and a concurrent commission of a federal felony. That court as well as most others interpreted the phrase "felony which may be prosecuted in a court of the United States" as meaning a federal felony. See e.g., Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1979).
Application of this federal felony interpretation here would require us to focus on the felony part of the crime of violence, and allows us to distinguish between our role as a court of the United States[9] and our role as a local court. This is important because we do not believe that Congress intended to implicate our jurisdiction over offenses of local law in the enhancement provisions of § 924(c), since this would unduly distinguish prosecutions of § 924(c) violations in this Court and those in the United States District Courts.
To us, this is the sensible interpretation and the one we choose to follow since the crime of violence component will always be some sort of assault, battery or the like punishable by local law. The issue, therefore, becomes whether the violence, and possession of the firearm, is incident to the perpetration of a federal felony, i.e., assault of a federal officer as opposed to a local police officer. This would preclude the necessity of references to local law to define the crime of violence component since what would matter is whether the predicate felony is proscribed by the laws of the United States, not whether the felonious crime of violence may be prosecuted in this Court.
This also proscribes application of § 924(c) enhancement provisions to James' § 922(g) violations because it is clear that his possession of the machinegun during this violent assault was not incident to a federal felony to which Congress wanted to apply § 924(c) provisions. In other words, we do not believe James' conduct, i.e., assault proscribed only by local law, is the kind which Congress intended to be covered by this enhancement provision. See discussion, supra at 1327-28. In any case, because of the unresolved ambiguity we will also rely on the rule of lenity as the Cruz court did in so ruling. 805 F.2d at 1474.
*1329 III. CONCLUSION
We have determined that in order to apply the enhancement provisions of 18 U.S.C. § 924(c) in this Court, the possession of the firearm during a crime of violence must occur incident to a federal felony. In the context of this case, we do not believe Congress intended for the provisions to apply. Thus, we will sentence accordingly.[10]
NOTES
[1] Both Frett and Petersen accepted plea agreements offered by the Government of the Virgin Islands and the United States of America during the course of the trial. Only the case against James went to the jury.
[2] Whoever(1) with intent to commit murder, assaults another; ... shall be imprisoned not more than 15 years. -14 V.I.C. § 295(1).
[3] Whoever, under circumstance not accounting to an assault in the first or second degree
(4) assaults another and inflicts serious bodily injury upon the person assaulted ...
shall be fined not more than $500 or imprisoned not more than 5 years or both.
-14 V.I.C. § 297(4).
[4] 14 V.I.C. § 2253 provides in relevant part:
(a) Whoever, unless otherwise authorized by law, has, possesses, bears, transports or carries either openly or concealed on or about his person, or under his control in any vehicle of any description any firearm as defined in Title 23, section 452(d) of this code, loaded or unloaded, may be arrested without a warrant, and shall be sentenced to imprisonment of not less than six months nor more than three years and shall be fined not more than $5,000, except that if such person shall have been convicted of a felony in any state, territory or federal court of the United States, or if such firearm or an imitation thereof was had, possessed, borne, transported or carried by or under the proximate control of such person during the commission or attempted commission of a crime of violence as defined in subsection (d) hereof, then such person shall be sentenced to imprisonment of not less than five years nor more than ten years and shall be fined not more than $10,000. The foregoing applicable penalties provided for violation of this section shall be in addition to the penalty provided for the commission of, or attempt to commit, the crime of violence. (b) Whoever, unless otherwise authorized by law, has, possesses, bears, transports or carries either openly or concealed on or about his person, or under his control in any vehicle of any description any machine gun or sawed-off shotgun, as defined in subsection (d)(2) and (3) of this section, loaded or unloaded, may be arrested without a warrant, and shall be sentenced to imprisonment of not less than two years nor more than five years and shall be fined not more than $7,000, except that if such person shall have been convicted of a felony in any state, territory or federal court of the United States, or if such machine gun or sawed-off shotgun or an imitation thereof was held, possessed, borne, transported by or under the proximate control of such person during the commission or attempted commission of a crime of violence, as herein defined, then such person shall be sentenced to imprisonment of not less than five years nor more than fifteen years and shall be fined not more than $12,000. The foregoing applicable penalties provided for violation of this section shall be in addition to the penalty provided for the commission of, or attempt to commit, the crime of violence.
(c) In the trial of a person for committing or attempting to commit a crime of violence, as herein defined, the fact that he was armed with a firearm, used or attempted to be used, and had no license to carry the same, as required in Title 23, chapter 5 of the Code, shall be evidence of his intention to commit said crime of violence.
(d) As used in this chapter
(1) "Crime of violence" shall have the same definition as that contained in Title 23, section 451(c) of this Code.
(2) "Machine gun" means any firearm as defined in Title 23, section 451(d) of this Code, which shoots automatically or semi-automatically more than 12 shots without reloading.
[5] 18 U.S.C. § 922(g) reads in relevant part:
It shall be unlawful for any person
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; ...
to possess in or affecting commerce, any firearm ... which has been shipped or transported in interstate or foreign commerce.
[6] 18 U.S.C. § 924(c)(1) provides in relevant part:
(1) Whoever, during and in relation to any crime of violence or drug trafficking crime, including a crime of violence or drug trafficking crime, which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device, for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime be sentenced to imprisonment for five years, and if the firearm is a machinegun, or is equipped with a firearm silencer or firearm muffler, to imprisonment for ten years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for ten years, and if the firearm is a machinegun, or is equipped with a firearm silencer or firearm muffler, to imprisonment for twenty years. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of crime, or drug trafficking crime in which the firearm was used or carried. No person sentenced under this subsection shall be eligible for parole during the term of imprisonment imposed herein.
. . . . .
(3) For purposes of this subsection the term "crime of violence" means an offense that is a felony and
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
. . . . .
[7] Because James faces habitual offender status under Virgin Islands law which would require him to serve 10 years minimum without parole, the effect of the 924(c)(1) enlargement raises James' stakes to a possible 20 years of incarceration without parole.
Neither party refers us to 18 U.S.C. § 924(e)(1) which may be applicable to this matter. It provides for a minimum fifteen year sentence without parole to any one who has three previous felony convictions as defined by § 922(g)(1).
[8] No recitation of authority need be made for the proposition that offenses against the laws of the United States perpetrated in the Virgin Islands may be prosecuted in the District Court of the Virgin Islands.
[9] As early as Sewer v. Paragon Homes, Inc., 9 V.I. 290, 351 F.Supp. 596 (D.V.I.1972), it was recognized that Congress often implied the jurisdiction of this Court when it made reference in a federal statute to a court of the United States.
[10] 18 U.S.C. § 924(a)(1) reads:
Except as otherwise provided ... whoever
(B) knowingly violates ... [subsection] (g) ... of section 922 ... shall be fined not more that $5,000, imprisoned not more than five years or both, and shall become eligible for parole as the Parole Commission shall determine.
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53 So.3d 994 (2010)
Radford DAWSON
v.
STATE of Alabama.
CR-09-0266.
Court of Criminal Appeals of Alabama.
June 25, 2010.
Aimee C. Smith, Montgomery, for appellant.
Troy King, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
WISE, Presiding Judge.
The appellant, Radford Dawson, entered a guilty plea to second-degree criminal trespass, a violation of § 13A-7-3, Ala. Code 1975. The trial court sentenced him to serve a term of thirty days in the county jail. After conducting a restitution hearing, the trial court ordered Dawson to pay $644.70 in restitution. This appeal followed.
During the guilty plea proceedings, Dawson admitted that, on May 11, 2009, he was on someone's real property on Lexington Road, that the property was fenced, and that he was there without the homeowner's permission. After Dawson entered his guilty plea, the State asserted that Dawson had attempted to enter the victim's house that was located on the property; that a rear window of the house *995 had been damaged; that, because the house was in a historic district, the window could not be repaired and had to be replaced; and that the victim was requesting $664.70 in restitution. Defense counsel objected and asserted that Dawson was charged with criminal trespass rather than criminal mischief or burglary and that Dawson had not admitted that he had tried to enter the house. At that time, the trial court gave the parties time to provide case law on the issue.
Subsequently, the trial court conducted a restitution hearing. During the hearing, defense counsel argued that no witnesses saw Dawson break anything; that the witness in this case said Dawson was in the backyard of the property; that Dawson was originally charged with possession of burglar's tools; that the case went through the grand jury, and "the only thing they can prove is he trespassed on the property"; and that Dawson was indicted for the misdemeanor offense of trespassing. (R. 28.)
During the hearing, the victim testified that he lived in the house in question; that he was at the house every day; that, on the day in question, he left to pick up his granddaughter from school; that he received a telephone call about someone trying to break into his house; that he went back to his house; that, when he got back, law enforcement officers had a man in a vehicle; that the officers took him around the back; that he saw where someone had tried to pry open the window; that the person had broken the frame across the bottom of the window; and that the window was not like that when he left his house.
Dawson argues that the trial court abused its discretion when it ordered him to pay $644.70 in restitution for damage to the window. Specifically, he contends that the criminal conduct for which he was convicted was not the proximate cause of the damage to the window and that he did not admit to other criminal conduct that was the proximate cause of the damage to the window.
In Best v. State, 895 So.2d 1050, 1054-56 (Ala.Crim.App.2004), this court discussed the imposition of restitution as follows:
"Section 15-18-65, Ala.Code 1975, states, in pertinent part:
"`[I]t is essential to be fair and impartial in the administration of justice, that all perpetrators of criminal activity or conduct be required to fully compensate all victims of such conduct or activity for any pecuniary loss, damage or injury as a direct or indirect result thereof.'
"(Emphasis added.) Section 15-18-66(1), Ala.Code 1975, defines `criminal activity' as `[a]ny offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant.'
"In Strough v. State, 501 So.2d 488, 491 (Ala.Crim.App.1986), this Court stated that `[b]efore a defendant can be held liable for damages, it must be established that his criminal act was the proximate cause of the injury sustained by the victim.'
"In Day v. State, 557 So.2d 1318, 1319 (Ala.Crim.App.1989), this Court stated:
"`In the instant case, appellant was ordered to pay restitution to Patterson after being convicted of the attempted murder of Johnson, an offense which was not alleged in the indictment or proven at trial to be the cause of Patterson's injury. "Before a defendant can be held liable for damages, it must be established that his criminal act was the proximate cause of the injury sustained. . . ." Strough v. State, 501 So.2d 488, 491 (Ala.Cr. *996 App.1986). While there was some evidence in the record tending to show that appellant did cause Patterson's injury, he was not on trial here for causing her injury, nor had he been convicted of causing her injury. . . .
"`If it could be said that Patterson's injury arose from appellant's attempted murder of Johnson, for which he was convicted, then she could properly be characterized as a victim, and restitution to her would be proper. However, when one suffers a loss which resulted from conduct that was not the subject of the defendant's prosecution and for which a subsequent prosecution would be necessary to determine the defendant's criminal liability, if any, we hold that an order of restitution to that person is no more appropriate than would be the sentencing of the defendant to a term of imprisonment without first affording him the basic constitutional guarantees of a trial and verdict on those charges. Appellant should not have been ordered to pay restitution to Patterson.'
"In Brothers v. State, 531 So.2d 317, 318 (Ala.Crim.App.1988), this Court stated:
"`The appellant was indicted for burglary in the third degree, theft of property in the first degree, and arson in the second degree. He pleaded guilty to burglary in the third degree and theft of property in the first degree, with the arson charge being continued under the condition that the charge would be dismissed if the appellant pleaded guilty to the other offenses and did not appeal. The appellant was sentenced to life imprisonment pursuant to the Habitual Felony Offender Act and was ordered to pay restitution for the full replacement value of the house and its contents which were destroyed in the fire resulting from the arson.
"`I
"`The appellant alleges that the trial court erred in ordering him to pay restitution for damage to the property caused by arson when he was not convicted of arson and did not admit that his criminal activity resulted in the damage which was caused by the arson. . . .
"`". . . ."
"`The State argues that the damage caused by the arson was an "indirect result" of the appellant's criminal activity.
"`. . . .
"`The appellant did not admit committing arson, nor was he convicted of committing arson. This case is distinguishable from Ex parte Clare, 456 So.2d 357 (Ala.1984). The appellant in Clare was ordered to pay restitution for monies embezzled in an amount greater than that involved in the indictment. However, she admitted embezzling monies which rightfully belonged to her employer and was convicted of embezzling.
"`The burning of the victim's house was not an indirect result of the theft or burglary under § 13A-2-5, Code of Alabama (1975). . . .
"`. . . .
"`Clearly the appellant's acts of breaking and entering and committing theft were not the cause of the burning of the victim's house; rather, the act of committing arson was the cause. The burning of the house would not have been within the contemplation of the appellant in committing burglary or theft. Therefore, the trial court erred in ordering the appellant to pay *997 restitution for the property damaged by the arson.'
"In Lamar v. State, 803 So.2d 576 (Ala.Crim.App.2001), this Court reversed the trial court's restitution award of $25,000 to Rosalyn Sellers and her son for injuries they had sustained in an automobile accident. Lamar had entered a guilty plea to the offense of leaving the scene of an accident, a violation of § 32-10-1, Ala.Code 1975, and he argued on appeal that `the circuit court improperly ordered him to pay restitution because, he argue[d], the injuries the victims sustained were not "proximately caused" by his leaving the scene.' Lamar, 803 So.2d at 577. In our opinion reversing the trial court's restitution award, this Court stated:
"`The term "criminal activities" is defined in § 15-18-66, Ala.Code 1975, as "[a]ny offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant." "However, before there can be any recovery, the criminal activity must be the proximate cause of the pecuniary loss, damage, or injury." Moore v. State, 706 So.2d 265, 267 (Ala.Crim.App. 1996). Therefore, under Alabama's restitution statute, Lamar could be ordered to pay restitution to the victims of his crime only if one of two conditions existed: (1) his victims suffered any direct or indirect pecuniary losses as a result of the activity for which he has been convicted or, (2) Lamar admitted to other criminal conduct during these proceedings that was the proximate cause of any injuries to the victims.
"`. . . .
"`. . . The crime of "leaving the scene" does not require that the defendant cause the accident; it requires only that he be involved in the accident. . . . The trial court could order Lamar to pay restitution only for the pecuniary losses his victims sustained as a result of the offense to which he pleaded guilty. . . . Lamar's plea of guilty to the offense defined in §§ 32-10-1 and 32-10-2 did not result in a conviction for causing the accident that resulted in the injuries to Sellers and her son, and, therefore, his guilty plea could not authorize the trial court to sentence him to pay restitution for injuries sustained as a result of the accident. See Day v. State, 557 So.2d 1318, 1319 (Ala.Crim. App.1989) (holding that an order of restitution is inappropriate for injuries the victim suffers as a result of "conduct that was not the subject of the defendant's prosecution and for which a subsequent prosecution would be necessary").
"`The trial court could also have ordered Lamar to pay restitution for "any other criminal conduct" he admitted during these proceedings that was the proximate cause of the victims' injuries. See § 15-18-66. However, at no point during the plea colloquy, the sentencing hearing, or the restitution hearing did Lamar ever admit to having caused the accident resulting in the victims' injuries. Although evidence was presented during both the sentencing and restitution hearings that Lamar had caused the accident because he was speeding and he struck a turning vehicle, Lamar himself never made such an admission. Under the plain language of § 15-18-66, restitution can be ordered only for "other criminal conduct" that is admitted by the defendant. This court has previously held that an admission, as defined in § 15-18-66, requires "a judicial admission sufficient to support a conviction before restitution *998 can be ordered." Day v. State, supra, at 1319. Therefore, the trial court had no statutory authorization to order Lamar to pay restitution to Sellers and her son for the injuries they sustained during the accident, because Lamar never admitted any conduct that could be said to be the proximate cause of their injuries.'
"Lamar, 803 So.2d at 577-79 (footnote omitted).
"In the present case, Best was convicted of receiving stolen property, i.e., Garrick's 1988 Dodge pickup truck. There were no allegations or proof that Best ever had possession of Garrick's personal property. In fact, as previously noted, Garrick admitted at the sentencing hearing that he `really [didn't] know if Mr. Best ever had those items' in his possession. (R. 181.) At the sentencing hearing, Best stated that `[t]he truck was given to [him] for drugs . . . [that he] gave [Garrick's] wife drugs to use the truck' and that `on this date, February the 7th, [he] gave her some crack cocaine for the truck.' (R. 186-87.)
"In light of the foregoing, the trial court improperly ordered Best to pay restitution to Garrick in the amount of $3,300 for his missing personal property."
(Emphasis added.)
In this case, Dawson entered a guilty plea to second-degree criminal trespass.
"A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in a building or upon real property which is fenced or enclosed in a manner designed to exclude intruders."
§ 13A-7-3(a), Ala.Code 1975. Causing damage to the victim's property was not an element of the offense of second-degree criminal trespass. Also, neither the indictment nor the factual basis for Dawson's guilty plea included any allegations that Dawson had damaged the victim's property. Additionally, the damage to the window was not caused by the conduct that was the subject of Dawson's prosecution i.e., Dawson entering the victim's fenced property. Rather, a subsequent prosecution would have been necessary to determine whether Dawson was criminally liable for damage to the victim's window. Therefore, Dawson's criminal conduct in this case was not the proximate cause of the damage to the victim's window. Further, Dawson did not, at any time during the proceedings, admit that he caused the damage to the victim's window. Therefore, the trial court erred when it ordered Dawson to pay restitution for damage to the window. Accordingly, we reverse the trial court's judgment and remand this case for the trial court to set aside its restitution order in this case.
REVERSED AND REMANDED.
WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.
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399 S.W.2d 528 (1966)
Joseph J. BUKOVICH, Petitioner,
v.
Sally A. BUKOVICH, Respondent.
No. A-10881.
Supreme Court of Texas.
January 12, 1966.
Rehearing Denied February 23, 1966.
Neal, Hazlewood & Wolfram, Amarillo, for petitioner.
Clayton, Kolander, Moser & Templeton, Amarillo, for respondent.
STEAKLEY, Justice.
This case presents questions for decision in the unfortunate situation when natural parents are involved in child custody litigation. Petitioner, the father, and Respondent, the mother, were divorced in Porter County, Indiana, in June of 1962. At the time, Mark Lawrence Bukovich, their only child, was less than two years of age. The mother was awarded custody of Mark, with the provision that she not leave the state. Her custody rights appear to have been reaffirmed by the Indiana court on subsequent occasions. In a still later proceeding instituted by the father for a change of custody, the Indiana court entered an order dated December 2, 1963, reciting Respondent to be in default, although duly notified, finding her in contempt of court, finding that she "is not a *529 fit and proper person to have custody * * *" and ordering that custody of the child be "changed and granted" to the father. The mother and child left Indiana before this decree could be executed and were later located by the father in Amarillo, Texas. The father under date of January 10, 1964, filed a petition in the 108th District Court of Potter County, Texas, for a writ of habeas corpus to obtain possession of the child pursuant to the Indiana decree. The case was transferred to the Court of Domestic Relations of Potter County. The mother answered and alleged there had been a change of conditions since December 2, 1963, of sufficient nature to warrant a reaward of custody to her. Trial was to a jury, with the mother assuming the burden of establishing a material change of conditions since the Indiana decree, and that an award of custody to her would be for the best interest of the child. The jury found that such a material change of conditions had occurred that the best interest of the child required a change of custody to the mother. The judgment of the trial court based thereon was affirmed by the Court of Civil Appeals. 391 S.W.2d 189. We granted Petitioner's application for writ of error upon points of error asserting, in effect, that there was no evidence to support the jury finding of a change of conditions, and that the Court of Civil Appeals erred in not giving full faith and credit to the Indiana decree. We are of the view that a material change of conditions was not shown and therefore reverse the judgments below.
The courts of Texas will give full faith and credit to a child custody decree of a sister state and will not order a change of custody in the absence of proof of a subsequent material change of conditions. Short v. Short, 163 Tex. 287, 354 S.W.2d 933; Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 4 A.L.R.2d 1; Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293. However, proof of a material change of conditions since the decree of the sister state will support a change of custody if such would be for the best interest of the child. Cf. Short v. Short, supra; People of the State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1948); see Stumberg, Principles of Conflicts of Law, 3d ed., pp. 319-326 (1963). A change of conditions being shown, the question becomes whether or not a change of custody is warranted, and this is a question within the discretion of the trial court whose action will not be disturbed in the absence of an abuse of discretion. Cf. Mumma v. Aguirre, 364 S.W.2d 220 (Tex. Sup.1963); Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787. At the time it is entered, a custody judgment is res judicata of the question of the best interest of the child. Taylor v. Meek, supra. The fact that the technical legal domicile of the child may be in another state does not preclude child custody jurisdiction in our courts. Wicks v. Cox, supra; Campbell v. Stover, 101 Tex. 82, 104 S.W. 1047.
The initial question, then, is whether a material change of conditions was shown to have occurred between December 2, 1963, the date of the Indiana decree, and the instant proceedings which were filed on January 10, 1964. The controlling considerations are those changes of conditions affecting the welfare of the child. The desires, acts and claims of the respective parents are secondary considerations and material only as they bear upon the question of the best interest of the child. See Goldsmith v. Salkey, supra; Shippen v. Bailey, 303 Ky. 10, 196 S.W.2d 425 (1946); McMillin v. McMillin, 114 Colo. 247, 158 P.2d 444, 160 A.L.R. 396 (1945). All that is shown here in the nature of a change of conditions since the decree of the Indiana court relates to the prospective improvement in the circumstances of Respondent. The evidence offered by her was, in substance, that she would have an opportunity for employment in a bank in Oak Lawn, Illinois, and that she would be a guest in the home of responsible friends until arrangements could be made for her own *530 living quarters. This evidence will not support the finding of a material change of conditions since the Indiana decree, from which it follows that the change of custody order of the trial court cannot stand. The Indiana court is open to Respondent if she desires to seek a review of the presently effective custody order. She testified that if she were awarded custody of the child by the Texas courts she would immediately proceed with the child to Oak Lawn, Illinois. We do not know if she has done this; but if so, Oak Lawn is across the boundary from the Indiana county of the court entering the custody decree here involved, and it is the order of that court which Respondent previously disobeyed in removing the child from its jurisdiction. Notwithstanding the views of the courts below that it would be better for the child to remain with his mother rather than be placed in the home of his paternal grandparents in the custody of his father, and even if such were our view, the Indiana court has decreed otherwise in what we must assume was competent litigation. The facts here shown do not make the exceptional case which is prerequisite to an exercise of jurisdiction by the courts of Texas to the extent of a new and independent determination of child custody rights.
The judgments of the trial court and of the Court of Civil Appeals are reversed and judgment is here rendered that custody of Mark Lawrence Bukovich be awarded to and vested in Joseph J. Bukovich in accordance with the decree of the Porter Circuit Court of the State of Indiana, dated December 2, 1963, in cause No. 18559, entitled Sally A. Bukovich v. Joseph J. Bukovich. It is further ordered that the Judge of the Court of Domestic Relations of Potter County, Texas, issue a warrant to the Sheriff of Potter County, Texas, to take and bring said child, Mark Lawrence Bukovich, should he be found within the state, before said Judge to be placed by his order in the custody of Petitioner.
ON MOTION FOR REHEARING
SMITH, Justice (concurring).
I concur in the result. There is no evidence of change of conditions in the circumstances of the father, the custodian parent. Therefore, the custody should not be changed. Even though there is substantial evidence showing changed conditions for the better in the circumstances of the non-custodian parent, such changed conditions would not warrant a holding that it would be to the best interest of the child to change the custody, where, as here, the custodian parent is a suitable and proper person to have the care and custody of the child. The prospective improvement in the conditions of the non-custodian parent should have no material bearing on the question of custody unless it is made clear by the terms of the original judgment that custody was denied the non-custodian parent because of some temporary disability, and then only upon a showing that such disability no longer exists.
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30 So.3d 510 (2010)
KING
v.
STATE.
No. 5D09-2828.
District Court of Appeal of Florida, Fifth District.
March 9, 2010.
Decision Without Published Opinion Affirmed.
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547 S.W.2d 368 (1977)
McAX SIGN COMPANY, INC., Appellant,
v.
ROYAL COACH, INC. and Dunfey Family Corporation, Appellees.
No. 19101.
Court of Civil Appeals of Texas, Dallas.
February 15, 1977.
Richard G. Danner, Jr., Dallas, for appellant.
Stephen R. Kirklin, Childs, Fortenbach, Beck & Guyton, Houston, for appellees.
GUITTARD, Chief Justice.
Plaintiff, McAx Sign Company, Inc., appeals from a judgment on an instructed verdict for defendants, Royal Coach, Inc. and Dunfey Family Corporation. Plaintiff complains of the rulings of the trial court in excluding certain evidence and in granting defendants' motion for instructed verdict, but it attacks only one of several grounds *369 stated in the motion. We affirm on the ground that plaintiff has not discharged its burden to establish that the instructed verdict cannot be sustained on any of the other grounds set out in the motion and that exclusion of the evidence is not shown to be reversible error because it is not shown to be germane to any of the several independent grounds. We hold also that the trial judge did not abuse his discretion in denying plaintiff's request for a postponement of the trial.
The suit was brought by appellant as lessor on an alleged agreement to assume the rentals payable under a written lease of an advertising sign. Defendants denied the agreement and pleaded the Statute of Frauds, Tex.Bus. & Comm.Code Ann. sec. 26.01(b)(6) (Vernon 1968), and further pleaded that plaintiff had no interest in the lease because it had been assigned to Hillside National Bank. As evidence of the alleged agreement to assume payment of the rentals, plaintiff relied on an offer and acceptance by an exchange of telegrams. Although the telegram containing the alleged acceptance was admitted without objection, it referred to terms stated in the earlier telegram, which was not produced. Secondary evidence of the contents of this earlier telegram was excluded by the trial court. Appellant complains in its first three points of the exclusion of this secondary evidence and in his fourth point complains of the instructed verdict on the ground that "there was sufficient evidence of probative value to allow the jury to consider the question of whether the Appellee had assumed the obligations under the written Lease Agreement."
Appellees' first counterpoint asserts:
Appellant has waived its right to complain of the trial court's action in granting appellees' motion for instructed verdict because appellant failed to attack in this appeal each and every independent ground contained in such motion.
In support of this counterpoint appellees argue that the points of error raised by appellant are germane only to two of the grounds included in the motion for instructed verdict and do not challenge the sufficiency of the other thirteen grounds. Consequently, appellees argue that appellant has failed to discharge its burden to establish that the instructed verdict cannot be supported on the other grounds stated. After this question was raised by appellees, appellant made no request for leave to amend its brief to include points and argument attacking the other grounds stated in the motion.
We agree with appellees that appellant's first four points all relate to the matter of the alleged agreement by appellees to assume the rental payments, and even if well taken, they do not establish that the instructed verdict cannot be sustained on other, independent grounds. Appellant's burden to show that the instructed verdict cannot be sustained on any of the grounds stated in the motion is established by the following cases: McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex.1964); Dunham and Ross Co. v. Stevens, 538 S.W.2d 212, 214 (Tex.Civ.App.Waco 1976, no writ); Woodrum v. Long, 527 S.W.2d 281, 283 (Tex.Civ. App.Austin 1975, no writ); Carrico v. Stop-N-Go Markets of Texas, Inc., 492 S.W.2d 383, 384 (Tex.Civ.App.San Antonio 1973, no writ).
Some of the grounds stated in the motion for instructed verdict are obviously insufficient, such as general averments that "there is no evidence that warrants the submission of the case to the jury" and that "the evidence is wholly insufficient to warrant the submission of this case to the jury." Others are more substantial, at least on the face of the motion, and several relate to the defense that plaintiff cannot recover the rentals specified in the lease because the lease has been assigned to the Hillcrest National Bank. Appellant does not attack any of these grounds either by its points of error or in the argument under its points. This court should not undertake to search the record and investigate the authorities bearing on these independent grounds without the assistance of counsel for either party. Therefore, with respect to appellant's complaint of the instructed verdict, *370 we must hold that appellant has not discharged its burden of establishing that the instructed verdict cannot be supported on any of the other grounds set out in the motion. Consequently, appellant's fourth point is overruled.
The same principle prevents our consideration of appellant's first three points, all of which complain of exclusion of evidence offered to establish the alleged agreement. These points do not present reversible error because even if the court erred in excluding evidence bearing on the alleged agreement, the instructed verdict would still be proper if appellees were correct in the independent ground stated in their motion that appellant had no right to recover the rentals because of the assignment to Hillside National Bank. In the absence of a showing that the instructed verdict cannot properly be sustained on this ground, appellant has failed to show that the error complained of "amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case," as required by Tex.R.Civ.P. 434. Consequently, the first three points are likewise overruled.
The same reasoning does not apply to appellant's fifth and sixth points, but these must be overruled for other reasons. The fifth point complains that the trial court permitted one of appellant's counsel to withdraw from the case so near to the trial date as to require delay in the interest of justice, and the sixth complains of denial of appellant's motion for a continuance on the ground that appellant's new counsel was unprepared for trial and that certain witnesses were unavailable. Both of these points concern denial of appellant's request for a postponement of the trial, which was a matter within the trial court's discretion, and we must determine whether an abuse of discretion is shown. Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex.1963).
Our review of the record reveals no abuse of discretion. Counsel who had been permitted to withdraw on April 26 re-entered the case before the trial began on May 3 and participated fully with the other counsel. Thus, any error in permitting the first counsel to withdraw appears to have been rectified in the absence of a strong and specific showing of what preparations for trial might otherwise have been made. No such showing is made either in the motion for continuance or in the motion for new trial. Appellant asserted in the motion for new trial that "certain witnesses" were unavailable at the trial, but the absence of witnesses was not stated as a ground in the motion for continuance. Obviously, therefore, the motion for continuance did not comply with Tex.R.Civ.P. 252, which requires that a motion for continuance for want of testimony must show the materiality of the testimony, that the movant has used due diligence to procure the testimony, the name and address of the absent witness, and what the movant expects to prove by him. Unless all of these matters are shown specifically and by affidavit, the judge's discretion will not be overturned. Brown v. Gage, 519 S.W.2d 190, 192 (Tex.Civ.App.Fort Worth 1975, no writ); and see Middleton v. Vaughn, 530 S.W.2d 925, 926 (Tex.Civ.App.Waco 1975, no writ); J. C. Penney Co. v. Duran, 479 S.W.2d 374, 380-81 (Tex.Civ.App.San Antonio 1972, writ ref'd n. r. e.); Davis v. National Acceptance Co., 233 S.W.2d 321, 324-25 (Tex.Civ.App.Dallas 1950, writ ref'd n. r. e.). In view of the strict requirements laid down in these authorities, we hold that the conclusory allegations in appellant's motion for continuance are insufficient to establish abuse of discretion.
Affirmed.
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433 F.3d 755
Harvey Frank ROBBINS, Plaintiff-Appellee,v.Charles WILKIE, Darrell Barnes, Teryl Shryack, Michael Miller, Gene Leone, David Wallace, Defendants-Appellants.Pacific Legal Foundation, New Mexico Cattle Growers Association, Washington Farm Bureau, Idaho Farm Bureau, Idaho County Farm Bureau, Owyhee County Farm Bureau, Washington State Grange, and New Mexico Federal Lands Council, Amici Curiae.
No. 04-8016.
United States Court of Appeals, Tenth Circuit.
January 10, 2006.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Edward Himmelfarb, Appellate Staff, Civil Division, Department of Justice (Peter D. Keisler, Assistant Attorney General, John W. Suthers, United States Attorney, District of Colorado, Barbara L. Herwig, Civil Division, Department of Justice, with him on the briefs), Washington, D.C., for Defendants-Appellants.
Marc R. Stimpert (Karen Budd-Falen, with him on the briefs), Budd-Falen Law Offices, P.C., Cheyenne, WY, for Plaintiff-Appellee.
Gregory T. Broderick, Counsel of Record, Meriem L. Hubbard, Of Counsel, J. David Breemer, Of Counsel, Pacific Legal Foundation, Sacramento, CA, filed an amici curiae brief for Pacific Legal Foundation, New Mexico Cattle Growers Association, Washington Farm Bureau, Idaho Farm Bureau, Idaho County Farm Bureau, Owyhee County Farm Bureau, Washington State Grange, and New Mexico Federal Lands Council.
Before KELLY, HENRY and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
I. Introduction
1
Plaintiff-Appellee Harvey Frank Robbins filed suit pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968, and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Robbins alleges employees of the Bureau of Land Management ("BLM"), including Defendants-Appellants Charles Wilkie, Darrell Barnes, Teryl Shryack, Michael Miller, Gene Leone, and David Wallace, attempted to extort a right-of-way across Robbins' property in violation of RICO and the Fifth Amendment. Defendants filed a motion for summary judgment on qualified immunity. The district court denied the motion concluding, inter alia, that Robbins had sufficiently alleged violations of his clearly established rights under RICO and the Fifth Amendment. Defendants appealed. This court has jurisdiction pursuant to 28 U.S.C. § 1291 and Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Because the right to be free from retaliation for the exercise of Fifth Amendment rights is clearly established and Defendants' alleged wrongful use of otherwise lawful authority to obtain a right-of-way from Robbins violates clearly established law under the Hobbs Act and Wyo. Stat. Ann. § 6-2-402, we affirm.
II. Background
2
Robbins owns High Island Ranch in Hot Springs County, Wyoming where he engages in cattle ranching and operates a commercial guest ranch. Robbins purchased the ranch from George Nelson who had granted to BLM a non-exclusive access easement along a road on the ranch. BLM failed to record the easement, however, and Robbins had no notice of it when he purchased and recorded his interest in the ranch. Thus, under Wyoming's recording statute, Robbins took ownership of the ranch unencumbered by the easement. Robbins also had various BLM preference rights, livestock grazing permits, and a special-recreation use permit allowing him to use federal lands adjacent to his property.
3
When BLM learned its easement had been extinguished, it contacted Robbins to discuss obtaining a right-of-way across the ranch. Robbins refused. Robbins alleges that in retaliation for his refusal to grant the right-of-way, Defendants attempted to extort the right-of-way from him. Specifically, Robbins alleges Defendants refused to maintain the road providing access to his property; threatened to cancel, and then cancelled, his right-of-way across federal lands; stated they would "bury Frank Robbins"; cancelled his special recreation use permit and grazing privileges; brought unfounded criminal charges against him; trespassed on his property; and interfered with his guest cattle drives.
4
Robbins brought claims pursuant to Bivens and RICO. Defendants filed a motion to dismiss both claims. The district court granted the motion, reasoning that Robbins had failed to adequately plead damages under RICO, and that the Administrative Procedures Act ("APA") and Federal Tort Claims Act ("FTCA") were alternative, equally effective remedies precluding Robbins' Bivens claim. This court reversed. Robbins v. Wilkie, 300 F.3d 1208 (10th Cir.2002) (hereinafter Robbins I). We held that damages under RICO need not be pled with particularity. Id. at 1211. Moreover, the APA and FTCA did not preclude Robbins' Bivens claims because the APA does not provide a remedy when an official's intentional acts unrelated to agency action violate a party's constitutional rights, and the FTCA is a separate and distinct remedy from Bivens. Id. at 1212-13.
5
Subsequently, Defendants filed a second motion to dismiss on the grounds of qualified immunity. The district court granted the motion in part and denied it in part. See generally Robbins v. Wilkie, 252 F.Supp.2d 1286 (D.Wyo.2003). The district court determined Robbins had sufficiently alleged violations of his clearly established statutory rights under RICO and constitutional right to exclude others from his property under the Fifth Amendment. Id. at 1294-95, 1301-02. The district court dismissed Robbins' Bivens claims for malicious prosecution under the Fourth Amendment and procedural and substantive due process under the Fifth and Fourteenth Amendments. Id. at 1298-1301. Defendants did not appeal this order.
6
Defendants then filed a motion for summary judgment on qualified immunity. Relevant to this appeal, Defendants argued there was not a clearly established constitutional right to exclude others from one's property, and that they could not be held liable under RICO for actions authorized by BLM regulations because those actions are not "wrongful." The district court denied summary judgment on both grounds. With regard to Robbins' Bivens claim, the district court concluded Robbins had a clearly established right to be free from retaliation for exercising his right to exclude others from his property under the Fifth Amendment. Further, the district court determined Robbins had submitted sufficient evidence to support his complaint and Defendants failed to establish there were no issues of material fact. As to Robbins' RICO claim, the district court agreed that predicate acts under RICO must be otherwise wrongful to be actionable. The district court concluded, however, that actions taken by Defendants pursuant to BLM regulations can be wrongful if done with the intent of extorting. Because the district court determined there was an issue of material fact regarding Defendants' motive, summary judgment was denied.
III. Discussion
A. Jurisdiction
7
As a preliminary matter, this court ordered the parties to brief the appealability of the district court's order denying summary judgment. This court has appellate jurisdiction over "final decisions" of district courts. 28 U.S.C. § 1291. Under the "collateral order" doctrine, however, some district court orders are considered "final" even though they are entered before a case has ended. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). One such collateral order permitting interlocutory appeal is a denial of qualified immunity. Mitchell, 472 U.S. at 530, 105 S.Ct. 2806. A denial of qualified immunity is only immediately appealable, however, to the extent the district court's decision turns on an abstract issue of law. Id. at 530, 105 S.Ct. 2806; Johnson v. Jones, 515 U.S. 304, 313-14, 317, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Thus, an appellate court may examine on interlocutory appeal the purely legal question of whether the facts alleged by plaintiff support a claim of violation of clearly established law. Mitchell, 472 U.S. at 528 n. 9, 105 S.Ct. 2806. An appellate court may not, however, review questions of evidentiary sufficiency on interlocutory appeal. Therefore, a portion of a district court order denying qualified immunity is not immediately appealable insofar as the order determines plaintiff's claims are supported by sufficient evidence in the record or disputed issues of material fact exist which preclude summary judgment. Johnson, 515 U.S. at 313, 115 S.Ct. 2151; Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir.1997).
8
The district court's denial of qualified immunity in the present case turned on both issues of abstract law and evidentiary sufficiency. The district court determined Robbins had submitted sufficient evidence to support his Bivens claim and there was a disputed issue of material fact regarding Defendants' motive precluding summary judgment on Robbins' RICO claim. We do not have jurisdiction to examine these determinations of evidentiary sufficiency on interlocutory appeal. Johnson, 515 U.S. at 319-20, 115 S.Ct. 2151; Foote, 118 F.3d at 1422. The district court, however, also concluded Robbins sufficiently alleged a violation of his clearly established Fifth Amendment right, and the wrongful use of otherwise lawful authority violates clearly established law under RICO. These abstract issues of law regarding whether a particular law was clearly established are immediately appealable. Mitchell, 472 U.S. at 530, 105 S.Ct. 2806; Foote, 118 F.3d at 1422.
9
Robbins also contends Defendants' failure to appeal the district court's order denying dismissal on qualified immunity precludes Defendants from appealing an order denying summary judgment on the same qualified immunity issues. Robbins reasons that allowing Defendants to appeal a second denial of qualified immunity after failing to appeal the first denial would be an end-run around the timeliness requirements of the notice of appeal provision of the Federal Rules of Appellate Procedure. Fed. R.App. P. 4(a)(1)(B).
10
Although this issue is one of first impression in this circuit, the Supreme Court and several other circuits have addressed the issue. In Behrens v. Pelletier, defendant filed a motion to dismiss on qualified immunity, which the district court denied after dismissing some of plaintiff's claims as time-barred. 516 U.S. 299, 303, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). Defendant appealed the denial of qualified immunity and the Ninth Circuit affirmed. Id. at 303-04, 116 S.Ct. 834. Subsequently, the district court reversed course on the statute-of-limitations question, concluding none of the plaintiff's claims were time barred. Id. at 304, 116 S.Ct. 834. In response, the defendant filed a motion for summary judgment on qualified immunity, including the claims that were previously dismissed as time-barred. Id. The district court denied this motion and the Ninth Circuit dismissed defendant's appeal for lack of jurisdiction. Id. at 304-05, 116 S.Ct. 834.
11
The Supreme Court reversed, concluding there was jurisdiction over the second interlocutory appeal. Id. at 309-311, 116 S.Ct. 834. In so doing, the Court surmised that resolution of the immunity question may "require more than one judiciously timed appeal." Id. at 309, 116 S.Ct. 834 (quotation omitted). The Court reasoned that a defendant should be permitted to raise the qualified immunity defense at successive stages of litigation because different legal factors are relevant at various stages. Id. In particular, in a motion to dismiss, courts are limited to reviewing conduct alleged in the complaint, whereas in a motion for summary judgment, courts examine evidence accumulated during discovery. Id.
12
Several circuits have interpreted and applied Behrens in cases postured similar to the case before us. In Grant v. City of Pittsburgh, the Third Circuit held that a defendant's failure to appeal an order denying dismissal on qualified immunity does not preclude him from appealing a subsequent denial of the same legal arguments in a motion for summary judgment on qualified immunity. 98 F.3d 116, 120-21 (3d Cir.1996). The court adopted the reasoning of Behrens by noting that although defendant's two motions raised the same legal theory, the second motion differed because it relied on matters developed during discovery. Id.; see also Vega v. Miller, 273 F.3d 460, 466 (2d Cir.2001).
13
The Ninth Circuit went further in Knox v. Southwest Airlines by asserting jurisdiction over an appeal of an order denying a second motion for summary judgment after defendant failed to appeal the denial of his first summary judgment motion. 124 F.3d 1103, 1105-06 (9th Cir.1997). Defendants' first motion for summary judgment on qualified immunity was denied by the district court because of a disputed issue of fact. Id. at 1105. Defendant filed a second summary judgment motion making the same legal arguments, but providing additional evidence. Id. Citing Behrens, the Ninth Circuit asserted jurisdiction over defendants' second motion for summary judgment. Id. at 1106.
14
Robbins attempts to distinguish Grant, Vega, and Knox and instead argues that the District of Columbia Circuit's decision in Kimberlin v. Quinlan should guide our analysis. 199 F.3d 496 (D.C.Cir.1999). In Kimberlin, Defendants moved for dismissal or summary judgment arguing, inter alia, that prison inmates do not have a clearly established First Amendment right to contact the press, and plaintiff failed to meet the heightened pleading standard applied to motive-based civil rights claims. Id. at 499. The district court denied the motion and defendants appealed only the heightened pleading standard ruling. Id. After discovery, defendants again moved for dismissal or summary judgment claiming the law was not clearly established. Id. The district court denied the motion concluding that its prior ruling that the law was clearly established was law of the case, and the appellate court affirmed. Id. at 499, 502.
15
Although Kimberlin, like Grant and Vega, is factually similar to the case presently before this court, Robbins' argument that Kimberlin supports the assertion we lack jurisdiction to consider Defendants' appeal is erroneous. The court in Kimberlin did not dispose of the case by asserting a lack of jurisdiction. Rather, it examined the merits by reviewing the propriety of the district court's application of the law of the case doctrine. Id. at 500-02. The court determined that the district court had correctly applied the law of the case doctrine because the same legal question had been decided in a prior stage of litigation and no prudential reasons existed for revisiting the prior decision. Id. In any event, the court proceeded to actually examine the underlying law of the case concluding that the First Amendment right at issue was "without doubt [] clearly established." Id. at 502.
16
Therefore, after Behrens, no circuit has held that an appellate court lacks jurisdiction over denial of a motion for summary judgment when the motion raises the same legal arguments as a prior un-appealed motion to dismiss but relies on evidence developed during discovery.1 Similarly, we decline to adopt such a rule. In carving out an exception to the finality requirement for appeals involving qualified immunity, the Supreme Court recognized that qualified immunity is both a right to avoid standing trial and a right to avoid the burdens of pretrial matters such as discovery. Behrens, 516 U.S. at 308, 116 S.Ct. 834. Requiring public officials to choose at which stage of litigation to raise a qualified immunity defense is inconsistent with these purposes. If public officials can avoid discovery by success on a motion to dismiss based on qualified immunity, they should not be prevented from filing the motion because of a fear that denial of the motion will prevent them from raising the defense again once their evidence is strengthened through discovery. Additionally, public officials should not be forced to appeal an order denying dismissal on qualified immunity to preserve appeal of a potential subsequent order denying summary judgment on the same issue. Such a rule would dramatically increase the number of interlocutory appeals at the dismissal stage. Vega, 273 F.3d at 465; Grant, 98 F.3d at 121. Thus, in the present case, Defendants' failure to appeal the district court's denial of dismissal on qualified immunity does not divest this court of jurisdiction to consider Defendants' current appeal because Defendants' summary judgment motion relies in part on evidence developed during discovery.
B. Qualified Immunity
17
We review a district court's denial of summary judgment based on qualified immunity de novo. Perez v. Ellington, 421 F.3d 1128, 1131 (10th Cir.2005). "Under the doctrine of qualified immunity, government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Douglas v. Dobbs, 419 F.3d 1097, 1100 (10th Cir.2005) (quotation omitted). When a defendant raises a claim of qualified immunity, the burden shifts to the plaintiff to show that the defendant is not entitled to immunity. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001). To overcome a qualified immunity defense, a plaintiff must first assert a violation of a constitutional or statutory right and then show that the right was clearly established. Garramone v. Romo, 94 F.3d 1446, 1449 (10th Cir.1996). A right is clearly established if "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). To show that a right is clearly established, a plaintiff does not have to produce a factually identical case. Rather, plaintiff may produce a Supreme Court or Tenth Circuit opinion on point, or demonstrate that the right is supported by the weight of authority from other courts. Axson-Flynn v. Johnson, 356 F.3d 1277, 1299 (10th Cir.2004). Once the plaintiff satisfies this initial two-part burden, the burden shifts to the defendant to show that there are no genuine issues of material fact and that defendant is entitled to judgment as a matter of law. Id.
1. Fifth Amendment
18
Robbins' Bivens claim alleges Defendants' conduct violated his right to be free from retaliation for exercise of his Fifth Amendment right to exclude others from his property. Robbins argues that the district court relied solely on the law of the case doctrine in denying Defendants' motion for summary judgment on his Bivens claim. The law of the case doctrine provides that "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case." Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983). A district court's decision denying defendants' motion to dismiss on qualified immunity is not law of the case for purposes of a subsequent motion for summary judgment on qualified immunity. Law of the case does not apply because a motion to dismiss and a motion for summary judgment do not raise the "same issues." Different "legally relevant factors" are under consideration on a motion to dismiss and a motion for summary judgment. Behrens, 516 U.S. at 309, 116 S.Ct. 834. On a motion to dismiss, a court examines the conduct alleged in the complaint to determine if plaintiff has alleged a violation of clearly established law, whereas, on a motion for summary judgment, a court examines the evidence gathered during discovery. Id. Thus, reliance on law of the case in dismissing Defendants' motion for summary judgment in this case would be erroneous.2
19
The district court, however, did not rely on law of the case. The district court did discuss law of the case in noting that it had already concluded in its denial of dismissal that Robbins' alleged a violation of his clearly established Fifth Amendment rights. Nevertheless, in light of Behrens, the district court continued by examining the evidence gathered during discovery. The court determined Robbins' had provided ample evidence to support his allegation of a violation of clearly established law and Defendants failed to show the absence of an issue of material fact. Therefore, the district court actually examined the legally relevant factors involved in determining whether summary judgment was appropriate and did not merely rely on law of the case. Because the district court reached the question of whether Robbins met his burden of providing evidence supporting his allegation of a violation of clearly established law, we now review the district court's decision.
20
a. Constitutional Right
21
We first examine whether there is a Fifth Amendment right to exclude the government from one's private property and then inquire whether the Constitution proscribes retaliation for the exercise of that right. "The right to exclude [is] universally held to be a fundamental element of the property right." Kaiser Aetna v. United States, 444 U.S. 164, 178-80, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979); see also Dolan v. City of Tigard, 512 U.S. 374, 384, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). The right has long been recognized as one of the main rights attaching to property. Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (citing Blackstone Commentaries).
22
Defendants nevertheless argue Robbins has no constitutional right to exclude the government under the Fifth Amendment; rather, he is only entitled to just compensation if the government takes his property for public use. Because the government has not effected a taking in this case, Defendants contend Robbins has not alleged a constitutional violation. This argument is unpersuasive.
23
A property owner's right to exclude extends to private individuals as well as the government. See United States v. Lyons, 992 F.2d 1029, 1031 (10th Cir.1993) (the expectations of privacy that are the cornerstone of Fourth Amendment protection against governmental search and seizure derive in part from the right to exclude others, including government officials, from one's property). "The intruder who enters clothed in the robes of authority in broad daylight commits no less an invasion of [property] rights than if he sneaks in in the night wearing a burglar's mask." Hendler v. United States, 952 F.2d 1364, 1375 (Fed.Cir.1991). Defendants' assertion that BLM could have taken Robbins' property for public use after providing just compensation is correct. BLM, however, did not exercise or attempt to exercise its eminent domain power in this case. Instead, Robbins alleges, Defendants attempted to extort a right-of-way to avoid the requirement of just compensation. If the right to exclude means anything, it must include the right to prevent the government from gaining an ownership interest in one's property outside the procedures of the Takings Clause.
24
Defendants also argue that because BLM regulations permit access to and regulation of Robbins' property for certain purposes, Robbins has no right to exclude the BLM. The Supreme Court, however, rejected this argument in Kaiser, 44 U.S. 164, 100 S.Ct. 383. The government claimed a public right of access under the Rivers and Harbors Act to what was once a private pond. Id. at 168, 100 S.Ct. 383. The owner had developed the pond into a private marina by dredging a channel and connecting the pond to a bay. Id. at 165-67, 100 S.Ct. 383. The government claimed that these improvements converted the pond into "navigable water," and thus, by statute, the government was entitled to a public right of access. Id. at 168, 100 S.Ct. 383. The Court disagreed. It noted that while the marina may be subject to regulation by the Corps of Engineers as a navigable water, it did not follow that Congress could require a public right of access without invoking its eminent domain power and paying just compensation. Id. at 172-73, 100 S.Ct. 383. Thus, Robbins has a Fifth Amendment right to prevent BLM from taking his property when BLM is not exercising its eminent domain power.
25
This court has never explicitly recognized a constitutional right to be free from retaliation for the exercise of Fifth Amendment rights. Nevertheless, the right to be free from retaliation in the context of the First Amendment has long been recognized. Although the First Amendment does not expressly forbid retaliation, retaliation by government officials is prohibited under the Amendment because it "tends to chill citizens' exercise of their" rights to speech and association. Perez, 421 F.3d at 1131. This chilling effect applies to the Fifth Amendment right to exclude the government from one's property as well. It is clear that the right to exclude the government is not unlimited. Under the Takings Clause, the government may take private property for public use so long as it provides just compensation. U.S. Const. amend. V. When the government has chosen not to exercise its eminent domain power, however, citizens remain free to exclude even the government from their private property. Kaiser, 444 U.S. at 179-80, 100 S.Ct. 383. If we permit government officials to retaliate against citizens who chose to exercise this right, citizens will be less likely to exclude the government, and government officials will be more inclined to obtain private property by means outside the Takings Clause. The constitutional right to just compensation, in turn, would become meaningless. Because retaliation tends to chill citizens' exercise of their Fifth Amendment right to exclude the government from private property, the Fifth Amendment prohibits such retaliation as a means of ensuring that the right is meaningful.
26
b. Clearly Established
27
As evidenced by the citations above, the right to exclude others from one's property has long been recognized by the courts of this country. See, e.g., Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421. Nevertheless, Defendants argue there is no authority specifically recognizing the right to be free from retaliation for the exercise of Fifth Amendment rights. That is, even if the right to exclude is clearly established, they are still entitled to qualified immunity because the right to be free from retaliation in the private property context is not clearly established. While this assertion is true, it does not follow that the right is not clearly established such that a reasonable official would understand that his actions violate the law. Although alleged rights violations must be analyzed at the proper level of generality, "[t]he more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation." Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.2004). No objectively reasonable government official would think he can retaliate against a citizen for that citizen's exercise of a clearly established constitutional right.
28
In DeLoach v. Bevers, this court examined whether the right to be free from retaliation for the exercise of First Amendment rights was clearly established. 922 F.2d 618, 620 (10th Cir.1990). We stated that "[a]n act taken in retaliation for the exercise of a constitutionally protected right is actionable.... The unlawful intent inherent in such a retaliatory action places it beyond the scope of a police officer's qualified immunity if the right retaliated against was clearly established." Id. (citations and quotations omitted); cf. United States v. Murphy, 65 F.3d 758, 762-63 (9th Cir.1995) (government cannot retaliate against defendant by refusing to file a motion for downward departure under the Federal Sentencing Guidelines because of defendant's failure to waive his Sixth Amendment right to a jury trial). Therefore, although no court has previously explicitly recognized the right to be free from retaliation for the exercise of Fifth Amendment rights, DeLoach requires only that the right retaliated against be clearly established. As we noted above, the right to exclude others from one's property is well established. Robbins has thus sufficiently alleged a violation of his clearly established Fifth Amendment rights, and Defendants are not entitled to qualified immunity on Robbins' Bivens claim.
2. RICO
29
Robbins also alleges Defendants' conduct violated RICO. RICO provides civil remedies for "[a]ny person injured in his business or property by reason of a violation of 18 U.S.C. § 1962." 18 U.S.C. § 1964(c). Section 1962 in turn makes it unlawful for, inter alia, "any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." Id. § 1962(c). Racketeering activity includes, among other predicate acts, any act indictable under the Hobbs Act and any act or threat involving extortion chargeable under state law. Id. § 1961(1)(A) & (B). Robbins alleges Defendants' actions amount to extortion under color of official right and by wrongful use of fear in violation of the Hobbs Act and blackmail under Wyo. Stat. Ann. § 6-2-402.
30
The district court determined that Robbins sufficiently alleged Defendants engaged in a pattern of racketeering involving extortion in violation of clearly established law under RICO, the Hobbs Act, and Wyo. Stat. Ann. § 6-2-402. Defendants do not contest this conclusion. Instead, Defendants argue that to be actionable under the Hobbs Act and Wyoming law, Defendants' attempts to obtain a right-of-way from Robbins must be independently wrongful. Defendants further contend that their actions were not wrongful because BLM regulations permit the BLM to require an applicant for a right-of-way across federal lands to grant the United States an equivalent right-of-way. 43 C.F.R. § 2801.1-2. Because Defendants had legal authority to require Robbins to grant the BLM a right-of-way in exchange for his right-of-way on federal lands, Defendants contend their conduct in seeking the right-of-way does not constitute a clearly established predicate act under either the Hobbs Act or Wyoming law. Defendants, however, apparently misunderstand Robbins' allegations. Robbins does not allege that Defendants committed extortion by attempting to obtain a right-of-way. Rather, he alleges Defendants' other actions, including refusing to maintain the road providing access to Robbins' property, cancelling Robbins' special recreation use permit and grazing privileges, bringing unfounded criminal charges against Robbins, trespassing on Robbins' private property, and interfering with Robbins' guest cattle drives, were all committed in an attempt to coerce Robbins into granting BLM a right-of-way. Thus, it is Defendants' actions other than seeking the right-of-way that Robbins alleges are extortionate. Although Defendants do not enumerate specific regulatory provisions permitting each of their actions, the regulatory authority may exist.3 Nevertheless, we conclude that if Defendants engaged in lawful actions with an intent to extort a right-of-way from Robbins rather than with an intent to merely carry out their regulatory duties, their conduct is actionable under RICO.
31
a. Hobbs Act
32
(1) Statutory Right
33
The Hobbs Act prohibits interference with interstate commerce by extortion, attempted extortion, or conspiracy to commit extortion. 18 U.S.C. § 1951(a). Extortion is defined in the Act as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." Id. § 1951(b)(2).
34
Although they do not phrase it as such, Defendants essentially assert a claim of right or good faith defense to Robbins' allegations that they violated the Hobbs Act. The claim of right defense provides that a person with a lawful claim of right to property cannot be liable for wrongfully acquiring it. United States v. Castor, 937 F.2d 293, 299 (7th Cir.1991). The Supreme Court first recognized the defense in the context of the Hobbs Act in United States v. Enmons, 410 U.S. 396, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973). In Enmons, labor leaders who used violence during collective bargaining were charged with extortion. Id. at 397-98, 93 S.Ct. 1007. The Court reversed the labor leaders' convictions, holding that the Hobbs Act did not prohibit the use of violence to achieve lawful labor union objectives, such as higher wages; rather, the Act only prohibits violence as a means of achieving illegal objectives, such as the exaction of personal payoffs. Id. at 400, 407, 93 S.Ct. 1007.
35
Several courts of appeals, including this court, however, have held that the claim of right defense should be limited to the facts of Enmons, specifically the use of force, violence, or fear in the context of a labor dispute. Castor, 937 F.2d at 299; United States v. Zappola, 677 F.2d 264, 268-69 (2d Cir.1982); United States v. French, 628 F.2d 1069, 1074-75 (8th Cir.1980); United States v. Cerilli, 603 F.2d 415, 419-20 (3d Cir.1979); United States v. Warledo, 557 F.2d 721, 729-30 (10th Cir.1977). As the Second Circuit explained in Zappola, Congress meant to define extortion in the Hobbs Act as it was defined under New York state law. 677 F.2d at 268; see also Scheidler v. Nat'l Org. for Women, Inc., 537 U.S. 393, 402, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003). Moreover, at the time the Hobbs Act was enacted, it was clear under New York law that a claim of right to property that one obtains by violence, force, or threats was not a defense to extortion. Zappola, 677 F.2d at 268. Thus, outside the context of labor disputes, in passing the Hobbs Act, "Congress meant to punish as extortion any effort to obtain property by inherently wrongful means, such as force or threats of force or criminal prosecution, regardless of the defendant's claim of right to the property." Id. at 269.
36
The claim of right defense has been rejected both in the context of extortion by actual or threatened physical violence and extortion under color of official right. For example, in Warledo, this court considered a case in which defendants, who were charged under the Hobbs Act for violence committed against various railroads, argued that they were not guilty of extortion because their violence was aimed at obtaining money the railroad allegedly owed them pursuant to a lawful claim. 557 F.2d at 728-29. We rejected defendants' argument, reasoning that pursuit of an allegedly valid claim by threatened and actual physical violence was not a defense to Hobbs Act extortion. Id. at 730.
37
The claim of right defense was similarly rejected in a case involving extortion under color of official right in Cerilli. 603 F.2d at 418-21. Defendants in Cerilli were employees of the Pennsylvania Department of Transportation and were responsible for leasing equipment from private businesses to repair and maintain public roads. Id. at 418. Defendants sought payment from the individual business owners as a condition of their equipment being used and were charged with extortion under the Hobbs Act. Id. Defendants claimed, and the court accepted, that the payments they received were political contributions. Id. Defendants argued that because solicitation of political contributions is lawful, they were not guilty of extortion under color of official right for seeking the payments. Id. The Third Circuit rejected defendants' argument concluding that while "[t]he receipt of money [] by a political party ... is generally not inherently wrongful ...., [t]he wrong under the Hobbs Act is the manner in which it is obtained." Id. at 419-20. These cases rejecting the claim of right defense establish that a lawful right to property or lawful authority to obtain property is not a defense to extortion; rather, if an official obtains property that he has lawful authority to obtain, but does so in a wrongful manner, his conduct constitutes extortion under the Hobbs Act.
38
Defendants nevertheless argue that their conduct was not extortionate, but merely the zealous exercise of regulatory authority. Defendants cite Sinclair v. Hawke, in which the owner of a bank sued employees of the Office of the Comptroller of the Currency under RICO alleging they engaged in a pattern of racketeering activity. 314 F.3d 934, 939 (8th Cir. 2003). The court dismissed the RICO claim concluding that federal employees do not become racketeers by taking regulatory action consistent with their statutory powers. Id. at 943-44. In this case, however, there is a factual dispute, not present in Sinclair, regarding whether Defendants were merely enforcing the law or using their otherwise lawful authority to extort a right-of-way from Robbins. The district court specifically determined there was question of material fact regarding Defendants' intent.4 If the trier of fact finds Defendants in fact intended to extort a right-of-way from Robbins, then Defendants' conduct was not merely the zealous exercise of regulatory authority; it was extortion and is actionable under the Hobbs Act.
39
(2) Clearly Established
40
The five circuits that have addressed the claim of right defense outside the labor context have rejected the defense. Although no court has rejected the claim of right defense under circumstances identical to the ones presented by this case, it is not necessary for the precise conduct of Defendants to have been previously held unlawful to defeat a claim of qualified immunity. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). It is sufficient if preexisting law put Defendants on fair notice that their conduct violated the law. Id.; United States v. Lanier, 520 U.S. 259, 270-71, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). Moreover, although we must analyze alleged rights violations at the proper level of generality, "the degree of specificity required from prior case law depends in part on the character of the challenged conduct." Pierce, 359 F.3d at 1298. "The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation." Id. Each of the five circuits that have addressed the issue have held that a lawful right to property or lawful authority to obtain property does not permit a defendant to use any means necessary to obtain the property. Thus, the weight of authority clearly prohibits Defendants' alleged conduct. See Anaya v. Crossroads Managed Care Sys., Inc., 195 F.3d 584, 594 (10th Cir.1999) (law was clearly established when six circuits, not including the Tenth Circuit, that had addressed the issue all came to the same conclusion). Further, in light of the egregious nature of Defendants' alleged conduct,5 authority rejecting the claim of right defense generally and in cases involving extortion under color of official right specifically were sufficient to put Defendants on notice that their conduct violated the law. Viewing the facts in the light most favorable to Robbins, as we must, we conclude that Robbins has sufficiently alleged a violation of his clearly established statutory rights under the Hobbs Act.
41
b. Wyoming law
42
(1) Statutory Right
43
Robbins also alleges Defendants' violations of Wyo. Stat. Ann. § 6-2-402 qualify as predicate acts of racketeering activity under RICO. 18 U.S.C. § 1961(1)(A). Wyo. Stat. Ann. § 6-2-402 provides:
44
(a) A person commits blackmail if, with the intent to obtain property of another or to compel action or inaction by any person against his will, the person:
45
....
46
(ii) Accuses or threatens to accuse a person of a crime or immoral conduct which would tend to degrade or disgrace the person or subject him to the ridicule or contempt of society.6
47
Robbins alleges Defendants violated this provision by accusing and threatening to accuse him of various crimes to coerce him into granting BLM a right-of-way. Defendants once again argue that their conduct must be wrongful to constitute a violation of Wyoming law actionable under RICO. Specifically, Defendants note that the Supreme Court has held that because RICO defines racketeering activity as an "act or threat involving... extortion, ... which is chargeable under State law," the conduct proscribed under the state law relied on must be capable of being generically classified as extortionate. Scheidler, 537 U.S. at 409, 123 S.Ct. 1057. Moreover, "generic extortion is defined as obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats." Id. (quotations omitted). Therefore, Defendants urge "for the same reasons that Robbins' claims are not extortion under the Hobbs Act," they are not extortionate under Wyoming law.
48
Defendants argument is, once again, unavailing. We agree that conduct proscribed under state law must be generically classified as extortionate to qualify as a predicate act under RICO. Nevertheless, for the same reasons Defendants' alleged lawful authority to require a reciprocal right-of-way from Robbins did not give them authority to use any means necessary to extort the right-of-way under the Hobbs Act, that authority does not provide a defense under Wyoming law.
49
(2) Clearly Established
50
The parties have not cited, and this court cannot find, any authority from Wyoming state courts addressing the applicability of the claim of right defense under Wyo. Stat. Ann. § 6-2-402. It is clear from the language of the statute, however, that Defendants' claim of lawful authority to require Robbins to grant BLM a right-of-way does not allow Defendants to accuse Robbins of a crime with the intent to obtain the right-of-way.
51
In Lanier, the Supreme Court noted that "the qualified immunity test is simply the adaptation of the fair warning standard [of criminal law]" to government officials facing civil liability. 520 U.S. at 270-71, 117 S.Ct. 1219. The fair warning standard requires the statute under which a defendant is charged, "either standing alone or as construed by the courts," make it reasonably clear that the defendant's conduct was criminal. Id. at 267, 117 S.Ct. 1219 (emphasis added). Thus, it follows that if the text of a statute clearly establishes the contours of a right, the statute alone is sufficient to put an objectively reasonable official on notice that conduct within the plain text of the statute violates that right for purposes of qualified immunity. See Greene v. Barrett, 174 F.3d 1136, 1142-43 (10th Cir.1999) (property right was not clearly established, in part, because state statute was ambiguous).
52
The language of the Wyoming statute is unambiguous. The statute clearly establishes that it is unlawful to accuse or threaten to accuse a person of a crime with the intent to obtain that person's property or compel some other action or inaction. BLM regulations requiring a reciprocal right-of-way may be relevant to demonstrate that Defendants did not accuse Robbins of crimes with the intent to obtain a right-of-way because Defendants already had legal authority to require a right-of-way, and thus, did not need to extort one. BLM regulations, however, cannot serve as a defense if the trier of fact finds that Defendants accused Robbins of crimes with the intent to obtain a right-of-way or to compel Robbins to grant a right-of-way, because the text of the statute clearly establishes that this conduct violates the statute. Because Robbins adduced sufficient evidence Defendants accused and threatened to accuse him of various crimes to obtain a right-of-way in clear violation of the text of the statute, Robbins has sufficiently alleged a violation of clearly established statutory rights under Wyoming law.
C. Administrative Procedures Act
53
Defendants also argue that Robbins' Bivens claim is precluded by the Administrative Procedures Act ("APA"). Specifically, this court previously held that the APA provides an alternative, equally effective remedy for individual action leading to a final agency decision. Robbins I, 300 F.3d at 1212-13. Therefore, we reasoned, only Robbins' allegations involving individual action unrelated to final agency action are permitted under Bivens. Id. Defendants claim the district court never examined Robbins' complaint to determine which allegations remain and which are precluded, and ask us to do so now.
54
The district court did not address whether any conduct alleged in Robbins' complaint is precluded by the APA because Defendants did not raise this issue in their motion for summary judgment. Because we generally do not consider issues not raised below, we decline to address Defendants' argument. Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir.1992).
IV. Conclusion
55
For the foregoing reasons, this court AFFIRMS the district court's denial of Defendants' motion for summary judgment on qualified immunity.
Notes:
1
Prior toBehrens, two circuits dismissed appeals involving a second denial of qualified immunity because the second motion was substantially the same as the first. Armstrong v. Tex. State Bd. of Barber Exam'rs, 30 F.3d 643, 644 (5th Cir.1994); Taylor v. Carter, 960 F.2d 763, 764 (8th Cir.1992). But see Grant v. City of Pittsburgh, 98 F.3d 116, 120 (3d Cir.1996) (distinguishing Armstrong and Taylor in a case where defendant's second motion relied on material developed during discovery).
2
InKimberlin v. Quinlan, the Court of Appeals for the District of Columbia upheld a district court's reliance on law of the case in dismissing defendant's motion to dismiss or for summary judgment on qualified immunity when the district court had previously determined on a prior motion to dismiss or for summary judgment that plaintiff had alleged a violation of clearly established law. 199 F.3d 496, 500-01 (D.C.Cir.1999). Kimberlin is distinguishable from the present case, however, because, in Kimberlin, "the relevant facts [had not] changed" between the denial of dismissal and summary judgment. Id. at 501. Thus, the same facts and same issues were under consideration in both motions, making law of the case applicable. Here, the relevant facts are different. As the district court noted, Robbins' motion in opposition to summary judgment included 248 exhibits supporting his claim that were not available at the motion to dismiss stage.
3
Defendants do provide regulatory authority for some of their alleged conduct. Specifically, Defendants reference a BLM regulation which permits BLM to include in grazing permits "a statement disclosing the requirement that permittees or lessees shall provide reasonable administrative access across private and leased lands to the [BLM] for the orderly management and protection of the public lands." 43 C.F.R. § 4130.3-2(h). Additionally, Defendants cite 43 C.F.R. § 2801.3(a) which states that the use of public lands requiring a right-of-way without authorization is a trespass
4
We do not have jurisdiction to examine the district court's determination regarding evidentiary sufficiency on interlocutory appealFoote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir.1997).
5
The district court noted that Robbins submitted "evidence of Defendants' alleged motive and intent, threats, lies, trespass, disparate treatment and harassment in the form of various depositions, including [the] deposition of a former BLM [employee], various letters, criminal trial transcript and trespass notices."
6
Although the statute defines the crime as blackmail, it also notes that "[c]onduct denoted blackmail in this section constitutes a single offense embracing the separate crimes formerly known as blackmail and extortion." Wyo. Stat. Ann. § 6-2-402(e);cf. United States v. Nardello, 393 U.S. 286, 296, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969) (Travel Act's prohibition against extortion under state law applies to extortionate conduct classified by a state penal code as blackmail rather than extortion).
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Case: 12-50428 Document: 00512057008 Page: 1 Date Filed: 11/19/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 19, 2012
No. 12-50428
Summary Calendar Lyle W. Cayce
Clerk
KINGSLEY DAYO,
Petitioner-Appellant
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL; JANET NAPOLITANO,
SECRETARY, DEPARTMENT OF HOMELAND SECURITY; MICHAEL J.
PITTS, Field Office Director for ICE - San Antonio, Texas District; G. GOMEZ,
Warden of the South Texas Detention Complex - Pearsall, Texas,
Respondents-Appellees
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:12-CV-81
Before JOLLY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Kingsley Dayo, a native and citizen of Nigeria, moves this court for
authorization to proceed in forma pauperis (IFP) in an appeal from the dismissal
of his 28 U.S.C. § 2241 petition. Dayo filed the petition to challenge his
continued detention, which he argued violated the statutes governing his
detention, as well as his substantive and procedural due process rights. The
*
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: 12-50428 Document: 00512057008 Page: 2 Date Filed: 11/19/2012
No. 12-50428
parties agreed to proceed before the magistrate judge. The magistrate judge
determined that, when Dayo filed the § 2241 petition, his initial removal
proceeding had been terminated in his favor and that he was in custody due to
the commencement of a second removal proceeding. The magistrate judge
therefore held that his claims related to the initial removal proceedings were
moot and that any claim for relief related to his current detention was
premature.
By moving to proceed IFP, Dayo is challenging the magistrate judge’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997). Dayo, however, does not challenge the magistrate
judge’s reasons for dismissing his § 2241 petition. His entire brief is devoted to
addressing purported due process violations concerning his first removal
proceeding, but he fails to address the magistrate judge’s conclusion that these
claims were moot. Accordingly, he has abandoned any challenge to the
magistrate judge’s determination that his § 2241 petition should be dismissed.
See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987).
Dayo has failed to show that his appeal involves “legal points arguable on
their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983) (internal quotation marks and citations omitted). His IFP motion
is therefore denied, and his appeal is dismissed. See Baugh, 117 F.3d at 202 &
n.24. His motion to expedite is denied as well.
MOTIONS DENIED; APPEAL DISMISSED.
2
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868 F.2d 236
63 A.F.T.R.2d 89-695, 89-1 USTC P 9184
Marvin D. MILLER, Plaintiff-Appellant,v.UNITED STATES of America and Internal Revenue Service,Defendants-Appellees.
No. 87-2969.
United States Court of Appeals,Seventh Circuit.
Submitted Aug. 30, 1988.*Decided Feb. 8, 1989.
Marvin D. Miller, Knox, Ind., for plaintiff-appellant.
J. Philip Klingeberger, Asst. U.S. Atty., Hammond, Ind., Gary R. Allen, Chief, Appellate Sec., Ann Belanger Durney, Raymond W. Hepper and Williams S. Rose, Jr., Asst. Attys. Gen., Tax Div., Dept. of Justice, Washington, D.C., for defendants-appellees.
Before POSNER, MANION and KANNE, Circuit Judges.
PER CURIAM.
1
Marvin Miller is a tax protester whose persistence in pursuing meritless constitutional claims through the use of the judicial review mechanism for penalty assessments under the frivolous tax return provision of 26 U.S.C. Sec. 6702 caused the district court to sanction him $1500 for costs and attorneys' fees under Rule 11 of the Federal Rules of Civil Procedure. The court also enjoined Miller from filing such claims in the future without first obtaining leave of court, 669 F.Supp. 906. Miller has brought this pro se appeal from the district court's denial of his motion to reconsider these sanctions.
I. BACKGROUND
2
This appeal arises from Miller's third attempt to challenge the constitutionality of the entire federal income tax structure. The genesis of the present action is Miller's 1984 tax return, in which he chose not to provide any information regarding his income. Instead, Miller entered either the word "None" or a double asterisk ("**") after each question on the return. Miller also typed a note on the return, explaining that the double asterisks signified his "specific objection to the question under the 5th Amendment U.S. Constitution," and "similar objections under 1, 4, 7, 8, 9, 10, 13 & 14th Amendments." Miller also typed on the return that "[n]ew evidence, Certified and Documented, Shows the 16th Amendment was never legally passed. This means the whole Form, The IRS and income tax Structure is Fraudulent and Illegal, doesn't it? Please Advise!" The Internal Revenue Service responded by assessing Miller with a civil penalty of $500 for filing a "frivolous" return within the meaning of 26 U.S.C. Sec. 6702.1 Miller paid $75 of the penalty and filed unsuccessfully for a refund. He then relied on the judicial review provisions of 26 U.S.C. Sec. 67032 to challenge his assessment and the constitutionality of the sixteenth amendment in district court.3
3
In his complaint, Miller alleges that the sixteenth amendment is unconstitutional because it was illegally ratified. More specifically, he states in Count II that a book by William Benson and "Red" Beckman entitled The Law That Never Was (1985), documents the impropriety of the ratification process. Miller asked the district court to determine the legality of the sixteenth amendment, refund the $75 he paid toward the frivolous filing penalty, and rescind the unpaid balance of the penalty. The government, in turn, moved for summary judgment and requested attorneys' fees and costs for defending against a frivolous suit.
4
On September 3, 1987, the district court granted the government's motion and dismissed Miller's complaint. The district court also sanctioned Miller $1500 under Rule 11 of the Federal Rules of Civil Procedure and enjoined him from filing any further actions before it without first obtaining leave of court. The district court specified that leave to file would hinge upon Miller's certification that his claim is not one which he has previously pressed before the court and lost, and that the claim is brought in the good faith belief that it is not frivolous. On October 5, 1987, Miller filed a motion asking the district court to reconsider its sanctions. This the district court declined to do, and on December 1, 1987, Miller filed a notice of appeal. In this appeal, Miller argues that he brought his claim in good faith and that the sanctions are excessive.
II. ANALYSIS
5
The merits of the district court's imposition of sanctions in the present case are not before us since Miller filed his notice of appeal from the district court's September 3, 1987, dismissal order well beyond the sixty-day period prescribed for suits against the United States. Fed. R. App. P. 4(a)(1); Pryor v. U.S. Postal Service, 769 F.2d 281, 284 (5th Cir.1985). Adherence to this time limit is both mandatory and jurisdictional. Browder v. Director, Dept. of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 561, 54 L.Ed.2d 521 (1978). Thus, the failure to file a timely notice from the district court's final judgment leaves us without appellate jurisdiction. Wort v. Vierling, 778 F.2d 1233, 1234 (7th Cir.1985). Miller's motion urging the district court to reconsider its order of sanctions--filed over one month after the court entered the order--must be treated as a motion under Rule 60(b). Browder, 434 U.S. at 263 n. 7, 98 S.Ct. at 560 n. 7. As such, it did not toll the time in which to file the notice of appeal from the district court's judgment. Id.; Marane, Inc. v. McDonald's Corp., 755 F.2d 106, 112 (7th Cir.1985). Our review is therefore limited to the question whether the district court abused its discretion in denying the motion for reconsideration. Marane at 755 F.2d 112; Tunca v. Lutheran General Hospital, 844 F.2d 411, 412 (7th Cir.1988).
6
Relief from a judgment under Rule 60(b) is limited to the following reasons: mistake, inadvertence, excusable neglect, newly discovered evidence, fraud, and "any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b). Miller made no reference to any of these grounds in his motion to reconsider. Rather, his request for relief is based upon the allegations that the district court encouraged him to prosecute his case by granting him a jury trial in response to his request; that he was not using the courts frivolously because he was following a statutorily proscribed procedure; and that the sanctions against him are excessive. Each of these claims is without merit. For example, the first claim is unavailing since the district court's order granting Miller a jury trial according to 28 U.S.C. Sec. 2402 if his case proceeded to that point cannot legitimately be considered "encouragement" to prosecute a frivolous action. Miller's contention that his claims are not frivolous merely because he is following the procedure enumerated in 26 U.S.C. Secs. 6702 and 6703 is equally meritless. However, his argument on this point has highlighted a trend of rather significant proportions which may benefit from some attention.
7
When Congress instituted the frivolous return penalty provisions of 26 U.S.C. Secs. 6702 and 6703, it was seeking to address the vexing problem associated with the approximately 13,600 illegal protest returns the Internal Revenue Service had under investigation as of June 30, 1981. The legislative history of these provisions reveals that Congress sought to implement a mechanism for addressing the "rapid growth in deliberate defiance of the tax laws by tax protestors." S.Rep. No. 97-494, 97th Cong., 2d Sess. 278, reprinted in 1982 U.S.Code Cong. & Ad. News 781, 1024 [hereinafter Senate Report]. To that end, Sec. 6702 was intended to provide the IRS with an immediately assessable penalty for such frivolous protest returns. The Senate Report specifically stated that "the penalty will be immediately assessable against any individual filing a return in which many or all of the line items are not filled in except for references to spurious constitutional objections." Senate Report, 1982 U.S.Code Cong. & Ad.News at 1024. Similarly, it is clear that Sec. 6703 was designed to provide only limited federal judicial review of whether the penalty imposed under Sec. 6702 was proper in light of the aims of Congress. Senate Report, 1982 U.S.Code Cong. & Ad.News at 1025.
8
The legislative history of these provisions makes it clear that in this case as well as in his two previous actions, Miller has sought to turn the judicial review procedure of Sec. 6703 on its head by making it a vehicle for challenging the constitutionality of the sixteenth amendment. Miller's repeated abuse of Sec. 6703 to press his stale constitutional claims has confounded Congress' larger and unquestionably legitimate aim of maintaining the integrity of the income tax system. Senate Report, 1982 U.S.Code Cong. & Ad.News at 1025.
9
Our research into the practice employed by Miller and the issues he has attempted to raise reveals a troubling pattern of similar cases. Schoffner v. Commissioner of Internal Revenue, 812 F.2d 292 (6th Cir.1987) (challenge to frivolous penalty assessment for filing return containing asterisks and blanket fifth amendment objection); Eicher v. United States, 774 F.2d 27 (1st Cir.1985) (challenge to frivolous penalty assessment for filing return containing asterisks and blanket fifth amendment objection); Paulson v. United States, 758 F.2d 61 (2d Cir.1985) (challenge to frivolous penalty assessment for filing return containing asterisks and series of constitutional objections); Boomer v. United States, 755 F.2d 696 (8th Cir.1985) (challenge to frivolous penalty assessment for filing return containing asterisks and blanket constitutional objections); Baskin v. United States, 738 F.2d 975 (8th Cir.1984) (challenge to frivolous penalty assessment for filing return containing asterisks and blanket fifth amendment and other constitutional objections); Parker v. Commissioner of Internal Revenue, 724 F.2d 469 (5th Cir.1984) (challenge to tax deficiency determination and penalty for filing an inappropriate return containing asterisks and blanket fifth amendment objection).
10
As best we can surmise, Miller, like the plaintiffs in the foregoing cases, has followed the advice of those associated with the "tax protester movement." The leaders of this movement conduct seminars across the country in which they attempt to convince taxpayers that the sixteenth amendment and assorted enforcement provisions of the tax code are unconstitutional. See, e.g. United States v. Hairston, 819 F.2d 971, 972 (10th Cir.1987). Members are encouraged to defy the income tax filing requirements through returns like those noted above. They are then instructed to obtain a jury trial so that potentially like-minded jurors may be persuaded to acquit in the exercise of their power of jury nullification. See, e.g., United States v. Ogle, 613 F.2d 233, 236-37 (10th Cir.1979). The movement's manifesto, Benson and Beckman's The Law That Never Was, is a collection of documents relating to the ratification of the sixteenth amendment, and is intended to be both a call to arms for the movement and "exhibit A" in the trials of tax protesters who argue that the sixteenth amendment was illegally ratified. Id. at xvii ("The tax protestor will be the great American hero of 1985 just as in 1776. It was tax protestors, not any political party, or judge or prosecutor who gave us our great Constitutional Republican form of government. The tax protest is more American than baseball, hot dogs, apple pie or Chevrolet!!").
11
In the eyes of the authors, the most damning evidence of the illegality of sixteenth amendment is a 1913 memorandum from the Solicitor of the Department of State to then Secretary of State Knox outlining the minor grammatical discrepancies in the instruments ratified in many of the states. This circuit has squarely addressed the merits of the ratification argument in two recent cases. United States v. Foster, 789 F.2d 457, 462-63 (7th Cir.1986) (73 years of application of the amendment is very persuasive on the question of validity); United States v. Thomas, 788 F.2d 1250, 1253-54 (7th Cir.1986) (amendment treated as properly adopted under the "enrolled bill rule"). In Thomas, we explained that:
12
Benson and Beckman did not discover anything; they rediscovered something that Secretary Knox considered in 1913. Thirty-eight states ratified the sixteenth amendment, and thirty-seven sent formal instruments of the ratification to the Secretary of State.... Only four instruments repeat the language of the sixteenth amendment exactly as Congress approved it. The others contain errors of diction, capitalization, punctuation, and spelling.... [the defendant] insists that because the states did not approve exactly the same text, the amendment did not go into effect. Secretary Knox considered this argument. The Solicitor of the Department of State drew up a list of the errors in the instruments and--taking into account both the triviality of the deviations and the treatment of earlier amendments that had experienced more substantial problems--advised the Secretary that he was authorized to declare the amendment adopted. The Secretary did so.... [his] decision is now beyond review.
13
Id. at 1253 (emphasis in original). See also United States v. Stahl, 792 F.2d 1438, 1439 (9th Cir.1986), cert. denied 479 U.S. 1036, 107 S.Ct. 888, 93 L.Ed.2d 840 (1987) (propriety of the ratification process is a political question).
14
We find it hard to understand why the long and unbroken line of cases upholding the constitutionality of the sixteenth amendment generally, Brushaber v. Union Pacific Railroad Company, 240 U.S. 1, 36 S.Ct. 236, 60 L.Ed.2d 493 (1916), and those specifically rejecting the argument advanced in The Law That Never Was, have not persuaded Miller and his compatriots to seek a more effective forum for airing their attack on the federal income tax structure. See Foster, 789 F.2d at 463 n. 6 (the propriety of the ratification of a constitutional amendment may be a non-justiciable political question). Determined and persistent tax protesters like Miller seek to utilize the federal judicial forum without consideration of the significant limitations on the authority of both the district courts and the courts of appeal. One such limitation stems from the bedrock principle of stare decisis: lower courts are bound by the precedential authority of cases rendered by higher courts. U.S. Ex Rel. Shore v. O'Leary, 833 F.2d 663, 667 (7th Cir.1987). This limitation on judicial power is one of the cornerstones of the legal structure in that it serves broader societal interests such as the orderly and predictable application of legal rules. This doctrine prevents us from disregarding the Supreme Court's opinions upholding the constitutionality of the sixteenth amendment. The Court's decisions are binding on us and the district court absent strong evidence that the Court will overrule its own cases. Colby v. J.C. Penney Co., 811 F.2d 1119, 1123 (7th Cir.1987). We perceive no signs that the Supreme Court is harboring any such intentions with regard to the validity of the sixteenth amendment.
15
Miller would have us disregard this principle and overturn almost three quarters of a century of settled law and declare the sixteenth amendment unconstitutional. He has asked us and the district court to do that which we have no authority to do. He would have us substitute one brand of lawlessness (from his perspective) with a form of lawlessness of our own. Miller and his fellow protesters would be well advised to take their objections to the federal income tax structure to a more appropriate forum.
16
This advice has been offered on other occasions. Coleman v. Commissioner of Internal Revenue, 791 F.2d 69, 72 (7th Cir.1986) (tax protesters "must choose other forums, and there are many available"). In the circumstances, the sanctions imposed by the district court were appropriate. With particular reference to the injunction limiting Miller's access to the federal courts, we note that the district court was struggling with a persistent tax protester who was undaunted by his failure in two previous cases in as many years. A monetary sanction of $500 in the latter of those two cases did not prevent Miller from returning to the federal courthouse for yet a third time with the identical claims. The district court was thus faced with a plaintiff as intransigent as the tax protester we sanctioned in Lysiak v. C.I.R., 816 F.2d 311 (7th Cir.1987), and properly drew upon the injunctive relief we imposed in Lysiak to fashion a remedy to address the parallel strains that Miller's frivolous filings were having on its crowded docket and limited resources. Id. at 313. Miller may exercise his right to access the federal courts upon a simple showing that his claim is colorable. See Coleman, 791 F.2d at 72 (there is no constitutional right to bring a frivolous suit). We therefore reject Miller's claim that the sanctions were excessive and hold that the district court did not abuse its discretion in denying his motion for reconsideration.
17
This, however, is not the end of the matter. The present appeal is a patently frivolous one that has generated additional costs for the defendants and this court. Five years ago we warned plaintiffs like Miller that while the doors of the courthouse are open to good faith appeals, "we can no longer tolerate abuse of the judicial review process by irresponsible taxpayers who press stale and frivolous arguments ... In the future we will deal harshly with frivolous tax appeals and will not hesitate to impose sanctions under appropriate circumstances." Granzow v. C.I.R., 739 F.2d 265, 269-70 (7th Cir.1984). This is such a circumstance. Although Miller is acting pro se, he knew or should have known that his position was groundless. Coleman, 791 F.2d at 71 (a court may and should impose sanctions if a person knows his position is groundless). Each of the three district judges before whom Miller has appeared have taken pains to explain the meritlessness of his position. Scott v. Younger, 739 F.2d 1464, 1467 (9th Cir.1984) (reassertion of issues disposed of in prior proceedings is sanctionable). In conformity with our policy for such tax protester cases, Coleman, 791 F.2d at 73, we hereby sanction Miller $1500 in lieu of attorneys' fees under Rule 38 of the Federal Rule of App. Procedure.
18
The judgment of district court is affirmed, with double costs and $1500 in damages imposed against the plaintiff-appellant. Miller is ordered to make payment to the Clerk of this court within thirty (30) days by a check made payable to the U.S. Treasury.
19
So ordered.
*
After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Rule 34(a), Fed.R.App.P.; Circuit Rule 34(f). No such statement having been filed, the appeal has been submitted on the briefs and record
1
The frivolous return provision of 26 U.S.C. Sec. 6702 provides that if:
(1) any individual files what purports to be a return of the tax imposed by subtitle A but which--
(A) does not contain information on which the substantial correctness of the self-assessment may be judged, or
(B) contains information that on its face indicates that the self-assessment is substantially incorrect; and
(2) the conduct referred to in paragraph (1) is due to--
(A) a position which is frivolous, or
(B) a desire (which appears on the purported return) to delay or impede the administration of Federal income tax laws,
then such individual shall pay a penalty of $500.
2
In pertinent part, 26 U.S.C. Sec. 6703 provides:
(1) In general--If, within 30 days after the day on which notice and demand of any penalty under section 6700, 6701, or 6702 is made against any person, such person pays an amount which is not less than 15 percent of the amount of such penalty and files a claim for refund of the amount so paid, no levy or proceeding in court for the collection of the remainder of such penalty shall be made, begun, or prosecuted until the final resolution of a proceeding begun as provided in paragraph (2) ...
(2) Person must bring suit in district court to determine his liability for penalty.
3
On two prior occasions Miller tried to press his constitutional objections to the federal income tax structure through use of the judicial review provisions of 26 U.S.C. Sec. 6703. The first stemmed from Miller's purported tax return for 1982, which contained double asterisks and noted constitutional objections identical to the ones made in this case. The IRS sanctioned Miller $500 under Sec. 6702. He paid $75.00 of the sanction, filed an unsuccessful claim for a refund, and then brought suit under Sec. 6703. The district court granted the government's motion to dismiss in a published order which fully explained the inefficacy of Miller's blanket constitutional objections. Miller v. United States, 577 F.Supp. 980 (N.D.Ind.1984). Nonetheless, Miller repeated this process in filing his 1983 tax return. In an unpublished opinion, the district court again dismissed Miller's action, reiterating its analysis of the inefficacy of such blanket objections. The district court also sanctioned Miller $500 in attorneys' fees and costs under Fed.R.Civ.P. 11. We affirmed the district court's order in an unpublished opinion. Miller v. IRS, 799 F.2d 753 (7th Cir.1986)
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